Resolução da Assembleia da República n.º 51/2001 — Aprova, para ratificação, o Acordo de Transporte Aéreo entre a República Portuguesa e os Estados Unidos da América…

7 - Notwithstanding any other provision of this Agreement, airlines and indirect providers of cargo transportation of both Contracting Parties shall be permitted, without restriction, to employ in connection with international air transportation any surface transportation for cargo to or from any points in the territories of the Contracting Parties or in third countries, including transport to and from all airports with appropriate inspection facilities, and including, where applicable, the right to transport cargo in bond under applicable laws and regulations. Cargo, whether moving by surface or by air, shall have access to airport customs processing and facilities. Airlines may elect to perform their own surface transportation or to provide it through arrangements with other surface carriers, including surface transportation operated by other airlines and indirect providers of cargo air transportation. 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.

8 - 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 authorized agents for such services in whole or in article. These rights shall be exercised in compliance with the laws and regulations normally applied by the Contracting Parties on a non-discriminatory basis. The right to self-handle or select among competing authorized agents shall be subject only to constraints resulting from considerations of airport safety and, for the Portuguese side, bases for exemption provided for in European Union Council Directive 96/67/EC and the Portuguese legislation implementing that directive. Where such considerations preclude self-handling, ground services shall be available on an equal basis to all airlines; charges shall be based on the full costs of services provided; and such services shall be comparable to the kind and quality of services as if self-handling were possible.

Article 9

Customs duties and charges

1 - On arriving in the territory of one Contracting Party aircraft operated in international air transportation by the designated airlines of the other Contracting Party, their regular equipment, ground equipment, fuel, lubricants, consumable technical supplies, spare parts (including engines), aircraft stores (including but not limited to such items of food beverages and liquor, tobacco and other products destined for sale to or use by passengers in limited quantities during flight) and other items intended for or used solely in connection with the operation or servicing of aircraft engaged in international air transportation shall be exempt on the basis of reciprocity, from all import restrictions, property taxes and capital levies, customs duties, excise taxes, and similar fees and charges that are:

1) Imposed by the national authorities; and

2) Not based on the cost of services provided, provided that such equipment and supplies remain on board the aircraft.

2 - There shall also be exempt, on the basis of reciprocity, from the taxes, levies, duties, fees and charges referred to in paragraph 1 of this article, with the exemption of charges based on the cost of the service provided:

3 - Equipment and supplies referred to in paragraphs 1 and 2 of this article may required to be kept under the supervision or control of the appropriate authorities.

4 - The exemptions provided by this article shall also be available where the designated mines of one Contracting Party have contracted with another airline, which similarly enjoys such exemptions from the other Contracting Party, for the loan or transfer in the territory of the other Contracting Party of the items specified in paragraphs 1 and 2 of this article.

Article 10

User charges

1 - User charges that may be imposed by the competent charging authorities or bodies of each Contracting Party on the airlines of the other Contracting Party shall be just, reasonable, not unjustly discriminatory, and equitably apportioned among categories of users. In any event, any such user charges shall be assessed on the airlines of the other Contracting Party on terms not less favorable than the most favorable terms available to any other airline at the time the charges are assessed.

2 - User charges imposed on the airlines of the other Contracting Party may reflect, but «shall not exceed, the full cost to the competent charging authorities or bodies of providing the appropriate airport, airport environmental, air navigation, and aviation security facilities and services at the airport or within the airport system. Such charges may include a reasonable return on assets, after depreciation. Facilities and services for which charges are made shall be provided on an efficient and economic basis.

3 - Each Contracting Party shall encourage consultations between the competent charging authorities or bodies in its territory and the airlines using the services and facilities, and shall encourage the competent charging authorities or bodies and the airlines to exchange such information as may be necessary to permit an accurate review of the reasonableness of the charges in accordance with the principles of paragraphs 1 and 2 of this article. Each Contracting Party shall encourage the competent charging authorities to provide users with reasonable notice of any proposal for changes in user charges to enable users to express their views before changes are made.

4 - Neither Contracting Party shall be held, in dispute resolution procedures pursuant to article 14, to be in breach of a provision of this article, unless:

ii) Following such a review it fails to take all steps within its power to remedy any charge or practice that is inconsistent with this article.

Article 11

Fair competition

1 - Each Contracting Party shall allow a fair and equal opportunity for the designated airlines of both Contracting Parties to compete in providing the international air transportation governed by this Agreement.

