TRAC T A TENBLAD
TRAC T A TENBLAD
VAN HET
K O N I N K R I J K D E R N E D E R L A N D E N
JAARGANG 2011 Nr. 173
A. TITEL
Overeenkomst tussen het Koninkrijk der Nederlanden en de Socialistische Republiek Vietnam inzake luchtdiensten tussen en via hun onderscheiden grondgebieden;
(met Bijlage) Hanoi, 1 oktober 1993
B. TEKST
De Engelse en de Nederlandse tekst van de Overeenkomst, met Bij- lage, zijn geplaatst in Trb. 1993, 167.
Op 28 september 2011 is te ’s-Gravenhage een Protocol tot wijziging van de onderhavige Overeenkomst, met Bijlage, tot stand gekomen. De Engelse tekst van het Protocol luidt als volgt:
Protocol amending the Agreement between the Kingdom of the Netherlands and the Socialist Republic of Viet Nam for air services between and beyond their respective territories
The Government of the Kingdom of the Netherlands and
the Government of the Socialist Republic of Vietnam (hereinafter “the Parties”)
Referring to the Agreement between the Kingdom of the Netherlands and the Socialist Republic of Viet Nam for air services between and beyond their respective territories, done at Hanoi on 1 October 1993 (hereinafter “the Agreement”);
Acknowledging the need to modify the Agreement in view of the Agreement between the Government of the People’s Republic of Viet Nam and the European Union on certain aspects of air services, signed in Brussels on 4 October 2010;
Have decided to amend the Agreement and its Annex as follows: Article 1
Article 1, under b, of the Agreement shall be replaced by:
b. the term “aeronautical authorities” means:
for the Socialist Republic of Viet Nam, the Civil Aviation Author- ity of Viet Nam Ministry of Transport;
for the Kingdom of the Netherlands, the Minister of Infrastructure and the Environment;
or in either case any person or body authorized to perform any functions at present exercised by the said Minister or organization;
Article 2
In Article 1, under I, of the Agreement, the term “tariffs” shall be replaced by “prices”.
Article 3
Article 4, paragraph 1, of the Agreement shall be replaced by:
1. Each Contracting Party shall have the right by written notification through Diplomatic Channels to the other Contracting Party to designate two (2) airlines to operate air services on the routes specified in the Annex and to substitute an other airline for an airline previously desig- nated.
Article 4
Article 6 of the Agreement shall be replaced by:
Article 6
Prices
1. Each Contracting Party shall allow prices for air transportation to be established by each designated airline individually based upon com- mercial considerations in the marketplace. Intervention by the Contract- ing 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 to its aeronautical authorities of prices to be charged to or from its territory by airlines of the other Contracting Party.
3. Neither Contracting Party shall undertake unilateral action to pre- vent the inauguration or continuation of a price charged or proposed to be charged by (a) a designated airline of either Contracting Party for international air transportation between the territories of the Contracting Parties, or (b) an airline of one Contracting Party for international air transportation between the territory of the other Contracting Party and any other country.
If either Contracting Party considers any such prices inconsistent with the considerations set forth in paragraph (1) of this Article, it shall request consultations and notify the other Contracting Party of the rea- sons for its dissatisfaction as soon as possible. These consultations shall be held not later than thirty (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 and the current price shall 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 Union shall be subject to European Union law.
Article 5
Article 7 of the Agreement shall be replaced by:
Article 7
Commercial activities
1. The designated airline(s) of each Contracting Party shall have the right to establish offices in the territory of the other Contracting Party for promotion and sale of air services and other ancillary or supplemen- tal products and services and facilities required for the provision of air services.
2. Any designated airline of each Contracting Party may engage in the sale of air services and its ancillary products, services and facilities in the territory of the other Contracting Party directly and, at the airline’s discretion, through its agents. For this purpose, the designated airline may use its own transportation documents and any person shall be free to purchase such transportation and its ancillary products, services and facilities in the currency of that territory or in freely convertible curren- cies to the degree permitted by national laws and regulations, provided that they are applied on a non-discriminatory basis.
