‘Ministry of Transport

Order approving the Regulation on the designation of Community air carriers to operate air services in accordance with the provisions of air service agreements concluded by Romania with non-EU countries

No 269 of 28 May 2007

For the discharge of the powers of the Ministry of Transport as state authority in the field of transport,

On the basis of Article 4(b) and (v) and Article 50(3) of Government Ordonnance No 29/1997 on the Civil Aviation Code, republished as subsequently amended and supplemented, Article 5 of Regulation (EC) No 847/2004 of the European Parliament and of the Council on the negotiation and implementation of air service agreements between Member States and third countries, and Article 5(4) of Government Decision No 367/2007 on the organisation and functioning of the Ministry of Transport,

The Ministry of Transport hereby issues the following

ORDER:

Article 1

The Regulation on the designation of Community air carriers to operate air services in accordance with the provisions of the air service agreements concluded by Romania with non-EU countries, as set out in the Annex forming an integral part of this Order, is hereby approved.

Article 2

1.   This Order shall be published in the Official Gazette of Romania, Part I.

2.   On the date of the entry into force of this Order, Order No 546/1999 on the conditions governing the designation of Romanian air carriers to operate public air transport services on scheduled routes, published in Official Gazette of Romania, Part I, No 539 of 4 November 1999, shall be repealed.

Article 3

The Directorate-General for Civil Aviation of the Ministry of Transport shall take measures to apply the provisions of this Order.

Annex to Ministry of Transport Order No 269/2007

Regulation on the designation of Community air carriers to operate air services in accordance with the provisions of the air service agreements concluded by Romania with non-EU countries

Article 1

1.   The present Regulation establishes the conditions under which the Community air carriers may be designated to operate air services on routes covered by the air service agreements concluded by Romania with non-EU countries and to which Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes, hereinafter “Council Regulation (EEC) No 2408/92”, does not apply.

2.   For the purpose of this Regulation:

—	“community air carrier” means any air carrier established in Romania under the terms of Community law and holding an operating licence issued in accordance with Council Regulation (EEC) No 2407/92 on licensing of air carriers,

—	“route with limited traffic rights” means a route to which Council Regulation (EEC) No 2408/92 does not apply and which is subject to limited traffic rights in accordance with an air service agreement concluded by Romania with a non-EU country.

Article 2

1.   The information on traffic rights and their allocation on routes between Romania and countries which are not members of the European Union and with which Romania has concluded air service agreements is available on the website of the Ministry of Transport (www.mt.ro).

2.   The schedule of planned negotiations for bilateral air service agreements shall be published on the website of the Ministry of Transport.

3.   Any Community air carrier interested in operating air services on a route between Romania and a country which is not a member of the European Union and with which Romanian has not concluded an air service agreement may inform the Ministry of Transport of its intention and of any possible requirements. The information received by the Ministry of Transport shall be taken into consideration if an air service agreement is negotiated with that country.

Article 3

1.   Any Community air carrier interested in operating air services on routes covered by air service agreements concluded by Romania with non-EU countries and to which Council Regulation (EEC) No 2408/92 does not apply shall submit an application in writing to the Directorate-General for Civil Aviation, “the DGCA”, of the Ministry of Transport to obtain the appropriate designation.

2.   If the application is made for a route with limited traffic rights (including limits on the capacity and frequency or on the number of air carriers permitted to operate on that route), information on the application shall be published on the website of the Ministry of Transport, together with a notice inviting any other Community air carrier to apply for a designation to operate that route within fifteen days of publication of the notice.

3.   All applications received as a result of the invitation as provided for in paragraph (2) shall be published on the website of the Ministry of Transport.

4.   Any application received after the period specified in paragraph (2) shall not be considered and the applicants shall be informed accordingly by the DGCA.

5.   Applications as provided for in paragraphs (1) and (3) shall be written in the Romanian language and shall contain the following information:

(a)	a copy of the air carrier's operating licence;

(b)	a description of the planned services (routes, flight schedule, type of aircraft and their registration mark, etc.);

(c)	the planned start date for the air services;

(d)	possible market arrangements with other air carriers;

(e)	connecting services, if any;

(f)	the accessibility of the services and customer support (tickets sales network, internet-based services, etc.);

(g)	the pricing policy for the route;

(h)

elements and guarantees enabling assessment of the applicant air carrier's operational and financial capacity to operate the intended air services, covering at least the first two years of operation (a business plan for that route containing, as a minimum, information about the following: the status of the aircraft to be used, the operational possibility to provide another aircraft in the event that the scheduled aircraft cannot be used owing to unforeseen circumstances, the financial capacity to commence and maintain operations even if the volume of traffic is very low, the integration of the new service into air services that are already being operated, a forecast of the impact of the air service on the different categories of passengers).

