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Subject matter
1. This Regulation lays down rules on the conduct of investigations by the Commission and on the adoption of redressive measures, relating to practices distorting competition between Union air carriers and third-country air carriers and causing, or threatening to cause, injury to Union air carriers. 2. This Regulation applies without prejudice to Article 12 of Regulation (EEC) No 95/93 and Article 20 of Directive 96/67/EC.
Definitions
For the purposes of this Regulation, the following definitions apply: (1) ‘air carrier’ means an air carrier as defined in Regulation (EC) No 1008/2008 of the European Parliament and of the Council ( 7 ) ; (2) ‘air transport service’ means a flight or a series of flights carrying passengers, cargo or mail for remuneration or hire; (3) ‘interested party’ means any natural or legal person, or any official body, whether or not it has its own legal personality, that is likely to have a significant interest in the result of proceedings, including, but not limited to, air carriers; (4) ‘Member State concerned’ means any Member State: (a) which granted the operating licence to the Union air carriers concerned pursuant to Regulation (EC) No 1008/2008; or (b) under whose air transport agreement, air services agreement or any other agreement containing provisions on air transport services with the third country concerned, the Union air carriers concerned operate; (5) ‘third-country entity’ means any natural or legal person, whether profit-making or not, or any official body whether or not it has its own legal personality, which is under the jurisdiction of a third country, whether controlled by a third-country government or not, and is directly or indirectly involved in air transport services or related services or in providing infrastructure or services used to provide air transport services or related services; (6) ‘practices distorting competition’ means discrimination and subsidies; (7) ‘threat of injury’ means a threat for which development into injury is clearly foreseeable, very likely and imminent, and which can be attributed beyond reasonable doubt to an action or decision by a third country or a third-country entity; (8) ‘discrimination’ means differentiation of any kind without objective justification in respect of the supply of goods or services, including public services, employed for the operation of air transport services, or in respect of their treatment by public authorities relevant to such services, including practices relating to air navigation or airport facilities and services, fuel, ground handling, security, computer reservation systems, slot allocation, charges, and the use of other facilities or services employed for the operation of air transport services; (9) ‘subsidy’ means a financial contribution: (a) granted by a government or other public organisation of a third country in any of the following forms: (i) a practice of a government or other public organisation involving a direct transfer of funds, potential direct transfer of funds or liabilities (such as grants, loans, equity infusion, loan guarantees, setting-off of operational losses, or compensation for financial burdens imposed by public authorities); (ii) revenue of a government or other public organisation that is otherwise due is foregone or not collected (such as preferential tax treatment or fiscal incentives such as tax credits); (iii) a government or other public organisation, including publicly controlled undertakings, provides goods or services, or purchases goods or services; (iv) a government or other public organisation makes payments to a funding mechanism or entrusts or directs a private body to carry out one or more of the type of functions referred to in points (i), (ii) and (iii) which would normally be vested in the government and, in practice, in no real sense differs from practices normally followed by governments; (b) conferring a benefit; and (c) limited, in law or in fact, to an entity or industry or group of entities or industries within the jurisdiction of the granting authority; (10) ‘Union air carrier’ means an air carrier with a valid operating licence granted by a Member State in accordance with Regulation (EC) No 1008/2008; (11) ‘Union air carrier concerned’ means the air carrier which is allegedly subject to an injury or a threat of injury pursuant to point (b) of Article 4(1).
Union interest
1. A determination of the Union interest for the purpose of point (b) of Article 13(2) shall be made by the Commission based on an appreciation of all the various interests, which are relevant in the particular situation, taken as a whole. When determining the Union interest, priority shall be given to the need to protect consumer interests and to maintain a high level of connectivity for passengers and for the Union. In the context of the whole aviation chain, the Commission may also take into account relevant social factors. The Commission shall also take into consideration the need to eliminate the practice distorting competition, to restore effective and fair competition, and to avoid any distortion to the internal market. 2. The Union interest shall be determined on the basis of an economic analysis by the Commission. The Commission shall base that analysis on information collected from the interested parties. When determining the Union interest, the Commission shall also seek any other relevant information that it considers to be necessary, and shall, in particular, take into consideration the factors set out in Article 12(1). Information shall be taken into account only where it is supported by actual evidence which substantiates its validity. 3. A determination of the Union interest for the purpose of point (b) of Article 13(2) shall only be made where all interested parties have been given the opportunity to make themselves known, to present their views in writing, to submit information to the Commission or to apply to be heard by the Commission, in accordance with the time limits specified in point (b) of Article 4(8). Requests for a hearing shall outline the reasons pertaining to the Union interest in relation to which the parties wish to be heard. 4. The interested parties referred to in paragraphs 2 and 3 of this Article may request that the facts and considerations on which decisions are likely to be based are made available to them. Such information shall be made available to the extent possible, in accordance with Article 8, and without prejudice to any subsequent decision taken by the Commission. 5. The economic analysis referred to in paragraph 2 shall be transmitted, for information, to the European Parliament and to the Council.
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Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.