Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

Transcription

1 EUROPEAN COMMISSION Brussels, COM(2011) 824 final 2011/0397 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on groundhandling services at Union airports and repealing Council Directive 96/67/EC (Text with EEA relevance) {SEC(2011) 1439 final} {SEC(2011) 1440 final}

2 EXPLANATORY MEMORANDUM 1. CONTEXT OF THE PROPOSAL 1.1. General context Council Directive of 1996 Groundhandling services consist of all ground-based aviation-related activities carried out for individual airlines at airports and are a key function in the aviation chain. Groundhandling services cover the following 11 categories of services: (1) ground administration and supervision; (2) passenger handling; (3) baggage handling; (4) freight and mail handling; (5) ramp handling; (6) aircraft services; (7) fuel and oil handling; (8) aircraft maintenance; (9) flight operations and crew administration; (10) surface transport; (11) catering services. The efficient provision of groundhandling services is important for airports, airlines and passengers, and is crucial for the efficient use of air transport infrastructure and the performance of the aviation system in general. Some estimates on the groundhandling market: According to Commission and stakeholders' estimations, the revenues of groundhandling (all categories included) amount globally to 50 billion euros. It is estimated that the sector employs at least 60,000 persons in Europe. 1 The cost linked to groundhandling services for airlines represents 5 to 12% 2 of operating costs. In 1996 the European Community adopted Council Directive 96/67/EC on access to the groundhandling market at Community airports. The Directive was a first step towards the gradual opening and harmonisation of access to the groundhandling market. 1 2 Estimation by IAHA (the independent handlers' associations) for their members. Not all groundhandling providers are members of IAHA and there could be more than 110,000 groundhandling employees. Stakeholders' consultations and 'Air market observatory - Annual reports', available at EN 2 EN

3 Historically groundhandling activities were carried out by airport operators or airlines. Today they are in Europe more and more provided by specialised companies. Access to the groundhandling market under the Directive is based on the following principles: Freedom of 'self-handling', i.e. the possibility for airlines to self-handle at each commercial airport regardless of its volume of traffic. However, for four categories of services (baggage handling, ramp handling, fuel and oil handling, freight and mail handling) Member States may reserve the right to self-handle to no fewer than two airport users at airports with more than 2 million passengers or tonnes of freight per year. Freedom of 'third party handling', i.e. the possibility for groundhandling providers to provide services to third parties at airports with more than 2 million passengers or tonnes of freight per year. However, for the four categories of services that can be restricted mentioned above, Member States may limit the number of suppliers to no fewer than two for each category Grounds for the proposal According to various evaluations of the Directive by the Commission, the Directive has achieved the main desired objectives of liberalising the groundhandling market at EU airports: the number of service providers has increased and groundhandling prices have generally decreased. Moreover, according to the airlines, the quality of service has increased with a greater choice of competitors. Since the adoption of the Directive in 1996, the framework conditions for groundhandling services have changed dramatically. In a context of rapidly growing air traffic and capacity constraints, the question of the efficiency and quality of services delivered at airports, including groundhandling services, is of renewed and increased interest. The Single European Sky initiative of the European Union, which aims to reform the architecture of European air traffic control to meet future capacity and safety needs, recognises the importance of integrating key infrastructure such as airports into a 'full system, gate-to-gate' approach. Recent statistics show that 70 per cent of delays are generated by turnarounds at airports. The gate-to-gate approach aims to optimise and integrate all phases of a flight, from airport to airport, including groundhandling services, with a view to enhancing performance in terms of delays, costs, environmental impact and safety. Moreover, the successive crises that have badly affected air transport over the last decade show that action is needed. The economic crisis has driven both Member States and the industry to try to minimise costs. Terrorist attacks require enhanced levels of security and safety. And last but not least, severe weather conditions illustrate the need for increased coordination of ground operations at airports. Our consultation on the current Directive and our evaluation of it (for details see below) have shown that the current legal framework is no longer fit for purpose. The problem identified is twofold: (i) the provision of groundhandling services is not efficient enough due to barriers to entry and expansion, and (ii) the overall quality of groundhandling services is not keeping pace with evolving needs in terms of reliability, resilience, safety and security and the environment. EN 3 EN