3. The designated airline(s) of each Contracting Party shall be enti- tled, in accordance with the laws and regulations of the other Contract- ing Party relating to entry, residence and employment, to bring in and maintain in the territory of the other Contracting Party managerial, sales, technical, operational and other specialist staff required for the provision of air services and other ancillary products and facilities. Such staff requirements may, at the option of the airline, be satisfied by its own personnel of any nationality or by using the services of any other airline, organization or company operating in the territory of the other Contract- ing Party and authorized to perform such services in the territory of such other Contracting Party.
Article 6
A new Article 10bis shall be added to the Agreement:
Article 10bis
User charges
1. User charges that may be imposed by the competent charging auth- orities of each Contracting Party on the designated airline(s) of the other Contracting Party shall be transparent, just, reasonable, non- discriminatory, and equitably apportioned among all categories of users. Such user charges shall be assessed on the designated airline(s) of the other Contracting Party on terms not less favourable than the terms available to any other airline at the time the charges are assessed.
2. User charges imposed on the designated airline(s) of the other Contracting Party may reflect, but shall not exceed, the full cost to the competent charging authorities of providing the appropriate airport, environmental, air navigation and aviation security facilities and services at the airport or within the airport system. Such full cost 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 in its territory and the designated air- line(s) using the services and facilities. Each Contracting Party shall encourage the competent charging authorities and the airlines to ex- change such information as may be necessary to permit an accurate and transparent review of the reasonableness of the charges in accordance with the principles stated in 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 the user charges to enable the users to express their views before changes are implemented.
4. Neither Contracting Party shall be held, in dispute resolution pro- cedures pursuant to Article 17 of this Agreement, to be in breach of a provision of this Article, if:
(i) it has undertaken a review of the charge or practice that is the sub- ject of complaint by the other Contracting Party within a reason- able time, and
(ii) following such a review, it has taken all steps within its power to remedy any charge or practice that is inconsistent with this Article.
Article 7
A new Article 14bis shall be added to the Agreement:
Article 14bis
Safety
1. Each Contracting Party may request consultations at any time concerning safety standards in any area relating to air crew, aircraft or their operation adopted by the other Contracting Party. Such consulta- tions shall take place within 30 (thirty) days of that request.
2. If, following such consultations, one Contracting Party finds that the other Contracting Party does not effectively maintain and administer safety standards and requirements in any such area that are at least equal to the minimum standards established at that time pursuant to the Chi- cago Convention, the first Contracting Party shall notify the other Con- tracting Party of those findings and the steps considered necessary to conform with those minimum standards, and that other Contracting Party shall take appropriate corrective action. Failure by the other Con- tracting Party to take appropriate action within 15 (fifteen) days or such longer period as may be agreed, shall be grounds for the application of Article 5 (Revocation and suspension of authorization) of this Agree- ment.
3. Notwithstanding the obligations mentioned in Article 33 of the Chicago Convention, it is agreed that any aircraft operated by or, under a lease agreement, on behalf of the airline or airlines of one Contracting Party on services to or from the territory of the other Contracting Party may, while within the territory of the other Contracting Party, be made the subject of an examination by the authorized representatives of the other Contracting Party, on board and around the aircraft, to check both the validity of the aircraft documents and those of its crew and the apparent conditions of the aircraft and its equipment (ramp inspections), provided this does not lead to unreasonable delay.
4. If any such inspection or series of ramp inspections gives rise to:
a) serious concerns that an aircraft or the operation of an aircraft does not comply with the minimum standards established at that time pursu- ant to the Chicago Convention, or
b) serious concerns that there is a lack of effective maintenance and administration of safety standards established at that time pursuant to the Chicago Convention,
the Contracting Party carrying out the inspection shall, for the pur- poses of Article 33 of the Chicago Convention, be free to conclude that the requirements under which the certificates or licenses in respect of that aircraft or in respect of the crew of that aircraft had been issued or rendered valid, or that the requirements under which that aircraft is oper- ated, are not equal to or above the minimum standards established pur- suant to the Chicago Convention.
