Common use of Fair Competition Clause in Contracts

Fair Competition. 1. The Contracting Parties recognise that the common objective is to create an environment of fair competition with fair and equal opportunities for air carriers of both Contracting Parties to compete in the operation of their approved services on specified routes. Consequently, the Contracting Parties shall take all appropriate measures to ensure that this objective is fully respected. 2. The Contracting Parties affirm that free, fair and undistorted competition is important to promote the objectives of this Agreement, and note that the existence of comprehensive competition law and an independent competition authority, as well as the healthy and effective application of their national competition law, are important for the effective provision of air transport services. The competition law of each Contracting Party dealing with issues covered by this Article, as amended periodically, shall apply to the activities of air carriers on the territory of each of the Contracting Parties. The Contracting Parties share the objectives of ensuring the compatibility and convergence of their respective competition laws and their effective application. They shall cooperate where this is necessary and justified for the effective application of competition law, in particular by authorising their air carriers or other nationals to communicate, in accordance with their respective rules and case law, relevant information on cases relating to competition law brought by the competition authorities of the other Contracting Party. 3. No provision of this Agreement shall affect or restrict the authority and powers of the competent competition authorities or the courts of either Contracting Party or of the European Commission or detract therefrom, and any questions relating to the application of competition law shall continue to fall within the exclusive competence of those competent authorities and courts. Any measure taken by a Contracting Party under this Article shall therefore be undertaken without prejudice to any possible measure which may be taken by those competent authorities and courts. 4. Any measure taken by virtue of this Article shall be the sole responsibility of the Contracting Parties and relate exclusively to the other Contracting Party or air carriers of the other Contracting Party providing air transport services to or from the Contracting Parties. Such a measure may not be the subject of a dispute settlement procedure within the meaning of Article 22 (Dispute resolution and arbitration). Unfair competition 5. Each Contracting Party shall eliminate all forms of discrimination or unfair practices which would prejudice the ability of air carriers from the other Contracting Party to compete under fair and equitable conditions to provide air transport services. Subsidies and State aid 6. Neither Contracting Party shall grant or authorise subsidies or State aid to its air carriers where these are liable to unfairly distort fair and equitable competition in the provision of air transport services for air carriers of the other Contracting Party. Such subsidies or aid may include, in particular, cross-subsidies, compensation for operating losses, provision of capital, non-reimbursable aid, sureties, loans or insurance under preferential conditions, bankruptcy protection, the waiving of amounts due, the waiving of the right to normal payment for public resources, tax relief or exemptions, compensation for charges made by the public authorities and access on a discriminatory or non-commercial basis to air transport or airport installations and services, fuel, ground handling, security, computerised booking systems, the allocation of time slots and access to other associated installations and services necessary for the operation of air services. 7. Where a Contracting Party grants subsidies or State aid to an air carrier, it shall ensure the transparency of these measures by appropriate means, which may include requiring that the air carrier report separately on these subsidies or this aid in its accounts. 8. Each Contracting Party shall, at the request of the other Contracting Party, provide the latter, within a reasonable period of time, with financial reports concerning entities under the jurisdiction of the first Contracting Party and any other information which could reasonably be requested by the other Contracting Party to ensure that the provisions of this Article are complied with. This may include detailed information on subsidies and aid within the meaning of paragraph 6. This information shall be treated confidentially by the Contracting Party requesting access to it. 9. Without prejudice to any measure taken by the competent authority responsible for competition or the court responsible for enforcing the rules referred to in paragraphs 5 and 6: (a) if one of the Contracting Parties takes the view that an air carrier has been discriminated against or is the victim of unfair practices, within the meaning of paragraphs 5 and 6 above, and this can be demonstrated, it may submit written observations to the other Contracting Party. Having informed the other Contracting Party, a Contracting Party may also turn to the competent authorities in the territory of the other Contracting Party, in particular national, regional or local authorities, to discuss issues relating to this Article. In addition, one of the Contracting Parties may request consultations on the matter with the other Contracting Party in order to solve the problem. Such consultations shall take place within thirty (30) days of receipt of the request. In the meantime, the Contracting Parties shall exchange sufficient information to allow a full examination of the concern expressed by one of the Contracting Parties; (b) if the Contracting Parties do not manage to resolve the issue by means of the consultations within thirty (30) days of the start of the consultations, or if the consultations do not start within thirty (30) days of receipt of the request concerning an alleged infringement of paragraphs 5 and 6, the Contracting Party which requested the consultations shall be entitled to suspend the exercise of the rights granted by this Agreement to air carriers of the other Contracting Party, by refusing, withdrawing, revoking or suspending any operating authorisation; it may also impose the conditions it considers necessary for the exercise of those rights, or impose charges or take other measures. Any measure taken under this paragraph shall be appropriate, proportional and limited to what is strictly necessary in terms of its scope and duration. Antitrust 10. Each Contracting Party shall effectively apply antitrust legislation in accordance with paragraph 2 and prohibit air carriers from: (a) in cooperation with any other air carriers, concluding agreements, taking decisions or engaging in concerted practices liable to affect air transport services to or from the Contracting Party and which have as their objective or effect the prevention, restriction or distortion of competition. This prohibition may be declared inapplicable where such agreements, decisions or practices contribute to improving the production or distribution of services or promoting technical or economic progress, while reserving a fair proportion of the profit for the consumer and without: (i) imposing on the undertakings concerned any restrictions which are not indispensable to the attainment of these objectives; (ii) giving those air carriers the possibility, for a substantial part of the services in question, to eliminate competition, and (b) abusing a dominant position which could affect air transport services to or from that Contracting Party. 