6.   The DGCA may ask applicants to provide additional information needed for the assessment of the application.

Article 4

1.   For routes without any limitation of traffic rights, the designation shall be issued by the Ministry of Transport in accordance with the provisions of the appropriate air service agreement, after receipt of the application and information laid down in Article 3.

2.   Competing applications for unused capacity on a route with limited traffic rights shall be assessed by the DGCA on the basis of the following criteria:

(a)	meeting of the air transport demand (frequency of service and capacity offered, direct or indirect services, days of operation, etc);

(b)	the presence of guarantees with regard to the sustainability of the service for a period of at least two years;

(c)	the proposed start date and period of operation;

(d)	the accessibility of the services offered to users (tickets sales network, internet-based services, etc.);

(e)	the tariff policy, including ticket prices;

(f)	connection of the offered services with the existing route network, if any;

(g)	the aircraft's performance from an environmental point of view, including as regards noise pollution.

3.   The air carrier's situation as regards the payment of Romanian airport tariffs and tariffs for air navigation services may be also used as a selection criterion.

Article 5

1.   The Ministry of Transport shall decide on applications for designation to operate air services on a route with limited traffic rights within 60 days following the publication of the notice provided for in Article 3(2).

2.   Traffic rights shall be granted for an indefinite period.

3.   The decision as laid down in paragraph (1) shall be published on the website of the Ministry of Transport and communicated by the DGCA to all applicants in writing. After publication of the decision, the Ministry of Transport shall designate the air carrier selected to operate air services on that route.

4.   Traffic rights granted to operate air services on routes not covered by Council Regulation (EEC) No 2408/92 may not be transferred by one air carrier to another.

5.   If, following the designation issued by the Ministry of Transport in accordance with Article 4(1) or 5(3), the appropriate operating authorisation for that route is not granted to the designed air carrier by the competent authority of a non-EU third country or is revoked, the air carrier shall notify the Ministry of Transport immediately in writing.

Article 6

1.   The DGCA shall monitor how a Community air carrier designated to operate air services on a route with limited traffic rights is operating the services in accordance with its application and with the terms of the final designation decision provided for in Article 5.

2.   Any Community air carrier shall have the right to contest the efficient use of the traffic rights on a route with limited traffic rights and to apply for the designation to operate air services on that route by offering better operating conditions than the designated air carrier.

3.   In the situation specified in paragraph (2), the DGCA shall reassess the initial designation. However, the reassessment may not be carried out within five years of a designation being issued or of a previous reassessment.

4.   The designated air carrier shall be informed of any reassessment decision. The decision shall be published on the website of the Ministry of Transport. The reassessment process shall follow the procedure laid down in Articles 3 to 5.

Article 7

1.   The Ministry of Transport shall withdraw a designation issued under Article 5(3) if:

(a)	the air carrier has not commenced operation of the air services on the specified route within six months of the date of designation;

(b)	the air service is interrupted and not resumed within six months, unless the interruption is due to circumstances beyond the control of the designated air carrier;

(c)	the competent authority of another country has not granted the appropriate operating authorisation to the designated air carrier, or revokes the authorisation;

(d)	the air carrier has notified the DGCA of its intention to cease operating the route in question.

2.   The Ministry of Transport may also withdraw a designation if:

(a)	the air carrier fails to comply with the commitments which it gave on the frequency of flights, capacity, tariffs and ticket distribution and on the basis of which the Ministry of Transport issued the designation decision;

(b)	the air carrier has repeatedly been in debt to Romanian airports or air navigation service providers.

3.   The DGCA shall notify the air carrier concerned in writing of its intention to withdraw the designation for a certain route and the reasons for the decision. Such notification shall also be sent to all Community air carriers that applied for the designation to operate air services on the route in question, in accordance with Article 3, and the carriers shall be permitted to make observations and comments.

4.   The designated Community air carrier has the right, within 15 days of receipt of the notification as provided for in paragraph (3), to send the DGCA its comments on the reasons for the withdrawal of the designation and the new commitments it wishes to undertake regarding the operation of air services on the route in question.

5.   Within 30 days of the expiry of the deadline laid down in paragraph (4), the Ministry of Transport shall take a decision on withdrawing the designation. If the designation is withdrawn, the appropriate decision shall enter into force three months after its notification to the air carrier concerned. For a new designation, the procedure laid down in Articles 3 to 5 shall be applied.

Article 8

Any action brought against a decision of the Ministry of Transport not to designate a Community air carrier to operate air services on a route covered by an air services agreement concluded by Romania with a country which is not a member of the European Union and to which Council Regulation (EEC) No 2408/92 does not apply, or to withdraw a designation shall be caught by Law No 554/2004 on administrative litigation, as subsequently amended.’