Explanatory Memorandum to COM(2022)726 - Signing of the Agreement with Japan on certain aspects of air services - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)726 - Signing of the Agreement with Japan on certain aspects of air services. |
|---|---|
| source | COM(2022)726  |
| date | 15-12-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons 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 authorised the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral air services agreements with an agreement at Union level (the “horizontal authorisation”). The objectives of such agreements are to give all EU air carriers non-discriminatory access to routes between the European Union and third countries, and hence to bring bilateral air services agreements between Member States and third countries in line with Union law.
• Consistency with existing policy provisions in the policy area
The provisions of the Agreement supersede the corresponding existing provisions in 13 bilateral air services agreements between Member States and Japan.
• Consistency with other Union policies
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. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Articles 100(2) and 218(5) TFEU.
• Subsidiarity (for non-exclusive competence)
The Union has exclusive external competence in the field if air transport agreements. Furthermore, the objectives of the Agreement cannot be adequately achieved by the Member States as the matters covered by the Agreement are of horizontal nature. Action at Union level is more effective as the Union has a greater negotiating power than individual Member States. This single agreement will cover the relevant provisions of all bilateral air services agreements between Member States and Japan. Lastly, the proposal is entirely based on the “horizontal authorisation” granted by the Council, taking into account the issues covered by Union law and bilateral air services agreements.
• Proportionality
The Agreement will amend or complement provisions in bilateral air services agreements only to the extent necessary to ensure compliance with Union law.
• Choice of the instrument
The Agreement between the Union and Japan is the most efficient instrument to bring all existing bilateral air services agreements between Member States and Japan into conformity with Union law.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Not applicable.
• Stakeholder consultations
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. 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.
• Collection and use of expertise
Not applicable.
• Impact assessment
Not applicable.
• Regulatory fitness and simplification
The proposal provides for simplification of legislation. The relevant provisions of bilateral air services agreements between Member States and Japan will be superseded by provisions in one single agreement.
• Fundamental rights
Not applicable.
4. BUDGETARY IMPLICATIONS
The proposal has no implication for the budget of the Union.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation, and reporting arrangements
The Parties to the Agreement shall notify each other in writing through diplomatic channels about the completion of their respective internal procedures necessary for the entry into force of the Agreement. The Agreement shall enter into force on the date of the later notification.
The Record of Consultations to the initialled Agreement includes commitments on both sides regarding the implementation and application of the Agreement to ensure that any future arrangements on air services between Japan and EU Member States will be fully consistent with Article 2 of the Agreement., Both parties have also expressed their intention to promote regular exchanges of views on aviation matters and issues related to the Agreement.
• Explanatory documents (for directives)
Not applicable.
• Detailed explanation of the specific provisions of the proposal
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.
However, 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.
In accordance with the mechanisms and directives in the Annex to the “horizontal authorisation”, the Commission has negotiated an Agreement with Japan that supersedes certain provisions in the existing bilateral air services agreements between Member States and Japan. 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.
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.