PURPOSE : to approve the Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services

LEGISLATIVE ACT : Council Decision 2010/360/EU on the conclusion of the Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services

CONTENT : on 5 June 2003, the Council authorised the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement. The Commission negotiated an agreement with Bosnia and Herzegovina on certain aspects of air services which was signed on behalf of the Community on 5 May 2006 subject to its possible conclusion at a later date, in conformity with Council Decision 2006/426/EC.

This Decision approves the Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services is hereby approved on behalf of the Union. In addition, it contains a notification that, as a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the EU has replaced and succeeded the European Community and from that date exercises all rights and assumes all obligations of the European Community.

PURPOSE: to clarify the draft Agreement concluded between the European Community and Bosnia and Herzegovina on certain aspects of air services.

PROPOSED ACT: Council Decision.

LEGAL BASIS: Article 100(2), in conjunction with Article 218(6)(a) and the first subparagraph of Article 218(8) of the Treaty on the Functioning of the European Union (TFEU).

BACKGROUND: on 5 June 2003, the Council authorised the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.

On behalf of the Community, the Commission negotiated an agreement with Bosnia and Herzegovina on certain aspects of air services in accordance with the mechanisms and directives in the Annex to the Council Decision authorising the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.

The Agreement was signed on behalf of the Community on 5 May 2006 subject to its possible conclusion at a later date, in conformity with Council Decision 2006/426/EC.

Following the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union should make a notification to Bosnia and Herzegovina as regards the European Union having replaced and succeeded the European Community. This is the aim of this proposal.

CONTENT: by this proposed decision, the Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services is hereby approved on behalf of the Union.

It aims to formally notify that as a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union has replaced and succeeded the European Community and from that date exercises all rights and assumes all obligations of the European Community. Therefore, references to ‘the European Community’ in the text of the Agreement are, where appropriate, to be read as the European Union.

The Lisbon Treaty, which entered into force on 1 December 2009, amended the EU's two core treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (EC Treaty). The latter was renamed the Treaty on the Functioning of the European Union (TFEU).

These changes had various consequences for many ongoing procedures. First of all, the articles of the TEU and of the old EC Treaty that constitute the legal basis of all the proposals founded on those Treaties were renumbered in accordance with the table of equivalences mentioned in Article 5 of the Lisbon Treaty.

In addition, some proposals underwent a change to their legal basis going beyond a mere change to their numbering, and this resulted in changes to the type of procedure .

The Lisbon Treaty also introduced new concepts of decision-making procedure . The old "codecision procedure" was extended to new areas and renamed the "ordinary legislative procedure". A new "consent procedure" replaced the old "assent procedure". New interinstitutional procedures were also set up for the adoption of certain non-legislative acts, for example the conclusion of some international agreements.

The ongoing proposals concerned by these changes were formally modified by the Commission in a Communication published on 2 December 2009 (COM(2009)0665).

In the case of the proposal for a Council Decision on the conclusion of the Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services, the entry into force of the Lisbon Treaty had the following impacts :

· the old legal basis – Treaty/EC/Art.80(2), Art.300(2) first para and (3) first para. – became Art 100(2), Art 218 (6)(a) of the TFEU. Please note that the numbering of the old legal basis corresponds to the consolidated version of the Treaty that was applicable immediately before the entry into force of the Lisbon Treaty, and may differ from the references in the original Commission proposal ;

· the proposal, which had previously fallen under the old consultation procedure (CNS), was classified as an interinstitutional non-legislative procedure (NLE).

The European Parliament adopted a resolution drafted by Paolo COSTA (ALDE, IT), approving the conclusion of the proposed Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services.

The committee adopted the report by its chairman, Paolo COSTA (ALDE, IT), approving - under the consultation procedure - the conclusion of the proposed Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services.

PURPOSE : to conclude the agreement between the EC and Bosnia and Herzegovina on certain aspects of air services and to designate the persons authorized to sign the agreement on behalf of the Community.

PROPOSED ACT : Council Decision.

CONTENT : International aviation relations between Member States and third countries have been traditionally governed by bilateral air services agreements, their Annexes and other related bilateral or multilateral arrangements.

Following the judgements of the Court of Justice of the European Communities in the cases C-466/98, C-467/98, C-468/98, C-471/98, C-472/98, C-475/98 and C-476/98, the Community has exclusive competence with respect to various aspects of external aviation. The Court of Justice also clarified the right of Community air carriers to benefit from the right of establishment within the Community, including the right to non-discriminatory market access.

Traditional designation clauses in Member States’ bilateral air services agreements infringe Community 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 Community carriers established in the territory of a Member State but owned and controlled by nationals of other Member States. This is contrary to Article 43 of the Treaty 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.

Following the Court of Justice judgements, the Council authorised the Commission in June 2003 to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement. Accordingly, the Commission has negotiated an agreement with Bosnia and Herzegovina that replaces certain provisions in the existing bilateral air services agreements between Member States and Article 2 of the Agreement replaces the traditional designation clauses with a Community designation clause, permitting all Community carriers to benefit from the right of establishment.

Articles 4 and 5 of the Agreement address two types of clauses concerning matters of Community competence. Article 4 deals with the taxation of aviation fuel, a matter which has been harmonised by Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity, particularly Article 14 paragraph 2 thereof. Article 5 (Pricing) resolves conflicts between the existing bilateral air services agreements and Council Regulation 2409/92 on fares and rates for air services which prohibits third country carriers from being price leaders on air services for carriage wholly within the Community.

The Council is asked to approve the decisions on the signature and provisional application and on the conclusion of the agreement.

PURPOSE : to conclude the agreement between the EC and Bosnia and Herzegovina on certain aspects of air services and to designate the persons authorized to sign the agreement on behalf of the Community.

PROPOSED ACT : Council Decision.

CONTENT : International aviation relations between Member States and third countries have been traditionally governed by bilateral air services agreements, their Annexes and other related bilateral or multilateral arrangements.

Following the judgements of the Court of Justice of the European Communities in the cases C-466/98, C-467/98, C-468/98, C-471/98, C-472/98, C-475/98 and C-476/98, the Community has exclusive competence with respect to various aspects of external aviation. The Court of Justice also clarified the right of Community air carriers to benefit from the right of establishment within the Community, including the right to non-discriminatory market access.

Traditional designation clauses in Member States’ bilateral air services agreements infringe Community 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 Community carriers established in the territory of a Member State but owned and controlled by nationals of other Member States. This is contrary to Article 43 of the Treaty 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.

Following the Court of Justice judgements, the Council authorised the Commission in June 2003 to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement. Accordingly, the Commission has negotiated an agreement with Bosnia and Herzegovina that replaces certain provisions in the existing bilateral air services agreements between Member States and Article 2 of the Agreement replaces the traditional designation clauses with a Community designation clause, permitting all Community carriers to benefit from the right of establishment.

Articles 4 and 5 of the Agreement address two types of clauses concerning matters of Community competence. Article 4 deals with the taxation of aviation fuel, a matter which has been harmonised by Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity, particularly Article 14 paragraph 2 thereof. Article 5 (Pricing) resolves conflicts between the existing bilateral air services agreements and Council Regulation 2409/92 on fares and rates for air services which prohibits third country carriers from being price leaders on air services for carriage wholly within the Community.

The Council is asked to approve the decisions on the signature and provisional application and on the conclusion of the agreement.