A revised draft compromise annotated by the Bulgarian Presidency of the Council of the European Union on the revision of Regulation 868/2004, which is dated 7 March and of which EUROPE has obtained a copy, suggests that the member states still have differing positions about what means should be deployed and what action should be taken to tackle unfair competition by third country airlines.
Several amendments have been inserted since the most recent draft compromise on 7 February, which was reported on by EUROPE (see EUROPE 11958).
The Bulgarian Presidency is therefore suggesting that “competition distorting practices” can be penalised but not practices “affecting competition”, which would be much more difficult to identify. This new text also proposes more precise indications of what could constitute the threat of causing damage and would lead to the Commission carrying out an investigation that could possibly finish up with sanctions being imposed. On this point, the member states from central, peripheral and Eastern Europe still continue to express reservations about this concept of “a threat to cause damage" and proposed that it be removed from this regulation, but the request was not retained by the Bulgarian Presidency.
The text also suggests that the Commission should be allowed to trigger an investigation as from the moment it has prima facie evidence of a breach of international obligations or distortions to competition, and not from the moment it has “appropriate and consolidated evidence”. This concept of prima facie evidence was contested by several states, such as Ireland, Finland and Poland, but another group of states, including Germany, Belgium and France and backed up by the legal services of the Council, considers it appropriate.
Although in its proposal on 8 June (see EUROPE 11804), the Commission did not envisage taking measures if these went against the interests of the Union, the Bulgarian Presidency had already suggested that no measure should be taken in this precise case. In this new compromise draft, the Commission is of the opinion that evaluating whether the interests of the Union require action being taken should be based on a questionnaire being sent to the interested parties and/or an economic analysis conducted by its services.
Contrary to the Commission proposal, the text does indeed advocate that the latter adopt measures in the event of international obligations being violated, but it also suggests that it should be the Council that takes retaliation measures in the event of distorted competition. This is despite the opinions expressed by Germany, Austria, Belgium, France and the Netherlands, which would prefer that this competence be covered by the Commission on the basis of implementing acts.
Like the most recent draft compromise, there is no question that flying rights would be suspended.
European Parliament agreement. Although the discussions continue at the Council, European Parliament rapporteur Markus Pieper (EPP, Germany) and the shadow rapporteurs were able to reach an agreement on the compromise amendments at the European Parliament. The text will be voted on at the transport committee on Tuesday 20 March. EUROPE will return to this. (Original version in French by Lucas Tripoteau)