EUROPEAN COMMISSION

Brussels, 4.4.2025

COM(2025) 154 final

2025/0081(NLE)

Proposal for a

COUNCIL DECISION

on the conclusion, on behalf of the European Union, of the Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

Following the judgements of the Court of Justice in the so-called “Open Skies” cases, on 5 June 2003 the Council authorised the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral air services agreements with an agreement at Union level (the “horizontal authorisation”).

The Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services (the Agreement’) is based on that horizontal authorisation and has the specific objective to amend the existing bilateral air services agreements to bring them in line with Union law, by giving all EU air carriers non-discriminatory access to routes between the European Union and third countries.

Negotiations with Kazakhstan started in 2007 and a first draft “Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services” (the “2007 Agreement”) was initialled with Kazakhstan. In 2008, the Commission submitted a proposal for a Council Decision on the conclusion of that first agreement (COM(2008) 92). However, Kazakhstan subsequently declined to sign the 2007 Agreement.

Negotiations with Kazakhstan resumed in 2022 and the negotiators initialled a revised Agreement in October 2024.

The current proposal replaces the proposal for a Council Decision on the conclusion of the first agreement (COM(2008) 92), which has become obsolete and is hereby withdrawn. The current Agreement differs considerably from the 2007 Agreement. There is no provisional application foreseen in the new draft agreement and various other provisions have been modified to take into account best practices derived from experience with that kind of agreement during the intervening sixteen years.

•Consistency with existing policy provisions in the policy area

The provisions of the Agreement supersede or complement the existing provisions in 17 bilateral air services agreements between Member States and Kazakhstan.

•Consistency with other Union policies

The Agreement will serve a fundamental objective of the external aviation policy of the Union by bringing existing bilateral air services agreements in line with Union law.

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis

Article 100(2) in conjunction with Article 218(5) of the Treaty on the Functioning of the European Union (TFEU).

•Subsidiarity (for non-exclusive competence)

The proposal is entirely based on the “horizontal authorisation” granted by the Council, taking into account the issues covered by Union law and bilateral air services agreements.

•Proportionality

The Agreement will amend or complement provisions in bilateral air services agreements only to the extent necessary to ensure compliance with Union law.

•Choice of the instrument

The Agreement between the Union and Kazakhstan is the most efficient instrument to bring all existing bilateral air services agreements between Member States and Kazakhstan into conformity with Union law.

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

•Ex-post evaluations/fitness checks of existing legislation

Not applicable.

•Stakeholder consultations

In line with Article 218(4) TFEU, the Commission has conducted the negotiations in consultation with a special committee. Industry has equally been consulted during the negotiations. Comments made in this process have been taken into account. The Member States concerned verified the accuracy of the references to the bilateral air services agreements. Industry underlined the importance of a sound legal basis for their commercial operations.

•Collection and use of expertise

Not applicable.

•Impact assessment

Not applicable.

•Regulatory fitness and simplification

The proposal provides for simplification of legislation. The relevant provisions of bilateral air services agreements between Member States and Kazakhstan will be superseded or complemented by provisions in one single agreement.

•Fundamental rights

Not applicable.

4.BUDGETARY IMPLICATIONS

The proposal has no implication for the budget of the Union.

5.OTHER ELEMENTS

•Implementation plans and monitoring, evaluation and reporting arrangements

The Parties to the Agreement shall notify each other in writing through diplomatic channels about the completion of their respective internal procedures necessary for the entry into force of the Agreement. The Agreement shall enter into force on the date of the later notification.

•Explanatory documents (for directives)

Not applicable.

•Detailed explanation of the specific provisions of the proposal

International aviation relations between Member States and third countries have traditionally been governed by bilateral air services agreements between Member States and third countries, the annexes to such agreements and other related bilateral or multilateral arrangements.

However, traditional designation clauses in Member States’ bilateral air services agreements infringe Union 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 EU air carriers established in the territory of a Member State but owned and controlled by nationals of other Member States. This is contrary to Article 49 of the Treaty on the Functioning of the European Union 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.

In accordance with the mechanisms and directives in the Annex to the “horizontal authorisation”, the Commission has negotiated an Agreement with Kazakhstan that replaces certain provisions in the existing bilateral air services agreements between Member States and Kazakhstan. Article 2 of the Agreement replaces the traditional designation clauses with an EU designation clause, permitting all EU carriers to benefit from the right of establishment.

Subsequently to the signing of the agreement, it should be concluded. A decision to this effect is proposed herewith.