11. Each Contracting Party shall entrust the application of the antitrust legislation referred to in paragraph 10 exclusively to its independent competent competition authority or to its competent court. 12. Without prejudice to any measure taken by the competent competition authority or the court responsible for enforcing the rules referred to in paragraph 10, if one of the Contracting Parties takes the view that an air carrier has been the victim of an alleged infringement of paragraph 10 and this can be demonstrated, it may make written submissions to the other Contracting Party. Having informed the other Contracting Party, a Contracting Party may also turn to the competent authorities in the territory of the other Contracting Party, in particular national, regional or local authorities, to discuss issues relating to this Article. In addition, one of the Contracting Parties may request consultations on the matter with the other Contracting Party, in order to solve the problem. Such consultations shall take place within thirty (30) days of receipt of the request. In the meantime, the Contracting Parties shall exchange sufficient information to allow a full examination of the concern expressed by one of the Contracting Parties. 13. If the Contracting Parties do not manage to resolve the issue by means of the consultations within thirty (30) days of the start of the consultations, or if the consultations do not start within thirty (30) days of receipt of the request concerning an alleged infringement of paragraph 10, and on condition that the competition authority or court has established an infringement of the rules on cartels, the Contracting Party which requested the consultations shall be entitled to suspend the exercise of the rights granted by this Agreement for air carriers of the other Contracting Party, by refusing, withdrawing, revoking or suspending any operating authorisation; it may also impose the conditions it considers necessary for the exercise of these rights, or impose charges or take other measures. Any measure taken under this paragraph shall be appropriate, proportional and limited to what is strictly necessary in terms of its scope and duration.

Fair Competition. 1. The Contracting Parties contracting parties recognise that the common objective is to create an environment of fair competition with fair and equal opportunities for air carriers of both Contracting Parties contracting parties to compete in the operation of their approved authorised services on specified routes. Consequently, the Contracting Parties contracting parties shall take all appropriate measures to ensure that this objective is fully respected. 2. The Contracting Parties contracting parties affirm that free, fair and undistorted competition is important to promote the objectives of this Agreement, and note that the existence of comprehensive competition law and an independent competition authority, as well as the healthy and effective application of their national competition law, are important for the effective provision of air transport services. The competition law of each Contracting Party contracting party dealing with issues covered by this Article, as amended periodically, shall apply to the activities of air carriers on the territory of each of the Contracting Partiescontracting parties. The Contracting Parties contracting parties share the objectives of ensuring the compatibility and convergence of their respective competition laws and their effective application. They shall cooperate where this is necessary and justified for the effective application of competition law, in particular by authorising their air carriers carrier(s) or other nationals to communicate, in accordance with their respective rules and case law, relevant information on cases relating to competition law brought by the competition authorities of the other Contracting Partycontracting party. 3. No provision of this Agreement shall affect or restrict the authority and powers of the competent competition authorities or the courts of either Contracting Party or contracting party (and of the European Commission Commission) or detract therefrom, and any questions relating to the application of competition law shall continue to fall within the exclusive competence of those competent authorities and courts. Any measure taken by a Contracting Party contracting party under this Article shall therefore be undertaken without prejudice to any possible measure which may be taken by those competent authorities and courts. 4. Any measure taken by virtue of this Article shall be the sole responsibility of the Contracting Parties contracting parties and relate exclusively to the other Contracting Party or contracting party and/or air carriers carrier(s) of the other Contracting Party contracting party providing air transport services to or to/from the Contracting Partiescontracting parties. Such a measure may not be the subject of a dispute settlement procedure within the meaning of Article 22 (Dispute resolution and arbitration)) of this Agreement. Unfair competition 5. Each Contracting Party contracting party shall eliminate all forms of discrimination or unfair practices which would prejudice the ability of air carriers from the other Contracting Party contracting party to compete under fair and equitable conditions to provide air transport services. Subsidies and State aid 6. Neither Contracting Party contracting party shall grant or authorise subsidies or State aid to its air carriers where these are liable to unfairly distort fair and equitable competition in the provision of air transport services for air carriers of the other Contracting Partycontracting party. Such subsidies or aid may include, in particular, cross-subsidies, compensation for operating losses, provision of capital, non-reimbursable aid, sureties, loans or insurance under preferential conditions, bankruptcy protection, the waiving of amounts due, the waiving of the right to normal payment for public resources, tax relief or exemptions, compensation for charges made by the public authorities and access on a discriminatory or non-commercial basis to air transport or airport installations and services, fuel, ground handling, security, computerised booking systems, the allocation of time slots and access to other associated installations and services necessary for the operation of air transport services. 