4 1.3. Objective of the proposal The impact assessment and its summary, which accompany this proposal, establish the general and specific objectives for the adoption of the regulation. The general objective is to enhance the efficiency and overall quality of groundhandling services for users (airlines) and end-users (passengers and freight forwarders) at EU airports. The specific objectives are the following: (1) Ensure airlines have an increased choice of groundhandling solutions at EU airports; (2) Harmonise and clarify national administrative conditions for market entry (approvals); (3) Ensure a level playing field at airport level between groundhandling companies operating under different regulatory regimes; (4) Increase coordination between groundhandling providers at the airport (airport operators as ground coordinators within the EU aviation network as part of the gateto-gate approach); (5) Clarify the legal framework for training of staff and transfer of staff Existing provisions in the area of the proposal The proposal concerns the adoption of a regulation on groundhandling services at EU airports. The new regulation is intended to replace and repeal the existing Directive 96/67/EC. Groundhandling services are not dealt with directly by any other provisions Consistency with policies and objectives of the European Union This initiative is one of the actions necessary for the Single European Transport Area as described in the Commission's White Paper: Roadmap to a Single European Transport Area Towards a competitive and resource efficient transport system. It is also part of the airport package identified as a strategic initiative in the 2011 Commission Work Programme 3, to tapping the potential of the Single Market for growth. 2. RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS 2.1. Consultation of interested parties Consultation methods, main sectors targeted and general profile of respondents At a hearing held on 6 April 2006, following a written consultation, the Commission consulted all stakeholders on the various possibilities for the revision of the Directive. 3 COM(2010)623. EN 4 EN

5 On 24 January 2007, the Commission adopted a report on the application of the Directive 4 which confirmed that the main objectives of the Directive had been achieved, but that there were negative trends. The Commission carried out a stakeholders' consultation on the functioning of the groundhandling services at EU airports and possible options for revising the Directive from November 2009 to September A meeting of the Groundhandling working group of the Sectoral Social Dialogue Committee (on civil aviation) was held on 16 November Following this meeting, three of the four key representatives adopted a common statement 5 calling for improvements to the current tender system and for a social clause on transfer of staff in case of partial or total loss activity Summary of responses A summary of the consultation as well as the individual contributions are available at: The consultations highlight the divergent interests of the various types of stakeholders. Airlines stressed the need for a more competitive market. The airlines expressed their satisfaction with the generally increased choice of groundhandling providers following the introduction of the Directive but stressed that this trend is not observed everywhere in Europe. In a sector where stability of employment has suffered, groundhandling workers argued for the need of addressing social concerns (notably the transfer of staff) and expressed concerns about the introduction of too much competition which could impact on working conditions. Airport operators called for better coordination at airports and expressed the wish to be clearly recognised as ground coordinators. Some airport operators objected to any further market opening mainly as they believe this would negatively impact the quality at their airports and increase their costs. Independent groundhandlers stressed the need for fairer competition between the different groundhandling providers. In particular, they advocated stronger requirements for groundhandling activities performed by airport operators and airlines operators. Nearly all stakeholders call for improved quality of services Collection and use of expertise Continuous monitoring by the Commission on the application of the Directive on groundhandling services has been accompanied by several external studies, the results of which are available on the Commission website. In particular, following the request of the 4 5 COM(2006)821 final. Statement dated 7 April 2011 of the EU trade associations representing the airports (ACI-Europe), the independent handlers (IAHA) and the trade unions (European Transport Federation ETF). Available at: pdf. EN 5 EN

