Regulation (EC) No 80/2009 of the European Parliament and of the CouncilShow full title

SECTION 1 INTRODUCTORY PROVISIONS

Article 1 Subject matter and scope

This Regulation shall apply to any computerised reservation system (CRS), in so far as it contains air-transport products, when offered for use or used in the Community.

This Regulation shall also apply to rail-transport products, which are incorporated alongside air-transport products into the principal display of a CRS when offered for use or used in the Community.

Article 2 Definitions

For the purposes of this Regulation, the following definitions shall apply:

1.

‘transport product’ means the carriage of a passenger between two airports or rail stations;

2.

‘scheduled air service’ means a series of flights possessing all the following characteristics:

(a)

on each flight seats and/or capacity to transport cargo and/or mail are available for individual purchase by the public (either directly from the air carrier or from its authorised agents);

(b)

it is operated so as to serve traffic between the same two or more airports, either:

• according to a published timetable, or,

• with flights so regular or frequent that they constitute a recognisably systematic series;

3.

‘fares’ means the prices to be paid by passengers to air carriers, rail-transport operators, their agents or other ticket sellers for the carriage of those passengers on transport services and any conditions under which those prices apply, including remuneration and conditions offered to agency and other auxiliary services;

4.

‘computerised reservation system’ or ‘CRS’ means a computerised system containing information about, inter alia, schedules, availability and fares, of more than one air carrier, with or without facilities to make reservations or issue tickets, to the extent that some or all of these services are made available to subscribers;

5.

‘system vendor’ means any entity and its affiliates which is or are responsible for the operation or marketing of a CRS;

6.

‘distribution facilities’ means facilities provided by a system vendor for the provision of information about air carriers’ and rail-transport operators’ schedules, availability, fares and related services and for making reservations and/or issuing tickets, and for any other related services;

7.

‘parent carrier’ means any air carrier or rail-transport operator which directly or indirectly, alone or jointly with others, controls, or participates in the capital with rights or representation on the board of directors, supervisory board or any other governing body of, a system vendor, as well as any air carrier or rail-transport operator which it controls;

8.

‘participation in the capital with rights or representation on the board of directors, supervisory board or any other governing body of a system vendor’ means an investment to which are attached rights or representation on the board of directors, supervisory board or any other governing body of a system vendor, and conferring the possibility of exercising, alone or jointly with others, decisive influence on the running of the business of the system vendor;

9.

‘control’ means a relationship constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:

(a)

ownership or the right to use all or part of the assets of an undertaking;

(b)

rights or contracts which confer a decisive influence on the composition, voting or decisions of the organs of an undertaking;

10.

‘participating carrier’ means an air carrier or rail-transport operator which has an agreement with a system vendor for the distribution of transport products through a CRS;

11.

‘subscriber’ means a person or an undertaking, other than a participating carrier, using a CRS under contract with a system vendor with the purpose of making reservations of air-transport and related products on behalf of a client;

12.

‘principal display’ means a comprehensive neutral display of data concerning transport services between city-pairs, within a specified time period;

13.

‘ticket’ means a valid document giving entitlement to transport, or an equivalent in paperless form, issued or authorised by the air carrier, rail-transport operator or an authorised agent;

14.

‘bundled product’ means a prearranged combination of transport with other services not ancillary to transport and offered at an inclusive price;

15.

‘booking fee’ means the price to be paid by air carriers to system vendors for the services provided by the CRS.

SECTION 2 RULES OF CONDUCT FOR SYSTEM VENDORS

Article 3 Relationship with transport providers

1. A system vendor shall not:

(a) attach unfair and/or unjustified conditions to any contract with a participating carrier or require the acceptance of supplementary conditions which, by their nature or according to commercial usage, have no connection with participation in its CRS;

(b) make it a condition of participation in its CRS that a participating carrier may not at the same time be a participant in another system or that a participating carrier may not freely use alternative reservation systems such as its own Internet booking system and call centres.

2. A system vendor shall load and process data provided by participating carriers with equal care and timeliness, subject only to the constraints of the loading method selected by individual participating carriers.

