[PDF] EUROPEAN COMMISSION Brussels 9.7.2019 SWD(2019) 295 final

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EUROPEAN

COMMISSION

Brussels, 9.7.2019

SWD(2019) 295 final

COMMISSION STAFF WORKING DOCUMENT

EVALUATION

of the Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community {SWD(2019) 296 final} i

Table of content

GLOSSARY .................................................................................................................................................. II

1 INTRODUCTION ................................................................................................................................. 1

2 BACKGROUND TO THE REGULATION ......................................................................................... 4

2.1 Description of the Air Services Regulation's main objectives, provisions and their evolution

in time ................................................................................................................................................. 4

2.2 Baseline and points of comparison ................................................................................................ 8

3 IMPLEMENTATION / STATE OF PLAY .......................................................................................... 9

3.1 General market context and development ..................................................................................... 9

3.3 General policy developments ...................................................................................................... 17

4 EVALUATION METHODOLOGY ................................................................................................... 18

4.1 Short description of methodology ............................................................................................... 18

4.2 Limitations and robustness of findings - what are the limitations and consequences for the

results ................................................................................................................................................ 20

5 ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS ........................................... 21

5.1 Effectiveness: .............................................................................................................................. 21

5.2 Efficiency: ................................................................................................................................... 62

5.3 Relevance: ................................................................................................................................... 65

5.4 Coherence: ................................................................................................................................... 80

5.5 EU added-value ........................................................................................................................... 92

6 CONCLUSIONS ................................................................................................................................. 94

ANNEX 1: PROCEDURAL INFORMATION .......................................................................................... 102

ANNEX 2 STAKEHOLDER CONSULTATION REPORT ...................................................................... 108

ANNEX 3: METHODS AND ANALYTICAL MODELS ......................................................................... 126

ANNEX 4: OBJECTIVES, BASELINE AND STATE OF PLAY BY POLICY AREA ........................... 145

ANNEX 5: SUMMARY OF THE COSTS AND BENEFITS .................................................................... 169

ANNEX 6: EVALUATION QUESTIONS ................................................................................................. 171

ANNEX 7: AMENDMENTS TO THE AIR SERVICES REGULATION ................................................ 176

ANNEX 8: OVERVIEW OF BUSINESS MODELS IN CIVIL AVIATION ............................................ 179

ANNEX 9: ISSUES IDENTIFIED IN 2006 IMPACT ASSESSMENT AND THEIR DEVELOPMENT 180

ANNEX 10: REFERENCES ....................................................................................................................... 187

ANNEX 11: TABLE POLICY TOPICS COVERED UNDER EVALUATION CRITERIA AND

QUESTIONS ..................................................................................................................................... 198

ii

GLOSSARY

Term or acronym Meaning or definition

Air Services

Agreements (ASA) Agreements regulating air transport services between contracting

States.

In aviation, most international air transport is governed by ASAs. They can impose detailed requirements (e.g. how many and which air carriers can provide services to which destinations at which frequency) or leave these questions up to the air carriers which wish to provide the service.

Airport Charges

Directive1

This Directive, adopted in 2009, applies to all EU airports handling more than five million passengers per year and to the largest airport in each Member State. It aims to provide for a transparent system of airport charges setting. Aviation packages The aviation packages have established and organised the EU internal aviation market since the beginning of the liberalisation and gradual market opening in 1987. There were three aviation packages: the first aviation package was adopted in 1987, the second aviation liberalisation package in 1990 and the third aviation liberalisation package in 1992.

Aviation Strategy

2015
This comprehensive strategy published in 2015 proposed an ambitious EU external aviation policy, tackling limits to growth both in the air and on the ground, and maintaining high EU standards and innovation, investments and digital technologies.2

Codeshare

agreements Codeshare agreements, also known as codeshare, are commercial agreements under which the airline operating a flight (the "operating airline") allows one or more other airlines (the "marketing airlines") to market and issue tickets for the flight as if the marketing airlines were operating the flight themselves. Flights covered by a codeshare agreement are displayed on the code- on computerised reservation systems (CRS, see definition below) with more than one IATA airline designator or "code", namely that of the operating airline and that of the marketing airline(s). Cost-shared flights A cost shared flight is defined in EASA (EU Aviation Safety Agency) Air OPS Regulation3 as a flight with no more than six

1 Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges.

2 https://ec.europa.eu/transport/modes/air/aviation-strategy_en#package_detail

3 Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and

administrative procedures related to air operations, in Article 6, paragraph 4 iii private individuals whose direct costs are shared between all the occupants of the aircraft, including the pilot. Connectivity The Aviation Strategy 2015 defined connectivity as the "number, frequency and quality of air transport services". In this way, connectivity may include direct, indirect and hub activities of airports as well as links to other transport modes. In a broader sense, connectivity may also include the possible linkage between two or more regions or the population living in the given territories. This evaluation understands the second, broader approach when it refers to connectivity.