6 European Parliament in its resolution of 11 October the Commission carried out a comprehensive study in on the implementation and impact of the Directive focusing on employment, safety and security issues. The Commission carried out a further study on its possible revision in Impact assessment The impact assessment provides an overview of the different options considered. Four policy packages (in addition to the option to keep the existing framework) were considered to assess how Directive 96/67/EC could be revised. Policy package PP1 would improve the system via minimal Directive amendments and by providing guidance where possible. It comprises: full opening of the market for self-handling, guidance on approval requirements, clearer definitions and more detailed requirements for accounts separation, centralised infrastructure, subcontracting, and the Airport Users' Committee (AUC) 9. As for coordination at airport level, the package contains guidance on subcontracting and harmonised tender criteria. The package also ensures minimum training as well as consultation of employees' representatives on tenders. Policy package PP2 seeks to improve the current system through a more ambitious set of measures. It opens fully the self-handling market and increases to a minimum of 3 the number of restricted service providers for third-party handling at large airports. Further measures include mutual recognition of approvals and harmonised tender criteria, better management of centralised infrastructure, legal separation of airport operators and longer tender duration. The package contains new subcontracting requirements, definition of airport operators' role in overall operations (and possible minimum requirements), as well as performance reporting obligations. Minimum training and authorisation for Member States to implement the transfer of staff under the same conditions for services to which access is restricted are also included. Policy package PP2' is similar to policy package PP2 but comprises different measures for the less contentious problem areas identified. The difference lies in the approval being set at EUlevel and the minimum quality requirements being set at EU level. Policy package PP3 seeks to improve the current system with high intensity policy measures, providing full harmonisation of the groundhandling market legal framework: full opening of the groundhandling market and uniform market access via better management of centralised infrastructure, introduction of an EU approval, removal of airport operators' right to provide groundhandling at its airport. As for airport operational coordination, subcontracting requirements, definition of airport operators' role in overall operations (and possible minimum European Parliament resolution of 11 October 2007 on airport capacity and ground handling: towards a more efficient policy. (2007/2092(INI)) available at: 'Study on the impact of Directive 96/67/EC on groundhandling services ', Airport Research Center, February Available at: 'Possible revision of Directive 96/67/EC on access to the groundhandling market at Community airports', Steer Davies Gleave, June Available at: The Airport Users' Committee is a committee of representatives of airport users (i.e. airlines) set at each airport. EN 6 EN

7 requirements), as well as performance reporting obligations are included. This package foresees the complete transfer of staff in tender procedures and the licensing of key staff. The recommendations of the impact assessment board (IAB) were taken into account, with the main modifications concerning the need for a clearer problem definition, clarification of the provisions for social protection in case of transfer of employees, the introduction of a wider range of feasible policy options and strengthened comparison of the policy options. Only the policy package PP2 fully satisfies the identified objectives as demonstrated in the impact assessment. A proper balance between social and economic effects needs to be ensured. This policy package constitutes the basis for this proposal. 3. LEGAL ELEMENTS OF THE PROPOSAL 3.1. Summary of the proposal Full opening of the self-handling market and increase in the minimum number of service providers to three at large airports Directive 96/67/EC allows Member States to restrict self-handling or third-party handling to minimum two suppliers for four categories of services. As a consequence, at some airports airlines are faced with a limited choice between two suppliers for each of these services, and are not always authorised to self-handle. Every airport user should be allowed to self-handle. Moreover, the number of authorised third-party suppliers of groundhandling services should not be less than three suppliers at large airports with not less than 5 million passengers annually or tonnes of freight. Mutual recognition of approvals with harmonised requirements Three-quarters of the Member States have an approval system in place resulting in a numerous different administrative requirements that the suppliers of groundhandling services or self-handling airport users have to meet in the EU. The mutual recognition of national approvals with harmonised requirements will reduce administrative costs for operators and reduce barriers to entry. Better management of centralised infrastructures 10 Centralised infrastructures are essential for the performance of groundhandling services. In the absence of a clear legal framework, distortions of competition on the groundhandling market may arise. The proposal includes a clear legal framework for the definition of centralised infrastructure and for the fees to be charged to suppliers of groundhandling services and self-handling airlines for the centralised infrastructure. Legal separation of airports and their groundhandling activities If an airport is itself a provider of groundhandling services, it should be ensured that the groundhandling services provided by the airport do not unduly benefit from the airport management activities of the airport. 10 Centralised infrastructures are infrastructures 'used for the supply of groundhandling services whose complexity, cost or environmental impact does not allow of division or duplication'. EN 7 EN

