Decreto n.º 29/2008 — Aprova o Acordo sobre Transporte Aéreo entre a República Portuguesa e a República da Argentina, assinado em Lisboa em…

Desiring to organize, in a safe and orderly manner, international air services and to promote in the greatest possible measure international cooperation in respect of such services; and

Desiring to establish an agreement to foster the development of scheduled air services between and beyond their territories;

agree as follows:

Article 1

Definitions

For the purpose of the present Agreement:

Article 2

Operating rights

1 - Each Party grants to the designated airlines of the other Party the following rights in respect of its international air services:

2 - Each Party grants to the designated airlines of the other Party the rights hereinafter specified in this Agreement for the purpose of operating scheduled international air services on the routes specified in the appropriate section of the route schedule annexed to this Agreement. Such services and routes are hereinafter called «the agreed services» and «the specified routes» respectively. While operating an agreed service on a specified route the airlines designated by each Party shall enjoy in addition to the rights specified in paragraph 1 of this article and subject to the provisions of this Agreement, the right to make stops in the territory of the other Party at the points specified for that route in the route schedule to this Agreement for the purpose of taking on board and disembarking passengers, baggage, cargo and mail.

3 - Nothing in paragraph 2 of this article shall be deemed to confer on the designated airlines of one Party the right of embarking, in the territory of the other Party, traffic carried for remuneration or hire and destined for another point in the territory of that Party.

4 - If the designated airlines of one Party are unable to operate services on its normal routing because of armed conflict, political disturbances, or special and unusual circumstances the other Party shall make its best efforts to facilitate the continued operation of such service through appropriate rearrangements of such routes, including the grant of rights for such time as may be necessary to facilitate viable operations. The provisions of this norm shall be applied without discrimination between the designated airlines of the Parties.

Article 3

Designation and operating authorization of airlines

1 - Each Party shall have the right to designate two airlines for the purpose of operating the agreed services on the routes specified in the annex and to withdraw or alter such designations. Those designations shall be made in writing and shall be transmitted to the other Party through diplomatic channels.

2 - On receipt of such a designation, and of applications from the designated airline, in the form and manner prescribed for operating authorisations and technical permissions, the other Party shall grant the appropriate authorisations and permissions with minimum procedure delay, provided that:

ii) Effective regulatory control of the airline is exercised and maintained by the European Community member State responsible for issuing its air operator's certificate and the relevant aeronautical authority is clearly identified in the designation; and

iii) It is owned, directly or through majority ownership, and it is effectively controlled by member States of the European Community or the European Free Trade Association and or by nationals of such states;

ii) Effective regulatory control of the airline is exercised and maintained by the Argentine Republic; and

iii) In accordance to Argentine law, the airline is owned directly or through majority ownership and it is effectively controlled by the Argentine Republic and or nationals of the Argentine Republic or, as far as it is allowed by Argentine law, it is owned directly or through majority ownership by other LACAC member States and or nationals of such states;

3 - When an airline has been designated and authorized in accordance with this article, it may operate in whole or in part the agreed services for which it is designated, provided that tariffs and timetables established in accordance with the provisions of articles 14 and 18 of this Agreement are in force in respect of these services.

Article 4

Revocation, suspension and limitation of rights

1 - Each Party shall have the right to revoke the operating authorizations or technical permissions or to suspend or limit the exercise of the rights specified in article 2 of this Agreement, of the designated airline of the other Party, or to impose the conditions considered necessary on the exercise of such rights, where:

ii) Effective regulatory control of the designated airline is not exercised or not maintained by the European Community member State responsible for issuing its air operators certificate, or the relevant aeronautical authority is not clearly identified in the designation; or

iii) It is not owned, directly or through majority ownership, and it is not effectively controlled by member States of the European Community or the European Free Trade Association and or by nationals of such states; or

iv) It is already authorized to operate under a bilateral agreement between the Argentine Republic and another member State and by exercising traffic rights under this Agreement on a route that includes a point in that other member State, it would be circumventing restrictions on traffic rights imposed by the bilateral agreement between the Argentine Republic and that other member State; or

