National procedure for allocating limited traffic rights in Poland
(2020/C 427/06)
Pursuant to Article 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (1), the Commission will publish the national procedure applied by Poland for allocating traffic rights which are limited by virtue of air service agreements concluded with third countries between eligible Union carriers.
REGULATION OF THE MINISTER FOR INFRASTRUCTURE (2)
of 28 September 2020
on the competitive procedure for the allocation of limited traffic rights (3)
The following provisions are laid down under Article 191(23) of the Aviation Act of 3 July 2002 (Journal of Laws 2019, items 1580 and 1495; 2020, items 284 and 1378):
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§ 1.
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This Regulation lays down the competitive procedure for the allocation of limited traffic rights which comprises:
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1)
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the information to be published concerning the receipt of an application for authorisation (‘application’) and the form in which it is to be published;
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2)
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details of how the competitive procedure is conducted;
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3)
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the additional information to be included in the completed application and the documents to be attached to that application with a view to conducting the competitive procedure.
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§ 2.
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1.
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The President of the Civil Aviation Authority shall publish a notice without delay in the Public Information Bulletin of the Civil Aviation Authority indicating that an application has been received.
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2.
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This notice shall comprise:
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1)
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details of the limited traffic rights covered by the competitive procedure;
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2)
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information to the effect that other air carriers may submit applications;
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3)
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the address and deadlines for submitting applications;
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4)
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the elements of the application and the additional information referred to in Section 3(1).
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5)
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a list of documents to be attached to the application referred to in Section 3(2).
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6)
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the criteria for allocation of limited traffic rights.
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§ 3.
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1.
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In addition to the information referred to in Article 192(3) of the Aviation Act of 3 July 2002 (‘the Act’), an application shall indicate the following:
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1)
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the name of the applicant air carrier and the address of its registered office;
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2)
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the planned starting date for the air services and the planned operating period;
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3)
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the nature of the air services (year-round or seasonal; direct or connecting);
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4)
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expected flight times on the routes or in the areas covered by the application;
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5)
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the maximum passenger seating capacity (in the case of passenger transport) or load capacity (in the case of carriage of freight or mail) of the aircraft to be used to operate the air services covered by the application;
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6)
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the number of aircraft entered on the Air Operator Certificate of the applicant air carrier that will be available to operate the air services covered by the application;
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7)
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the number of aircraft leased by the applicant air carrier under a route contract using leased aircraft with crew that will be available for purpose of providing the air services covered by the application, if applicable;
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8)
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the availability of information in Polish on board the aircraft used for the air services covered by the application;
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9)
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the anticipated amount of the air service charge in fares offered on the routes or in the areas covered by the application, on a one-way basis, in PLN;
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10)
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the services provided for each of the fares referred to in subparagraph 9 and the additional paid services, plus the amount charged for each of those additional services;
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11)
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the method used to sell passenger seats (in the case of passenger transport) or the capacity of the aircraft (in the case of carriage of freight or mail), including whether persons purchasing the air services covered by the application can be served in Polish;
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12)
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the amount and nature of funds already invested to develop scheduled or non-scheduled air services to the country concerned, if any;
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13)
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the number of passengers carried and the number of weekly services operated on the routes or in the areas covered by the application during the scheduling season preceding the one in which the application was submitted, if such services were already operated by the air carrier.
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2.
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In addition to the documents referred to in Articles 192(4) and 192a(3) of the Act attached by non-Polish air carriers, the following shall be attached:
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1)
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a copy of the Air Operator Certificate and the associated Operations Specifications issued to the applicant air carrier by the competent aviation authority of the state in which it is registered;
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2)
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a copy of the route contract concluded with another air carrier for the use of leased aircraft with crew and a copy of the Air Operator Certificate and the associated Operations Specifications of the air carrier leasing the aircraft covered by the contract if the operation of air services on the basis of such a contract is planned;
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3)
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up-to-date internal management accounts drawn up no later than three months before the date on which the application is submitted and, where available, the accounts for the previous financial year together with an audit report if an obligation to audit these accounts is enshrined in accounting rules or other specific provisions relating to accounts;
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4)
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confirmation of payment of the aviation fee referred to in Article 26a(1)(4) of the Act.
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§ 4.
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The air carrier which submitted the application before the publication of information that an application has been received shall complete its application with the information and documents referred to in Section 3 within 30 days of the date of publication of the information.
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§ 5.
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1.
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Applications by air carriers for authorisation submitted after the deadline referred to in Article 191(18) of the Act shall be deemed ineligible; the President of the Civil Aviation Authority shall notify air carriers whose applications have been submitted after the deadline of that fact in writing.
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2.
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There is no right of appeal against the decision referred to in paragraph 1.
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3.
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The deadline for submitting applications may not be rescheduled if an applicant fails to meet it.
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4.
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Paragraphs 1-3 shall apply mutatis mutandis to application amendments submitted after the deadline referred to in Article 191(18) of the Act.
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5.
