RECOMMENDATION FOR SECOND READING on the Council common position for adopting a directive of the European Parliament and of the Council on airport charges

8.10.2008 - (8332/2/2008 – C6‑0259/2008 – 2007/0013(COD)) - ***II

Committee on Transport and Tourism
Rapporteur: Ulrich Stockmann

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the Council common position for adopting a directive of the European Parliament and of the Council on airport charges

(8332/2/2008 – C6‑0259/2008 – 2007/0013(COD))

(Codecision procedure: second reading)

The European Parliament,

–   having regard to the Council common position (8332/2/2008 – C6‑0259/2008)[1],

–   having regard to its position at first reading[2] on the Commission proposal to Parliament and the Council (COM(2006)0820),

–   having regard to Article 251(2) of the EC Treaty,

–   having regard to Rule 62 of its Rules of Procedure,

–   having regard to the recommendation for second reading of the Committee on Transport and Tourism (A6‑0375/2008),

1.  Approves the common position as amended;

2.  Instructs its President to forward its position to the Council and Commission.

Amendment  1 Council common position Recital 2
Council common position	Amendment
(2) It is necessary to establish a common framework regulating the essential features of airport charges and the way they are set, as in the absence of such a framework, basic requirements in the relationship between airport managing bodies and airport users may not be met. Such a framework should be without prejudice to the possibility for a Member State to determine the extent to which revenues from an airport's commercial activities may be taken into account in establishing airport charges.	(2) It is necessary to establish a common framework regulating the essential features of airport charges and the way they are set, as in the absence of such a framework, basic requirements in the relationship between airport managing bodies and airport users may not be met. Such a framework should be without prejudice to the possibility for a Member State to determine if and to what extent revenues from an airport's commercial activities may be taken into account in establishing airport charges.
Justification
Makes clear that this action is discretionary.
Amendment  2 Council common position Recital 3
Council common position	Amendment
(3) This Directive should apply to airports located in the Community that are above a minimum size as the management and the funding of small airports do not call for the application of a Community framework, and to the airport with the highest passenger movement in each Member State.	(3) This Directive should apply to airports located in the Community that are above a minimum size, as the management and the funding of small airports do not call for the application of a Community framework.
Justification
To be read in conjunction with amendment 3 below.
Amendment  3 Council common position Recital 3 a (new)
Council common position	Amendment
	(3a) In addition, in a Member State where no airport reaches the minimum size for the application of this Directive, the airport with the highest passenger movements enjoys such a privileged position as a point of entry to that Member State that it is necessary to apply the provisions of this Directive to that airport in order to guarantee the respect of certain basic principles in the relationship between the airport managing body and the airport users, in particular with regard to transparency of charges and non-discrimination among airport users.
Justification
It would be detrimental to the operation of the Directive if the largest airport in a Member State was not included in it scope.
Amendment  4 Council common position Recital 5
Council common position	Amendment
(5) For reasons of traffic distribution Member States should be able to allow an airport managing body for airports serving the same city or conurbation to apply the same level of airport charges. Economic transfers between these airports should comply with relevant Community law.	(5) For reasons of traffic distribution Member States should be able to allow an airport managing body for airports serving the same city or conurbation to apply a common and transparent charging system. Economic transfers between these airports should comply with relevant Community law.
Justification
The same level of charges need not be applied but the charging system must be common and transparent. The same level of charges would not be appropriate as it would not be cost related or related to the level of service or facilities provided.
Amendment  5 Council common position Recital 10
Council common position	Amendment
(10) Airport charges should be non‑discriminatory. A compulsory procedure for regular consultation between airport managing bodies and airport users should be put in place with the possibility for either party to have recourse to an independent supervisory body whenever a decision on airport charges or the modification of the charging system is contested by airport users.	(10) Airport charges should be non‑discriminatory. A compulsory procedure for regular consultation between airport managing bodies and airport users should be put in place with the possibility for either party to have recourse to an independent supervisory authority whenever a decision on airport charges or the modification of the charging system is contested by airport users.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  6 Council common position Recital 11
Council common position	Amendment
(11) In order to ensure impartial decisions and the proper and effective application of this Directive, an independent supervisory body should be established in every Member State. The body should be in possession of all the necessary resources in terms of staffing, expertise, and financial means for the performance of its tasks.	(11) In order to ensure impartial decisions and the proper and effective application of this Directive, an independent supervisory authority should be established in every Member State. The authority should be in possession of all the necessary resources in terms of staffing, expertise, and financial means for the performance of its tasks.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  7 Council common position Recital 14 a (new)
Council common position	Amendment
	(14a) Different systems exist in different Member States concerning the pre-financing of airport investments. In Member States where pre-financing occurs, Member States or airports should refer to ICAO policies and/or establish their own safeguards.
Justification