ii) Effective regulatory control of the airline is not exercised or not maintained by the Argentine Republic or the relevant aeronautical authority is not clearly identified in the designation; or

iii) In accordance to Argentine law it is not owned directly or through majority ownership and it is not effectively controlled by the Argentine Republic or nationals of the Argentine Republic or, as far as it is allowed by Argentine law, the airline is not owned directly or through majority ownership by other LACAC member States or nationals of such States; or

iv) It is already authorized to operate under a bilateral agreement between the Portuguese Republic and another LACAC member State, and by exercising traffic rights under this Agreement on a route that includes a point in that other LACAC member State, it would be circumventing restrictions on traffic rights imposed by that other agreement; or

2 - Unless immediate revocation, suspension or imposition of the conditions mentioned in paragraph 1 of this article is essential to prevent further infringements of the legislation that right shall be exercised only after consultation with the other Party. The consultation shall take place within a period of 30 days from the date of the proposal to hold it if not otherwise agreed.

Article 5

Entry and clearance laws and regulations

1 - The legislation and procedures of one Party relating to the admission to, sojourn in, or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of both Parties upon entering into or departing from or while within the territory of the first Party.

2 - The legislation and procedures of one Party relating to the admission to, sojourn in, or departure from its territory of passengers, crew, baggage, cargo and mail transported on board the aircraft, such as legislation relating to entry, clearance, immigration, passports, customs and sanitary control shall be complied with by the airline of the other Party or on behalf of such passengers, crew, entity entitled of baggage, cargo and mail upon entrance into or departure from or while within the territory of this Party.

Article 6

Customs duties and other charges

1 - Aircraft operating on international services by the airlines designated by each Party, as well as their regular equipment, spare parts, supplies of fuels and lubricants, other consumable technical supplies and aircraft stores (including food, beverages and tobacco) on board such aircraft shall be exempt from custom duties, inspection fees and other duties or taxes on arriving in the territory of the other Party, provided such equipment, supplies and aircraft stores remain on board the aircraft up to such time as they are re-exported, or are used on the part of the journey performed over that territory.

2 - There shall also be exempt from the same duties, fees and taxes, with the exception of charges corresponding to the service performed:

3 - All materials referred to in paragraph 2 of this article may be required to be kept under customs supervision or control.

4 - The regular airborne equipment, as well as the materials and supplies retained on board the aircraft of the designated airlines of either Party, may be unloaded in the territory of the other Party only with the approval of the customs authorities of that territory. In such case, they may be placed under the supervision of the said authorities up to such time as they are re-exported or otherwise disposed of in accordance with customs regulations.

5 - The exemptions provided for by this article shall also be available in situations where the designated airlines of either Party have entered into arrangements with another airline or airlines for the loan or transfer in the territory of the other Party of the items specified in paragraphs 1 and 2 of this article, provided such other airline or airlines similarly enjoy such exemptions from such other Party.

6 - Nothing in this Agreement shall prevent:

Article 7

User charges

1 - Each Party may impose or permit to be imposed just and reasonable charges for the use of airports, other facilities and air services under its control.

2 - Those charges shall not be higher than the charges imposed upon aircraft of the designated airlines of each Party engaged in similar international services.

3 - Such charges shall be just and reasonable and shall be based on sound economic principles.

Article 8

Traffic in direct transit

Traffic in direct transit across the territory of either Party and not leaving the area of the airport reserved for such purpose shall, except in respect of security measures against the threat of unlawful interference, such as violence and air piracy and occasional measures for the combat of illicit drug traffic, be subject to no more than a simplified control. Baggage and cargo in direct transit shall be exempt from custom duties, charges and other similar taxes.

