EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

The emergency procedure under Article 16(12) of the Air Services Regulation is applicable to situations when the exclusive air carrier suddenly interrupts the provision of air services (e.g., due to insolvency of the air carrier caused by, inter alia , anti-pandemic measures) and there is insufficient time to launch a new public tender. In such a case, the Member State is entitled to entrust another Community air carrier to operate on this route for a period of maximum seven months in line with the existing PSO. However, such a temporary entrustment, the purpose of which is to ensure the uninterrupted operation of air services on a given route, can only be carried out “in case of emergency” and subject to strict conditions, including compliance with the principles of transparency and non-discrimination and obligation to launch a new tender without undue delay (Article 16(12) of the Air Services Regulation). Hence, the Member States should be generally authorized to use this emergency procedure in exceptional situations, such as the current COVID-19 pandemic, to entrust the air carrier with PSO, provided that all its conditions are duly met. Nevertheless, the use of this emergency procedure is quite limited for several reasons. Such PSO may only be imposed for a period not exceeding seven months and may not be prolonged, which makes it impossible to be used for the entire duration of the COVID-19 pandemic. Furthermore, it is not allowed to use the emergency procedure for an open PSO and neither in cases when the interruption of the provision of the air services could have been expected (e.g., when the interruption of operation of air services is resulting from foreseeable termination of the contract or notification of interruption of operation of air services on that route was made at least six months in advance) or occurred due to delays in national procurement procedure (Interpretative Guidelines, para 107). It follows that the use of the emergency procedure is very limited in, particularly long-lasting, extraordinary circumstances, such as the currently ongoing COVID-19 pandemic. Furthermore, in Article 21, the Air Services Regulation enables the Member States to deal with sudden problems of short duration resulting from unforeseeable and unavoidable circumstances by adopting emergency measures consisting in the refusal, limitation or imposition of conditions on the exercise of traffic rights. And since the Air Services Regulation does not impose any further conditions related to adoption of such emergency measures, except for their very short duration (14 days, subsequent prolongation only with the Commission’s consent) and the requirement to respect the principles of proportionality, transparency, objectivity and non discrimination, the Member States could make use of this provision in order to regulate the operation of air services in extraordinary circumstances, including COVID-19 pandemic. A similar provision is also contained in Article 21a of the Air Services Regulation according to which the Member States may refuse, limit, or impose conditions on the exercise of traffic rights if this action is necessary in

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