8 The current system of separation of accounts for groundhandling airports is very difficult to monitor and is felt to be insufficient to ensure fair competition. The proposal calls for airports to keep their groundhandling activities in a legal entity separate from their airport management activities. Improved tender procedure The current maximum period of 7 years for which a supplier of restricted groundhandling services is selected is perceived to be insufficient notably to write off the cost of ground equipments. The proposal provides for an increase of the maximum duration to ten years. The proposal contains further specifications on the details of the selection procedure for the suppliers of restricted services to ensure a harmonious application and ensure that selected companies are indeed those best suited to operate groundhandling services. In the selection of the supplier for restricted groundhandling services the AUC needs to be consulted. The proposal contains provisions for rules of procedure for the Airport Users' Committee to avoid any conflict of interest for airlines also providing groundhandling services. Clarified rules for subcontracting While subcontracting increases the sometimes necessary flexibility for suppliers of groundhandling services, subcontracting and cascade subcontracting may also result in capacity constraints and have negative effects on safety. The proposal therefore contains clear rules for subcontracting allowing suppliers of groundhandling services to subcontract but limiting subcontracting by airports and selfhandling airlines to situations of force majeure and prohibiting cascade subcontracting. Role of the managing body of the airport in the coordination of ground services The crisis faced by air transport in the last year due to severe weather conditions underlines the need for increased coordination of ground operations at airports. Indeed, a low level of resilience to the crisis was observed at some airports, also where the provision of groundhandling services was concerned. Problems at one airport have powerful 'knock on' effects on the overall network, making it all the more important to improve the level of resilience in crisis situations. The managing body of the airport should be responsible for the proper coordination of groundhandling activities at its airport. Moreover, at large airports, which are particularly important for the European air transport network, the managing body of the airport needs to ensure that these operations are coordinated through an airport CDM and through a proper contingency plan. Responsibility of airport operators for minimum quality requirements for groundhandling operations to be defined in delegated act The sub-standard quality of one supplier of groundhandling services can disturb the airport system to the detriment of all stakeholders in the air transport industry. The absence of common minimum quality standards for all groundhandling providers at an airport was reported by stakeholders as a shortcoming of the current Directive. The proposal provides the setting of minimum quality standards for the performance of groundhandling services to be met by all suppliers of groundhandling service and selfhandling airport users. EN 8 EN

9 Reporting obligations on performance of groundhandling services to be defined in delegated act Sufficient, independent and centralised data on the performance of groundhandling services will help to identify appropriate future policy measures. Suppliers of groundhandling services and self-handling airport users should be required to report on the performance of their groundhandling services. Compulsory minimum training for staff In a labour-intensive sector such as groundhandling, continuous staff development and training have a strong impact on service quality. Conversely, poorly trained staff increases the risk of low quality services and notably can affect safety and security of groundhandling services. The proposal introduces minimum training requirements for all suppliers of groundhandling services and self-handling airlines to ensure the safety and security of operations and to create a level playing field among operators. Possibility for Member States to impose a requirement to take over staff with same conditions where there is a tender procedure Following the case law of the Court of Justice of the European Union 11, there is currently ambiguity as regards the measures that Member States are authorised to take upon a change of the provider for groundhandling services to which access is restricted. Turnover of staff in the groundhandling industry is high and appears to be partly driven by the Directive. Suppliers selected under a tender procedure to provide services to which access is restricted are authorised to operate only for a limited maximum period of time. The tender system therefore appears to encourage turnover of staff. Discontinuity of staff can have a detrimental effect on the quality of groundhandling services. It is therefore appropriate to clarify the rules on the takeover of staff beyond the application of Directive 2001/23/EC on transfers of undertakings and to enable Member States to ensure adequate employment and working conditions Legal basis The proposal is based on Article 100 TFEU Subsidiarity principle The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the EU. The objectives of the proposal cannot be sufficiently achieved by the Member States because airlines operate in a single aviation market and groundhandling providers also operate on a European or international market. The framework for groundhandling services cannot be addressed at a lower level of regulation. Any individual action at Member State level would potentially prejudice the functioning of the internal market. EU action is better able to achieve the objectives of the proposal. European rules on groundhandling services are an essential accompaniment to the European legislation 11 Case C-460/02, Commission vs. Italy, judgement of 9 December Case C-386/03, Commission vs. Germany, 14 July EN 9 EN

10 underpinning the internal market in aviation, since a fair, transparent and non-discriminatory system for the supply of groundhandling services is essential for achieving efficient, highquality groundhandling services, which have a key function in the aviation chain. The proposal therefore complies with the subsidiarity principle Proportionality principle The proposal complies with the proportionality principle. The additional burdens for economic operators and national authorities are limited to those necessary to enhance the efficiency and overall quality of groundhandling services. While the proposal involves substantial costs mainly for the improved management of centralised infrastructures, the legal separation of airports, and reporting obligations, these are expected to be offset by the substantial economic and quality benefits obtained Choice of instrument The proposed instrument is a Regulation. Other means would not be adequate. Considering the new need for minimum, harmonised quality standards at airports to implement the gate-togate approach and for further harmonisation of market access conditions to ensure a fairer competition on the groundhandling market, the flexibility offered in 1996 by the choice of a Directive is no longer appropriate. The legal instrument has to be of general application. A Regulation meets the need for harmonisation of groundhandling markets at EU level, an issue that was identified as a problem. Most of the difficulties identified with the current legal framework are linked to divergent implementation among Member States. Therefore the most appropriate legal instrument is a Regulation, since alternative options would not be sufficient to achieve the proposed objectives. 4. BUDGETARY IMPLICATION The proposal has no implications for the EU budget. 5. OPTIONAL ELEMENTS 5.1. Repeal of existing legislation Adoption of the proposal will lead to the repeal of the existing Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports European Economic Area The proposed act concerns an EEA matter and should therefore extend to the European Economic Area. EN 10 EN