Article 9

Recognition of certificates and licences

1 - Certificates of airworthiness, certificates of competency and licences issued, or rendered valid, in accordance with the rules and procedures of one Party and unexpired shall be recognised as valid by the other Party for the purpose of operating the agreed services, provided always that the requirements under which such certificates or licences were issued, or rendered valid, are equal to or above the minimum standards established under the Convention.

2 - Paragraph 1 also applies with respect to an airline designated by the Portuguese Republic whose regulatory control is exercised and maintained by another European Community member State.

3 - Each Party reserves the right, however, to refuse to recognize, for flights above its own territory, certificates of competency and licences granted to or rendered valid to its own nationals by the other Party or by any other State.

Article 10

Commercial representation

1 - The designated airlines of each Party shall be allowed:

2 - The competent authorities of each Party will take all necessary steps to ensure that the representation of the airlines designated by the other Party may exercise their activities in an orderly manner.

Article 11

Commercial activities

1 - The designated airlines of each Party shall have the right to sell, in the territory of the other Party, air transportation and ancillary services and any person shall be free to purchase such transportation in the currency of that territory or in freely convertible currencies of other countries in accordance with the foreign exchange regulations in force.

2 - For the commercial activities all principles mentioned in the previous paragraph shall apply to the designated airlines of both Parties.

Article 12

Conversion and transfer of revenues

Each Party grants to the designated airlines of the other Party the right of free transfer at the official rate of exchange, of the excess of receipts over expenditures achieved in connection with the carriage of passengers, baggage, cargo and mail on the agreed services in the territory of the other Party.

Article 13

Capacity

1 - There shall be fair and equal opportunity for the designated airlines of both Parties to operate the agreed services on the specified routes between their respective territories.

2 - In operating the agreed services, the designated airlines of each Party shall take into account the interest of the designated airlines of the other Party so as not to affect unduly the services which the latter provides on the whole or part of the same route.

3 - The agreed services provided by the designated airlines of the Parties shall bear a close relationship to the requirements of the public for transportation on the specified routes and shall have as their primary objective the provision of capacity adequate to carry the current and reasonable anticipated traffic requirements, including seasonal variations for the carriage of traffic embarked or disembarked in the territory of the Party which has designated the airlines.

4 - Notwithstanding the above provisions capacity shall be agreed upon between the aeronautical authorities of the Parties.

Article 14

Approval of conditions of operation

1 - The time-tables of the agreed services and in general the conditions of their operation shall be submitted or notified as provided in article 13, as may be the case, at least 30 days before the intended date of their implementation. Any significant modification to such time-tables or conditions of their operation shall also be submitted to the aeronautical authorities for approval. In special cases, the above set time limit may be reduced subject to the agreement of the said authorities.

2 - For minor modifications or in case of supplementary flights, the designated airlines of one Party shall notify the aeronautical authorities of the other Party, at least fourworking days before their intended operation. In special cases, this time limit may be reduced subject to agreement of the said authorities.

Article 15

Safety

1 - Each Party may request consultations at any time concerning safety standards in any area relating to aircrew, aircraft or their operation adopted by the other Party. Such consultations shall take place within 30 days of that request.

2 - If, following such consultations, one Party finds that the other Party does not effectively maintain and administer safety standards in any such area that are at least equal to the minimum standards established at that time pursuant to the Convention, the first Party shall notify the other Party of those findings and the steps considered necessary to conform with those minimum standards, and that other Party shall take appropriate corrective action. Failure by the other Party to take appropriate action within 15 days or such longer period as may be agreed, shall be grounds for the application of article 4 of this Agreement.

3 - Notwithstanding the obligations mentioned in article 33 of the Convention, it is agreed that any aircraft operated by, or on behalf of the designated airlines of one Party on services to or from the territory of the other Party may, while within the territory of the other Party, be made the subject of an examination by the authorized representatives of the other Party, on board and around the aircraft to check both the validity of the aircraft documents and those of its crew and the apparent condition of the aircraft and its equipment (in this article called «ramp inspection»), provided this does not lead to unreasonable delay.