There must be clear safeguards on place where pre-financing occurs.
Amendment  8 Council common position Article 4 – paragraph 1
Council common position	Amendment
1. Member States may allow the airport managing body of an airport network to introduce a common and transparent airport charging system to cover the airport network.	Member States may allow the airport managing body of an airport network to introduce a common and transparent airport charging system to cover the airport network.
Amendment  9 Council common position Article 4 – paragraph 2
Council common position	Amendment
2. Member States may allow an airport managing body for airports serving the same city or conurbation, to apply the same level of airport charges to all the airports concerned, provided that each airport fully complies with the requirements on transparency set out in Article 6.	deleted
Justification
The same level of charges need not be applied but the charging system must be common and transparent. The same level of charges would not be appropriate as it would not be cost related or related to the level of service or facilities provided.
Amendment  10 Council common position Article 4 a (new)
Council common position	Amendment
	Article 4a
	Common charging systems
	After having informed the Commission and in accordance with Community law, Member States may allow an airport managing body to apply a common and transparent charging system at airports serving the same city or conurbation, provided that each airport fully complies with the requirements on transparency set out in Article 6.
Justification
The same level of charges need not be applied but the charging system must be common and transparent. The same level of charges would not be appropriate as it would not be cost related or related to the level of service or facilities provided.
Amendment  11 Council common position Article 5 – paragraph 2
Council common position	Amendment
2. Member States shall ensure that, wherever possible, changes to the system or the level of airport charges are made in agreement between the airport managing body and the airport users. To that end, the airport managing body shall submit any proposal to modify the system or the level of airport charges to the airport users no later than four months before they enter into force, together with the reasons for the proposed changes, unless there are exceptional circumstances which need to be justified to airport users, in which case, this period shall not be less than two months. The airport managing body shall hold consultations on the proposed changes with the airport users and take their views into account before a decision is taken. The airport managing body shall publish its decision or recommendation within reasonable time before it enters into force. The airport managing body shall justify its decision with regard to the views of the airport users in the event that no agreement on the proposed changes is reached between the airport managing body and the airport users.	2. Member States shall ensure that, wherever possible, changes to the system or the level of airport charges are made in agreement between the airport managing body and the airport users. To that end, the airport managing body shall submit any proposal to modify the system or the level of airport charges to the airport users no later than four months before they enter into force, together with the reasons for the proposed changes, unless there are exceptional circumstances which need to be justified to airport users. The airport managing body shall hold consultations on the proposed changes with the airport users and take their views into account before a decision is taken. The airport managing body shall normally publish its decision or recommendation no later than two months before its entry into force. The airport managing body shall justify its decision with regard to the views of the airport users in the event that no agreement on the proposed changes is reached between the airport managing body and the airport users.
Justification
There is a need for flexibility in the time period required between submission of proposed charges and their coming into effect where exceptional circumstances arise. However, decisions should normally be published two months before they enter into force.
Amendment  12 Council common position Article 5 – paragraph 3
Council common position	Amendment
3. Member States shall ensure that in the event of a disagreement over a decision on airport charges taken by the airport managing body, either party may seek the intervention of the independent supervisory body referred to in Article 10 which shall examine the justifications for the modification of the system or the level of airport charges.	3. Member States shall ensure that in the event of a disagreement over a decision on airport charges taken by the airport managing body, either party may seek the intervention of the independent supervisory authority referred to in Article 10 which shall examine the justifications for the modification of the system or the level of airport charges.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  13 Council common position Article 5 – paragraph 4
Council common position	Amendment
4. A modification of the system or the level of airport charges decided upon by the airport managing body shall, if brought before the independent supervisory body, not take effect until that body has examined the matter. The independent supervisory body may take an interim decision on the entry into force of the modification of airport charges.	4. A modification of the system or the level of airport charges decided upon by the airport managing body shall, if brought before the independent supervisory authority, not take effect until that body has examined the matter. The independent supervisory authority shall, within four weeks of the matter being brought before it, take an interim decision on the entry into force of the modification of airport charges, unless the final decision can be taken within the same deadline.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved. There should be a reasonable time limit for interim decisions.
Amendment  14 Council common position Article 5 – paragraph 5
Council common position	Amendment
5. A Member State may decide not to apply paragraphs 3 and 4 in relation to the changes to the system or the level of airport charges at those airports for which it has established a procedure, whereby there is economic oversight. The economic oversight measures may be the same as those referred to in Article 1(5). Where these measures include approval of the system or the level of airport charges, they must be approved by the same body that has been nominated or established as an independent supervisory body for the purposes of this Directive.	5. A Member State may decide not to apply paragraphs 3 and 4 in relation to changes to the level of charges or the structure of the airport charges at those airports for which:
	(a) there is a mandatory procedure under national law whereby airport charges, or their maximum level, shall be determined or approved by the authority referred to in Article 10; or
	(b) there is a mandatory procedure under national law whereby the authority referred to in Article 10 examines on a regular basis or in response to requests from interested parties whether such airports are subject to effective competition. Whenever warranted on the basis of such an examination, the Member State shall decide that the airport charges, or their maximum level, shall be determined or approved by the authority referred to in Article 10. This decision shall apply for as long as is necessary on the basis of the examination conducted by the same authority. The procedures, conditions and criteria applied for the purpose of this paragraph by the Member State shall be relevant, objective, non-discriminatory and transparent.
Justification
This amendment ensures that either there is a national mandatory procedure for determining airport charges or a mandatory procedure for their regular review in those Member States who decide not to use the independent supervisory authority to arbitrate on the level of charges.
Amendment  15 Council common position Article 6 – paragraph 1 – point d a (new)
Council common position	Amendment
	(da) any financing from public authorities of the facilities and services which airport charges relate to;
Justification
This is necessary to obtain full clarity on financing from public sources.
Amendment  16 Council common position Article 6 – paragraph 1 – point f
Council common position	Amendment
(f) the actual use of airport infrastructure and equipment over a given period.	(f) the actual use of airport infrastructure and equipment over a given period; and
Justification
For clarity.
Amendment  17 Council common position Article 6 – paragraph 1 – point f a (new)
Council common position	Amendment
	(fa) the predicted outcome of any major proposed investments in terms of their effects on airport capacity.
Justification
This is necessary for transparency and for stakeholders to make the appropriate decisions.
Amendment  18 Council common position Article 9 – title
Council common position	Amendment
Tailored services	Differentiation of services
Justification
More accurately reflects the purpose of this article.
Amendment  19 Council common position Article 9 – paragraph 1
Council common position	Amendment
1. Member States shall take the necessary measures to allow the airport managing body to vary the quality and scope of particular airport services, terminals or parts of terminals, with the aim of providing tailored services or a dedicated terminal or part of a terminal. The system or the level of airport charges may be differentiated according to the quality and scope of such services and their costs or any other objective justification. Airport managing bodies shall remain free to set any such differentiated airport charges.	1. Member States shall take the necessary measures to allow the airport managing body to vary the quality and scope of particular airport services, terminals or parts of terminals, with the aim of providing tailored services or a dedicated terminal or part of a terminal. The level of airport charges may be differentiated according to the quality and scope of such services and their costs or any other objective and transparent justification. Without prejudice to Article 3 on non-discrimination among airport users, airport managing bodies shall remain free to set any such differentiated airport charges.
Justification
Necessary to emphasise transparency and non-discrimination.
Amendment  20 Council common position Article 9 – paragraph 2 – subparagraph 2
Council common position	Amendment
In the event that more airport users wish to have access to the tailored services and/or a dedicated terminal or part of a terminal than is possible due to capacity constraints, access shall be determined on the basis of relevant, objective, transparent and non‑discriminatory criteria. These criteria may be set by the airport managing body and Member States may require these criteria to be endorsed by the independent supervisory body.	In the event that more airport users wish to have access to the tailored services and/or a dedicated terminal or part of a terminal than is possible due to capacity constraints, access shall be determined on the basis of relevant, objective, transparent and non‑discriminatory criteria. These criteria may be set by the airport managing body and Member States may require these criteria to be endorsed by the independent supervisory authority.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  21 Council common position Article 10 – title
Council common position	Amendment
Independent supervisory body	Independent supervisory authority
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  22 Council common position Article 10 – paragraph 1
Council common position	Amendment
1. Member States shall nominate or establish an independent body as their national independent supervisory body in order to ensure the correct application of the measures taken to comply with this Directive and to assume, at least, the tasks assigned under Article 5. Such body may be the same as the entity entrusted by a Member State with the application of the additional regulatory measures referred to in Article 1(5), including with the approval of the charging system and/or the level of airport charges, provided that it meets the requirements of paragraph 2 of this Article.	1. Member States shall nominate or establish an independent authority as their national independent supervisory authority in order to ensure the correct application of the measures taken to comply with this Directive and to assume, at least, the tasks assigned under Article 5. Such an authority may be the same as the entity entrusted by a Member State with the application of the additional regulatory measures referred to in Article 1(5), including with the approval of the charging system and/or the level of airport charges, provided that it meets the requirements of paragraph 2 of this Article.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  23 Council common position Article 10 – paragraph 1 a (new)