11 2011/0397 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on groundhandling services at Union airports and repealing Council Directive 96/67/EC (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100 (2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national Parliaments, Having regard to the opinion of the European Economic and Social Committee 12, Having regard to the opinion of the Committee of the Regions 13, Acting in accordance with the ordinary legislative procedure, Whereas: (1) Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports 14 provides for a gradual opening of the groundhandling market. (2) Airports and groundhandling services are essential to the proper functioning of air transport and are a key function in the aviation chain. Groundhandling services cover all ground-based aviation-related activities carried out for individual airlines at airports. (3) The Declaration adopted at the Bruges Aviation Summit in October 2010 recognised the need to reform Union rules to foster the competitiveness of each link in the aviation transport chain (such as. airports, carriers, other service providers). (4) The White Paper Roadmap to a Single European Transport Area 15 identifies the improvement of market access and the provision of quality services at airports as vital OJ C,, p.. OJ C,, p.. OJ L 272, , p. 36. COM(2011) 144final. EN 11 EN

12 for the quality of life of citizens and as an essential action to achieve the Single European Transport Area. (5) Further gradual opening of the groundhandling market and the introduction of harmonised requirements for the provision of groundhandling services are likely to enhance the efficiency and overall quality of groundhandling services for airlines as well as for passengers and freights forwarders. This should improve the quality of overall airport operations. (6) Considering the new need for minimum, harmonised quality standards at airports to implement the gate-to-gate approach for the realisation of the Single European Sky and the need for further harmonisation to fully exploit the benefits of the gradual opening of the groundhandling market in terms of increased quality and efficiency of groundhandling services, Directive 96/67/EC should therefore be replaced by a Regulation. (7) Free access to the groundhandling market is consistent with the efficient operation of Union airports, provided relevant safeguards are put in place. Free access to the groundhandling market should be introduced gradually and be adapted to the requirements of the sector. (8) Gradual opening of the market under Directive 96/67/EC has already produced positive results in terms of improved efficiency and quality. It is therefore appropriate to proceed with further gradual opening. (9) Every airport user should be allowed to self-handle. At the same time it is necessary to maintain a clear and restrictive definition of self-handling in order to avoid abuse and negative impacts on the third-party handling market. (10) For certain categories of groundhandling services, access to the market may come up against safety, security, capacity and space availability constraints. It should therefore be possible to limit the number of authorised suppliers of such groundhandling services. (11) In certain cases the safety, security, capacity and space availability constraints can be such that they may justify further restrictions on market access or on self-handling, provided that these restrictions are relevant, objective, transparent and nondiscriminatory. In such cases Member States should be entitled to request exemptions from the provisions of this Regulation. (12) The purpose of these exemptions should be to enable airport authorities to overcome or at least reduce these constraints. Such exemptions should be approved by the Commission. (13) If effective and fair competition is to be maintained where the number of suppliers of groundhandling services is limited, those suppliers need to be chosen according to an open, transparent and non-discriminatory tender procedure. The details of such a procedure should be further specified. (14) Airport users should be consulted in the selection of suppliers of groundhandling services, since they have a major interest in the quality and price of groundhandling services. EN 12 EN

