EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

order to address the COVID-19 pandemic which was, however, only applicable until the end of year 2020 and has not been extended so far. However, as clearly follows from the above, the Members States may refuse, limit, or impose conditions on the exercise of traffic rights (e.g., by “reserving” a route to a single air carrier), but unfortunately may not impose a new PSO on a route which may be, however, required in these extraordinary circumstances as well. Thus, the entitlement to adopt the emergency measures under Article 21 (resp. Article 21a) of the Air Services Regulation is limited to its scope and does not enable the Member States to impose a new PSO in cases where a route which is vital for the relevant Member State would suddenly become unoperated. 3.1.8 Evaluation of current legislation and considerations de lege ferenda It follows from the above analysis that in case of extraordinary circumstances such as the COVID-19 pandemic, the Member States may only impose a new PSO either via the general procedure, which is administratively complicated and time-consuming, or using the emergency procedure under 16(12) of the Air Services Regulation which is only applicable to situations when the exclusive air carrier suddenly interrupts the provision of air services and there is insufficient time to launch a new public tender and such entrustment of the air carrier may not last longer than seven months. So the possibilities of the Member States to impose a new PSO in these extraordinary circumstances are very limited and lack almost any flexibility, compared to imposition of PSO in extraordinary circumstances in rail transport where the legal regulation is much more flexible and the rail operator may be entrusted with PSO almost immediately (e.g., the Member State may, in the event of a disruption of services or the immediate risk of such a situation, entrust the rail operator directly, without any public tender, and even for a period of up to two years; Article 5(5) of Regulation (EC) No 1370/2007). It would therefore be worth considering including in the Air Services Regulation a new provision which would set a broader entitlement for the Member States to act swiftly and impose the PSO in case of extraordinary circumstances such as the current COVID-19 pandemic (e.g. by extending the emergency procedure to open PSOs or by broadening the scope of emergency measures under Article 21 of the Air Services Regulation so that they would include the possibility of imposing a new PSO). Because the current general legal regulation on entrustment of air carriers is very rigid, inflexible and time-consuming from administrative point of view and is not suitable for unexcepted situations in which immediate imposition of PSO may be required. And because the specific legal regulation of entrustment of air carriers contains several loopholes (e.g., the limitation of emergency entrustment to seven months, the impossibility to use emergency entrustment in cases where the route was not operated exclusively, the impossibility to impose

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