2 - Each Contracting Party shall allow each designated airline to determine the frequency and capacity of the international air transportation it offers based on commercial considerations in the marketplace. Consistent with this right, neither Contracting Party shall unilaterally limit the volume of traffic, frequency or regularity of service, or of the aircraft type or types operated by the designated airlines of the other Contracting Party, except as may be required for customs, technical, operational (including congestion) or environmental reasons under uniform conditions consistent with article 15 of the Convention.

3 - Neither Party shall impose on the other Party's designated airlines a first-refusal requirement, uplift ratio, no-objection fee, or any other requirement with respect to capacity, frequency or traffic that, would be inconsistent with the purposes of this Agreement.

4 - Neither Contracting Party shall require the fling of schedules, programs for charter flights, or operating plans by airlines of the other Contracting Party for approval, except as may be required on a non-discriminatory basis to enforce the uniform conditions foreseen by paragraph 2 of this article or as may be authorized in an annex a this Agreement. If a Contracting Party requires such filings for information purposes, shall minimize the administrative burdens of the filing requirements and procedures on air transportation intermediaries and on designated airlines of the other Contracting Party.

Article 12

Pricing

1 - Each Contracting Party shall allow prices of 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:

2 - Each Contracting Party may require notification to or filing with its aeronautical authorities of prices to be charged to or from its territory by airlines of the other Contracting Party. Notification or filing by the airlines of both Contracting Parties may be required no more than 30 days before the proposed date of effectiveness. In individual cases, notification or filing may be permitted on shorter notice than normally required. Neither Contracting Party shall require the notification or filing by airlines of the other Contracting Party of prices charged by charterers to the public, except as may be required on a non-discriminatory basis for information purposes.

3 - Neither Contracting Party shall take unilateral action to prevent the inauguration or continuation of a price proposed to be charged or charged by:

including in both cases transportation on an interline or intraline basis, provided that, in the case of services to or from third countries to which Council Regulation (EEC) no. 2409/92 of 23 July 1992, applies on the date that the Agreement is signed, or to which a not more restrictive successor regulation applies, such a price is not specifically prohibited under that Regulation.

4 - If either Contracting Party believes that any such price is inconsistent with the considerations set forth in paragraph 1 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, and the Contracting Parties shall cooperate 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 take appropriate action, consistent with its national law, to put that agreement into effect. Without such mutual agreement, the price shall go into effect or continue in effect.

Article 13

Consultations

Either Contracting Party may, at any time, request in writing consultations on the interpretation, application or amendment of the Agreement. Such consultations shall begin within a period of 60 days from the date of the other Contracting Party receives the request. If the requesting Contracting Party considers that expedited consultations are necessary to address a matter that it considers urgent, such consultations shall begin within 30 days from the date the other Contracting Party receives the request.

Article 14

Settlement of disputes

1 - Any dispute arising under this Agreement, except those that may arise under paragraph 3 of article 12 «Pricing», that is not resolved by a first round of formal consultations may be referred by agreement of the Parties for decision to some person or body. If the Parties do not so agree, the dispute shall, at the request of either Party, be submitted to arbitration in accordance with the procedures set forth below.

2 - Arbitration shall be made by a tribunal of three arbitrators to be constituted as follows:

3 - Except as otherwise agreed, the arbitral tribunal shall determine the limits of its jurisdiction in accordance with this Agreement and shall establish its own procedural rules. The tribunal, once formed, may recommend interim relief measures pending its final determination. At the direction of the tribunal or at the request of either of the Contracting Parties, a conference to determine the precise issues to be arbitrated and the specific procedures to be followed shall be held not later than 15 days after the tribunal is fully constituted.

4 - Except as otherwise agreed or as directed by the tribunal, each Contracting Party shall submit a memorandum within 45 days of the time the tribunal is fully constituted. Replies shall be due 60 days later. The tribunal shall hold a hearing at the request of either Contracting Party or on its own initiative within 15 days after replies are due.

5 - The tribunal shall, unless otherwise agreed by the Contracting Parties, render a written decision within 60 days after completion of the hearing or, if no hearing is held, after the date both replies are submitted. The decision of the majority of the tribunal shall prevail.

6 - The Contracting Parties may submit requests for clarification of the decision within 15 days after it is rendered and any clarification given shall be issued within 15 days of such request.

7 - Each Contracting party shall, to the degree consistent with its national law, give full effect to any decision or award of the arbitral tribunal.

8 - The expenses of the arbitral tribunal, including the fees and expenses of the arbitrators, shall be shared equally by the Contracting Parties. Any expenses incurred by the resident of the Council of the International Civil Aviation Organization in connection with the procedures of paragraph 2, b), of this article shall be considered to be part of the expenses of the arbitral tribunal.