13 (15) It is therefore necessary to arrange for the representation of airport users and their consultation, in particular when authorised suppliers of groundhandling services are selected. (16) In the context of the selection of suppliers of groundhandling services at an airport, it should be possible in certain circumstances and under specific conditions to extend a public service obligation to other airports in the same geographical region of the Member State concerned. (17) Ambiguity exists as to whether Member States may require the takeover of staff upon a change of provider for groundhandling services to which access is limited. Discontinuity of staff can have a detrimental effect on the quality of groundhandling services. It is therefore appropriate to clarify the rules on the takeover of staff beyond the application of Directive 2001/23/EC on transfers of undertakings enabling Member States to ensure adequate employment and working conditions. (18) In order to ensure the proper and smooth functioning of air transport operations at airports, guarantee safety and security on airport premises as well as protect the environment and ensure compliance with the applicable social provisions and rules, the provision of groundhandling services should be subject to an appropriate approval. Given that systems for approving the provision of groundhandling services currently exist in the majority of Member States but differ widely, a harmonised approval system should be introduced. (19) To make sure that all service suppliers and self-handling airport users possess sufficient economic solidity, good repute, sufficient insurance coverage, and proper knowledge of groundhandling operations and the airport environment, and in order to establish a level playing field, the granting of approval should be subject to minimum requirements. (20) Open access to the centralised infrastructure of the airport and a clear legal framework for the definition of the centralised infrastructure is essential for the efficient provision of groundhandling services. It should be possible, however, to collect a fee for the centralised infrastructure. (21) The fees should be non-discriminatory and the calculation should be transparent. The fees should not exceed what is necessary to cover the costs of the provision of the centralised infrastructure including a reasonable return on assets. (22) The managing body of the airport and/or any other managing body of the centralised infrastructure of that airport should regularly consult airport users on the definition of the infrastructure and the level of fees. (23) The managing body of the airport may also supply groundhandling services itself. As at the same time, through its decision, the managing body of the airport may exercise considerable influence on competition between suppliers of groundhandling services, airports should be required to keep their groundhandling services in a legal entity separate from the legal entity for infrastructure management. (24) In order to enable airports to fulfil their infrastructure management functions, to guarantee safety and security on airport premises and to ensure the resilience of EN 13 EN

14 groundhandling services also in crisis situations the managing body of the airport should be responsible for the proper coordination of groundhandling activities at the airport. The managing body of the airport should report on the coordination of airport groundhandling activities to the Performance Review Body of Eurocontrol in view of a consolidated optimisation. (25) The managing body of the airport, a public authority or any other body controlling the airport should also have the power to lay down the necessary rules for the proper functioning of the airport infrastructure. (26) It is necessary to define obligatory minimum quality standards to be met by suppliers of groundhandling services and self-handling airport users in order to ensure the overall quality of service and establish a level playing field among suppliers. (27) With a view of enhancing performance across the whole aviation chain and implementing the 'gate-to-gate' approach, the suppliers of groundhandling services and self-handling airport users should report to the Commission about their performance. (28) In a labour-intensive sector such as groundhandling, continuous staff development and training have a strong impact on service quality. Minimum training requirements should therefore be set to ensure the quality of operations in terms of reliability, resilience, safety and security, and to create a level playing field among operators. (29) Subcontracting increases flexibility for suppliers of groundhandling services. Nevertheless, subcontracting and cascade subcontracting may also result in capacity constraints and have negative effects on safety and security. Subcontracting should therefore be limited and the rules governing subcontracting should be clarified. (30) The rights recognised by this Regulation should only apply to third-country suppliers of groundhandling services and third-country self-handling airport users subject to strict reciprocity. Where there is not such reciprocity, the Commission should be enabled to decide that a Member State or Member States should suspend these rights with regard to such suppliers or users. (31) Member States should retain the power to ensure an adequate level of social protection for the staff of undertaking providing groundhandling services. (32) In order to ensure that harmonised insurance requirements apply for suppliers of groundhandling services and self-handling airport users, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of insurance requirements for suppliers of groundhandling services and selfhandling airport users. In order to ensure that harmonised and properly updated obligations apply concerning the minimum quality standards for groundhandling services and concerning the reporting obligations for suppliers of groundhandling services and self-handling airport users, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of specifications for minimum quality standards for groundhandling services and in respect of specifications for the content and dissemination of reporting obligations for suppliers of groundhandling services and self-handling airport users. It is of particular importance that the Commission carries out appropriate consultations during its EN 14 EN