CRS (computerised

reservation systems) Computerised Reservation Systems ("CRS")4 are also known as Global Distribution Systems ("GDS"). Economically speaking, they are technical intermediaries which connect airlines (and other travel service providers, such as rail operators) on one side of the market, with travel agents, both online and bricks-and-mortar, on the other side. Airlines give the CRS information on their fares, schedules and seat availability and get from the CRSs access to thousands of travel agents, plus the technical capability for the agents to make bookings. Travel agents get from the CRSs an interface which allows them to compare, reserve and book tickets from hundreds of airlines and other travel service providers worldwide. CRS Regulation5 Regulation 80/2009 on a Code of Conduct for computerised reservation systems ensures that air services by all participating airlines are displayed in a non-discriminatory way on the travel agencies' computer screens. It maintains safeguards that protect against potential competitive abuses by airlines owning or controlling a CRS (parent carriers). It also introduced enhanced rules for the protection of passenger/personal data.

EASA European Union Aviation Safety Agency

EEA The European Economic Area comprises the 28 Member States of the EU (Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and UK) as well as Iceland, Lichtenstein and Norway. 4

about, inter alias, schedules, availability and fares, of more than one air carrier, with or without facilities to

make reservations or issue tickets, to the extent that some or all of these services are made available to

5 Regulation (EC) No 80/2009 of the European Parliament and of the Council of 14 January 2009 on a Code

of Conduct for computerised reservation systems. iv EEA 18 Ireland, Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Italy, Luxembourg, Malta, Netherlands, Spain, Sweden,

UK, as well as Iceland, Liechtenstein and Norway

EQ Evaluation question

EU 13 Estonia, Lithuania, Latvia, Poland, Czech Republic, Slovakia, Hungary, Romania, Slovenia, Bulgaria, Croatia, Malta, Cyprus EU 15 Ireland, United Kingdom, Sweden, Finland, Denmark, Germany, Austria, France, the Netherlands, Belgium, Spain, Portugal, Italy,

Luxembourg, Greece

Freedoms of the air The freedoms of the air are a set of commercial aviation rights granting a country's airlines the privilege to enter and land in another country's airspace and represent the fundamental building blocks of the international commercial aviation route network. The first freedom allows an air carrier to fly over a foreign country without landing The second freedom allows an air carrier to refuel or carry out maintenance in a foreign country without embarking or disembarking passengers or cargo The third freedom allows an air carrier to fly from its own country to another country The fourth freedom allows an air carrier to fly from another country to its own The fifth freedom allows an airline to carry revenue traffic between foreign countries as a part of services connecting the airline's own country. It is the right to carry passengers from one's own country to a second country, and from that country to a third country (and so on). The sixth freedom is the right to carry passengers or cargo from a second country to a third country by stopping in one's own country. The seventh freedom is the right to carry passengers or cargo between two foreign countries without any continuing service to one's own country. The eighth freedom is the right to carry passengers or cargo between two or more points in one foreign country and own country. The ninth freedom (also known as standalone cabotage) is the right to carry passengers or cargo within a foreign country without continuing service to or from one's own country. v Home-base According to the Flight time limitation Regulation6 the location, assigned by the operator to the crew member, from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal circumstances, the operator is not responsible for the accommodation of the crew member concerned. contributions must be paid. 7

ICAO International Civil Aviation Organisation

Operational base An operational base is the airport at which an air carrier bases its aircraft - and in principle also crew - and from where it operates routes. Both fleet - and in principle also crew - return to the operational base after accomplishing a return flight or a series of flights.

Principal place of

business (PPoB) The Air Services Regulation defines it as the head office, or registered office, of a Community air carrier in the Member State within which the principal financial functions and operational control, including continued airworthiness management, of the

Community air carrier are exercised.

Rome I and

Brussels I

Regulations8

The Rome I Regulation and the Brussels I Regulation (recast) deal respectively with the applicable law and competent jurisdictions in civil and commercial matters. They contain special provisions with regards to employment contracts with the aim to protect the employee as the weakest party to the contract. While parties to an employment contract are free to choose the applicable law for the purpose of their contract, such choice should not deprive the employee from the protection of the mandatory rules of the law of the country that would apply in the absence of such choice, and which corresponds as a main rule to the law of the place where, or from where, the worker habitually carries out his work. Parties to employment contract can also choose a competent court, but such a choice of jurisdiction is only valid under strict conditions.

6 Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and

administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the

European Parliament and of the Council - OJ L 296, 25.10.2012, p. 1148 7 Regulation 883/2004 on the coordination of social security, as amended by Regulation 465/2012

8 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law

applicable to contractual obligations (Rome I); Regulation (EU) No 1215/2012 of the European Parliament

and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments

in civil and commercial matters (Brussels I recast). vi Slot Regulation9 This Regulation introduced common rules for the allocation of slots at EU airports. The aim is to ensure that airlines have access to the busiest EU airports on the basis of principles of neutrality, transparency and non-discrimination.

Social fact funding

study Study on employment and working conditions of aircrews in the EU internal aviation market by Ricardo AEA (2019)10, providing insights particularly on key alternative forms of employment of aircrew, including so called "pay-to-fly" schemes and false self-employment.