2025/0081 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion, on behalf of the European Union, of the Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2), in conjunction with point (a) of Article 218(6) thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament,

Whereas:

(1)In accordance with Council Decision (EU)…/… 1 , the Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services (‘the Agreement’) was signed on […], subject to its conclusion at a later date.

(2)The objective of the Agreement is to bring bilateral air services agreements between 16 Member States and Kazakhstan in line with Union law.

(3)The Agreement should be approved on behalf of the Union.

HAS ADOPTED THIS DECISION:

Article 1

The Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services (‘the Agreement’) is hereby approved on behalf of the Union.

The text of the Agreement is attached to this Decision.

Article 2

This Decision shall enter into force on the day of its adoption.

Done at Brussels,

(1)    Council Decision (EU)…/… on the signing, on behalf of the European Union, of the Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services (OJ L [XXX], [XXX], p. [XX]).

EUROPEAN COMMISSION

Brussels, 4.4.2025

COM(2025) 154 final

ANNEX

to the

proposal for a Council Decision

on the conclusion, on behalf of the European Union, of the Agreement between the European Union and the Government of the Republic of Kazakhstan on certain aspects of air services

AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN AND THE EUROPEAN UNION ON CERTAIN ASPECTS OF AIR SERVICES

The Government of the Republic of Kazakhstan, of the one part, and The European Union, of the other part, hereinafter referred to as "the Contracting Parties",

NOTING that under European Union law European Union air carriers established in a Member State have the right to non-discriminatory access to air routes between the Member States of the European Union and third countries,

RECOGNISING that the European Union has requested that certain provisions of the bilateral air service agreements between the Government of the Republic of Kazakhstan and Member States of the European Union be brought into conformity with European Union law in order to establish a sound legal basis for air services between the Republic of Kazakhstan and the European Union and to preserve the continuity of such air services,

RECOGNISING that all matters relating to bilateral air service agreements between the Government of the Republic of Kazakhstan and Member States of the European Union must be in conformity with the applicable laws of the Contracting Parties.

NOTING that in this agreement it is not an objective of the European Union to increase the total volume of air traffic between the Republic of Kazakhstan and the European Union, to affect the balance between air carriers of the Republic of Kazakhstan and European Union air carriers, or to negotiate amendments to the provisions of existing bilateral air service agreements concerning traffic rights,

NOTING that the bilateral air services agreements listed in Annex I are based on the general principle that the designated air carrier of the contracting parties shall have fair and equal opportunities in operating the agreed services on the specified routes, and that it is not a purpose of this Agreement to affect this principle,

HAVE AGREED AS FOLLOWS:

Article 1. General provisions

1.For the purposes of this Agreement,

a)"Member States" shall mean Member States of the European Union and "EU Treaties" shall mean the Treaty on the European Union and the Treaty on the functioning of the European Union;

b)"Contracting Party" shall mean a Contracting Party to this Agreement;

c)“party” shall mean a contracting party to the relevant bilateral air services agreement;

d)"Air carrier" shall also mean airline.

2.    References in each of the agreements listed in Annex I to nationals of the Member State that is a party to that agreement shall be understood as referring to nationals of the Member States of the European Union.

3.    References in each of the agreements listed in Annex I to air carriers or airlines of the Member State that is a party to that agreement shall be understood as referring to air carriers designated by that Member State.

4.    This Agreement shall not create additional traffic rights beyond those laid down in the agreements listed in Annex I and shall not amend the number of air carriers that can be designated under bilateral arrangements. The granting of traffic rights will continue to be carried out through bilateral arrangements.

Article 2. Designation

1.    The provisions in paragraphs 2, 3, 4 and 5 of this Article shall supersede the corresponding provisions in the articles listed in Annex II(a) and (b) respectively, in relation to the designation of an air carrier by the Member State concerned or by the Government of the Republic of Kazakhstan, its authorisations and permissions granted by the Government of the Republic of Kazakhstan or by the Member State concerned, and the refusal, revocation, suspension or limitation of the authorisations or permissions of the air carrier, respectively.