4 - If any such ramp inspection or series of ramp inspections gives rise to serious concerns that an aircraft or the operation of an aircraft does not comply with the minimum standards established at that time pursuant to the Convention, or serious concerns that there is a lack of effective maintenance and administration of safety standards established at that time pursuant to the Convention, the Party carrying out the inspection shall, for the purposes of article 33 of the Convention, be free to conclude that the requirements under which the certificate or licences in respect of that aircraft or in respect of the crew of that aircraft had been issued or rendered valid, or that the requirements under which that aircraft is operated, are not equal to or above the minimum standards established pursuant to the Convention.

5 - In the event that access for the purpose of undertaking a ramp inspection of an aircraft operated by, or on behalf of the designated airline(s) of one Party in accordance with paragraph 3 above is denied by the representative of that designated airline, the other Party shall be free to infer that serious concerns of the type referred to in paragraph 4 above arise and draw the conclusions referred in that paragraph.

6 - Each Party reserves the right to suspend or vary the operating authorization of the designated airline(s) of the other Party immediately in the event the first Party concludes, whether as a result of a ramp inspection, a series of ramp inspections, a denial of access for ramp inspection, consultation or otherwise, that immediate action is essential to the safety of the airlines operation.

7 - Any action by one Party in accordance with paragraphs 2 or 6 above shall be discontinued once the basis for the taking of that action ceases to exist.

8 - Where the Portuguese Republic has designated an airline whose regulatory control is exercised and maintained by another European Community member State, the rights of the other Party under this article shall apply equally in respect of the adoption, exercise or maintenance of safety standards by that other European Community member State and in respect of the operating authorisation of that airline.

9 - Where the Argentine Republic has designated an airline whose regulatory control is exercised and maintained by another Member state of LACAC, the rights of the other Party under this article shall apply equally in respect of the adoption, exercise or maintenance of safety standards by that other member State of LACAC and in respect of the operating authorisation of that airline.

Article 16

Security

1 - Consistent with their rights and obligations under international law, the Parties reaffirm that their obligation to each other to protect the security of civil aviation against acts of unlawful interference forms an integral part of this Agreement. Without limiting the generality of their rights and obligations under international law, the Parties shall in particular act in conformity with the provisions of:

and any aviation security agreement that becomes binding on both Parties.

2 - The Parties shall, in their mutual relations, act as a minimum, in conformity with the aviation security provisions established by the International Civil Aviation Organization and designated as annexes to the Convention to the extent that such security provisions are applicable to the Parties; they shall require that operators of aircraft of their registry or operators of aircraft who have their principal place of business or permanent residence in their territory or are established in their territory under the Treaty establishing the European Community and have received valid operating licences in accordance with European Community law and the operators of airports in their territory act in conformity with such aviation security provisions.

3 - The Parties shall provide upon request all necessary assistance to each other to prevent acts of unlawful seizure of civil aircraft and other unlawful acts against the safety of such aircraft, their passengers and crew, airports and air navigation facilities, and any other threat to the security of civil aviation.

4 - Each Party agrees that such operators of aircraft shall be required to observe the aviation security provisions referred to in paragraph 2 above required by the other Party for entry into the territory of that other Party and also for departure from, or while within, the territory of the Argentine Republic. For departure from, or while within, the territory of the Portuguese Republic, operators of aircraft shall be required to observe aviation security provisions in conformity with European Community law. Each Party shall ensure that adequate measures are effectively applied within its territory to protect the aircraft and to inspect passengers, crew, carry-on items, baggage, cargo and aircraft stores prior to and during boarding or loading. Each Party shall also give sympathetic consideration to any request from the other Party for reasonable special security measures to meet a particular threat.

5 - When an incident or threat of an incident of unlawful seizure of civil aircraft or other unlawful acts against the safety of such aircraft, their passengers and crew, airports or air navigation facilities occurs, the Parties shall assist each other by facilitating communications and other appropriate measures intended to terminate rapidly and safely such incident or threat thereof.