Unfair Commercial

Practices Directive

(UCPD)11 This Directive constitutes the overarching (horizontal) piece of EU legislation regulating unfair commercial practices in business-to- consumer transactions. It applies to all commercial practices that occur before (i.e. during advertising or marketing), during and after a business-to-consumer transaction has taken place.

9 Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at

Community airports. 10 https://publications.europa.eu/en/publication-detail/-/publication/97abb7bb-54f3-11e9-a8ed-01aa75ed71a1

11 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair

business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive)

1

INTRODUCTION 1

1.1 Purpose of the evaluation

In line with the commitments made in the 2015 Aviation Strategy, the Commission is evaluating several pieces of aviation legislation to have a comprehensive view of the aviation market, take into account the interactions between the different pieces of legislations, and determine whether there are overlaps and synergies for possible future proposals.12 However, these exercises do not aim at assessing the overall functioning of the aviation market. The evaluation of Regulation No 1008/2008 (hereafter "the Air Services Regulation") aims to assess the various intended and unintended economic and social effects of the Air Services Regulation, to analyse if the framework is consistent with internal market objectives and international obligations, and to determine if it is still fit for purpose. The evaluation also seeks to identify areas of concern or shortcomings in the application of the Air Services Regulation in light of the current market reality. The evaluation takes into account the results of the 2013 Fitness Check on Internal Aviation Market (hereafter "the Fitness Check"). The evidence gathered during the evaluation and the resulting recommendations will inform the .13 The 2013 Fitness Check assessed the contributions brought by the Air Services Regulation in revising the existing rules on the EU internal aviation market and concluded that the objectives to consolidate the existing liberalisation legislation and to provide some clarifications were achieved. Issues that were identified as problematic were either outside of the scope of the Regulation (e.g. access of non-scheduled services to extra-EU markets), either could be further clarified by a technical guidance (leasing, restriction of traffic rights), either necessitated better dissemination of best practices among enforcement bodies (e.g. PSOs, price transparency, passenger protection in case of insolvency) or merely required continuing monitoring and enforcement. However, since then a number of market and policy developments described in this report took place that warrant another look at the Regulation and different measures to address concerns.

1.2. Scope of the evaluation

The Air Services Regulation is the successor of the various packages of measures, which have established and organised the EU internal aviation market since 1987.

Evolution of the EU internal aviation market

Until 1987, EU aviation was governed by bilateral agreements between Member States and national rules prescribing which air carriers could fly on which routes and the capacity they could provide as well as at which fares. Most carriers were State owned and, in general, aviation was seen as a national strategic and economic asset. Against this background, an internal aviation market progressively emerged i.e. through

12 The evaluations of the Airport Charges Directive and of the Regulation on Code of Conduct for

computerised reservations systems are carried out currently and are to be completed in the course of 2019.

The Commission may also conduct a study to determine whether the text of the Slot Regulation proposal of

2011 is still relevant in the current market context. A report on social issues in aviation was published on 1

March 2019, and an evaluation of the Ground handling Directive will be launched in the first half of 2019.

An Inception Impact Assessment was published in March 2018 https://ec.europa.eu/info/law/better-

regulation/initiatives/ares-2018-1022254_en An Inception Impact Assessment was published in March 2018 https://ec.europa.eu/info/law/better-

2 liberalisation and gradual market opening through the adoption of various so-called aviation packages. The First Package (1987) essentially left the bilateral framework in place while also relaxing some so far usual restrictions, such as those consisting in designation14traditionally given a 50% share of the market. The Second Package (

fares under which a fare set by an airline for a route between Member States would be

permitted unless both States disapproved it. It also opened up routes between almost all

European Community airports; relaxed restrictions on fifth freedom services15 routes; and eased restrictions on multiple designation of airlines on particular routes. The final step in the process, establishing the liberalised EU aviation market as we know it today, was reached through the Third Aviation Package adopted in 1992. The revision of the Third Package in 2008 did not bring any major changes to the existing framework but rather consolidated three exiting legal texts into one and fine-tuned specific aspects.16 The changes contributed to the existing objectives without however modifying them. These changes are presented in Section 5 under Effectiveness. Given the progressive liberalisation of the aviation market, the scope of this evaluation goes beyond the specific changes introduced in 2008 to assess the overall effects of the provisions adopted since the previous reform of 1992 (the Third package) and the relevance of the current framework in light of changes in the market, policy and technological environment. This allows capturing the effect of important provisions for EU aviation, which would otherwise be excluded.17 A fully-fledged evaluation of the legal framework has never been carried out. The 2013 Fitness Check focussed only partially on the Air Services Regulation since it covered also computerised reservation systems, insurance requirements and assistance to passengers affected by airline insolvency. Its objective was merely to identify potential overlaps, gaps, inconsistencies or obsolete measures of several legal acts. When it addressed the Air Services Regulation, it considered only leasing, access to routes, public service obligations, traffic distribution, environmental and emergency measures and price transparency, and only the changes introduced in 2008. It left out important areas concerning for example operating licences and in particular issues related to the principal place of business and ownership and control. It did not consider in the first place the scope of

14 Only one airline of each country is permitted to operate

15 The "freedoms of the air" are a set of commercial aviation rights granting a country's airlines the privilege

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