2.    On receipt of a designation by a Member State, and of applications from the designated air carrier, in the form and manner prescribed, the Government of the Republic of Kazakhstan shall grant the appropriate authorisations and permissions with minimum procedural delay, provided that:

(i)    the air carrier is established under the Treaty on the Functioning of the European Union in the territory of the designating Member State and has a valid operating licence in accordance with European Union law; and

(ii)    effective regulatory control of the air carrier is exercised and maintained by the Member State responsible for issuing its Air Operator's Certificate and the relevant aeronautical authority is clearly identified in the designation; and

(iii)    the air carrier is owned, directly or through majority ownership, and it is effectively controlled by Member States and/or nationals of Member States, and/or by other states listed in Annex III and/or nationals of such other states.

3.    On receipt of a designation by the Government of the Republic of Kazakhstan, and of applications from the designated air carrier, in the form and manner prescribed, the EU Member State shall grant the appropriate authorisations and permissions with minimum procedural delay, provided that:

(i)    the air carrier is established in the territory of the Republic of Kazakhstan and has a valid Operating Licence issued by the Republic of Kazakhstan; and

(ii)    effective regulatory control of the air carrier is exercised and maintained by the Government of the Republic of Kazakhstan; and

(iii)    the air carrier is owned, directly or through majority ownership, and it is effectively controlled by the Republic of Kazakhstan and/or nationals of the Republic of Kazakhstan.

4.    The Government of the Republic of Kazakhstan may refuse, revoke, suspend or limit the authorisations or permissions of an air carrier designated by a Member State where:

(i)    the air carrier is not established under the Treaty on the Functioning of the European Union in the territory of the designating Member State or does not have a valid operating licence in accordance with European Union law; or

(ii)    effective regulatory control of the air carrier is not exercised or not maintained by the Member State responsible for issuing its Air Operator's Certificate, or the relevant aeronautical authority is not clearly identified in the designation; or

(iii)    the air carrier is not owned, directly or through majority ownership, or it is not effectively controlled by Member States and/or nationals of Member States, and/or by other states listed in Annex III and/or nationals of such other states; or

iv)    the air carrier is already authorised to operate under a bilateral agreement between the Government of the Republic of Kazakhstan and another Member State of the European Union, and it can be demonstrated that, by exercising traffic rights on a route that includes a point in that other Member State of the European Union, including the operation of services which are marketed as, or otherwise constitute through services, the air carrier would be circumventing restrictions on the traffic rights imposed by the bilateral agreement between the Government of the Republic of Kazakhstan and that other Member State, or

(v)    the air carrier holds an Air Operators Certificate issued by a Member State and there is no bilateral air services agreement or other arrangements between the Government of the Republic of Kazakhstan and that Member State, and that Member State has denied traffic rights to the air carriers designated by the Government of the Republic of Kazakhstan.

In exercising its right under this paragraph, the Government of the Republic of Kazakhstan shall not discriminate between European Union air carriers on the grounds of nationality.

5. The EU Member State may refuse, revoke, suspend or limit the authorisations or permissions of an air carrier designated by the Government of the Republic of Kazakhstan where:

(i)    the air carrier is not established in the territory of the Republic of Kazakhstan or does not have a valid Operating Licence issued by the Republic of Kazakhstan; or

(ii)    effective regulatory control of the air carrier is not exercised or not maintained by the Government of the Republic of Kazakhstan; or

(iii)     the air carrier is not owned, directly or through majority ownership, or it is not effectively controlled by the Republic of Kazakhstan and/or nationals of the Republic of Kazakhstan.

Article 3. Safety

1.    The provisions in paragraph 2 of this Article shall complement the corresponding provisions in the articles listed in Annex II(c).

2.    Where a Member State has designated an air carrier whose regulatory control is exercised and maintained by another Member State, the rights of the Government of the Republic of Kazakhstan under the safety provisions of the agreement between the Member State that has designated the air carrier and the Government of the Republic of Kazakhstan shall apply equally in respect of the adoption, exercise or maintenance of safety standards by that other Member State and in respect of the operating authorisation of that air carrier.

Article 4. Annexes to the Agreement

The Annexes to this Agreement shall form an integral part thereof.

Article 5. Consultations, revision or amendment

1. The Contracting Parties may, at any time, revise or amend this Agreement by mutual consent.

2. The Contracting Parties shall monitor and regularly review the implementation of this Agreement. Such reviews shall in particular assess any unforeseen negative effects of the Agreement, as perceived by either Contracting Party.

3. If requested by either Contracting Party, the Contracting Parties shall hold consultations in order to discuss appropriate responses to such unforeseen negative effects following which the Agreement may be revised or amended. Such consultations shall take place within 60 (sixty) days of the request of either Contracting Party.