6 - If a Party has occasional problems in the context of the present article on security of civil aviation, the aeronautical authorities of both Parties may request immediate consultations with the aeronautical authorities of the other Party.

Article 17

Provision of statistics

The aeronautical authorities and the airlines of one Party shall supply the aeronautical authorities of the other Party, at their request, with such statistics as may be reasonably required for information purposes.

Article 18

Tariffs

1 - The tariffs to be applied by the designated airline of a Party for services covered by this Agreement shall be established at reasonable levels, due regard being paid to all relevant factors, including interests of users, cost of operation, characteristics of service (such as standards of speed and accommodation), commission rates, reasonable profit, tariffs of other airlines and other commercial consideration in the market place.

2 - The aeronautical authorities of both Parties shall consider unacceptable tariffs that are unreasonably discriminatory, unduly high or restrictive because of the abuse of a dominant position, or artificially low because of direct or indirect subsidy or support, or are resulting in the price dumping.

3 - Neither of the aeronautical authorities of both Parties will require their designated airlines to consult other airlines before filing tariffs for approval.

4 - If so required or upon request of the aeronautical authorities of either Party, the tariffs shall be filed by a designated airline at least 30 days before the proposed date of their introduction. The aeronautical authorities may approve or disapprove tariffs filed for one way or round trip carriage between the territories of the two Parties which commences in their own territory.

When a designated airline of one Party has filed a tariff with the aeronautical authorities of the other Party from whose territory the tariff is to be applied, such tariff will be treated as having been approved, unless within 14 days after the date of receipt of filing the aeronautical authorities of the latter Party have served a written notice of disapproval to the filing airline.

In approving tariffs, the aeronautical authorities of a Party may attach to their approval such expiry dates as they consider appropriate. Where a tariff has an expiry date, it shall remain in force until the due expiry date, unless withdrawn by the airline or airlines concerned, or unless a replacement tariff is filed and approved prior to the expiry date.

5 - Neither of the aeronautical authorities shall take a unilateral action to prevent the inauguration of proposed tariffs or the continuation of effective tariffs for carriage between the territories of the two Parties commencing in the territory of the other Party.

6 - Upon request, the designated airline of one Party shall notify the aeronautical authorities of the other Party tariffs for carriage commencing in the territory of this other Party over the specified routes to third countries.

7 - Notwithstanding paragraph 5 above, where the aeronautical authorities of either Party believe that a tariff for the carriage to its territory falls within the categories described in paragraph 2 above, they shall give notice of disapproval to the aeronautical authorities and the designated airline of the other Party as soon as possible or at least within 14 days of the date of filing being received by them.

8 - The aeronautical authorities of both Parties shall not require the filing for their approval of tariffs for carriage of cargo between points in the territories of the Parties, however the designated airlines shall register them at least 14 days before proposed date of introduction with aeronautical authorities of both Parties for the purpose of assessment pursuant to paragraphs 2 and 7 of this article. Unless notice of disapproval with above mentioned cargo tariffs is received by the designated airline concerned from the aeronautical authorities of the Party in which territory the cargo transportation commences within eight days from registration, such registered cargo tariff will take effect on the indicated date of introduction.

9 - The aeronautical authorities of either Party may, at any time, request consultations with the aeronautical authorities of the other Party on the application of the provisions of this article. Such consultations shall be held not later than 30 days after receipt of the request. If no agreement is reached, the decision of the aeronautical authorities of a Party in whose territory the carriage originates shall prevail.

10 - Notwithstanding the provisions of this article, the tariffs to be charged by the designated airlines of the Argentine Republic for carriage wholly within the European Community shall be subject to European Community law and, the tariffs to be charged by the designated airline(s) of the Portuguese Republic for carriage between the territory of the Argentine Republic and another LACAC member State shall be subject to Argentine regulations.

Article 19

Consultations

1 - In order to ensure close cooperation concerning all the issues related to the interpretation and application of this Agreement, the aeronautical authorities of each Party shall consult each other whenever it becomes necessary, on request of either Party.