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30 days after the date of publication of the information referred to in Section 2, if an application is deemed to present formal shortcomings, the President of the Civil Aviation Authority shall request the air carrier to remedy these within a specified period which shall not be less than 7 days from the date of receipt of the request, failing which the application will not be examined.
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§ 6.
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The information referred to in Section 3 which the applicant has deemed to constitute a trade secret within the meaning of Article 11(2) of the Unfair Competition Act of 16 April 1993 (Journal of Laws 2019, items 1010 and 1649) shall not be made available to the other participants in the competitive procedure.
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§ 7.
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1.
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In the competitive procedure, applications for authorisation shall be assessed by a panel appointed by the President of the Civil Aviation Authority from members of the Authority’s staff.
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2.
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The panel shall be appointed for an indefinite period.
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3.
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The panel shall:
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1)
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establish the points scale for each criterion referred to in Article 191(17) of the Act and determine the scoring system for individual criteria and their percentage weighting;
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2)
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analyse whether applications comply with the formal requirements;
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3)
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indicate applications which do not comply with the formal requirements and identify their shortcomings;
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4)
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scrutinise and evaluate applications which comply with the formal requirements with reference to the criteria for allocating limited traffic rights;
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5)
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compile a list of the air carriers participating in the competitive procedure, indicating the points awarded and justifying the scores;
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6)
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prepare a recommendation to the President of the Civil Aviation Authority on the outcome of the competitive procedure.
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4.
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Recommendations to the President of the Civil Aviation Authority on the outcome of the competitive procedure shall indicate:
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1)
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the selected air carriers with the highest ratings, in order, until the available traffic rights have all been allocated, if limited traffic rights apply in view of the number of air carriers;
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2)
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the selected air carriers with the highest ratings, in order, with the number of services corresponding to the result of this assessment, not exceeding the number of services applied for and until the available traffic rights have all been allocated, if limited traffic rights apply in view of the number of services.
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5.
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The President of the Civil Aviation Authority shall nominate the chair of the panel from among the members of the panel. The chair shall:
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1)
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set the dates of the panel’s meetings and inform the members of the panel thereof;
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2)
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call the panel’s meetings;
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3)
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chair the panel’s meetings;
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4)
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submit a recommendation to the President of the Civil Aviation Authority on the outcome of the competitive procedure.
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6.
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The chair of the panel shall appoint the secretary of the panel from among the members of the panel. The secretary shall:
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1)
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keep competitive procedure documentation;
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2)
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draw up the minutes of the panel’s meetings;
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3)
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organise the panel’s meetings in cooperation with the chair of the panel;
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4)
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draft documents prepared by the panel in accordance with the instructions of the chair of the panel.
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7.
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In the absence of the chair of the panel, his or her duties shall be carried out either by the secretary or by a member appointed by the chair.
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8.
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Experts and representatives of administrative bodies, organisations or other institutions which are responsible for matters relating to the panel’s work may attend the panel’s meetings in an advisory capacity.
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9.
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The panel’s meetings may be organised using IT equipment.
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10.
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The minutes of the panel’s meetings shall be signed by the chair or his/her replacement in accordance with paragraph 7 once they have been approved by the persons attending the meeting.
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11.
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The panel shall allocate points to air carriers taking part in the competitive procedure by an absolute majority.
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12.
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The panel shall decide on matters other than the allocation of points to air carriers participating in the competitive procedure by a simple majority.
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§ 8.
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Where, following the launch of the competitive procedure, only one air carrier applies for an authorisation for limited traffic rights or, following an analysis of whether applications comply with the formal requirements, only one carrier has submitted an application which complies with the formal requirements, the President of the Civil Aviation Authority shall issue an authorisation without carrying out an assessment within the meaning of Section 7(3)(4)-(6) and (4).
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§ 9.
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1.
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The provisions of this Regulation shall apply to competitive procedures launched but not completed before the date of entry into force of this Regulation.
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2.
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The information and documents referred to in Section 3 of this Regulation shall be submitted by way of a supplement to the information and documents submitted in the competitive procedures referred to in paragraph 1 no later than 30 days following the entry into force of this Regulation, failing which the application shall be deemed ineligible.
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§ 10.
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This Regulation shall enter into force on the day following its publication. (4)
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Minister for Infrastructure:
A. ADAMCZYK
(1) OJ L 157, 30.4.2004, p. 7.
(2) The Minister for Infrastructure heads the Government department responsible for transport pursuant to Section 1(2)(2) of the Cabinet Regulation of 18 November 2019 specifying the remit of the Minister for Infrastructure (Journal of Laws, item 2257).
(3) This Regulation implements Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (OJ L 157, 30.4.2004, p. 7; Special edition in Polish: Chapter 7, Volume 8, p. 193).
(4) This Regulation was preceded by the Regulation of the Minister for Transport, Construction and Maritime Economy of 27 December 2012 on the competitive procedure determining the detailed conditions for the allocation of limited traffic rights (Journal of Laws 2018, item 2343) which, pursuant to Article 18 of the Act of 14 December 2018 amending the Aviation Act and certain other acts (Journal of Laws 2019, item 235), is repealed on 1 October 2020.