Article 6. Entry into force

1.    Each Contracting Party shall send through diplomatic channels to the other Contracting Party the notification confirming that its internal procedures necessary for the entry into force of this Agreement have been completed.

2.    This Agreement shall enter into force on the first day of the second month following the date of receipt of the latter notification.

3.    Notifications according to this article shall be sent to the Treaties and Agreements Office of the Council of the European Union and to the Ministry of Transport of the Republic of Kazakhstan or their respective successors via diplomatic channels.

4.    Agreements and other arrangements between Member States and the Republic of Kazakhstan which, at the date of signature of this Agreement, have not yet entered into force and are not being applied provisionally are listed in Annex I (b). This Agreement shall apply to all such Agreements and arrangements upon their entry into force or provisional application.

Article 7. Termination

1.    Each Contracting Party may at any time give notice in writing through diplomatic channels of its decision to terminate this Agreement. In such case the Agreement shall terminate six (6) months after the date of receipt of the notice by the other Contracting Party, unless the notice to terminate is withdrawn before the expiry of this period.

2.    In the event that an agreement listed in Annex I is terminated, the provisions of this Agreement shall cease to apply to that agreement as from the date of termination. References in this Agreement to the terminated agreement shall be deemed null and void as from that date.

3.    In the event that all agreements listed in Annex I are terminated, this Agreement shall terminate on the date of the termination of the last such agreement.

In witness whereof, the undersigned, being duly authorised, have signed this Agreement.

Done at [….] in duplicate, on this […] day of […, …] in the Kazakh, Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Russian, Slovak, Slovene, Spanish and Swedish languages.

ANNEX I

List of Agreements and other arrangements referred to in Article 1 of this Agreement

a)Air service agreements and other arrangements between the Government of the Republic of Kazakhstan and Member States of the European Union which, at the date of signature of this Agreement, have entered into force or are being applied provisionally, as amended

–    Air Transport Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Austria signed at Almaty on 26 April 1993, referred to as "Kazakhstan – Austria Agreement" in Annex II;

–    Memorandum of Understanding between delegations representing the aeronautical authorities of the Republic of Kazakhstan and the Czech Republic, meeting in Nassau, in the Bahamas, on 6 December 2016, referred to as “Kazakhstan – Czech Republic Memorandum of Understanding” in Annex II;

–    Air Transport Agreement between the Government of the Republic of Kazakhstan and the Government of the Federal Republic of Germany signed at Bonn on 15 March 1996, referred to as "Kazakhstan – Germany Agreement" in Annex II;

–    Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Hungary signed at Almaty on 9 March 1995, referred to as "Kazakhstan – Hungary Agreement" in Annex II;

–    Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Lithuania signed at Vilnius on 21 July 1993, referred to as "Kazakhstan – Lithuania Agreement" in Annex II;

–    Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Poland signed at Warsaw on 27 November 1997, referred to as "Kazakhstan – Poland Agreement" in Annex II;

–Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Kingdom of Denmark initialled at Almaty on 26 April 1996, referred to "Kazakhstan – Denmark Agreement" in Annex II;

–Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Kingdom of Sweden initialled at Almaty on 26 April 1996, referred to as "Kazakhstan – Sweden Agreement" in Annex II;

– Air Services Agreement between the Government of the Republic of Finland and the Government of the Republic of Kazakhstan signed at Almaty on 7 February 1996, referred to as "Kazakhstan – Finland Agreement (1996)" in Annex II;

b)Air services agreements between the Government of the Republic of Kazakhstan and Member States of the European Union which, at the date of signature of this Agreement, have not yet entered into force and are not being applied provisionally, as amended

–    Agreement between the Government of the Republic of Kazakhstan and the Government of the Kingdom of Belgium relating to Air Services signed at Brussels on 27 June 2000, referred to as "Kazakhstan – Belgium Agreement" in Annex II;

–Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Bulgaria relating to Air Services signed at Sofia on 15 September 1999, referred to as "Kazakhstan – Bulgaria Agreement" in Annex II;

–Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Finland signed at Astana on 16 May 2018, referred to as "Kazakhstan – Finland Agreement (2018)" in Annex II;

–Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Estonia relating to Air Services initialled at Astana on 26 April 2001, referred to as "Kazakhstan – Estonia Agreement" in Annex II;

–Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the French Republic signed at Astana on 21 June 2016, referred to as "Kazakhstan – France Agreement" in Annex II;

–Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Kingdom of the Netherlands signed at The Hague on 27 November 2002, referred to as "Kazakhstan – Netherlands Agreement" in Annex II;

–Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Latvia signed at Almaty on 19.5.1998, referred to as "Kazakhstan – Latvia Agreement" in Annex II;

–Air Services Agreement between the Government of the Republic of Kazakhstan and the Government of the Grand Duchy of Luxembourg signed at Astana on 21 May 2015, referred to as "Kazakhstan – Luxembourg Agreement" in Annex II;

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ANNEX II

List of Articles in the Agreements and other arrangements listed in Annex I and referred to in Articles 2 to 3 of this Agreement

(a)Designation, Authorisations and Permissions:

–Article 3 of the Kazakhstan – Austria Agreement;

–Article 3 of the Kazakhstan – Belgium Agreement;

–Article 4 of the Kazakhstan – Bulgaria Agreement,

–Point 2 of the Kazakhstan – Czech Republic Memorandum of Understanding,

–Article 3 of the Kazakhstan – Denmark Agreement,

–Article 3 of the Kazakhstan – Estonia Agreement,

–Article 4 of the Kazakhstan – France Agreement,

–Article 3 of the Kazakhstan – Finland Agreement (1996);

–Article 3 of the Kazakhstan – Finland Agreement (2018);

–Article 3 (2) of the Kazakhstan – Germany Agreement notwithstanding the reference to the provisions of Article 3 (3),

–Article 3 of the Kazakhstan – Hungary Agreement,

–Article 3 of the Kazakhstan – Netherlands Agreement,

–Article 3 of the Kazakhstan – Latvia Agreement,

–Article 4 (1) and (2) of the Kazakhstan – Lithuania Agreement,

–Article 3 of the Kazakhstan – Luxembourg Agreement,

–Article 3 of the Kazakhstan – Poland Agreement,

–Article 3 of the Kazakhstan – Sweden Agreement,

(b)    Refusal, Revocation, Suspension or Limitation of Authorisations or Permissions:

-        Article 3 (3), 3 (5) and 4 (1) of the Kazakhstan – Austria Agreement,

–    Article 5 (1) of the Kazakhstan – Belgium Agreement,

–    Article 5 (1) of the Kazakhstan – Bulgaria Agreement,

–    Article 4 of the Kazakhstan – Denmark Agreement,

–    Article 3 (1) of the Kazakhstan – Estonia Agreement,

–    Article 5 (1) of the Kazakhstan – France Agreement,

–    Article 4 (1) of the Kazakhstan – Finland Agreement (1996),

–    Article 4 (1) of the Kazakhstan – Finland Agreement (2018),

–    First sentence of Article 4 of the Kazakhstan – Germany Agreement only to the extent of the conditions for refusal, revocation, suspension or limitations of authorisations or permissions covered by Article 2 (4) and 2 (5) of present agreement,

–    Article 4 (1) of the Kazakhstan – Hungary Agreement,

–    Article 4 (1) of the Kazakhstan – Netherlands Agreement,

–    Article 3 (4) and 4 (1) of the Kazakhstan – Latvia Agreement,

–    Article 4 (3), (5) and 5 (1) of the Kazakhstan – Lithuania Agreement,

–Article 4 (1) of the Kazakhstan – Luxembourg Agreement,

–    Article 4 (1) of the Kazakhstan – Poland Agreement,

–    Article 4 of the Kazakhstan – Sweden Agreement,

(c)    Safety:

–    Article 7 of the Kazakhstan – Belgium Agreement,

–    Article 12 of the Kazakhstan – Estonia Agreement,

–    Article 6 of the Kazakhstan – Finland Agreement (1996),

–    Article 12 of the Kazakhstan – Finland Agreement (2018),

–    Article 9 of the Kazakhstan – France Agreement,

–    Article 7 of the Kazakhstan – Hungary Agreement,

–    Article 11 of the Kazakhstan – Netherlands Agreement,

–    Article 8 of the Kazakhstan – Latvia Agreement,

–    Article 8 of the Kazakhstan – Lithuania Agreement,

–Article 6 of the Kazakhstan – Luxembourg Agreement;

ANNEX III

List of other States referred to in Article 2 of this Agreement

a)The Republic of Iceland (under the Agreement on the European Economic Area);

b)The Principality of Liechtenstein (under the Agreement on the European Economic Area);

c)The Kingdom of Norway (under the Agreement on the European Economic Area);

d)The Swiss Confederation (under the Agreement between the European Community and the Swiss Confederation on Air Transport).

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