Council common position	Amendment
	1a. In compliance with national law, the provisions of this Directive shall not prevent the independent supervisory authority from delegating, under its supervision and full responsibility, the implementation of this Directive to other independent supervisory authorities, provided that implementation takes place in accordance with the same standards.
Justification
This amendment confirms that there will be an independent supervisory authority but accommodates the constitutional and administrative structures of certain Member States.
Amendment  24 Council common position Article 10 – paragraph 2
Council common position	Amendment
2. Member States shall guarantee the independence of the independent supervisory body by ensuring that it is legally distinct from and functionally independent of any airport managing body and air carrier. Member States that retain ownership of airports, airport managing bodies or air carriers or control of airport managing bodies or air carriers shall ensure that the functions relating to such ownership or control are not vested in the independent supervisory body. Member States shall ensure that the independent supervisory body exercises its powers impartially and transparently.	2. Member States shall guarantee the independence of the independent supervisory authority by ensuring that it is legally distinct from and functionally independent of any airport managing body and air carrier. Member States that retain ownership of airports, airport managing bodies or air carriers or control of airport managing bodies or air carriers shall ensure that the functions relating to such ownership or control are not vested in the independent supervisory authority. Member States shall ensure that the independent supervisory authority exercises its powers impartially and transparently.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  25 Council common position Article 10 – paragraph 3
Council common position	Amendment
3. Member States shall notify the Commission of the name and address of the independent supervisory body, its assigned tasks and responsibilities, and of the measures taken to ensure compliance with paragraph 2.	3. Member States shall notify the Commission of the name and address of the independent supervisory authority, its assigned tasks and responsibilities, and of the measures taken to ensure compliance with paragraph 2.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  26 Council common position Article 10 – paragraph 4
Council common position	Amendment
4. Member States may establish a funding mechanism for the independent supervisory body, which may include levying a charge on airport users and airport managing bodies.	4. Member States may establish a funding mechanism for the independent supervisory authority, which may include levying a charge on airport users and airport managing bodies.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  27 Council common position Article 10 – paragraph 5 – introductory part
Council common position	Amendment
Without prejudice to Article 5(5), Member States shall ensure that for the independent supervisory body in respect of disagreements referred to in Article 5(3), the necessary measures relating to the system or the level of airport charges, including relating to quality of service, shall be taken to:	Member States shall ensure, in respect of disagreements referred to in Article 5(3), that measures are taken to:
Justification
In the interests of clarity.
Amendment  28 Council common position Article 10 – paragraph 5 – point b
Council common position	Amendment
(b) determine the conditions under which a disagreement may be brought to the independent supervisory body. The body may, in particular, dismiss complaints that are not properly justified or adequately documented;	(b) determine the conditions under which a disagreement may be brought to the independent supervisory authority. The authority shall, in particular, dismiss complaints which it deems are not properly justified or adequately documented; and
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  29 Council common position Article 10 – paragraph 6
Council common position	Amendment
6. When undertaking an investigation into the justification for the modification of the system or the level of airport charges as set out in Article 5, the independent supervisory body shall have access to necessary information from the parties concerned and shall be required to consult the parties concerned in order to reach its decision. It shall issue a decision as soon as possible, and in any case within six months from receipt of the complaint. The decisions of the independent supervisory body shall have binding effect, without prejudice to parliamentary or judicial review, as applicable in the Member States.	6. When undertaking an investigation into the justification for the modification of the system or the level of airport charges as set out in Article 5, the independent supervisory authority shall have access to necessary information from the parties concerned and shall be required to consult the parties concerned in order to reach its decision. Without prejudice to Article 5(4), it shall issue a final decision as soon as possible, and in any case within four months of the matter being brought before it. This period may be extended by two months in exceptional and duly justified cases. The decisions of the independent supervisory authority shall have binding effect, without prejudice to parliamentary or judicial review, as applicable in the Member States.
Justification
This amendment reduces the period of uncertainty for stakeholders but allows for exceptional circumstances.
Amendment  30 Council common position Article 10 – paragraph 7
Council common position	Amendment
7. The independent supervisory body shall publish an annual report concerning its activities.	7. The independent supervisory authority shall publish an annual report concerning its activities.
Justification
"Authority" more accurately reflects the tasks and responsibilities involved.
Amendment  31 Council common position Article 12 – paragraph 1 – subparagraph 1
Council common position	Amendment
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by …*. They shall forthwith inform the Commission thereof.	Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by …*. They shall forthwith inform the Commission thereof.
* OJ: 36 months from the date of entry into force of this Directive.	* OJ: 24 months from the date of entry into force of this Directive.
Justification
36 months is far too large period before this Directive comes into force.

