EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

conditions of PSO applicable to that route must be granted access to that route (Article 16(8) of the Air Services Regulation). This is the so-called “open PSO”. Thus, the legislation does not, in principle, allow to reserve an air route for a single (exclusive) air carrier, even if air services under PSO should be provided. The reason is to avoid, to the maximum extent possible, any unnecessary and unproportionate restrictions of competition, and exclusive authorization of any entrepreneur may certainly have severe impacts on the competition. Hence, exclusive entrustment of an air carrier (“restricted PSO”) can only be realized by a Member State under very strictly defined conditions, although in reality the number of restricted PSOs is paradoxically much higher than the number of open PSOs, representing around 80% of all public air transport obligations in the EU (Costa, 2021). 3.1.2 Permissible types of routes First of all, it should be noted that the Air Services Regulation allows Member States to entrust air carriers with PSO only to scheduled air services. The imposition of PSO on non-scheduled air services (charter flights) is therefore completely ruled out. In addition, the Member States’ possibility to impose the PSO for a scheduled air service is further limited to only two types of routes, namely (i) on routes to airports serving a peripheral or development region in the Member State’s territory, or (ii) on thin routes to any airport on its territory. While a peripheral region is typically a remote region or a region accessible with difficulty from the capital and othermain cities in theMember State, a development region is a region which is lagging behind economically, as measured for example by GDP per capita or by unemployment rate (Interpretative Guidelines, para 20). The so-called thin routes are usually routes with a traffic volume of up to 100,000 passengers per year ( ibidem ). The PSOs on these routes do not have to be imposed within one Member State only but can be also imposed on any route within the EU. This is evidenced by the relatively recent cases of imposing a PSO on the route from Brno (Czech Republic) to Munich (Germany) or from Ostrava (Czech Republic) to Munich (Germany) and Vienna (Austria) or planned imposition of PSO on the route from Strasbourg (France) to Madrid (Spain) (European Commission [online], 2021b). Such PSOs cannot be, however, imposed on routes to third countries due to the fact that the scope of the Air Services Regulation is limited to intra-EU air services, as follows from its Article 1(1) as well as from the CJEU case law (C-563/17, para 51). Nevertheless, both in case of routes to an airport serving a peripheral or development region and thin routes, the route on which the PSO is to be imposed must be considered vital for the economic and social development of the region served by the airport and be defined from one airport to another, not

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