EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

with reference to more (e.g. neighbouring) cities or regions (Article 16(1) of the Air Services Regulation; Interpretative Guidelines, para 22). This should prevent Member States from imposing the PSOs to support the development of the air carrier or airport in the region, although the Member State’s thoughts will often head in this direction. Such vital character of the route will most certainly have a route to a small island or a remote region (but not every such route, as emphasized by the CJEU; C-205/99, para 29), and under certain circumstances also route linking small and medium sized cities to important economic or administrative centres (Interpretative Guidelines, paras 25–26). Recently, for example, PSOs have been imposed on routes from Sicilian city of Comiso (Italy) to the Italian capital Rome-Fiumicino and “the fashion capital” Milan-Malpensa, and from Thessaloniki (Greece) to the Greek island of Samos (European Commission [online], 2021b). And what is important to note is that the above conditions may be complied with even by a route connecting a Member State’s capital with a city in which the EU bodies and other institutions are seated (Interpretative Guidelines, para 26), and eventually with a city where also other international organisations are based (e.g., Brussels, Strasbourg, Luxembourg, Frankfurt, Geneve). Hence, such PSOs may be imposed even on a route linking major EU cities, as in case of PSO imposed on route from Strasbourg (France) to Prague (Czech Republic) or Munich (Germany) (European Commission [online], 2021b). It follows that although the Air Services Regulation stipulates only certain routes on which it is possible to impose the PSOs, the definition of these routes is rather vague and broadly interpreted even by the Commission. This enables the Member States to impose the PSO not only to routes which may be described as indispensable from the connectivity perspective, but which may be vital even from a wider (e.g., regional socio-political) perspective. 3.1.3 Proportionality and necessity of PSO The key preconditions which need to be assessed before imposing PSO on any route is whether such imposition would be proportionate and could not be achieved by other, less intrusive measures. Compliance with these principles of proportionality and necessity (subsidiarity) must be assessed on the basis of the criteria laid down in the Air Services Regulation and has to follow at least implicit definition of the relevant market in question (Kociubiński, 2013, pp. 92) which is generally defined in the air transport sector as individual O&Ds ( point of-origin/point-of-destination ) (T-162/10, paras 138–139). It follows from these criteria that the PSO should be proportionate to the economic development needs of the region and imposed only if the transport needs of the region cannot be met by existing rail links or other modes of transport. These

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