2 - Such consultations shall begin within a period of 45 days from the date the other Party has received the written request.

Article 20

Amendments

1 - If either Party considers it desirable to modify any provision of this Agreement, it may at any time request consultation to the other Party. Such consultation, shall begin within a period of 60 days from the date the other Party has received the written request.

2 - The amendments resulting from the consultations referred to in the previous number shall enter into force according to what is established in article 24.

Article 21

Settlement of disputes

1 - If any dispute arises between the Parties relating to the interpretation or application of this Agreement, the Parties shall in the first place endeavour to settle it by negotiation through diplomatic channels.

2 - If the Parties fail to reach a settlement by negotiation, they may agree to refer the dispute for decision to some entity, or the dispute may at the request of either Party be submitted for decision to an arbitral tribunal of three arbitrators, one to be nominated by each Party and the third to be appointed by the two so nominated.

3 - Each of the Parties shall nominate an arbitrator within a period of 60 days from the date of receipt by either Party from the other of a notice through diplomatic channels requesting arbitration, and the third arbitrator shall be appointed within a further period of 60 days.

4 - If either of the Parties fails to nominate an arbitrator within the period specified or the third arbitrator is not appointed, the president of the council of the International Civil Aviation Organization may be requested by either Party to appoint an arbitrator or arbitrators as the case requires. In such case, the third arbitrator shall be a national of a third State and shall act as president of the arbitral body.

5 - The Parties undertake to comply with any decision given under paragraph 2 of this article.

6 - If and so long as either Party or the designated airlines of either Party fail to comply with the decision given under paragraph 2 of this article, the other Party may limit, suspend or revoke any rights or privileges which it has granted by virtue of this Agreement to the Party in default.

7 - Each Party shall pay the expenses of the arbitrator it has nominated. The remaining expenses of the arbitral tribunal shall be shared equally by the Parties.

Article 22

Duration and termination

1 - This Agreement shall remain in force for an undetermined period.

2 - Each Party may, at any time, terminate this Agreement.

3 - The termination must be notified to the other Party and, simultaneously, to the International Civil Aviation Organisation, producing its effects 12 months after the receipt of the notification by the other Party.

4 - In case of failure of information to the other Party of the receipt of the notification, notice shall be deemed to have been received 14 days after the receipt of the notice by the International Civil Aviation Organisation.

Article 23

Registration

This Agreement and any amendment thereto shall be registered with the International Civil Aviation Organization.

Article 24

Entry into force

This Agreement shall enter into force 30 days after the date of the receipt of the last notification, through diplomatic channels, indicating that all the internal procedures required for the purpose have been fulfilled.

In witness whereof the undersigned, duly authorized thereto by their respective Governments, have signed this Agreement.

Done in Lisbon on the 25th of June of 2007, in the portuguese, spanish and english languages, all texts being equally authentic. In case of divergence of interpretation, the english version shall prevail.

For the Portuguese Republic:

Fernando Serrasqueiro, Secretary of State for Trade, Services and Consumers Protection.

For the Argentine Republic:

Luís Kreckler, Under-Secretary of State for International Trade.

ANNEX

Route schedule

Section 1

Routes to be operated in both directions by the designated airlines of the Portuguese Republic:

Portugal - any intermediate points - 2 points in Argentina - any points beyond.

Section 2

Routes to be operated in both directions by the designated airlines of the Argentine Republic:

Argentina - any intermediate points - 2 points in Portugal - any points beyond.

Notes

1 - The designated airlines of each Party may on any or all flights omit calling at any of the intermediate and or beyond points mentioned above provided that the agreed services on the routes begin or end in the territory of the Party which has designated the airline.

2 - The designated airlines of each Party may select any intermediate and or beyond points at its own choice and may change its selection in the next season.

3 - The exercise of the fifth freedom traffic rights on specified intermediate and or beyond points shall be subject to agreement between the aeronautical authorities of both Parties.