Article 15

Comparable treatment

The United States shall, to the full extent permitted by US law, offer Portuguese carriers the benefit of any US legislation that provides carriers of other European Union member States opportunities in the areas of cabotage and foreign ownership and control of US carriers. The Portuguese Republic shall, to the full extent permitted by Portuguese and European Union law, offer US carriers the benefit of any Portuguese or European Union legislation that provides carriers of any other North American State opportunities in the areas of cabotage and foreign Fownership and control of Portuguese carriers.

Article 16

Registration with ICAO

This Agreement and all amendments thereto shall be registered with the International Civil Aviation Organization.

Article 17

Termination

Either Contracting Party may at any time give notice in writing to the other Contracting Party of its decision to terminate the present Agreement. Such notice shall be simultaneously communicated to the International Civil Aviation Organization. This Agreement shall terminate at midnight at the place of receipt of the notice 12 months after the date of the receipt of such notice by the other Contracting Party, unless the notice to terminate is withdrawn by mutual agreement before the expiry of this period. In the absence of acknowledgement of receipt by the other Contracting Party, notice shall be deemed to have been received 14 days after the receipt of the notice by the International Civil Aviation Organization.

Article 18

Amendments

1 - The Agreement may be amended by written agreement of the Contracting Parties. Amendments shall enter into force on the day on which both Contracting Parties have informed each other by exchange of diplomatic notes that the necessary internal procedures have been completed. Amendments to the annexes shall be provisionally applied by the Contracting Parties through their aeronautical authorities from the date of signature.

2 - If, after entry into force of the Agreement, both Contracting Parties become party to a multilateral agreement that addresses matters covered by this Agreement, they shall consult to determine whether this Agreement should be amended to take into account the multilateral agreement.

Article 19

Entry into force

The Agreement shall apply provisionally upon signature and shall enter into force on the day on which both Contracting Parties have informed each other through an exchange of diplomatic notes that the necessary internal procedures for entry into force of the Agreement have been completed. Upon entry into force the Agreement shall supersede the Agreement between the Portuguese Republic and the United States of America relating to air transport services, signed at Lisbon, December 6, 1945, as amended.

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

Done at Lisbon on the 13th day of May 2000, in the Portuguese and English languages, both texts being equally authentic.

For the Portuguese Republic:

(ver assinatura no documento original)

For the United States of America:

(ver assinatura no documento original)

ANNEX I

Scheduled air transportation

SECTION 1

Routes

Airlines of each Contracting Party designated under this annex shall, in accordance with the terms of their designation, be entitled to perform scheduled international air transportation between points on the following routes:

A) Routes for the airline or airlines designated by the Government of the United States:

1) From points behind the United States via the United States and intermediate points to a point or points in Portugal and beyond;

2) For all-cargo service or services, between Portugal and any point or points;

B) Routes for the airline or airlines designated by the Portuguese Republic:

1) From points behind Portugal via Portugal and intermediate-points to a point or points in the United States and beyond;

2) For all-cargo service or services, between the United States and any point or points.

SECTION 2

Operational flexibility

Each designated airline may, on any or all flights and at its option:

1) Operate flights in either or both directions;

2) Combine different flight numbers within one aircraft operation;

3) Serve behind, intermediate, and beyond points and points in the territories of the Contracting Parties on the routes in any combination and in any order;

4) Omit stops at any point or points;

5) Transfer traffic from any of its aircraft to any of its other aircraft at any point on the routes; and

6) Serve points behind any point in its territory with or without change of aircraft or flight number and may hold out and advertise such services to the public as through services;

without directional or geographic limitation and without loss of any right to carry traffic otherwise permissible under this Agreement; provided that, with the exception of all-cargo services, the service serves a point in the territory of the Contracting Party designating the airline.

SECTION 3

Change of gauge

On any segment or segments of the routes above, any designated airline may perform international air transportation without any limitation as to change, at any point on the route, in type or number of aircraft operated; provided that, with the exception of all-cargo services, in the outbound direction, the transportation beyond such point is a continuation of the transportation from the territory of the Contracting Party that has designated the airline and, in the inbound direction, the transportation to the territory of the Contracting Party that has designated the airline is a continuation of the transportation from beyond such point.

