Commission Regulation (EC) No 1459/2006 of 28 September 2006 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices concerning consultations on passenger tariffs on scheduled air services and slot allocation at airports

• CELEX: Regulation (EC) No 1459/2006
• Articles: 4

Article 1 Exemptions

Pursuant to Article 81(3) of the Treaty and subject to the provisions of this Regulation, it is hereby declared that Article 81(1) of the Treaty shall not apply to agreements between undertakings in the air transport sector, decisions by associations of such undertakings and concerted practices between such undertakings which have as their purpose one or more of the following:

(a)

the holding of consultations on slot allocation and airport scheduling in so far as they concern air services the point of origin and/or point of destination of which is located in the Community;

(b)

the holding of consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between points in the Community or between points in the Community, on the one hand, and points in Switzerland, Norway, Iceland or Liechtenstein, on the other;

(c)

the holding of consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between points in the Community, on the one hand, and points in Australia or the United States of America, on the other;

(d)

the holding of consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between points in the Community, on the one hand, and points in third countries other than those referred to in points (b) and (c), on the other.

Article 2 Slot allocation and airport scheduling

1.   Article 1(a) shall apply only if the following conditions are fulfilled:

(a)

the consultations are open to all air carriers having expressed an interest in the slots which are the subject of the consultations;

(b)

rules of priority are established and applied without discrimination, whether direct or indirect, on the grounds of carrier identity, nationality or category of service, which take into account constraints or air traffic distribution rules laid down by competent national or international authorities and give due consideration to the needs of the travelling publics and of the airport concerned; subject to point (c), such rules of priority may take account of rights acquired by air carriers through the use of particular slots in the previous corresponding season;

(c)

slots are allocated to new entrants, as defined in Article 2(b) of Regulation (EEC) No 95/93 as follows:

(i)

at Community airports, a 50 % share of newly created or unused slots and slots which have been given up by a carrier during or by the end of the season or which otherwise become available to enable new entrants to be able to compete effectively with established carriers on routes to/from the airport in question; the share allocated to new entrants may be less than 50 % if requests by new entrants represent less than 50 % of all applications for such new slots;

(ii)

at third country airports, a sufficient share of such available slots for entry at congested airports to remain possible on routes between such airports and points located in the Community;

(d)

the rules of priority, once established, are made available on request to any interested party;

(e)

air carriers participating in the consultations have access, at the time of the consultations at the latest, to information relating to:

(i)

historical slots by air carrier, in chronological order, for all air carriers at the airport;

(ii)

requested slots (initial submissions) by air carrier, in chronological order, for all air carriers;

(iii)

allocated slots, and outstanding slot requests listed individually in chronological order, by air carrier, for all air carriers;

(iv)

remaining slots available;

(v)

full details of the criteria used in the allocation;

(f)

if a request for slots is not accepted, the air carrier concerned is entitled to a statement of the reasons therefor.

2.   The Commission and the Member States concerned shall be entitled to send observers to consultations on slot allocation and airport scheduling held in the context of a multilateral meeting in advance of each season. For this purpose, air carriers shall give the Member States concerned and the Commission the same notice as is given to participants of the date, venue and subject matter of the consultations. The notice given to the Member States concerned and to the Commission shall not be less than 10 days.

Such notice shall be given:

(a)

to the Member States concerned according to procedures to be established by the competent authorities of those Member States;

(b)

to the Commission according to procedures to be published in the Official Journal of the European Union .

Article 3 Consultations on passenger tariffs

1.   Article 1(b), (c) and (d) shall apply only if the following conditions are fulfilled:

(a)

the participants in the consultations only discuss air fares to be paid by air transport users directly to a participating air carrier or to its authorised agents, for carriage as passengers on a scheduled service, and the conditions relating to those passenger tariffs; the consultations do not extend to the capacity for which such tariffs are to be available;

(b)

the consultations give rise to interlining, that is to say, air transport users are able, in respect of the types of passenger tariffs and of the seasons which were the subject of the consultations:

(i)

to combine on a single ticket the service which was the subject of the consultations, with services on the same or on connecting routes operated by other air carriers, whereby the applicable passenger tariffs and conditions are set by the airline or airlines effecting carriage; and

(ii)

in so far as is permitted by the conditions governing the initial reservation, to change a reservation on a service which was the subject of the consultations onto a service on the same route operated by another air carrier at the passenger tariffs and conditions applied by that other carrier;

(c)

an air carrier is entitled to refuse to allow combinations and changes of reservation for objective and non-discriminatory reasons of a technical or commercial nature, in particular where the air carrier effecting carriage is concerned about the credit worthiness of the air carrier who would be collecting payment for this carriage, in which case the latter air carrier must be notified thereof in writing;

(d)

the passenger tariffs which are the subject of the consultations are applied by participating air carriers without discrimination on grounds of passenger nationality or place of residence;

(e)

participation in the consultations is voluntary and open to any air carrier who operates or intends to operate direct or indirect services on the route concerned;

(f)

the consultations are not binding on participants, that is to say, following the consultations the participants retain the right to act independently in respect of passenger tariffs;

(g)

the consultations do not entail agreement on agents' remuneration or other elements of the tariffs discussed.

2.   Air carriers participating in consultations on passenger tariffs for scheduled air services between points in the Community and points in third countries other than those referred to in Article 1(b) shall collect data with regard to:

(a)

the number of tickets issued at tariffs set in the consultations in the total number of tickets issued for travel between the Community and third countries other than those referred to in Article 1(b);

(b)

the extent to which tickets at tariffs set in the consultations are issued for travel on a journey where the passenger interlines;

(c)

the extent to which tickets which are not at tariffs set in the consultations are issued for travel on a journey where the passenger interlines.

That data shall be collected for all types of ticket and fare which are the subject of the consultations. The data shall make it possible to distinguish between the various forms of cooperation between air carriers that enable passengers to combine services operated by more than one carrier onto a single ticket. The data collected shall be provided to the Commission by or on behalf of the air carriers involved for each IATA season, starting from 1 May 2004. The data may be made available to the competent authorities of the Member States.

3.   The Commission and the Member States concerned shall be entitled to send observers to consultations on passenger tariffs. For this purpose, air carriers shall give the Member States concerned and the Commission the same notice as is given to participants of the date, venue and subject matter of the consultations. The notice given to the Member States concerned and to the Commission shall not be less than 10 days.

Such notice shall be given:

(a)

to the Member States concerned according to procedures to be established by the competent authorities of those Member States;

(b)

to the Commission according to procedures to be published in the Official Journal of the European Union .

A full report on the consultations shall be submitted to the Commission by or on behalf of the air carriers involved at the same time as it is submitted to participants, but not later than six weeks after the consultations were held.

Article 4 Entry into force

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union .

Exemptions granted pursuant to Article 1(a) and (b) shall apply until 31 December 2006.

Exemptions granted pursuant to Article 1(c) shall apply until 30 June 2007.

Exemptions granted pursuant to Article 1(d) shall apply until 31 October 2007.

This Regulation shall apply with retroactive effect to agreements, decisions and concerted practices in existence on the day on which it enters into force, with effect from the time when the conditions set out in this Regulation were fulfilled.