EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

conditions will be met in particular by routes to islands for which there is insufficient year-round tourism demand from commercial air carriers, or routes between very remote regions in sparsely populated Member States, if other modes of transport cannot provide relevant transport services (Interpretative Guidelines, para 36). This can be illustrated by a recent Finnish case, where PSOs were imposed on several routes from Helsinki (e.g., Helsinki–Joensuu) due to the interruption of commercial air traffic on these routes as a result of measures related to the COVID-19 pandemic (Traficom [online], 2020), or in the UKwhere PSOs were imposed on routes between the Shetland Islands and the Out Skerries (Commission [online], 2021b). If the imposition of the PSO is not necessary or would not be proportionate, the Member State would not be entitled to impose the PSO on such route. Otherwise, it would be in breach of the EU law which could also lead to granting unlawful state aid to the air carrier. 3.1.4 Content of PSO PSO may only be imposed on the basis of an entrustment act, the form of which may vary (e.g., a legislative or regulatory instrument or contract), as follows from various EU legal regulations as well as soft law (see Communication from the Commission, 2012, para 44). Generally, the entrustment act shall specify at least the content and duration of the PSO; the air carrier and the O&D; the nature of any exclusive or special rights assigned to the air carrier; the parameters for calculating, controlling and reviewing the compensation (if any); and arrangements for avoiding and recovering any overcompensation ( ibidem , para 52). In accordance with the Air Services Regulation, which contains a more specific regulation on the content of the entrustment act, the entrustment act should also include the setting of requirements regarding continuity and regularity of connections, prices, or minimum capacity (Article 16(1) of the Air Services Regulation). The entrustment act may thus include the requirement of a minimum number of seats offered or a minimum number of connections in a certain period (e.g., summer or winter season, or throughout the year), setting maximum prices or tariff structure for services offered, including discounts for residents or students, eventually also requirements regarding the aircraft used or the language skills of its crew, while taking into account the principle of non-discrimination (Interpretative Guidelines, paras 45–49). It is also possible to include in the entrustment act the continuity obligation ( ibidem ) meaning that the air carrier will be obliged to operate the route for a specified period of time which should be considered in particular in case of open PSOs, as granting of exclusive right in case of restricted PSOs is already usually conditional on compliance with this continuity obligation.

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