LegalizeRegulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) (Text with EEA relevance)
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
Article 2
Definitions
For the purposes of this Regulation:
‘operating licence’ means an authorisation granted by the competent licensing authority to an undertaking, permitting it to provide air services as stated in the operating licence;
‘competent licensing authority’ means an authority of a Member State entitled to grant, refuse, revoke or suspend an operating licence in accordance with Chapter II;
‘undertaking’ means any natural or legal person, whether profit-making or not, or any official body whether having its own legal personality or not;
‘air service’ means a flight or a series of flights carrying passengers, cargo and/or mail for remuneration and/or hire;
‘flight’ means a departure from a specified airport towards a specified destination airport;
‘local flight’ means a flight not involving carriage of passengers, mail and/or cargo between different airports or other authorised landing points;
‘airport’ means any area in a Member State especially adapted for air services;
‘air operator certificate (AOC)’ means a certificate delivered to an undertaking confirming that the operator has the professional ability and organisation to ensure the safety of operations specified in the certificate, as provided in the relevant provisions of Community or national law, as applicable;
‘effective control’ means a relationship constituted by rights, contracts or any other means which, either separately or jointly and having regard to the considerations of fact or law involved, confer the possibility of directly or indirectly exercising a decisive influence on an undertaking, in particular by:
(a) the right to use all or part of the assets of an undertaking; (b) rights or contracts which confer a decisive influence on the composition, voting or decisions of the bodies of an undertaking or otherwise confer a decisive influence on the running of the business of the undertaking;
‘air carrier’ means an undertaking with a valid operating licence or equivalent;
‘Community air carrier’ means an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II;
‘business plan’ means a detailed description of the air carrier's intended commercial activities for the period in question, in particular in relation to the expected market development and the investments to be carried out, including the financial and economic implications of these activities;
‘intra-Community air service’ means an air service operated within the Community;
‘traffic right’ means the right to operate an air service between two Community airports;
‘seat-only sales’ means the sale of seats, without any other service bundled, such as accommodation, directly to the public by the air carrier or its authorised agent or a charterer;
‘scheduled air service’ means a series of flights possessing all the following characteristics:
(a) on each flight seats and/or capacity to transport cargo and/or mail are available for individual purchase by the public (either directly from the air carrier or from its authorised agents); (b) it is operated so as to serve traffic between the same two or more airports, either: — according to a published timetable, or — with flights so regular or frequent that they constitute a recognisably systematic series;
‘capacity’ means the number of seats or the payload offered to the general public on a scheduled air service over a given period;
‘air fares’ means the prices expressed in euro or in local currency to be paid to air carriers or their agents or other ticket sellers for the carriage of passengers on air services and any conditions under which those prices apply, including remuneration and conditions offered to agency and other auxiliary services;
‘air rates’ means the prices expressed in euro or in local currency to be paid for the carriage of cargo and the conditions under which those prices apply, including remuneration and conditions offered to agency and other auxiliary services;
‘Member State(s) concerned’ means the Member State(s) between or within which an air service is operated;
‘Member State(s) involved’ means the Member State(s) concerned and the Member State(s) where the air carrier(s) operating the air service is (are) licensed;
‘conurbation’ means an urban area comprising a number of cities or towns which, through population growth and expansion, have physically merged to form one continuous built up area;
‘management account’ means a detailed statement of income and costs of an air carrier for the period in question including a breakdown between air-transport-related and other activities as well as between pecuniary and non-pecuniary elements;
‘dry lease agreement’ means an agreement between undertakings pursuant to which the aircraft is operated under the AOC of the lessee;
‘wet lease agreement’ means an agreement between air carriers pursuant to which the aircraft is operated under the AOC of the lessor;
‘principal place of business’ means the head office or registered office of a Community air carrier in the Member State within which the principal financial functions and operational control, including continued airworthiness management, of the Community air carrier are exercised.
CHAPTER II
OPERATING LICENCE
Article 3
Operating licence
No undertaking established in the Community shall be permitted to carry by air passengers, mail and/or cargo for remuneration and/or hire unless it has been granted the appropriate operating licence.
