P6_TC1-COD(2007)0013

Position of the European Parliament adopted at first reading on 15 January 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council on airport charges

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission ‖,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

(1)

The main task and commercial activity of airports is to ensure the handling of aircraft, from landing to take-off, and of passengers and cargo, so as to enable air carriers to provide air transport services. For this purpose, airports offer a number of facilities and services related to the operation of aircraft and the processing of passengers and cargo, the cost of which they generally recover through airport charges. Facilities and services for which charges are levied should be provided on a cost-efficient basis.

(2)	It is necessary to establish a common framework regulating the essential features of airport charges and the way they are set, as in the absence of such a framework, basic requirements in the relationship between airport managing bodies and airport users may not be respected.

(3)	This Directive should apply to airports located within the Community that are above a minimum size, as the management and the funding of small airports do not call for the application of a Community framework.

(4)	The collection of charges with respect to the provision of air navigation services and groundhandling services has already been addressed by Commission Regulation (EC) No 1794/2006 (4) ‖ and Council Directive 96/67/EC (5) ‖ respectively.

(5)

Airport charges should be non-discriminatory. A compulsory procedure for regular consultation between airport managing bodies and airport users should be put in place with the possibility for either party to have recourse to an independent regulatory authority whenever a decision on airport charges or the modification of the charging system is contested by airport users.

(6)

One independent regulatory authority should be nominated or established in every Member State so as to ensure the impartiality of its decisions and the proper and effective application of this Directive. The authority should be in possession of all the necessary resources in terms of staffing, expertise and the financial means for the performance of its tasks , so as to ensure that airports provide their services and facilities on a cost-efficient basis .

(7)

It is vital for airport users to obtain from the airport managing body, on a regular basis, information on how and on what basis airport charges are calculated. Such transparency will provide air carriers with an insight into the costs incurred by the airport and the productivity of an airport's investments. To allow an airport managing body to properly assess requirements with regard to future investments, airport users should be required to share all their operational forecasts, development projects and specific demands and wishes with the airport managing body on a timely basis.

(8)

Airports should inform airport users about major infrastructure projects as these have a significant impact on the level of airport charges. Such information shall be provided in order to make monitoring of infrastructure costs possible and with a view to providing suitable and cost-effective facilities at the airport concerned.

(9)

Given the emergence of air carriers operating air services at low cost, airports served by these carriers should be enabled to apply charges corresponding to the infrastructure and/or the level of service provided, as air carriers have a legitimate interest in requiring services from an airport that correspond to the price/quality ratio. However, access to such a different level of infrastructure or services should be open to all carriers that wish to avail themselves of them on a non-discriminatory basis. If demand exceeds supply, access must be determined on the basis of objective and non-discriminatory criteria to be developed by an airport managing body. Any differentiation and/or increase in charges should be transparent, objective and based on clear criteria. Differentiation might be considered an incentive for the opening up of new routes and thus aid development in regions which suffer from geographical and natural handicaps, including the outermost regions .

(10)

As the methods for establishing and levying the amounts due for the coverage of security costs differ across the Community, the harmonisation of the basis for charging security costs at Community airports where the costs of security are reflected in the airport charges is necessary. At these airports the charge should be related to the actual cost of providing security, with accurate management of any public financing and State aid granted to meet security costs , and the service should be provided at cost price, as a result of which no profits are made. The revenue obtained from airport charges introduced to cover security costs should be used exclusively for implementing security measures .

(11)

Airport users should be entitled to a fixed level of service in return for the charges they pay. To ensure this, the service level should be the subject of agreement between the airport managing body and the association or associations representing the airport users at the airport, to be concluded at regular intervals.

(12)	This Directive is without prejudice to the application of the provisions of the Treaty, in particular Articles 81 to 89 thereof.

(13)

Since the objectives of this Directive cannot be sufficiently achieved by the Member States as airport charges systems cannot be put in place at national level in a uniform way throughout the Community, and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

1.    This Directive sets common principles for the levying of airport charges at Community airports. This is without prejudice to the freedom of airport managing bodies to opt for the single or dual till system or for a combined system .

2.    This Directive applies to any airport located in a territory subject to the provisions of the Treaty and open to commercial traffic whose annual traffic is over 5 million passenger movements or which accounts annually for more than 15 % of the passenger movements in the Member State in which it is located .

Member States may, after a thorough investigation by the national competition authority, also apply this Directive to other airports, if this proves necessary.

This Directive also applies to airport networks and all airports organised into networks in any territory subject to the provisions of the Treaty.