3. A system vendor shall publicly disclose, unless this is otherwise made public, the existence and extent of a direct or indirect capital holding of an air carrier or rail-transport operator in a system vendor, or of a system vendor in an air carrier or rail-transport operator.

Article 4 Distribution facilities

1. A system vendor shall not reserve any specific loading and/or processing procedure, any other distribution facility, or any changes to these, for one or more participating carriers, including its parent carrier(s). The system vendor shall provide information about changes to its distribution facilities and loading/processing procedures to all participating carriers.

2. A system vendor shall ensure that its distribution facilities are separated, at least by means of software and in a clear and verifiable manner, from any carrier’s private inventory and management and marketing facilities.

Article 5 Displays

1. A system vendor shall provide a principal display or displays for each individual transaction through its CRS and shall include therein the data provided by participating carriers in a neutral and comprehensive manner and without discrimination or bias. Criteria to be used for ranking shall not be based on any factor directly or indirectly relating to carrier identity and shall be applied on a non-discriminatory basis to all participating carriers. The principal display(s) shall not mislead the user, shall be easily accessible and shall respect the rules set out in Annex I.

2. In the case of information provided by a CRS to the consumer, a subscriber shall use a neutral display in accordance with paragraph 1 unless another display is required to meet a preference indicated by a consumer.

3. Flights operated by air carriers subject to an operating ban pursuant to Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier(1) must be clearly and specifically identified in the display.

4. The system vendor shall introduce a specific symbol in the CRS display which shall be identifiable by the users for the purposes of the information on the identity of the operating air carrier provided for under Article 11 of Regulation (EC) No 2111/2005.

5. This Article shall not apply to a CRS used by an air carrier, or rail-transport operator, or a group of air carriers, or of rail-transport operators, in its or their own office or offices and sales counters or on their own websites clearly identified as such.

Article 6 Relationship with subscribers

1. A system vendor shall not attach unfair and/or unjustified conditions to a contract with a subscriber, such as preventing a subscriber from subscribing to or using any other system or systems, requiring the acceptance of supplementary conditions which have no connection with subscription in its CRS, or imposing an obligation to accept an offer of technical equipment or software.

2. Where a subscriber is an autonomous enterprise that employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million, it may terminate its contract with a system vendor by giving notice, which need not exceed three months, to expire not before the end of the first year of that contract. In such a case, a system vendor shall not be entitled to recover more than the costs directly related to the termination of the contract.

Article 7 Marketing Information Data Tapes (’MIDT’)

1. Any marketing, booking and sales data may be made available by system vendors provided that such data are offered with equal timeliness and on a non-discriminatory basis to all participating carriers, including parent carriers. Data may and, on request, shall cover all participating carriers and/or subscribers.

2. Participating carriers shall not use such data in order to influence the choice of the subscriber.

3. Where such data result from the use of the distribution facilities of a CRS by a subscriber established in the Community, they shall include no identification either directly or indirectly of that subscriber unless the subscriber and the system vendor agree on the conditions for the appropriate use of such data. This applies equally to the supply of such data by the system vendors to any other party for use by this party other than for billing settlement.

4. Agreements between subscriber(s) and system vendor(s) on the MIDT shall be made available to the public.

Article 8 Equivalent treatment in third countries

1. Without prejudice to international agreements to which the Community or the Member States are parties, where the treatment of Community air carriers by a system vendor operating in a third country is not equivalent to the treatment of the third country participating carriers with regard to any matter contained in this Regulation, the Commission may require all system vendors operating in the Community to treat air carriers of that third country in a manner that is equivalent to the treatment of Community air carriers in that third country.

2. The Commission shall monitor the application of the discriminatory or non-equivalent treatment of Community air carriers by system vendors in third countries. At the request of a Member State or on its own initiative, the Commission shall investigate potential cases of discrimination against Community air carriers in CRSs of third countries. Where such discrimination is found, before taking a decision, the Commission shall inform the Member States and interested parties and seek their comments, including by holding a meeting of relevant experts from the Member States.

SECTION 3 RULES OF CONDUCT FOR TRANSPORT PROVIDERS

Article 9 Data provided by participating carriers

Participating carriers, and intermediaries handling the data, shall ensure that the data which they submit to a CRS are accurate and that the data allow the system vendor to respect the rules set out in Annex I.