15 preparatory work, including at expert level and involving the specific Sectoral Social Dialogue Committee set up under Decision 98/500/EC. (33) The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and Council. (34) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers 16. (35) The advisory procedure should be used for adopting implementing decisions on exemptions to the degree of opening of the market for groundhandling services for third parties and for self-handling airlines given that those acts are only of limited scope. (36) The advisory procedure should also be used for adopting implementing decisions on the extension by Member States of a public service obligation to an island airport given that those acts are only of limited scope. (37) The examination procedure should be used for adopting implementing decisions on the whole or partial suspension of the right of access to the groundhandling market within a Member States' territory for suppliers of groundhandling services and airport users from a third country. (38) Since the objective of this Regulation, namely more homogenous application of Union legislation with regard to groundhandling services cannot be sufficiently achieved by the Member States due to the international character of air transport, and can therefore be better achieved at Union level, the Union 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 Regulation does not go beyond what is necessary in order to achieve that objective. (39) The Ministerial Statement on Gibraltar Airport, agreed in Cordoba on 18 September 2006, during the first Ministerial meeting of the Forum of Dialogue on Gibraltar, will replace the Joint Declaration on Gibraltar Airport made in London on 2 December 1987, and the full compliance with it will be deemed to constitute compliance with the 1987 declaration. (40) Directive 96/67/EC should therefore be repealed. 16 OJ L 55, , p. 13. EN 15 EN

16 HAVE ADOPTED THIS REGULATION: Chapter I Scope and definitions Article 1 Scope The Regulation shall apply to any airport located in the territory of a Member State subject to the Treaty and open to commercial traffic. The application of this Regulation to the airport of Gibraltar is without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland with regard to the dispute over sovereignty over the territory in which the airport is situated. Article 2 Definitions For the purposes of this Regulation, the following definitions shall apply: (c) (d) (e) 'airport' means any area of land especially adapted for the landing, taking-off and manoeuvres 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; 'managing body of the airport' means a body which, in conjunction with other activities or not as the case may be, has as its objective under national law or regulation the administration and management of the airport infrastructures, and the coordination and control of the activities of the different operators present in the airport concerned; '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; 'groundhandling' means the services provided to airport users at airports as set out in the Annex; 'self-handling' means a situation where an airport user directly provides for itself one or more categories of groundhandling services and concludes no contract of any description with a third party for the provision of such services; for the purpose of this regulation, among themselves airport users are not be deemed to be third parties where: one holds a majority holding in the other; or a single body has a majority holding in each; (f) 'supplier of groundhandling services' means any natural or legal person supplying third parties with one or more categories of groundhandling services; EN 16 EN

17 (g) (h) (i) (j) 'centralised infrastructure' means specific installations and/or facilities at an airport which cannot, for technical, environmental, cost or capacity reasons, be divided or duplicated and whose availability is essential and necessary for the performance of subsequent groundhandling services; 'subcontracting' means the conclusion of a contract by a supplier of groundhandling services, in its capacity as the main contractor, or exceptionally by a self-handling airport user, with a third party termed 'subcontractor', under which the subcontractor is required to perform one or more categories (or subcategories) of groundhandling services; 'approval': means an approval granted by the competent authority to an undertaking to provide groundhandling services as stated in the approval; 'independent supervisory authority' means the authority referred to in Article 11 of Directive 2009/12/EC. Chapter II General preliminary requirements Article 3 Managing body of the airport 1. Where an airport is managed and operated not by a single body but by several separate bodies, each of these bodies shall be considered part of the managing body of the airport for the purposes of this Regulation. 2. Where only a single managing body of the airport is set up for several airports, each of those airports shall be considered separately for the purposes of this Regulation. Article 4 Airport Users' Committee 1. Each of the airports concerned shall establish a committee of representatives of airport users or of organisations representing airport users ('Airport Users' Committee'). 2. All airport users shall have the right to participate in the work of the Airport Users' Committee, or, if they so wish, to be represented on it by an organisation designated to that effect. However, if they are represented by such an organisation, this organisation shall not provide groundhandling services at the concerned airport. 3. The Airport Users' Committee shall establish in writing its own rules of procedures, including its own voting rules. The voting rules shall include specific provisions on how to avoid any conflict of interests in the Airport Users' Committee resulting from the presence of airport users that provide groundhandling services at the airport concerned. In particular, where the Airport Users' Committee is consulted in the course of the selection procedure in accordance with in Articles 8 and 9, airport users applying for an authorisation to EN 17 EN

