Overeenkomst tussen de Regering van het Koninkrijk der Nederlanden en de Regering van de Republiek der Filipijnen nopens het vervoer door de lucht

(1)

Each Contracting Party grants to the other Contracting Party the rights specified in the present Agreement for the purpose of establishing the agreed services.

(2)

Subject to the provisions of the present Agreement, the airline or airlines designated by each Contracting Party shall enjoy, while operating an agreed service on a specified route, the following privileges:

• (a)

  to fly without landing across the territory of the other Contracting Party;

• (b)

  to make stops in the said territory for non-traffic purposes; and

• (c)

  to make stops in the said territory at the points specified for that route in the Annex to the present Agreement for the purpose of putting down and taking on international traffic in passengers, cargo and mail coming from or destined for other points so specified.

(3)

Nothing in paragraph (2) of this Article shall be deemed to confer on the airline or airlines of one Contracting Party the privilege of taking up, in the territory of the other Contracting Party, passengers, cargo or mail carried for remuneration or hire and destined for another point in the territory of that other Contracting Party.

1

Either Contracting Party shall have the right to designate one or more Airline(s) to operate International Air Services on the routes specified in the Annex and to substitute another Airline for an Airline previously designated. Such designations shall be transmitted to the other Contracting Party in writing through diplomatic channels.

On receipt of such a designation the other Contracting Party shall grant the appropriate operating authorisations and permissions with minimum procedural delay, provided:

• a)

  in the case of an airline designated by the Kingdom of the Netherlands:

  • 1.

    it is established in the territory of the Kingdom of the Netherlands under the Treaty establishing the European Community and has a valid Operating Licence in accordance with European Community Law; and

  • 2.

    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;

• b)

  in the case of an airline designated by the Philippines:

  • 1.

    majority ownership and effective control of such airline are vested in the Philippines and/or its nationals; and

  • 2.

    such airline has a valid Operating License in accordance with applicable law of the Philippines and effective control is exercised by the Philippines,

• c)

  the designated airline is qualified to meet the conditions prescribed under the laws and regulations normally applied to the operation of international air services by the Party considering the application or applications;

• d)

  the designated airline qualifies before the Aeronautical Authorities of the Contracting Party assessing the authorization, under the laws and regulations normally and reasonably applied to the operation of the International Air Services by these Authorities in conformity with the Convention;

• e)

  the designated airline(s) operate(s) in accordance with the conditions prescribed under this Agreement.

2

Either Contracting Party may revoke, suspend or limit the operation authorisation or technical permissions of an airline designated by the other Contracting Party where:

• a)

  in the case of an airline designated by the Kingdom of the Netherlands:

  • 1.

    it is not established in the territory of the Kingdom of the Netherlands under the Treaty establishing the European Community or does not have a valid Operating Licence in accordance with European Community Law; or

  • 2.

    effective regulatory control of the airline is not exercised or not maintained by the European Community Member State responsible for issuing its Air Operator’s Certificate or the relevant aeronautical authority is not clearly identified in the designation;

• b)

  in the case of an airline designated by the Philippines:

  • 1.

    majority ownership and effective control of such airline are not vested in the Philippines and/or its nationals; or

  • 2.

    such airline does not have a valid Operating License in accordance with applicable law of the Philippines or effective control is not exercised by the Philippines;

• c)

  that airline has failed to comply with the laws and regulations referred to in this Agreement;

• d)

  the airline is already authorized to operate under a bilateral agreement between the Philippines and another Member State which is exercising traffic rights under this Agreement on a route that includes a point in that other Member State, the airline would in effect be circumventing restrictions on the traffic rights imposed by that other agreement; or

• e)

  the designated airline holds an Air Operators Certificate issued by a Member State, there is no bilateral air services agreement between the Philippines and that Member State and the traffic rights necessary to conduct the operation proposed by such designated airline are not reciprocally available to the designated carriers of the Philippines.

(1)

Aircraft operated on international services by the designated airline or airlines of either Contracting Party, as well as their regular equipment, spare parts, supplies of fuels and lubricants, and aircraftstores (including food, beverages and tobacco) on board such aircraft shall be exempt from all customs duties, inspection fees and other duties or taxes on arriving in the territory of the other Contracting Party, provided such equipment and supplies remain on board the aircraft up to such time as they are re-exported.

(2)

Supplies of fuels, lubricants, spare parts, regular equipment and aircraft stores introduced into the territory of one Contracting Party by or on behalf of a designated airline of the other Contracting Party or taken on board the aircraft operated by such designated airline and intended solely for use in the operation of international air services shall be exempt from all duties and charges, including customs duties and inspection fees imposed in the territory of the first Contracting Party, even when these supplies are to be used on the parts of the journey performed over the territory of the Contracting Party in which they are taken on board. The materials referred to above may be required to be kept under customs supervision or control.

(3)

The regular airborne equipment, spare parts, aircraft stores and supplies of fuels and lubricants retained on board the aircraft of either Contracting Party may be unloaded in the territory of the other Contracting Party only with the approval of the customs authorities of that Party, who may require that those materials be placed under their supervision up to such time as they are re-exported or otherwise disposed of in accordance with customs regulations.

(4)

Nothing in this Agreement shall prevent the Kingdom of the Netherlands from imposing, on a non-discriminatory basis, taxes, levies, duties, fees or charges on fuel supplied in its territory for use in an aircraft of a designated airline of the Philippines that operates between a point in the territory of the Kingdom of the Netherlands and another point in the territory of the Kingdom of the Netherlands or in the territory of another European Community Member State.