5. In the event that access for the purpose of undertaking a ramp inspection of an aircraft operated by the airline or airlines of one Con- tracting Party in accordance with paragraph 3 above is denied by the representative of that airline or those airlines, the other Contracting Party shall be free to infer that serious concerns of the type referred to in para- graph 4 above arise and draw the conclusions referred to in that para- graph.
6. Each Contracting Party reserves the right to suspend or vary the operating authorization of an airline or airlines of the other Contracting Party immediately in the event the first Contracting Party concludes, whether as a result of a ramp inspection, a series of ramp inspections, a denial of access for ramp inspection, consultations or otherwise, that immediate action is essential to the safety of the airline’s operation.
7. Any action by one Contracting Party in accordance with para- graphs 2 or 6 above shall be discontinued once the basis for the taking of that action ceases to exist.
Article 15 of the Agreement shall be replaced by:
Article 15
Security
1. The Contracting Parties reaffirm, consistent with their rights and obligations under international law, that their obligations to each other to protect the security of civil aviation against acts of unlawful interfer- ence forms an integral part of this Agreement. Without limiting the gen- erality of their rights and obligations under international law, the Con- tracting Parties shall in particular act in conformity with the provisions of the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963, the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970, the Chicago Convention for the Suppres- sion of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971, its Supplementary Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving Interna- tional Civil Aviation, signed at Montreal on 24 February 1988, and any other Convention on aviation security to which the Contracting Parties shall become Contracting Party.
2. The Contracting Parties shall provide upon request all necessary assistance to each other to prevent acts of unlawful seizure of civil air- craft and other unlawful acts against the safety of such aircraft, their pas- sengers and crew, airports and air navigation facilities, and any other threat to the security of civil aviation.
3. The Contracting Parties shall, in their mutual relations, act in con- formity with the aviation security standards and, so far as they are applied by them, the Recommended Practices established by the Inter- national Civil Aviation Organization and designated as Annexes to the Convention; they shall require that operators of aircraft of their registry, operators who have their principal place of business or permanent resi- dence in their territory, and the operators of airports in their territory, act in conformity with such aviation security provisions. In this paragraph the reference to aviation security standards includes any difference noti- fied by the Contracting Party concerned.
4. Each Contracting Party shall ensure that effective measures are taken within its territory to protect aircraft, to screen passengers and their carry-on items, and to carry out appropriate checks on crew, cargo (including hold baggage) and aircraft stores prior to and during board- ing or loading and that those measures are adjusted to meet the increase
in the threat. Each Contracting Party agrees that its designated airline(s) may be required to observe the aviation security provisions referred to in paragraph 3 required by the other Contracting Party for entrance into, departure from, or while within, the territory of that other Contracting Party. Each Contracting Party shall also act favorably upon any request from the other Contracting Party for reasonable special security meas- ures to meet a particular threat.
5. When an incident or threat of an incident of unlawful seizure of civil aircraft or other unlawful acts against the safety of such aircraft, their passengers and crew, airports or air navigation facilities occurs, the Contracting Parties shall assist each other by facilitating communica- tions and other appropriate measures intended to terminate as rapidly as possible commensurate with minimum risk to life such incident or threat.
6. When a Contracting Party has reasonable grounds to believe that the other Contracting Party has departed from the provisions of this Arti- cle, the first Contracting Party may request immediate consultations with the other Contracting Party. Such consultations shall take place within 30 (thirty) days of that request. These consultations shall be aimed to reach an agreement upon the measures suitable to eliminate the more immediate reasons of worry and to adopt in the framework of the ICAO security standards, the actions necessary to establish the appropriate con- ditions of security.
7. Each Contracting Party shall take such measures as it may find practicable, to ensure that an aircraft subject to an act of unlawful sei- zure or other acts of unlawful interference which has landed in its terri- tory is detained on the ground unless its departure is necessitated by the overriding duty to protect human life. Wherever practicable, such meas- ures shall be taken on the basis of mutual consultations.