• [1]  OJ C 254E, 7.10.2008, s. 18.
• [2] Texts Adopted, 15.1.2008, P6_TA(2008)0004.

EXPLANATORY STATEMENT

Introduction

The objective of the proposed Directive is to set down common principles for the levying of airport charges at Community airports. In so doing it should create the conditions necessary for fair and transparent competition by establishing the principle non-discrimination when charges are levied on users. It also sets up a system of consultation for airport users, and independent arbitration authorities to resolve disputes between airports and their users. These conditions are necessary to establish a level playing field for economic actors and ultimately safeguard consumers' interests.

The Commission transmitted the original proposal on the 29 January 2007 and Parliament completed its first reading in the context of the co decision procedure on 15 January 2008. Council adopted its Common Position on 23 June 2008. The common position incorporated verbatim or in spirit 11 of Parliament's 45 amendments. Some of the Parliament's amendments were also rendered redundant by intervening developments and the adoption of other legislation.

Parliament's concerns reflected in the Common Position

One area of major concern was the scope of the proposal. The initial Commission proposal was to include airports with more than 1 million passenger movements per annum. This would have captured smaller airports and impose an administrative and bureaucratic burden to no great effect on airports which were not in competition because of geographic and structural factors. Parliament's amendment to limit the scope to airports with more than 5 million passenger movements has been accepted in the Common Position. Nonetheless no matter the number of passengers, the Directive will apply to the biggest airport in each Member State.

Council has recognised that any differentiation in airport charges has to be based on transparent, objective and clear criteria. It has also accepted a reference to the need for airports to operate on a cost efficient basis. The Common Position makes clear that there should be a national independent supervisory body, rather than merely regional bodies, in line with Parliament's position.