Nothing in this Agreement shall prevent the Republic of the Philippines from imposing, on a non-discriminatory basis, taxes, levies, duties, fees or charges on fuel supplied in its territory for use in an aircraft of a designated airline of the Netherlands that operates between a point in the territory of the Republic of the Philippines and another point in the territory of the Republic of the Philippines or in the territory of a third State in Asia.

1

In operating or holding out the Air Services on the Agreed Routes, any 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 an airline of the other Contracting Party. This is applicable too on domestic routes operated with the designated airline of the Contracting Party concerned, provided (a) that the operating carrier in such arrangements holds the appropriate operating authorization and (b) that tickets make it clear to the purchaser at the point of sale which Airline will actually operate each sector of the service and with which Airline or Airlines the purchaser is entering into a contractual relationship. The code-sharing services of the marketing carrier will not be counted as a frequency.

2

The designated airline(s) of each Contracting Party will be permitted subject to national laws to employ surface and/or sea transportation for cargo in connection with international air transportation, to be provided by companies officially recognized and licensed by the authorities of the other Contracting Party to or from any point in the territory of the one Contracting Party concerned or in third countries, including transport to and from all airports with customs facilities, under the applicable law and regulations. Such cargo, whether moving by surface or by air will have access to airport customs processing and facilities.

Such intermodal cargo services may be offered at a single through price for the air and surface transportation combined, provided that shippers are not misled as to the facts concerning such transportation.

3

The designated airline(s) of each Contracting Party shall be allowed subject to national laws;

• 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;

• 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;

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

• To bring in and maintain in the territory of the other Contracting Party its managerial, commercial, operational and technical staff as it may require in connection with the provision of air transportation and ancillary or supplemental services;

4

Each designated airline shall have the right to perform its own ground handling in the territory of the other Contracting Party (“self handling”), or, at its option, select among competing agents for such services in whole or in part. This right shall be subject only to physical constraints resulting from considerations of airport safety. Where such considerations preclude self handling, ground services shall be available on an equal basis to all airlines.

The activities mentioned in this Article shall be carried out in accordance with the laws and regulations of the other Contracting Party. In case of the Netherlands this includes applicable European Community law.

(1)

The laws and regulations of one Contracting Party relating to the admission to or departure from its territory of aircraft engaged in international air services, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of the airline or airlines designated by the other Contracting Party, and shall be complied with by such aircraft upon entering or departing from or while within the territory of the first party.

(2)

The laws and regulations of one Contracting Party as to the entrance into, stay within, or departure from its territory of passengers, crew or cargo of aircraft, such as regulations relating to entry, clearance, immigration, passports, customs, and quarantine shall be complied with by or on behalf of such passengers, crew or cargo of the airline or airlines designated by the other Contracting Party upon entrance into or departure from, or while within the territory of the first party.

(3)

Passengers in direct transit across the territory of either Contracting Party shall be subject to no more than a very simplified control. Baggage and cargo in direct transit shall be exempt from customs duties and other similar taxes. For purposes of this paragraph, the term “direct transit” shall apply only to passengers, baggage and/or cargo who/which are never out of the control of the customs authorities of the Contracting Parties.

1

Each Contracting Party shall allow prices for air transportation to be established by each designated airline based upon commercial considerations in the marketplace. Intervention by the Contracting Parties shall be limited to:

• a)

  prevention of predatory and/or 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, amongst others, direct or indirect governmental subsidy or support.

2

Each Contracting Party may require notification or approval to its Aeronautical Authorities of prices to be charged to or from its territory by airlines of the other Contracting Party.

3

If either Contracting Party considers any such prices inconsistent with the considerations set forth in paragraph (1) and paragraph (2) 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 30 days after receipt of the request of the other Contracting Party, 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 or continue to be in effect.

4

Notwithstanding the provisions of this Article, in the case of the Kingdom of the Netherlands, the prices to be charged by the designated airlines for carriage wholly within the European Community shall be subject to European Community Law.

(1)

If any dispute arises between the Contracting Parties relating to the interpretation or application of the present Agreement, the Contracting Parties shall in the first place endeavor to settle it by negotiation between themselves. This negotiation shall begin within 60 days after receipt of the request by one Party from the other.

(2)

If the Contracting Parties fail to reach a settlement by negotiation, the dispute shall be submitted for decision to a tribunal of three arbitrators, one to be named by each Contracting Party and the third to be agreed upon by the two arbitrators so chosen, provided that such third arbitrator shall not be a national of either Contracting Party. Each of the Contracting Parties shall designate an arbitrator within two months of the date of delivery by either Party to the other Party of a diplomatic note requesting arbitration of the dispute and the third arbitrator shall be agreed upon within one month after such period of two months. If either Contracting Party fails to designate its arbitrator within the period specified, or if the third arbitrator is not agreed, the President of the Council of the International Civil Aviation Organization may be requested by either Contracting 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.

(3)

Unless otherwise provided by the Contracting Parties, the arbitral body shall determine its seat and prescribe its own rules of procedure.

(4)

The arbitral body shall endeavor to resolve the dispute by unanimous vote. However, if this is not possible, the decision of the arbitral body shall be determined by a majority vote.

(5)

The Contracting Parties undertake to comply with any decision given under paragraphs (2), (3) and (4) of this Article.

(1)

If either of the Contracting Parties considers it desirable to modify the terms of the present Agreement, it may request consultation with the other Contracting Party. Such consultation, which may be between aeronautical authorities and which may be through discussion or by correspondence, shall begin within a period of sixty (60) days of the date of the request.

(2)

Modifications to routes may be made by direct agreement between the competent aeronautical authorities of the Contracting Parties.

(3)

Any modification so agreed upon pursuant to paragraphs (1) and (2), above, shall come into effect after confirmation thereof by an exchange of diplomatic notes.