Member States shall publish a list of the airports on their territory to which this Directive applies. This list shall be based on data from Eurostat and shall be updated annually.

This Directive shall not apply to charges collected for the remuneration of en-route and terminal air navigation services in accordance with ‖ Regulation (EC) No 1794/2006 ‖ or to charges collected for the remuneration of groundhandling services referred to in the Annex to ‖ Directive 96/67/EC ‖ or to charges levied for the funding of assistance to disabled passengers and passengers with reduced mobility referred to in Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (6) .

This Directive is without prejudice to the right of each Member State to apply additional regulatory measures that are not incompatible with this Directive or other relevant provisions of Community law with regard to any airport managing body established in its territory. This may include in particular the approval of charging systems and/or the level of charges based on competition law.

Article 2

Definitions

For the purposes of this Directive

(a)

‘airport’ means any land area specifically adapted for the landing, taking-off and manœuvring of aircraft, including the ancillary installations which these operations may involve for the requirements of aircraft traffic and services, including the installations needed to assist commercial air services;

(b)

‘airport managing body’ means a body which, in conjunction with other activities or not as the case may be, has as its objective under national laws or regulations the administration and management of the airport or airport network infrastructures and the coordination and control of the activities of the different operators present in the airports or airport network concerned;

(c)	‘airport user’ means any natural or legal person responsible for the carriage of passengers, mail and/or freight by air to or from the airport concerned;

(d)

‘airport charge’ means a levy collected for the benefit of the airport managing body and paid by the airport users and/or air passengers for the use of facilities and services which are exclusively provided by the airport managing body and which are related to the landing, take-off, lighting and parking of aircraft, and processing of passengers and freight;

(e)

‘security charge’ means a levy which is specifically designed to recover all or part of the cost of minimum security measures intended to protect civil aviation against acts of unlawful interference , as laid down in Regulation (EC) No 2320/2002 of the European Parliament and of the Council of 16 December 2002 establishing common rules in the field of civil aviation security (7);

(f)	‘airport network’ means a number of airports in a Member State that are operated by an airport managing body designated by the competent national authority.

Article 3

Non-discrimination

Member States shall ensure that airport charges do not discriminate among airport users or air passengers.

This provision shall not stand in the way of the introduction of adjustments to charges for objective, transparent reasons of general interest.

Article 4

Airport network

In order to ensure that access is provided to the airports in an airport network at a cost commensurate with the number of air passengers, Member States may permit the operators of airport networks to introduce a uniform and transparent system of airport charges for all the airports belonging to the network. Permission may only be granted on condition that competition between the airports in different Member States is not distorted, for example as regards tourism. In the event of a dispute, the complainant may apply to the Commission on the basis of the relevant EC competition rules.

Article 5

Consultation and remedy

1.    Member States shall ensure that at each airport to which this Directive applies a compulsory▐ procedure for consultation between the airport managing body and airport users or representatives of airport users is established with respect to the operation of the system of airport charges and the level of such charges , including the level of service quality to be provided by the airport managing body in return for the airport charge. Member States shall ensure that such consultation takes place in advance of airport managing bodies or airport users wishing to introduce or to make significant changes to the structure or level of airport charges. Where there is a multi-annual agreement between the airport managing body and the airport users or representatives of airport users, consultation shall take place in accordance with the provisions of that agreement.

2.    Member States shall ensure that, wherever possible, changes to the airport charges system or to the level of charges are made in agreement between the airport managing body and the airport users. To that end, the airport managing body shall submit any proposal to modify the airport charges system or the level of airport charges to the airport users no later than six months before they enter into force, together with the reasons for the proposed changes. At the request of any airport user, the airport managing body shall hold consultations on the proposed changes with the airport users and take their views into account before the final decision is taken. The airport managing body shall publish its final decision within a reasonable time prior to it entering into force. The airport managing body shall justify its decision with regard to the views of the airport users in the event that no agreement on the proposed changes is reached between the airport managing body and the airport users.

3.    Member States shall ensure that in the event of a definitive disagreement over a decision on airport charges, the airport managing body or the airport users, as long as they represent at least two unrelated airlines or at least 10 % of the annual aircraft movements or the annual passenger numbers at the relevant airport, may seek the intervention of the independent regulatory authority which shall examine the justifications for the modification of the airport charges system or the level of airport charges.

The independent regulatory authority nominated or established in accordance with Article 12 shall:

(a)	establish a procedure for resolving disagreements between the airport managing body and the airport users or their representatives on changes to the level or structure of airport charges, including changes relating to quality of service;

(b)	determine the conditions under which a disagreement can be brought before it for resolution;

(c)	determine the criteria against which disagreements will be assessed.