The Parliament has also obtained a tighter definition in the Common Position of what is understood by an "airport network", which must be operated by the same management body.

Council has also accepted that incentives should be permitted for new routes to disadvantaged and outermost regions and that the application of uniform charging systems by management bodies to airports serving the same network must only be on the basis of transparent criteria.

Parliament has succeeded in introducing environmental criteria as grounds for the modulation of charges.

In addition to the above, charges for the provision of services to the disabled and passengers with reduced mobility from the scope of the Directive will be excluded from the scope of the Directive and a list of airports to which the Directive applies will be published.

Council's further commitment

Notwithstanding the substantial aspects of Parliament's First Reading incorporated in the Council's Common Position, Council has made a formal written commitment to accept a further series of Parliament amendments if presented in the Parliament's Second Reading. This follows a series of meetings between the rapporteur and shadow rapporteurs on the one side and the Council Presidency on the other, both parties assisted by the Commission. These amendments are now proposed by your rapporteur. In your rapporteur's view these Second Reading amendments, taken together with the Common Position which addresses the aspects outlined above, would suffice to close the file at Second Reading and would represent a Directive which meets its objectives in the manner and form preferred by Parliament in its First Reading. He therefore urges the adoption of his amendments, and only his amendments. He and the shadow rapporteurs are of the view that this would represent a better outcome than might be obtained at the end of a lengthy conciliation procedure.

Proposed Amendments to the Common Position

The amendments to the Common Position deal with pre-financing of airport investments and link pre-financing to ICAO policies and the need for safeguards. This strikes a balance between airports needs to plan pre-financing and airlines need for assurances. Common charging systems for airports serving the same conurbations are required to be transparent. Firm deadlines for the publication of decisions on charges, including an interim decision, are set down for airport managing bodies and independent supervisory authorities. The managing body must publish new charges at least two months before they enter into force and the independent supervisory authority has four weeks to come to an interim decision and four months, extendable to six in exceptional cases, to come to its final decision after the receipt of a complaint. This has the effect of reducing uncertainty for stakeholders.

The role of the independent supervisory authorities in approving or setting the charges or the maximum level of charges is rendered mandatory whenever airports have been deemed by the independent supervisory authorities under national law to be subject to effective competition.

Financing from public authorities for facilities or services to which charges relate must be disclosed by airport managing bodies, as must the outcome of any major proposed investment in terms of its effect on airport capacity. Provision is also made for the delegation of tasks under the responsibility of the independent supervisory authority to sub authorities to reflect the constitutional framework of a number of Member States.

Conclusion

With both of the above elements taken together a satisfactory outcome, ensuring fair and transparent competition at airports in a competitive environment is achieved, without undue bias towards airports as against airport users or between airport users who use different business models. For airport users the proposed legislation now gives a framework for charge setting which involves them, is transparent and allows appeal. Given this balance your rapporteur recommends the Second Reading amendments attached.

PROCEDURE

Title	Airport charges
References	08332/2/2008 – C6-0259/2008 – 2007/0013(COD)
Date of Parliament’s first reading – P number	15.1.2008                     T6-0004/2008
Commission proposal	COM(2006)0820 - C6-0056/2007
Date receipt of common position announced in plenary	10.7.2008
Committee responsible        Date announced in plenary	TRAN 10.7.2008
Rapporteur(s)        Date appointed	Ulrich Stockmann 15.7.2008
Discussed in committee	9.9.2008
Date adopted	7.10.2008
Result of final vote	+: –: 0:	16 0 0
Members present for the final vote	Michael Cramer, Luis de Grandes Pascual, Arūnas Degutis, Saïd El Khadraoui, Emanuel Jardim Fernandes, Francesco Ferrari, Stanisław Jałowiecki, Dieter-Lebrecht Koch, Sepp Kusstatscher, Seán Ó Neachtain, Brian Simpson, Ulrich Stockmann, Lars Wohlin
Substitute(s) present for the final vote	Zsolt László Becsey, Jeanine Hennis-Plasschaert, Lily Jacobs