Article 9
The Annex to the Agreement shall be replaced by the following Annex:
Annex Route Schedule
Section I
The route of the agreed services performed by the airline(s) desig- nated by the Government of the Socialist Republic of Vietnam shall be as follows in either or both directions:
Any point in Vietnam – any intermediate point – any point in the European part of the Netherlands – any beyond point.
Section II
The route of the agreed services performed by the airline(s) desig- nated by the Government of the Kingdom of the Netherlands shall be as follows in either or both directions:
Any point in the European part of the Netherlands – any intermediate point – any point in Vietnam – any beyond point.
Section III
1. Each designated airline may on any or all flights and at its option:
a) operate flights in either or both directions;
b) combine different flight numbers within one aircraft operation;
c) serve behind, intermediate, and beyond points and points in the ter- ritories of the Contracting Parties in any combination and in any order;
d) omit stops at any point or points;
e) transfer traffic from any of its aircraft to any of its other aircraft at any point;
f) serve points behind any point in its territory with or without change of aircraft or flight number and hold out and advertise such ser- vices to the public as through services;
g) make own stopovers at any points whether within or outside the territory of either Contracting Party; stopover rights shall not be avail- able between points in the territory of the either Contracting Party;
h) carry transit traffic through the other Contracting Party’s territory; and
i) combine traffic on the same aircraft regardless of where such traf- fic originates,
without directional or geographic limitation and without loss of any right to carry traffic otherwise permissible under this Agreement.
2. The right of the designated airline(s) of either Contracting Party to exercise fifth freedom traffic rights shall be discussed and agreed upon on a reciprocal basis by the aeronautical authorities of each Contracting Party. In the case of the Netherlands, the request for fifth freedom traffic rights shall be subject to national administrative laws; this means that the granting of fifth freedom traffic rights will take place after internal consultations. Such rights shall become available to the designated air- line(s) immediately upon agreement between the civil aviation auth- orities of both Contracting Parties.
Applicability
As regards the Kingdom of the Netherlands, this Protocol shall apply to the European part of the Netherlands only.
Article 11
Entry into force
This Protocol shall be provisionally applied from the date of its sig- nature and shall enter into force on the day on which the Parties have informed each other in writing, through diplomatic channels, that the formalities constitutionally required therefore in their respective coun- tries have been complied with.
IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Protocol.
DONE in duplicate at The Hague this 28th day of September 2011, in the English language.
For the Government of the Kingdom of the Netherlands,
X. XXXXX
For the Government of the Socialist Republic of Vietnam,
NGO THINH DUC
D. PARLEMENT
Zie Trb. 1994, 122.
Het Protocol van 28 september 2011 behoeft ingevolge artikel 91 van de Grondwet de goedkeuring van de Staten-Generaal, alvorens het Ko- ninkrijk aan het Protocol kan worden gebonden.
Zie rubriek G van Trb. 1993, 167.
Het Protocol van 28 september 2011 wordt ingevolge artikel 11 vanaf 28 september 2011 voorlopig toegepast.
Wat betreft het Koninkrijk der Nederlanden geldt de voorlopige toe- passing alleen voor Nederland (het Europese deel).
G. INWERKINGTREDING
Zie Trb. 1994, 122 en Trb. 2011, 132.
De bepalingen van het Protocol van 28 september 2011 zullen inge- volge artikel 11 in werking treden op de dag waarop de partijen elkaar schriftelijk langs diplomatieke weg ervan in kennis hebben gesteld dat aan de daarvoor grondwettelijk vereiste formaliteiten in hun onderschei- den landen is voldaan.
J. VERWIJZINGEN
Zie Trb. 1993, 167, Trb. 1994, 122 en Trb. 2011, 132.
In overeenstemming met artikel 19, tweede lid, van de Rijkswet goed- keuring en bekendmaking verdragen heeft de Minister van Buitenlandse Zaken bepaald dat het Protocol zal zijn bekendgemaakt in Nederland (het Europese deel) op de dag na de datum van uitgifte van dit Tractatenblad.
Uitgegeven de dertigste september 2011.
De Minister van Buitenlandse Zaken,
X. XXXXXXXXX
trb-2011-173 ISSN 0920 - 2218
’s-Gravenhage 2011