These conditions and criteria shall be non-discriminatory, transparent and in line with the principles of EC competition law and this Directive.

The examination of a change to the airport charges system or the level of airport charges shall not have a suspensory effect.

4.     The airport user shall provide prima facie evidence that the airport in question has taken measures that infringe EC competition law.

5.     This shall be without prejudice to any existing dispute resolution or statutory appeal process .

Article 6

Transparency

1.   Member States shall ensure that the airport managing body provides each airport user, or the representatives or associations of airport users, once a year with information on the components serving as a basis for determining the level of all charges levied at the airport. This information shall include at least:

(a)	a list of the various services and infrastructure provided in return for the charge levied;

(b)	the methodology used to establish charges , stating whether a single or a dual till system or a combined system has been used ;

(c)	the overall cost structure of the airport related to the facilities and services which the airport charges are intended to cover, to the extent that it is relevant for calculating airport charges and is required to be included in the annual business report ;

(d)	the revenue and cost of each category of charge collected at the airport;

(e)	airport revenue from State aid, subsidies and other monetary support in relation to the revenue from charges;

(f)	State and regional aid granted to the airport and the amount of resources derived from public financing in connection with public service obligations;

(g)	the total number of staff deployed to services which give rise to the collection of the charges;

(h)	forecasts of the situation at the airport as regards▐ traffic growth and any major proposed investments;

(i)	the actual use of airport infrastructure and equipment over a given period;

(j)	the predicted output of any major proposed investments in terms of their effects on▐ airport capacity and service quality .

2.   Member States shall ensure that airport users submit information to the management body, prior to any expected changes in the level of airport charges or the airport charges system or prior to the introduction of new charges, concerning in particular:

(a)	forecasts as regards traffic;

(b)	forecasts as to the composition and envisaged use of their fleet;

(c)	their development projects at the airport concerned;

(d)	their requirements at the airport concerned.

3.    The information provided pursuant to paragraphs 1 and 2 shall be considered to be confidential, and handled accordingly. It shall be subject to national legislation on the confidentiality of data. In the case of airports that are publicly listed, stock exchange regulations in particular must be complied with .

4.     Within a framework of appropriate rules on confidentiality, the independent regulatory authority shall have access to all the information that it requires in connection with its activities.

Article 7

New infrastructure

Member States shall ensure that the airport managing body consults with airport users before plans for new infrastructure projects are finalised. Within a maximum of five years before the investment becomes operational, the airport managing body may assert its interests by way of pre-financing when airport charges are set.

The airport managing body may pre-finance new infrastructure projects by increasing airport charges accordingly, on condition that :

(a)	airport users are provided with transparent information on the extent and duration of airport charge increases;

(b)	all additional revenue is used solely for the construction of the planned infrastructure;

(c)	all official authorisations have been obtained.

Article 8

Quality standards

1.    In order to ensure smooth and efficient operations at an airport, Member States shall ensure that the airport managing body and the association or associations representing airport users at the airport enter into negotiations with a view to concluding agreements on each service level , in accordance with the provisions on differentiation of charges provided for in Article 9, with regard to the quality of service provided at the airport terminal or terminals, and the exactitude and timeliness of information provided by airport users on their projected operations as referred to in Article 6(2), so as to allow the airport managing body to fulfil its obligations. Such agreement shall be concluded at least once every two years and shall be notified to the independent regulatory authority of each Member State.

2.    Member States shall ensure that, in the event that no agreement on service levels is reached, either party may seek the intervention of the independent regulatory authority.

Article 9

Differences in charges

1.    Member States shall take the necessary measures to allow the airport managing body to vary the quality and scope of particular airport services, terminals or parts of terminals, with the aim of providing tailored services or a dedicated terminal or part of a terminal. The level of airport charges may be differentiated according to the quality and scope of such services , but may also be differentiated according to environmental performance, noise pollution or other public interests on the condition that it is determined on the basis of relevant, objective and transparent criteria .

Member States shall also ensure that airports levy the same charge for the same service. The airport managing body may grant airport user concessions on charges based on the quality of a service used, provided that the concession in question is available to all users of the airport under publicised, transparent and objective conditions. It may grant a concession to users which open new routes, provided that the concession is similarly granted in a public and non-discriminatory manner and is made available to all airport users in the same way, in accordance with EC competition law.

2.    Member States shall ensure that any airport user wishing to use the tailored services or dedicated terminal or part of a terminal shall have access to those services and terminal or part of a terminal.

