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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 granted the Commission a mandate to open negotiations with third countries on the replacement of certain provisions in existing agreements with an agreement at Union level(the “horizontal mandate”). 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 service agreements between Member States and third countries in line with the law of the Union.
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 the law of the Union. 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 Community 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 EuropeanUnion which guarantees nationals of Member States who have exercised their freedom of establishment the same treatment in the host Member State as that accordedto nationals of that Member State.
There are further issues, such as aviation fuel taxation or tariffs introduced by third country air carriers on intra-
EU routes, where compliance with the law of the Union should be ensured through amending or complementing existing provisions in bilateral air services agreements between Member States and third countries.
Existing provisions in the area of the proposal
The provisions of the Agreement supersede or complement the existing provisions in the nine bilateral air services agreements between Member Statesand the Republic of Peru.
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 the law of the Union.
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