7. Where a Contracting Party contracting party grants subsidies or State aid to an air carrier, it shall ensure the transparency of these measures by appropriate means, which may include requiring that the air carrier report separately on these subsidies or this aid in its accounts. 8. Each Contracting Party contracting party shall, at the request of the other Contracting Partyparty, provide the latter, within a reasonable period of time, with financial reports concerning entities under the jurisdiction of the first Contracting Party contracting party and any other information which could reasonably be requested by the other Contracting Party party to ensure that the provisions of this Article are complied with. This may include detailed information on subsidies and aid within the meaning of paragraph 66 above. This information shall be treated confidentially by the Contracting Party contracting party requesting access to it. 9. Without prejudice to any measure taken by the competent authority responsible for competition or and/or the court responsible for enforcing the rules referred to in paragraphs 5 and 6: (a) if one of the Contracting Parties contracting parties takes the view that an air carrier has been discriminated against or is the victim of unfair practices, within the meaning of paragraphs 5 and 6 above, and this can be demonstrated, it may submit written observations to the other Contracting Partycontracting party. Having informed the other Contracting Partycontracting party, a Contracting Party party may also turn to the competent authorities in the territory of the other Contracting Partyparty, in particular national, regional or local authorities, to discuss issues relating to this Article. In addition, one of the Contracting Parties contracting parties may request consultations on the matter with the other Contracting Party contracting party in order to solve the problem. Such consultations shall take place within thirty (30) days of receipt of the request. In the meantime, the Contracting Parties parties shall exchange sufficient information to allow a full examination of the concern expressed by one of the Contracting Parties;expressed. (b) if the Contracting Parties contracting parties do not manage to resolve the issue by means of the consultations within thirty (30) days of the start of the consultations, or if the consultations do not start within thirty (30) days of receipt of the request concerning an alleged infringement of paragraphs 5 and 66 above, the Contracting Party contracting party which has requested the consultations shall be entitled to suspend the exercise of the rights granted by this Agreement to by the air carriers carrier(s) of the other Contracting Partycontracting party, by refusing, withdrawing, revoking or suspending any operating authorisation; it may also impose , imposing the conditions it considers necessary for the exercise of those these rights, or impose imposing charges or take taking other measures. Any measure taken under this paragraph shall be appropriate, proportional and limited to what is strictly necessary in terms of its scope and duration. AntitrustAntitrust strategy 10. Each Contracting Party contracting party shall effectively apply antitrust legislation in accordance line with paragraph 2 and prohibit air carriers from: (a) in cooperation with any other air carrierscarrier(s), concluding agreements, taking decisions or engaging in concerted practices liable to affect air transport services to or to/from the Contracting Party contracting party and which have as their objective or effect the preventionto prevent, restriction restrict or distortion of distort competition. This prohibition may be declared inapplicable where such agreements, decisions or practices contribute to improving the production or distribution of services or promoting technical or economic progress, while reserving a fair proportion of the profit for the consumer and without: (i) imposing on the undertakings concerned any restrictions which are not indispensable to the attainment of these objectives; (ii) giving those these air carriers the possibility, for a substantial part of the services in question, to eliminate competition, and (b) abusing a dominant position which could affect air transport services from/to or from that Contracting Partyparty. 11. Each Contracting Party contracting party shall entrust the application of the antitrust legislation referred to in paragraph 10 above exclusively to its independent competent competition authority or to and/or its competent courtcourts. 12. Without prejudice to any measure taken by the competent competition authority or and/or the court responsible for enforcing the rules referred to in paragraph 10, if one of the Contracting Parties contracting parties takes the view that an air carrier has been the victim of an alleged infringement of paragraph 10 and this can be demonstrated, it may make written submissions to the other Contracting Partycontracting party. Having informed the other Contracting Partycontracting party, a Contracting Party party may also turn to the competent authorities in the territory of the other Contracting Partyparty, in particular national, regional or local authorities, to discuss issues relating to this Article. In addition, one of the Contracting Parties contracting parties may request consultations on the matter with the other Contracting Partycontracting party, in order to solve the problem. Such consultations shall take place within thirty (30) days of receipt of the request. In the meantime, the Contracting Parties parties shall exchange sufficient information to allow a full examination of the concern expressed by one of the Contracting Partiesexpressed. 13. If the Contracting Parties contracting parties do not manage to resolve the issue by means of the consultations within thirty (30) days of the start of the consultations, or if the consultations do not start within thirty (30) days of receipt of the request concerning an alleged infringement of paragraph 10, and on condition that the competition authority or court has established an infringement of the rules on cartels, the Contracting Party contracting party which has requested the consultations shall be entitled to suspend the exercise of the rights granted by this Agreement for the air carriers carrier(s) of the other Contracting Partycontracting party, by refusing, withdrawing, revoking or suspending any operating authorisation; it may also impose , imposing the conditions it considers necessary for the exercise of these rights, or impose imposing charges or take taking other measures. Any measure taken under this paragraph shall be appropriate, proportional and limited to what is strictly necessary in terms of its scope and duration.