Explanatory Memorandum to COM(2015)424 - Signing and provisional application of the Agreement with the Government of Bangladesh on certain aspects of air services

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dossier COM(2015)424 - Signing and provisional application of the Agreement with the Government of Bangladesh on certain aspects of air services.
source COM(2015)424 EN
date 07-09-2015


1. CONTEXT OF THE PROPOSAL

• Grounds for and objectives of the proposal

Following the judgements of the Court of Justice in the so-called “Open Skies” cases, on 5 June 2003 the Council authorized the Commission to open negotiations with third countries on the replacement of certain provisions in existing agreements with an agreement at Union level (the “horizontal authorisation”). The objectives of such agreements are to give all European Union air carriers non-discriminatory access to routes between the European Union and third countries, and to bring bilateral air services agreements between Member States and third countries in line with Union law.

• General context

International aviation relations between Member States and third countries have traditionally been governed by bilateral air services agreements between Member States and third countries, the annexes to such agreements and other related bilateral or multilateral arrangements.

Traditional designation clauses in Member States’ bilateral air services agreements infringe Union law. They allow a third country to reject, withdraw or suspend the permissions or authorisations of an air carrier that has been designated by a Member State but that is not substantially owned and effectively controlled by that Member State or its nationals. This has been found to constitute discrimination against EU air carriers established in the territory of a Member State but owned and controlled by nationals of other Member States. This is contrary to Article 49 of the Treaty on the Functioning of the European Union which guarantees nationals of Member States who have exercised their freedom of establishment the same treatment in the host Member State as that accorded to nationals of that Member State.

• Existing provisions in the area of the proposal

The provisions of the Agreement supersede or complement the existing provisions in 8 bilateral air services agreements between Member States and the People's Republic of Bangladesh.

• Consistency with the other policies and objectives of the Union

The Agreement will serve a fundamental objective of the external aviation policy of the Union by bringing existing bilateral air services agreements in line with Union law.

2. CONSULTATION OF INTERESTED PARTIES

Consultation methods, main sectors targeted and general profile of respondents

In line with Article 218 i TFEU, the Commission has conducted the negotiations in consultation with a special committee. Industry has equally been consulted during the negotiations.

Summary of responses and how they have been taken into account

Comments made in this process have been taken into account. The Member States concerned verified the accuracy of the references to the bilateral air services agreements. Industry underlined the importance of a sound legal basis for their commercial operations.

3. LEGAL ELEMENTS OF THE PROPOSAL

• Summary of the proposed action

In accordance with the mechanisms and directives in the Annex to the ”horizontal authorisation”, the Commission has negotiated an agreement with the People's Republic of Bangladesh that replaces certain provisions in the existing bilateral air services agreements between Member States and the People's Republic of Bangladesh. Article 2 of the Agreement replaces the traditional designation clauses with an EU designation clause, permitting all EU carriers to benefit from the right of establishment. Article 5 resolves potential conflicts with the competition rules of the Union.

The negotiations on the agreement having been successfully concluded, it should be signed on behalf of the European Union. A decision to this effect is proposed herewith.

It is also proposed to have the agreement provisionally applied from the date of signature to ensure that the bilateral air services agreements between Member States and the People's Republic of Bangladesh are applied in line with Union law without any further delays. Provisional application is essential as experience with similar agreements has shown that ratification processes can be lengthy.

• Legal basis

Art. 100 i, 218(5) TFEU

• Choice of instruments

The Agreement between the Union and the People's Republic of Bangladesh is the most efficient instrument to bring all existing bilateral air services agreements between Member States and the People's Republic of Bangladesh into conformity with Union law.

4. BUDGETARY IMPLICATION

The proposal has no implication for the budget of the Union.