Verdrag inzake luchtdiensten tussen het Koninkrijk der Nederlanden en de Republiek Kaapverdië

Preamble

The Kingdom of the Netherlands

and

The Republic of Cape Verde,

Hereinafter referred to as the Contracting Parties,

Being parties to the Convention on International Civil Aviation opened for signature at Chicago on 7 December 1944;

Desiring to contribute to the progress of international aviation;

Desiring to guarantee the highest level of safety and security in international air transport;

Desiring to conclude an Agreement to replace the Agreement between the Kingdom of the Netherlands and the Republic of Cape Verde for Air Services between and beyond their respective territories, signed in The Hague on December 21, 1988;

Have agreed as follows:

CHAPTER I. INTRODUCTION

Article 1. Definitions

For the purpose of this Agreement

• a). the term “Aeronautical Authorities” means: for the Kingdom of the Netherlands, the Minister of Infrastructure and Environment; for the Republic of Cape Verde, the Civil Aviation Agency, or in either case any person or body authorized to perform any functions at present exercised by the said Authorities;

• b). the terms “Agreed Service” and “Specified Route” mean: international air service pursuant to this Agreement and the route specified in the Annex to this Agreement respectively;

• c). the term “Agreement” means: this Agreement, its Annex drawn up in application thereof, as well as any amendment to the Agreement or the Annex;

• d). the terms “Air Service”, “International Air Service”, “Airline” and “Stop for non-traffic purposes” shall have the meaning respectively assigned to them in Article 96 of the Convention;

• e). the term “Change of Aircraft” means: the operation of one of the Agreed Services by a Designated Airline in such a way that one or more sectors of the Specified Route are flown by different aircraft;

• f). the term “the Convention” means: the Convention on International Civil Aviation, opened for signature at Chicago on 7 December 1944, and includes any Annex adopted under Article 90 of that Convention and any amendment of the Annexes or the Convention under Articles 90 and 94 thereof, insofar as those Annexes and amendments have become effective for, or been ratified by both Contracting Parties;

• g). the term “Designated Airline” means: the Airline which has been designated and authorized in accordance with Article 3 of this Agreement (Designation and Authorization);

• h). the term “Stores”, including Bonded Stores means: articles, of a readily consumable nature, for use or sale on board an aircraft during flight including commissary supplies; the term “Bonded Stores” means: Stores that are temporarily kept under customs custody;

• i). the term “Price” means: any amount, excluding governmental levies, charged or to be charged by the Airline, directly or through their agents, to any person or entity for the carriage of passengers (and their baggage) and cargo (excluding mail) in air transportation, including:

• (I). the conditions governing the availability and applicability of a Price; and

• (II). the charges and conditions for any services ancillary to such carriage which are offered by the Airline;

• j). the term “Territory” in relation to either Contracting Party shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of the Contracting Party;

• k). the term “User Charge” means: a charge imposed on Airlines for the provision of airport, air navigation, or aviation security facilities or services including related services and facilities;

• l). the term “Capacity” means: the combination of frequency per week and (the configuration of) the type of aircraft used on the route offered to the public by the Designated Airline;

• m). the term “EU Member State” means: a State that is now or in the future a contracting party to the Treaty establishing the European Union.

CHAPTER II. OBJECTIVES

Article 2. Grant of Rights

• a). the right to fly across its Territory without landing;

• b). the right to make stops in its Territory for non-commercial traffic purposes; and

• c). while operating an Agreed Service on a Specified Route, the right to make stops in its Territory for the purposes of taking up and discharging international traffic in passengers, baggage, cargo and mail, separately or in combination.

Article 3. Designation and Authorization

• (i). in the case of the Airline(s) designated by the Kingdom of the Netherlands:

• 1. it is established in the Territory of the Kingdom of the Netherlands under the European Union Treaties and has a valid operating licence in accordance with European Union law; or

• 1. effective regulatory control of the Airline(s) is exercised and maintained by the EU Member State responsible for issuing its Air Operator’s Certificate and the relevant aeronautical authority is clearly identified in the designation; or

• 1. the Airline is owned, directly or through majority ownership, and it is effectively controlled by Member States of the European Union or the European Free Trade Association and/or by nationals of such States.

• (ii). in the case of the Airline(s) designated by the Republic of Cape Verde: and that:

• 1. it is established in the Territory of the Republic of Cape Verde and has a valid Operating Licence in accordance with applicable law of the Republic of Cape Verde; or

• 1. effective regulatory control of the Airline(s) is exercised and maintained by the Republic of Cape Verde; or

• 1. the Airline has its principal place of business in the Republic of Cape Verde.