ANNEX II

Charter air transportation

SECTION 1

A) Airlines of each Contracting Party designated under this annex shall, in accordance with the terms of their designation, have the right to carry international charter traffic of passengers (and their accompanying baggage) and/or cargo [including, but not limited to freight forwarder, split, and combination (passenger/cargo) charters]:

1) Between any point or points in the territory of the Contracting Party that has designated the arline and any point or points in the territory of the other Contracting Party; and

2) Between any point or points in the territory of the other Contracting Party and any point or points in a third country or countries, provided that, except with respect to cargo charters, such service constitutes part of a continuous operation, with or without a change of aircraft, that includes service to the homeland for the purpose of carrying local traffic between the homeland and the territory of the other Contracting Party.

B) In the performance of services covered by this annex, airlines of each Party designated under this annex shall also have the right:

1) To make stopovers at any points whether within or outside the territory of either Contracting Party;

2) To carry transit traffic through the other Contracting Party's territory;

3) To combine on the same aircraft traffic originating in one Contracting Party's territory, traffic originating in the other Contracting Party's territory, and traffic originating in third countries; and

4) To perform international air transportation without any limitation as to change, at any point on the route, in type or number of aircraft operated;

provided that, except with respect to cargo charters in the outbound direction, the transportation beyond such point is a continuation of the transportation from the territory of the Contracting Party that has designated the airline and in the inbound direction, the transportation to the territory of the Contracting Party that has designated the airline is a continuation of the transportation from beyond such point.

C) Each Contracting Party shall extend favorable consideration to applications by airlines of the other Contracting Party to carry traffic not covered by this annex on the basis of comity and reciprocity.

SECTION 2

A) Any airline designated by either Contracting Party performing international charter air transportation originating in the territory of the other Contracting Party, whether on a one-way or round-trip basis, shall have the option of complying with the charter laws, regulations, and rules either of its homeland or of the other Contracting Party. If a Contracting Party applies different rules, regulations, terms, conditions or limitations to one or more of its airlines, or to airlines of different countries, each designated airline shall be subject to the least restrictive of such criteria.

B) However, nothing contained in the above paragraph shall limit the rights of either Contracting Party to require airlines designated under this annex by either Contracting Party to adhere to requirements relating to the protection of passenger funds and passenger cancellation and refund rights.

SECTION 3

Except with respect to the consumer protection rules referred to in the preceding paragraph above, neither Contracting Party shall require an airline designated under this annex by the other Contracting Party, in respect of the carriage of traffic from the territory of that other Contracting Party or of a third country on a one-way or round-trip basis, to submit more than a declaration of conformity with the applicable laws, regulations and rules referred to under section 2 of this annex or of a waiver of use laws, regulations or rules granted by the applicable aeronautical authorities.

ANNEX III

Computer reservations systems

1 - The Contracting Parties recognise that computer reservations systems (CRS) operations are an important aspect of the ability of an airline to compete. Specifically, the Contracting Parties note that CRS operations are regulated at the date of this Agreement:

In Portugal under European Community Regulation 2299/89, 24 July 1989, as amended by European Community Regulation 3089/93, 29 October, 1993, and by European Community Regulation 323/99, 8 February, 1999; and

In the United States, under 14 CFR 255.

2 - The Contracting Parties agree that, consistent with the laws and regulations of the Contracting Parties in effect on the date that this Agreement is signed, the following principles shall be followed with respect to CRS operations in international aviation on a non-discriminatory basis:

ii) CRS data bases shall be as comprehensive as possible and CRS vendors shall not delete information from their data bases until it has been superseded;

iii) CRS vendors shall not manipulate information given by participating airlines in a manner which would lead to the provision of inaccurate, misleading or discriminatory information; and the information provided by participating carriers shall be clear and accurate, for example flights where the code displayed is not that of the operating carrier (i. e. code-shares) flights involving a change of aircraft and flights with stops shall be clearly identified as having those characteristics;

iv) All CRS's that are available to travel agents who directly distribute information about airline services to the travelling public in either Contracting Party's territory shall not only be obligated to, but shall also be entitled to, operate in conformance with the CRS rules that apply in the territory where the CRS is being operated;

ANNEX IV

Transitional provisions

1 - The following provisions shall expire on December 31, 2002, or such earlier date as is agreed by the Contracting Parties:

2 - The following provisions shall expire on December 31, 2003, or such earlier date as is agreed upon by the Contracting Parties:

ii) Annex II, section 1, A), 2), where such service does not constitute part of a continuous operation, with or without a change of aircraft, that includes service to the United States for the purpose of carrying local traffic between the United States and the territory of Portugal; and

ii) Annex II, section 1, A), 2), where such service does not constitute part of a continuous operation, with or without a change of aircraft, that includes service to Portugal for the purpose of carrying local traffic between Portugal and the territory of the United States.