18 provide one or more groundhandling services to third parties shall not be entitled to vote. 4. The weighting of votes within the Airport Users' Committee shall be such that: irrespective of the annual traffic volume carried by a single airport user at an airport, its voting power shall not exceed 49 % of the totality of the votes; the voting power of self-handling airport users shall not exceed one third of the totality of the votes. 5. The managing body of the airport shall provide the secretariat of the Airport Users' Committee. If the managing body of the airport refuses to do so or if the Airport Users' Committee does not accept this, the managing body of the airport shall designate another entity which has to be accepted by the Airport Users' Committee. The secretariat of the Airport Users' Committee shall keep and maintain the list of airport users or their representatives that are part of the Airport Users' Committee. 6. The secretariat of the Airport Users' Committee shall keep minutes of each meeting of the Airport Users' Committee. These minutes shall faithfully reflect the views and votes results during the meeting. Chapter III Opening of the groundhandling market SECTION 1 SELF-HANDLING All airport users shall be free to self-handle. Article 5 Self-handling SECTION 2 GROUNDHANDLING FOR THIRD PARTIES Article 6 Groundhandling for third parties 1. Suppliers of groundhandling services shall have free access to the market for the provision of groundhandling services to third parties on any airport whose annual traffic has been not less than 2 million passenger movements or tonnes of freight for at least the previous three years. 2. For airports as referred to in paragraph (1) Member States may limit the number of suppliers authorised to provide the following categories of groundhandling services : baggage handling; EN 18 EN

19 (c) (d) ramp handling; fuel and oil handling; freight and mail handling as regards the physical handling of freight and mail, whether incoming, outgoing or being transferred, between the air terminal and the aircraft. However, Member States shall not limit this number to fewer than two suppliers for each category of groundhandling services or, for airports whose annual traffic has been not less than 5 million passengers or tonnes of freight for at least the previous three years, to fewer than three suppliers for each category of groundhandling services. 3. At airports where the number of suppliers is limited to two or more suppliers in accordance with paragraph (2) of this Article, or Article 14 (1) and (c), at least one of the authorised suppliers shall not be directly or indirectly controlled by: (c) the managing body of the airport, any airport user who has carried more than 25 % of the passengers or freight recorded at the airport during the year preceding that in which those suppliers were selected, a body directly or indirectly controlling, or controlled by the managing body of the airport as referred to in point or any such user referred to in point. Control shall be constituted by rights, contracts or any other means, which either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on the supplier as interpreted by the Court of Justice of the European Union. 4. Where the number of authorised suppliers is restricted pursuant to paragraph (2), Member States may not prevent an airport user, whatever part of the airport is allocated to him, from having, in respect of each category of groundhandling service subject to limitation, an effective choice, under the conditions laid down in paragraphs (2) and (3), between at least: two suppliers of groundhandling services, or three suppliers of groundhandling services for airports whose annual traffic has been not less than 5 million passengers or tonnes of freight for at least the previous three years. 5. Where an airport reaches one of the freight traffic thresholds laid down in this Article without reaching the corresponding passenger movement threshold, this Regulation shall not apply to categories of groundhandling services reserved exclusively for passengers. 6. Any airport whose annual traffic has been not less than 2 million passenger movements or tonnes of freight for at least three consecutive years and whose annual traffic subsequently passes under the threshold of 2 million passenger EN 19 EN

20 movements or tonnes of freight shall maintain its market open to third-party handling suppliers during at least the first three years following the year it passed under the threshold. 7. Any airport whose annual traffic has been for three consecutive years not less than 5 million passenger movements or tonnes of freight and whose annual traffic passes under the threshold of 5 million passenger movements or tonnes of freight shall maintain its market open to third-party handling suppliers during at least the first three years following the year it passed under the threshold. Article 7 Selection of suppliers 1. Suppliers authorised to provide groundhandling services at an airport where their number is limited under Article 6 or Article 14 shall be selected according to a transparent, open and non-discriminatory tender procedure. 2. The tendering authority shall be the managing body of the airport, provided it: does not provide similar groundhandling services; and has no direct or indirect control over any undertaking which provides such services; and has no involvement in any such undertaking; in all other cases, a competent authority independent of the managing body of the airport. 3. The Airport Users' Committee shall not have access to the applicants' submissions at any stage of the selection procedure. The managing body of the airport shall not have access to the applicants' submissions at any stage of the selection procedure, if is not the tendering authority. 4. After having notified the Commission, the Member State concerned may include among the tender specifications a public service obligation to be met by suppliers of groundhandling services in respect of airports serving peripheral or developing regions which are part of its territory, where suppliers are not willing to provide groundhandling services without public support (i.e. exclusive rights or compensation payments), but where such airports are of vital importance as regards accessibility for the Member State concerned. This provision is without prejudice to the EU State Aid rules. 5. The invitation to tender shall be launched and published in the Official Journal of the European Union. 6. The selection of the suppliers by the tendering authority shall be done in two stages: a qualification procedure to examine the suitability of the applicants; and EN 20 EN