Article 10 Specific rules for parent carriers

1. A parent carrier shall not, subject to reciprocity as referred to in paragraph 2, discriminate against a competing CRS by refusing to provide the latter, on request and with equal timeliness, with the same data on schedules, fares and availability relating to its own transport products as those which it provides to its own CRS or to distribute its transport products through another CRS, or by refusing to accept or to confirm with equal timeliness a reservation made through a competing CRS for any of its transport products which are distributed through its own CRS. The parent carrier shall be obliged to accept and to confirm only those bookings which are in conformity with its fares and conditions.

2. A competing CRS shall not refuse to store data concerning timetables, fares and available seats in respect of transport services offered by a parent carrier and shall load and process data with equal care and timeliness as that accorded to its other customers and subscribers on any of the markets, subject only to the constraints of the loading method selected by individual carriers.

3. The parent carrier shall not be obliged to accept any costs in this connection except for reproduction of the data to be provided and for accepted bookings. The booking fee payable to a CRS for an accepted booking made in accordance with paragraph 1 shall be in line with the fee charged by the same CRS to other participating carriers for equivalent transactions.

4. A parent carrier shall neither directly nor indirectly discriminate in favour of its own CRS by linking the use of any specific CRS by a subscriber with the receipt of any commission or other incentive or disincentive for the sale of its transport products.

5. A parent carrier shall neither directly nor indirectly discriminate in favour of its own CRS by requiring the use of any specific CRS by a subscriber for sale or issue of tickets for any transport products provided either directly or indirectly by itself.

SECTION 4 PROTECTION OF PERSONAL DATA

Article 11 Processing, access and storage of personal data

1. Personal data collected in the course of the activities of a CRS for the purpose of making reservations or issuing tickets for transport products shall only be processed in a way compatible with these purposes. With regard to the processing of such data, a system vendor shall be considered as a data controller in accordance with Article 2(d) of Directive 95/46/EC.

2. Personal data shall only be processed in so far as processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.

3. Where special categories of data referred to under Article 8 of Directive 95/46/EC are involved, such data shall only be processed where the data subject has given his or her explicit consent to the processing of those data on an informed basis.

4. Information under the control of the system vendor concerning identifiable individual bookings shall be stored offline within seventy-two hours of the completion of the last element in the individual booking and destroyed within three years. Access to such data shall be allowed only for billing-dispute reasons.

5. Marketing, booking and sales data made available by a system vendor shall include no identification, either directly or indirectly, of natural persons or, where applicable, of the organisations or companies on whose behalf they are acting.

6. Upon request, a subscriber shall inform the consumer of the name and address of the system vendor, the purposes of the processing, the duration of the retention of personal data and the means available to the data subject of exercising his or her access rights.

7. A data subject shall be entitled to have access free of charge to data relating to him or her regardless of whether the data are stored by the system vendor or by the subscriber.

8. The rights recognised in this Article are complementary to and shall exist in addition to the data subject rights laid down by Directive 95/46/EC, by the national provisions adopted pursuant thereto and by the provisions of international agreements to which the Community is party.

9. The provisions of this Regulation particularise and complement Directive 95/46/EC for the purposes mentioned in Article 1. Save as otherwise provided, the definitions in that Directive shall apply. Where the specific provisions with regard to the processing of personal data in the context of the activities of a CRS laid down in this Article do not apply, this Regulation shall be without prejudice to the provisions of that Directive, the national provisions adopted pursuant thereto and the provisions of international agreements to which the Community is party.

10. Where a system vendor operates databases in different capacities such as, as a CRS, or as a host for airlines, technical and organisational measures shall be taken to prevent the circumvention of data protection rules through the interconnection between the databases, and to ensure that personal data are only accessible for the specific purpose for which they were collected.

SECTION 5 AUDIT

Article 12 Auditor and audited report

1. Every system vendor shall, every four years and, in addition, upon request from the Commission, submit an independently audited report detailing the ownership structure and governance model. Costs related to the audited report shall be borne by the system vendor.