An undertaking meeting the requirements of this Chapter shall be entitled to receive an operating licence.
Without prejudice to any other applicable provisions of Community, national, or international law, the following categories of air services shall not be subject to the requirement to hold a valid operating licence:
(a) air services performed by non-power-driven aircraft and/or ultralight power-driven aircraft; and
(b) local flights.
Article 4
Conditions for granting an operating licence
An undertaking shall be granted an operating licence by the competent licensing authority of a Member State provided that:
(a) its principal place of business is located in that Member State;
(b) it holds a valid AOC issued in accordance with Regulation (EU) 2018/1139 of the European Parliament and of the Council (1) either by a national authority of a Member State, by several national authorities of Member States acting jointly in accordance with Article 62(5) of that Regulation or by the European Union Aviation Safety Agency;
(c) it has one or more aircraft at its disposal through ownership or a dry lease agreement;
(d) its main occupation is to operate air services in isolation or combined with any other commercial operation of aircraft or the repair and maintenance of aircraft;
(e) its company structure allows the competent licensing authority to implement the provisions of this Chapter;
(f) Member States and/or nationals of Member States own more than 50 % of the undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings, except as provided for in an agreement with a third country to which the Community is a party;
(g) it meets the financial conditions specified in Article 5;
(h) it complies with the insurance requirements specified in Article 11 and in Regulation (EC) No 785/2004; and
(i) it complies with the provisions on good repute as specified in Article 7.
Article 5
Financial conditions for granting an operating licence
The competent licensing authority shall closely assess whether an undertaking applying for the first time for an operating licence can demonstrate that:
(a) it can meet at any time its actual and potential obligations established under realistic assumptions, for a period of 24 months from the start of operations; and
(b) it can meet its fixed and operational costs incurred by operations according to its business plan and established under realistic assumptions, for a period of three months from the start of operations, without taking into account any income from its operations.
Paragraphs 1 and 2 shall not apply to an undertaking applying for an operating licence intended to cover operations with aircraft of less than 10 tonnes maximum take-off mass (MTOM) and/or less than 20 seats. Such undertakings shall demonstrate that their net capital is at least EUR 100 000 or provide, when required by the competent licensing authority, all relevant information for the purposes of the assessment referred to in paragraph 1, in particular the data referred to in point 1 of Annex I.
The competent licensing authority may nevertheless apply paragraphs 1 and 2 to an undertaking applying for an operating licence under the provisions of the previous subparagraph that intends to operate scheduled air services or whose turnover exceeds EUR 3 million per year.
Article 6
Air operator certificate
The authority competent for the AOC shall inform the competent licensing authority as soon as possible of any relevant proposed changes to the AOC.
That exchange may include, without being limited to, information relating to the financial, ownership or organisational arrangements of the Community air carrier which may affect the safety or solvency of its operations or which may assist the authority competent for the AOC in performing its oversight activities related to safety. Where information is provided in confidence, measures shall be put in place to ensure that the information is appropriately protected.
Article 7
Proof of good repute
Article 8
Validity of an operating licence
An operating licence shall be valid as long as the Community air carrier complies with the requirements of this Chapter.
A Community air carrier shall at all times be able on request to demonstrate to the competent licensing authority that it meets all the requirements of this Chapter.
The competent licensing authority shall closely monitor compliance with the requirements of this Chapter. It shall in any case review compliance with these requirements in the following cases:
(a) two years after a new operating licence has been granted;
(b) when a potential problem has been suspected; or
(c) at the request of the Commission.
In case the competent licensing authority suspects that financial problems of a Community air carrier might affect the safety of its operations, it shall immediately inform the authority competent for the AOC.
The operating licence shall be resubmitted for approval when a Community air carrier:
(a) has not started operations within six months of the granting of an operating licence;
(b) has ceased its operations for more than six months; or
(c) which has been licensed on the basis of the first subparagraph of Article 5(3) intends to engage in operations with aircraft above the size threshold specified in Article 5(3) or no longer complies with the financial conditions set out therein.