• (iii). the Government designating the Airline(s) is maintaining and administering the standards set forth in Article 15 (Safety) and Article 16 (Aviation Security) of this Agreement;

• (iv). the Designated Airline(s) is/are qualified to meet the conditions prescribed under the laws and regulations normally applied to the operations of international air transportation by the Contracting Party considering the application or applications.

Article 4. Revocation and Suspension of Authorization

• (i). In the case of the Airline(s) designated by the Kingdom of the Netherlands, when:

• 1. it is not established in the Territory of the Kingdom of the Netherlands under European Union Treaties or does not have a valid operating licence in accordance with European Union law; or

• 1. effective regulatory control of the Airline(s) is not exercised or not maintained by the EU Member State responsible for issuing its Air Operator’s Certificate or the relevant aeronautical authority is not clearly identified in the designation; or

• 1. the Airline is not owned, directly or through majority ownership, or is not effectively controlled by Member States of the European Union or the European Free Trade Association and/or by nationals of such States.

• (ii). in the case of the Airline(s) designated by the Republic of Cape Verde:

• 1. it is not established in the Territory of the Republic of Cape Verde or has no valid operating licence in according with applicable law of the Republic of Cape Verde; or

• 1. effective regulatory control of the Airline is not exercised or not maintained by the Republic of Cape Verde; or

• 1. the Airline does not have its principal place of business in the Republic of Cape Verde.

• (iii). in case that Airline has failed to comply with the laws and regulations referred to in Article 13 (Application of Laws, Regulations and Procedures) of this Agreement;

• (iv). in case the other Contracting Party is not maintaining and administering the standards set forth in Article 15 (Safety) of this Agreement;

• (v). in the event of failure by such Airline to qualify before the Aeronautical Authorities of the Contracting Party assessing the authorization, under the laws and regulations normally and reasonably applied to the operation of International Air Services by these Authorities in conformity with the Convention;

• (vi). in case the Airline otherwise fails to operate in accordance with the conditions prescribed under this Agreement.

CHAPTER III. COMMERCIAL PROVISIONS

Article 5. Prices

• a). prevention of unreasonably discriminatory Prices or practices;

• b). protection of consumers from Prices that are unreasonably high or restrictive due to the abuse of a dominant position;

• c). protection of Airlines from Prices that are artificially low due to direct or indirect governmental subsidy or support.

If either Contracting Party considers any such Price inconsistent with the considerations set forth in paragraph (1) of this Article, it shall request consultations and notify the other Contracting Party of the reasons for its dissatisfaction as soon as possible. These consultations shall be held not later than thirty (30) days after receipt of the request, and the Contracting Parties shall co-operate in securing information necessary for reasoned resolution of the issue. If the Contracting Parties reach agreement with respect to a Price for which a notice of dissatisfaction has been given, each Contracting Party shall use its best efforts to put that agreement into effect. Without such mutual agreement, the new Price shall not take effect nor continue to be in effect.

Article 6. Commercial Activities

• a). to establish in the Territory of the other Contracting Party offices for the promotion and sale of air transportation and ancillary or supplemental services (including the right to sell and to issue any ticket and/or airway bill, both its own tickets and/or airway bills and of any other carrier) as well as other facilities required for the provision of air transportation;

• b). in the Territory of the other Contracting Party to engage directly and, at its discretion, through its agents, and/ or other Airlines in the sale of air transportation and ancillary or supplemental services;

• c). to sell such transportation and ancillary or supplemental services and any person shall be free to purchase such transportation or services in any currency.

• a). In operating or holding out the Air Services on the Specified Routes, each Designated Airline of one Contracting Party may enter into commercial and/or cooperative marketing arrangements including, but not limited to blocked-space, code-sharing and leasing arrangements, with:

• (i). the Designated Airline(s) of the same Contracting Party;

• (ii). the Designated Airline(s) of the other Contracting Party, including domestic code share;

• (iii). the Designated Airline(s) of a third country;

• (iv). a cargo surface transportation provider of any country.

• b). The operating Airline(s) involved in the co-operative marketing arrangements shall hold the underlying traffic rights including the route rights and the Capacity entitlements and meet the requirements normally applied to such arrangements.

• c). All marketing Airlines involved in the co-operating arrangements shall hold the underlying route rights and meet the requirements normally applied to such arrangements.