1. A finding of injury for the purposes of this Chapter shall be based on evidence and shall take account of the relevant factors, in particular:
(a)
the situation of the Union air carriers concerned, notably in terms of aspects such as frequency of services, utilisation of capacity, network effect, sales, market share, profits, return on capital, investment and employment;
(b)
the general situation on the affected air transport services markets, notably in terms of level of fares or rates, capacity and frequency of air transport services or use of the network.
2. A determination of a threat of injury shall be based on clear evidence and not merely on allegation, conjecture or remote possibility. The development into injury must be clearly foreseeable, very likely and imminent, and capable of being attributed beyond any reasonable doubt to an action or decision by a third country or a third-country entity.
3. In making a determination regarding the existence of a threat of injury, consideration shall be given to factors such as:
(a)
the foreseeable evolution of the situation of the Union air carriers concerned, in particular in terms of frequency of services, utilisation of capacity, network effect, sales, market share, profits, return on capital, investment and employment;
(b)
the foreseeable evolution of the general situation of the potentially affected air transport services markets, in particular in terms of level of fares or rates, capacity and frequency of air transport services or use of the network.
Although none of the factors listed in points (a) and (b), by themselves, is necessarily decisive, the totality of the factors considered shall be such as to lead to the conclusion that a further practice distorting competition is imminent and that, unless action is taken, injury will occur.
4. The Commission shall select an investigation period which includes, but is not limited to, the period during which the injury has allegedly taken place and analyse the relevant evidence over that period.
5. Where the injury or threat of injury to the Union air carriers concerned is caused by factors other than the practice distorting competition, they shall not be attributed to the practice under scrutiny and shall be disregarded.
1. The Commission shall terminate the investigation without redressive measures being adopted where the complaint is withdrawn, unless the Commission continues the investigation on its own initiative.
2. The Commission shall adopt implementing acts, terminating the investigation conducted in accordance with Article 5 without adopting redressive measures where:
(a)
the Commission concludes that any of the following is not established:
(i)
the existence of a practice distorting competition, adopted by a third country or a third-country entity;
(ii)
the existence of injury or threat of injury to the Union air carriers concerned;
(iii)
the existence of a causal link between the injury or threat of injury and the practice considered;
(b)
the Commission concludes that adopting redressive measures in accordance with Article 14 would be against the Union interest;
(c)
the third country or third-country entity concerned has eliminated the practice distorting competition; or
(d)
the third country or third-country entity concerned has eliminated the injury or threat of injury to the Union air carriers concerned.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).
3. The decision to terminate the investigation in accordance with paragraph 2 shall be accompanied by a statement of the reasons thereof and shall be published in the Official Journal of the European Union .
1. Without prejudice to Article 13, the Commission shall adopt implementing acts, laying down redressive measures if the investigation conducted under Article 5 determines that a practice distorting competition, adopted by a third country or a third-country entity, has caused injury to the Union air carriers concerned.
The implementing acts laying down redressive measures referred to in point (a) of paragraph 3 of this Article shall be adopted in accordance with the examination procedure referred to in Article 16(2).
The implementing acts laying down redressive measures referred to in point (b) of paragraph 3 of this Article shall be adopted in accordance with the examination procedure referred to in Article 16(2) and (3).
2. Without prejudice to Article 13, the Commission may, adopt implementing acts, laying down redressive measures if the investigation conducted under Article 5 determines that a practice distorting competition, adopted by a third country or a third-country entity, causes a threat of injury, in accordance with Article 12(2) and (3), to the Union air carriers concerned. These redressive measures shall not enter into force before the threat of injury has developed into actual injury.
The implementing acts laying down redressive measures referred to in point (a) of paragraph 3 of this Article shall be adopted in accordance with the examination procedure referred to in Article 16(2).
The implementing acts laying down redressive measures referred to in point(b) of paragraph 3 of this Article shall be adopted in accordance with the examination procedure referred to in Article 16(2) and (3).
3. The redressive measures referred to in paragraphs 1 and 2 shall be imposed on the third-country air carriers benefiting from the practice distorting competition and may take the form of either of the following:
(a)
financial duties;
(b)
any operational measure of equivalent or lesser value, such as the suspension of concessions, of services owed or of other rights of the third-country air carrier. Priority shall be given to reciprocal operational measures, provided that they are not contrary to the Union interest, or incompatible with Union law or with international obligations.
4. The redressive measures referred to in paragraphs 1 and 2 shall not exceed what is necessary to offset the injury to the Union air carriers concerned. To this end, those redressive measures may be limited to a specific geographic area or may be limited in time.
5. The redressive measures shall not consist of the suspension or limitation of traffic rights granted by a Member State to a third country under an air transport agreement, an air service agreement or any provision on air transport services included in any other agreement concluded with that third country.
6. The redressive measures referred to in paragraphs 1 and 2 shall not lead the Union or the Member States concerned to violate air transport or air services agreements, or any provision on air transport services included in a trade agreement or any other agreement concluded with the third country concerned.
7. The decision to conclude the investigation with the adoption of redressive measures referred to in paragraphs 1 and 2 shall be accompanied by a statement of the reasons thereof and shall be published in the Official Journal of the European Union .
1. The redressive measures referred to in Article 14 shall remain in force only as long as, and to the extent that, it is necessary in view of the persistence of the practice distorting competition and the ensuing injury. To that end, the review procedure set out in paragraphs 2, 3 and 4 of this Article shall apply. The Commission shall regularly provide a written report to the European Parliament and to the Council on the effectiveness and impact of redressive measures.
2. Where circumstances so warrant, the need for the continued imposition of redressive measures in their initial form may be reviewed, either on the initiative of the Commission or the complainant, or upon a reasoned request by the Member States concerned, the third country or the third-country entity concerned.
3. In the course of its review, the Commission shall assess the continued existence of the practice distorting competition, of the injury and of the causal link between the practice and the injury.
4. The Commission shall adopt implementing acts, repealing, amending or maintaining, as appropriate, the redressive measures set out in Article 14. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).