A Community air carrier shall provide to the competent licensing authority its audited accounts no later than six months following the last day of the respective financial year, unless otherwise provided for in national law. During the first two years of operation of a Community air carrier, the data as referred to in point 3 of Annex I shall be made available to the competent licensing authority upon request.
The competent licensing authority may at any time assess the financial performance of a Community air carrier to which it has granted an operating licence by requesting the relevant information. As part of such an assessment, the Community air carrier in question shall update the data referred to in point 3 of Annex I and provide it to the competent licensing authority upon request.
A Community air carrier shall notify the competent licensing authority:
(a) in advance of any plans for the operation of a new air service to a continent or a world region not previously served, or any other substantial change in the scale of its activities, including, but not limited to, changes in the type or number of aircraft used;
(b) in advance of any intended mergers or acquisitions; and
(c) within 14 days of any change in the ownership of any single shareholding which represents 10 % or more of the total shareholding of the Community air carrier or of its parent or ultimate holding company.
If the competent licensing authority deems the changes notified under paragraph 5 to have a significant bearing on the finances of the Community air carrier, it shall require the submission of a revised business plan incorporating the changes in question and covering, at least, a period of 12 months from its date of implementation as well as the data referred to in point 2 of Annex I, in addition to the information to be provided under paragraph 4.
The competent licensing authority shall take a decision on the revised business plan as to whether the Community air carrier can meet its existing and potential obligations during that period of 12 months. Such a decision shall be taken not later than three months after all the necessary information has been submitted to it.
Paragraphs 4, 5 and 6 shall not apply to Community air carriers exclusively engaged in operations with aircraft of less than 10 tonnes MTOM and/or less than 20 seats. Such Community air carriers shall at all times be able to demonstrate that their net capital is at least EUR 100 000 or to provide when required by the competent licensing authority the information relevant for the purposes of the assessment referred to in Article 9(2).
The competent licensing authority may nevertheless apply paragraphs 4, 5 and 6 to Community air carriers licensed by it that operate scheduled air services or whose turnover exceeds EUR 3 million per year.
Article 9
Suspension and revocation of an operating licence
Whenever there are clear indications that financial problems exist or when insolvency or similar proceedings are opened against a Community air carrier licensed by it the competent licensing authority shall without delay make an in-depth assessment of the financial situation and on the basis of its findings review the status of the operating licence in compliance with this Article within a time period of three months.
The competent licensing authority shall inform the Commission of its decisions, relating to the status of the operating licence.
When the audited accounts referred to in Article 8(4) have not been communicated within the deadline indicated in that Article, the competent licensing authority shall, without undue delay, request the Community air carrier to communicate these audited accounts.
If the audited accounts are not communicated within one month, the operating licence may be revoked or suspended.
Article 10
Decisions on operating licences
Article 11
Insurance requirements
Notwithstanding Regulation (EC) No 785/2004, an air carrier shall be insured to cover liability in case of accidents with respect to mail.
Article 12
Registration
Article 13
Leasing
A Community air carrier wet leasing aircraft registered in a third country from another undertaking shall obtain prior approval for the operation from the competent licensing authority. The competent authority may grant an approval if:
(a) the Community air carrier demonstrates to the satisfaction of the competent authority that all safety standards equivalent to those imposed by Community or national law are met; and
(b) unless otherwise provided for in an international agreement on wet-leasing signed by the Union which is based on an Air Transport Agreement to which the Union is a party and which was signed before 1 January 2008, one of the following conditions is fulfilled: (i) the Community air carrier justifies such leasing on the basis of exceptional needs, in which case an approval may be granted for a period of up to seven months that may be renewed once for a further period of up to seven months; (ii) the Community air carrier demonstrates that the leasing is necessary to satisfy seasonal capacity needs, which cannot reasonably be satisfied through leasing aircraft registered within the Community, in which case the approval may be renewed; or (iii) the Community air carrier demonstrates that the leasing is necessary to overcome operational difficulties and it is not possible or reasonable to lease aircraft registered within the Community, in which case the approval shall be of limited duration strictly necessary for overcoming the difficulties.
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