Initiation of proceedings
1. An investigation shall be initiated following a written complaint submitted by a Member State, one or more Union air carriers or an association of Union air carriers, or on the Commission's own initiative, if there is prima facie evidence of the existence of all the following circumstances:
(a)
a practice distorting competition, adopted by a third country or a third-country entity;
(b)
injury or threat of injury to one or more Union air carriers; and
(c)
a causal link between the alleged practice and the alleged injury or threat of injury.
2. When it receives a complaint pursuant to paragraph 1, the Commission shall inform all Member States.
3. The Commission shall examine, in a timely manner, the accuracy and adequacy of the elements provided in the complaint or at the disposal of the Commission, in order to determine whether there is sufficient evidence to justify the initiation of an investigation in accordance with paragraph 1.
4. The Commission shall decide not to initiate an investigation where the facts put forward in the complaint neither raise a systemic issue nor have a significant impact on one or more Union air carriers.
5. The Commission shall inform the complainant and all Member States where it has decided not to initiate an investigation. The information provided shall contain the reasons for the decision. This information shall also be transmitted to the European Parliament, in accordance with Article 17.
6. Where the evidence presented is insufficient for the purposes of paragraph 1, the Commission shall inform the complainant about such insufficiency within 60 days of the date on which the complaint was lodged. The complainant shall be given 45 days to provide additional evidence. Where the complainant fails to do so within that time limit, the Commission may decide not to initiate the investigation.
7. Subject to paragraphs 4 and 6, the Commission shall decide whether to initiate an investigation in accordance with paragraph 1 within a maximum period of five months of the lodging of the complaint.
8. Subject to paragraph 4, when the Commission considers that there is sufficient evidence to justify initiating an investigation, the Commission shall take the following steps:
(a)
initiate the proceedings and notify the Member States and the European Parliament thereof;
(b)
publish a notice in the Official Journal of the European Union ; the notice shall announce the initiation of the investigation, indicate the scope of the investigation, the third country or third-country entity which has allegedly been engaged in practices distorting competition and the alleged injury or threat of injury, the Union air carriers concerned, and state the period within which interested parties may make themselves known, present their views in writing, submit information or apply to be heard by the Commission. That period shall be at least 30 days;
(c)
officially notify the representatives of the third country and third-country entity concerned of the initiation of the investigation;
(d)
inform the complainant and the Committee provided for under Article 16 of the initiation of the investigation.
9. Where the complaint is withdrawn prior to the initiation of the investigation, the complaint is considered not to have been lodged. This is without prejudice to the right of the Commission to initiate an investigation on its own initiative in accordance with paragraph 1.
The investigation
1. Following the initiation of proceedings, the Commission shall begin an investigation.
2. The investigation shall aim to determine whether a practice distorting competition, adopted by a third country or a third-country entity, has caused injury or threat of injury to the Union air carriers concerned.
3. Where, during the course of the investigation referred to in paragraph 2 of this Article, the Commission finds evidence that a practice might lead to a negative impact on air connectivity of a particular region, of a Member State or a group of Member States, and thus to passengers, that evidence shall be taken into account in the determination of the Union interest as referred to in Article 3.
4. The Commission shall seek all the information it considers to be necessary in order to conduct the investigation and shall verify the accuracy of the information it has received or collected with the Union air carriers concerned, or with the third country, an interested party, or the third-country entity concerned.
5. Where the information submitted pursuant to paragraph 4 is incomplete, it shall be taken into account, provided that it is neither false nor misleading.
6. If evidence or information is not accepted, the supplying party shall be informed immediately of the reasons thereof, and shall be granted an opportunity to provide further explanations within a specified time limit.
7. The Commission may request the Member States concerned to support it in the investigation. In particular, upon request by the Commission, they shall take the necessary steps to support the Commission in the investigation by supplying relevant and available information. Upon request by the Commission, any Member State shall endeavour to contribute to relevant verification and analyses.
8. If it appears necessary, the Commission may carry out investigations in the territory of a third country, provided that the third-country entity concerned has given its consent and the government of the third country has been officially notified and has not raised any objection.
9. Parties which have made themselves known within the time limits set out in the notice of initiation, shall be heard if they have made a request for a hearing showing that they are an interested party.
10. Complainants, interested parties, the Member States and the representatives of the third country or third-country entity concerned may consult all information made available to the Commission, except for internal documents that are for the use of the Commission and the administrations of the Union and of the Member States concerned, provided that such information is not confidential within the meaning of Article 8 and provided that they have addressed a request in writing to the Commission.
Suspension
1. The Commission may suspend the investigation if it appears more appropriate to address the practice distorting competition exclusively under the dispute settlement procedures established by an applicable air transport or air services agreement to which the Union is a party, or to any other agreement which contains provisions on air transport services to which the Union is a party. The Commission shall notify the Member States of the suspension of the investigation.
The Commission may resume the investigation in any of the following cases:
(a)
the procedure conducted under the applicable air transport or air services agreement or any other agreement which contains provisions on air transport services has led to a finding of an infringement by the other party or parties to the agreement which has become final and binding upon such other party or parties, but corrective action has not been taken promptly, or within the period provided for under the relevant procedures;
(b)
the practice distorting competition has not been eliminated within 12 months from the date of suspension of the investigation.
2. The Commission shall suspend the investigation if, within 15 days from the date of the notification of the initiation of the investigation:
(a)
all the Member States concerned referred to in point (4)(b) of Article 2 have notified the Commission of their intention to address the practice distorting competition exclusively under the dispute settlement procedures applicable under the air transport or air services agreement, or any other agreement which contains provisions on air transport services, that they have concluded with the third-country concerned; and
(b)
none of the Member States concerned referred to in point (4)(a) of Article 2 has objected.