Where more users wish to have access to the tailored services or dedicated terminal or part of a terminal than is possible due to capacity constraints, access shall be determined on the basis of relevant, objective, transparent and non-discriminatory criteria.

Article 10

Security charges

Security charges shall be used exclusively to meet security costs and shall not exceed those costs. No profit may be made on security charges. These costs shall be determined using the principles of economic and operational efficiency and of accounting and evaluation generally accepted in each of the Member States. Member States shall ensure that the costs are distributed fairly among the various user groups at each airport. However, Member States shall ensure that particular account is taken of:

—	the cost of financing the facilities and installations dedicated to security operations, including fair depreciation in the value of these facilities and installations;

—	the expenditure on security staff and security operations , excluding the cost of short-term heightened security measures ; such measures, imposed under national legislation on special risk assessments and resulting in extra expenditure, shall not be subject to the provisions of this Directive;

—	the grants and subsidies allocated by the authorities for security purposes.

The proceeds from security charges levied at a particular airport may be used only to cover airport security expenditure incurred in the place in which the charges were levied. In the case of airport networks, the proceeds from security charges may be used only to cover security expenditure arising at airports belonging to the network.

Article 11

More stringent security costs

The costs of implementing security measures which are more stringent than the minimum security measures laid down in Regulation (EC) No 2320/2002 shall be borne by the Member States.

Article 12

Independent regulatory authority

1.    Member States shall nominate or establish an independent body as their national independent regulatory authority in order to ensure the correct application of the measures taken to comply with this Directive and to ensure that the tasks assigned under Articles 5 and 8 are carried out . Such body may be the same as the entity entrusted by a Member State with the application of the additional regulatory measures referred to in Article 1(2), including the approval of the charging system and/or the level of charges, provided that it meets the requirements of paragraph 3 of this Article.

2.     The national independent regulatory authority may delegate, under its supervision, the implementation of the provisions, or parts of the provisions, of this Directive to regional independent regulatory authorities, provided that the implementation takes place in accordance with the same standards. The national independent regulatory authority shall continue to bear responsibility for ensuring the correct application of the provisions of this Directive. The provisions of paragraph 3 shall also apply to regional independent regulatory authorities .

3   . Member States shall guarantee the independence of the independent regulatory authority by ensuring that it is legally distinct from and functionally independent of any airport managing body and air carrier. Member States that retain ownership or control of airports, airport managing bodies or air carriers shall ensure the effective structural separation of the regulatory function from activities associated with ownership or control. Member States shall ensure that the independent regulatory authority exercises its powers impartially and transparently.

4   . Member States shall notify to the Commission the name and address of the independent regulatory authority, its assigned tasks and responsibilities, and the measures taken to ensure compliance with paragraph 3.

5   . When carrying out an investigation into the justification for changing the level or structure of airport charges, as provided for in Article 5, the independent regulatory authority shall be able to request the necessary information from the parties concerned and shall be required to consult those parties and any other affected parties in order to reach its decision. It shall reach its decision as soon as practicable and within three months of the receipt of a complaint and shall be required to publish the decision and the reasons for it. The decision shall have binding effect.

6   . The independent regulatory authority shall publish an annual report on its activities.

Article 13

Report and revision

1.    The Commission shall submit a report to the European Parliament and the Council on the operation of this Directive , assessing progress made in attaining its objectives, no later than … (8) , as well as, where appropriate, suitable proposals.

2.    Member States and the Commission shall cooperate in the application of this Directive, particularly as regards the collection of information for the purposes of the report referred to in paragraph 1.

Article 14

Implementation

1.    Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by …  (9) They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication.

2.    Member States shall communicate to the Commission the text of the essential provisions of national law which they adopt in the field covered by this Directive.

Article 15

Entry into force and addressees

This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Directive is addressed to the Member States.

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(1)  OJ C 10, 15.1.2008, p. 35.

(2)  OJ C 305, 15.12.2007, p. 11.

(3)  Position of the European Parliament of 15 January 2008.

(4)  Commission Regulation (EC) No 1794/2006 of 6 December 2006 laying down a common charging scheme for air navigation services (OJ L 341, 7.12.2006, p. 3).

(5)  Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (OJ L 272, 25.10.1996, p. 36). Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

(6)  OJ L 204, 26.7.2006, p. 1.

(7)  OJ L 355, 30.12.2002, p. 1. Regulation as amended by Regulation (EC) No 849/2004 (OJ L 158, 30.4.2004, p. 1. Corrected version in OJ L 229, 29.6.2004, p. 3).

(8)  4 years from the date of entry into force of this Directive.

(9)  18 months from the date of publication of this Directive.