EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

scheduled air services on this route under the conditions laid down in such PSO (Article 16(8) of the Air Services Regulation), even on the basis of code-share agreements (Interpretative Guidelines, para 59), as the PSO is not linked only to the entrusted air carrier but to the route as such (Zajac, 2015, pp. 6). 3.1.6 Exclusive PSO and public tender procedure It follows from the above that a route may in some cases be operated partly on a commercial basis and partly based on PSO. However, in exceptional cases, the Member State still has the possibility to “reserve” a route exclusively for the needs of a single air carrier and grant it the exclusive right to operate air services on that route. Such a restricted PSO may be imposed on a route only if no Community air carrier has commenced or intends to commence scheduled air services on that route in accordance with the PSO applicable to the route, if any (Article 16(9) of the Air Services Regulation). However, such exclusive right may be granted for an individual route or for a group of routes for a maximum period of four years (resp. five years, if the PSO applies to a route to an airport serving one of the outermost regions, such as the Canary Islands, Madeira, the Azores, Réunion, Martinique and others; see Articles 349 and 355(1) TFEU) and must be offered in a public tender in accordance with the Air Services Regulation and after publication in the Official Journal of the EU, even if the exclusive right is to be granted without any compensation which illustrates the uniqueness of the procedure. The Member State must subsequently also inform the Commission of the outcome of the public tender. This public tender procedure regulated in Article 17 of the Air Services Regulation thus represents a lex specialis to the public procurement rules. 3.1.7 Imposition of PSO in extraordinary circumstances It should be noted that the procedures for imposition of PSOs as described above apply to any circumstances regardless of their nature. And as such, these procedures are quite strict, administratively complicated and time-consuming and do not provide the Member States with sufficient flexibility in entrusting an air carrier in unexpected circumstances when it is required to act swiftly, such as in case of the recent COVID-19 pandemic. Thus, we should also ask whether the Air Services Regulation enables the Member States to entrust the air carrier even in extraordinary circumstances, since the EU bodies have repeatedly identified the COVID-19 pandemic as an exceptional circumstance (see European Commission [online], 2021a). In this regard, the Air Services Regulation regulates two types of measures which may be applied in these circumstances: (i) emergency procedure and (ii) imposition of emergency measures.

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