In such cases of suspension, Article 7(1) and (2) shall apply.
3. The Commission may resume the investigation in any of the following cases:
(a)
the Member States concerned referred to in point (4)(b) of Article 2 have not initiated the dispute settlement procedure under the relevant international agreement within three months from the date of the notification referred to in point (a) of paragraph 2;
(b)
the Member States concerned referred to in point (4)(b) of Article 2 notify the Commission that the outcome of the dispute settlement procedures referred to in paragraph 2 of this Article has not been enforced correctly and expeditiously;
(c)
all the Member States concerned ask the Commission to resume the investigation;
(d)
the Commission comes to the conclusion that the practice distorting competition has not been eliminated within 12 months of the date of the notification referred to in point (a) of paragraph 2 by the Member States concerned;
(e)
in the cases of urgency foreseen in Article 11(3), if, within nine months of the date of notification referred to in point (a) of paragraph 2 of this Article by the Member States concerned referred to in point (4)(b) of Article 2, the practice distorting competition has not been eliminated; at the request of a Member State concerned, that period may be prolonged by the Commission, in duly justified cases, by a maximum of three months.
Cooperation with the Member States in respect of proceedings relevant to cases falling under Chapter III
1. The Member State concerned shall inform the Commission of all relevant meetings scheduled in the framework of the air transport or air services agreement, or of any provision on air transport services included in any other agreement concluded with the third country concerned, to discuss the issue covered by the investigation. The Member State concerned shall provide the Commission with the agenda and all relevant information permitting an understanding of the topics to be discussed at those meetings.
2. The Member State concerned shall keep the Commission informed of the conduct of any dispute settlement procedure provided for in an air transport or air services agreement or in any provision on air transport services included in any other agreement concluded with the third country concerned and shall, where appropriate, invite the Commission to attend those procedures. The Commission may request further information from the Member State concerned.
Confidentiality
1. The Commission shall, if good cause is shown, treat as confidential any information which is by nature confidential, including but not limited to information the disclosure of which would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information, or which is provided on a confidential basis by parties to an investigation.
2. Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be sufficiently detailed so as to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, the interested parties may indicate that the confidential information cannot be summarised. In such exceptional circumstances, a statement of the reasons why a summary is not possible shall be provided.
3. Information received pursuant to this Regulation shall be used only for the purpose for which it was requested. This paragraph shall not preclude the use of information received in the context of one investigation for the purpose of initiating another investigation in accordance with this Regulation.
4. The Commission and the Member States, including their respective officials, shall not reveal any information of a confidential nature received pursuant to this Regulation, or any information provided on a confidential basis by a party to an investigation, without specific permission from the party submitting such information. Exchanges of information between the Commission and Member States, or any internal document prepared by the authorities of the Union or the Member States, shall not be divulged except where this is specifically provided for in this Regulation.
5. Where it appears that a request for confidentiality is not justified and if the person supplying the information is unwilling either to make the information public or to authorise its disclosure in generalised or summary form, the information concerned may be disregarded.
6. This Article shall not preclude the disclosure of general information by the Union authorities and in particular the disclosure of the reasons on which decisions taken pursuant to this Regulation are based or the disclosure of the evidence relied on by the Union authorities in so far as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interest of the parties concerned that their business or government secrets not be divulged.
7. Member States shall take any necessary and appropriate measures intended to ensure the confidentiality of the information that is relevant to the application of this Regulation and provided that they are compatible with its terms.
Basis of findings in case of non-cooperation
Where access to the necessary information is refused or is otherwise not provided within the time limits provided for in this Regulation, or where the investigation is significantly impeded, provisional or final findings, affirmative or negative, may be made on the basis of the facts and evidence available. Where the Commission finds that false or misleading information has been submitted, such information shall be disregarded.
Disclosure
1. The Commission shall disclose to the third country, the third-country entity and the third-country air carrier concerned, as well as the complainant, the interested parties, the Member States and the Union air carriers concerned the essential facts and considerations on the basis of which it intends to adopt redressive measures, or to terminate proceedings without adopting redressive measures, no later than one month before the Committee referred to in Article 16 is convened, in accordance with Article 13(2) or 14(1).
2. The disclosure referred to in paragraph 1 shall not prejudice any subsequent decision which may be taken by the Commission. Where the Commission intends to base such a decision on any additional or different facts and considerations, they shall be disclosed as soon as possible.
3. Additional information provided after disclosure shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 14 days, due consideration being given to the urgency of the matter. A shorter period may be set whenever an additional final disclosure has to be made.
Duration of proceedings and suspension
1. The proceedings shall be concluded within 20 months. That period may be prolonged in duly justified cases. In the case of a suspension of the proceedings as set out in paragraph 4, that period of suspension shall not be counted as part of the duration of the proceedings.
2. The investigation shall be concluded within 12 months. That period may be prolonged in duly justified cases. In the case of a suspension of the investigation as set out in Article 6, that period of suspension shall not be counted as part of the duration of the investigation. Where the period for the investigation is prolonged, the duration of the prolongation shall be added to the total duration of the proceedings laid down in paragraph 1 of this Article.
3. In the case of urgency, that is in situations where, following clear evidence submitted by the complainant or the interested parties, the injury to Union air carriers might be irreversible, the proceedings may be shortened to nine months.
4. The Commission shall suspend the proceedings where the third country or the third-country entity concerned has taken decisive steps to eliminate the practice distorting competition or the injury or threat of injury to the Union air carriers concerned.
5. In the cases referred to in paragraph 4, the Commission shall resume the proceedings if the practice distorting competition, the injury or the threat of injury to the Union air carriers concerned has not been eliminated following a reasonable period of time, which, in any event, shall not be longer than six months.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