2. The system vendor shall inform the Commission of the identity of the auditor before confirmation of the appointment. The Commission may object and, within two months and after consultation with the auditor, the system vendor and any other party claiming a legitimate interest, shall decide whether or not the auditor is to be replaced.

SECTION 6 INFRINGEMENTS AND PENALTIES

Article 13 Infringements

Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of this Regulation, it may by decision require the undertakings or associations of undertakings concerned to bring such an infringement to an end. Investigations regarding possible infringements of this Regulation shall fully take into account the results of any inquiry under Articles 81 and 82 of the Treaty.

Article 14 Powers of investigation

In order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or decision, require undertakings or associations of undertakings to provide all necessary information, including the provision of specific audits notably on issues covered by Articles 4, 7, 10 and 11.

Article 15 Fines

1. The Commission may, by decision, impose on undertakings and associations of undertakings fines not exceeding 10 % of the total turnover in the preceding business year where, intentionally or negligently, they infringe this Regulation.

2. The Commission may, by decision, impose on undertakings and associations of undertakings fines not exceeding 1 % of the total turnover in the preceding business year where, intentionally or negligently, they supply incorrect or incomplete information or do not supply information within the required time limit in response to a request made by a decision adopted pursuant to Article 14.

3. In fixing the amount of the fines, regard shall be had both to the gravity and to the duration of the infringement.

4. Fines shall not be of a criminal nature.

5. The Court of Justice of the European Communities shall have unlimited jurisdiction to review decisions whereby the Commission has imposed a fine. It may cancel, reduce or increase the fine.

Article 16 Procedures

1. Before taking decisions pursuant to Articles 13 and 15, the Commission shall issue to the undertakings or associations of undertakings concerned a statement of objections and give them an opportunity to submit their views in writing and, if they so request, at an oral hearing.

2. The Commission shall not disclose information of the kind covered by the obligation of professional secrecy which it has obtained pursuant to this Regulation.

Any person who submits information to the Commission under this Regulation shall clearly identify any material which it considers to be confidential, giving reasons, and provide a separate non-confidential version by the date set by the Commission.

3. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for acting on a complaint, it shall inform the complainant of its reasons and set a time limit within which the complainant may make known its views in writing.

If the complainant makes known its views within the time limit set by the Commission and the written submissions made by the complainant do not lead to a different assessment of the complaint, the Commission shall reject the complaint by decision. If the complainant fails to make known its views within the time limit set by the Commission, the complaint shall be deemed to have been withdrawn.

Where the Commission issues a statement of objections, it shall provide the complainant with a copy of the non-confidential version and set a time limit within which the complainant may make known its views in writing.

4. If so requested, the Commission shall grant access to the file to the parties to whom it has addressed a statement of objections and to the complainant. Access shall be granted after the notification of the statement of objections. The right of access to the file shall not extend to business secrets, other confidential information and internal documents of the Commission.

5. If the Commission considers it necessary, it may hear other natural or legal persons.

SECTION 7 FINAL PROVISIONS

Article 17 Repeal

1. Regulation (EEC) No 2299/89 shall be repealed.

2. References to the repealed Regulation shall be construed as references to this Regulation and be read in accordance with the correlation table set out in Annex II.

Article 18 Review

1. The Commission shall, on a regular basis, monitor the application of this Regulation, if necessary with the assistance of specific audits as provided for in Article 14. It shall, in particular, examine the effectiveness of this Regulation in ensuring non-discrimination and fair competition in the market for CRS services.

2. The Commission shall, when appropriate, report to the European Parliament and to the Council on the application of Article 8 with regards to equivalent treatment in third countries and shall propose any appropriate measure in order to alleviate discriminatory conditions, including the conclusion or modification of bilateral air transport agreements between the Community and third countries.

3. By 29 March 2013, the Commission shall draw up a report on the application of this Regulation which shall assess the need to maintain, amend or repeal this Regulation.

Article 19 Entry into force

This Regulation shall enter into force on 29 March 2009.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 14 January 2009.

For the European Parliament

The President

H.-G. Pöttering

For the Council

The President

A. Vondra