View Treaty - E105536
Protocol Amending the Air Transport Agreement between Canada and the Swiss Confederation of 20 February 1975
E105536 – CTS 2021/8
THE GOVERNMENT OF CANADA AND THE SWISS FEDERAL COUNCIL (hereinafter referred to as the “Contracting Parties”)
BEARING IN MIND the Air Transport Agreement between Canada and the Swiss Confederation, done at Ottawa on 20 February 1975 (hereinafter referred to as “the Agreement”), as well as the Exchange of Notes constituting an Agreement to amend the Air Transport Agreement between Canada and the Swiss Confederation, done at Ottawa on 20 February 1975, done at Berne on 1 and 13 June 2005, which entered into force 17 May 2006;
DESIRING to further deepen their bilateral relationship relating to air services;
HAVE CONCLUDED the present Protocol as follows:
ARTICLE 1
The Agreement is amended by replacing Article I (Definitions) with the following:
“ARTICLE I
(Definitions)
For the purpose of this Agreement, unless otherwise stated:
(a) “Aeronautical authorities” means, in the case of Canada, the Minister of Transport and the Canadian Transportation Agency, and, in the case of Switzerland, the Federal Office of Civil Aviation, or, in both cases, any other authority or person empowered to perform the functions exercised by the said authorities;
(b) “Agreed services” means scheduled air services for the transport of passengers, cargo and mail on the specified routes herein, separately or in combination;
(c) “Agreement” means this Agreement and any Annex attached thereto and any amendments thereto;
(d) “Convention” means the Convention on International Civil Aviation, done at Chicago on 7 December 1944, and includes any annex adopted under Article 90 of that Convention and any amendment of the Convention or of the annexes under Articles 90 and 94 thereof so far as those annexes and amendments have been adopted by both Contracting Parties;
(e) “Designated airline” means an airline that has been designated and authorized in accordance with Article III of this Agreement;
(f) “Tariff” means a publication which includes all prices, conditions of carriage, classifications, rules, regulations, practices and services related thereto, for air transportation of passengers and their baggage and cargo but excluding remuneration and conditions for the carriage of mail;
(g) “Price” means any fare, rate or charge contained in tariffs (including other benefits provided in association with air transportation) for the carriage of passengers (including their baggage) and/or cargo (excluding mail) and the conditions directly governing the availability or applicability of such fare, rate or charge;
(h) “General terms and conditions of carriage” means those terms and conditions (such as extra baggage charges, denied boarding policies, accessibility policies) contained in tariffs that are broadly applicable to the agreed services and not directly related to any price;
(i) “Territory”, “Air Service”, “International Air Service”, “Airline” and “Stop for non-traffic purposes” have the meanings respectively assigned to them in Articles 2 and 96 of the Convention.”
ARTICLE 2
The Agreement is further amended by replacing Paragraph 5 of Article III (Designation and Operating Authorization) with the following:
“ARTICLE III
(Designation and Operating Authorization)
5. Having received the operating authorization provided for under paragraph 2 of the present Article, the designated airline may begin at any time to operate the agreed services, partly or in whole, provided that prices and general terms and conditions of carriage, established in accordance with the provisions of Article XI of the present Agreement are in force with respect to such services.”
ARTICLE 3
The Agreement is further amended by replacing Article XI (Tariffs) with the following:
“ARTICLE XI
(Tariffs)
1. The Contracting Parties shall permit the prices and general terms and conditions of carriage referred to in this Article to be developed by the designated airlines individually or, at the option of the airlines, through coordination with each other or with other airlines. The basis for the establishment of prices for transportation on the agreed services is commercial considerations in the market place. A designated airline shall be responsible only to its own aeronautical authorities for the justification of its prices.
2. The Contracting Parties shall not require prices for transportation on the agreed services to be filed. A Contracting Party may require designated airlines of the other Contracting Party to provide, upon request, immediate access to information on prices to its aeronautical authorities in a manner and format acceptable to them.
3. The Contracting Parties shall permit (tacitly or explicitly) prices for the agreed services to come into and remain in effect unless the aeronautical authorities of both Contracting Parties are dissatisfied. Except as provided for in Paragraph 5 of this Article, a Contracting Party shall not take action to prevent the inauguration or continuation of a price proposed to be charged or charged by an airline of either Contracting Party for transportation on the agreed services. The primary objectives of any intervention by the aeronautical authorities shall be:
(a) prevention of unreasonably discriminatory prices or practices;
(b) protection of consumers from prices that are unreasonably high or restrictive because of the abuse of a dominant position;
(c) protection of airlines from prices to the extent that they are artificially low because of direct or indirect governmental subsidy or support; and
(d) protection of airlines from prices that are artificially low, where evidence exists as to an intent of eliminating competition.
4. In the event that the aeronautical authorities of one Contracting Party are dissatisfied with a price, they shall so notify the aeronautical authorities of the other Contracting Party and the airline concerned. The aeronautical authorities receiving the notice of dissatisfaction shall acknowledge the notice, including an indication of their agreement or disagreement with it, within ten (10) working days of receipt of the notice. The aeronautical authorities of both Contracting Parties shall cooperate in securing information necessary for the consideration of a price on which a notice of dissatisfaction has been given. If the aeronautical authorities of the other Contracting Party have indicated their agreement with the notice of dissatisfaction, aeronautical authorities of both Contracting Parties shall take immediate action to ensure that the price is withdrawn and no longer charged.
5. The aeronautical authorities of either Contracting Party may request technical discussions on prices at any time. Unless otherwise agreed between aeronautical authorities, such discussions on prices shall take place no later than ten (10) working days following the receipt of a request.
6. The general terms and conditions of carriage shall be subject to each Contracting Party’s national laws and regulations. Either Contracting Party may require notification to or filing with its aeronautical authorities of any such terms and conditions. If one Contracting Party takes action to disapprove any such term or condition of a designated airline, it shall inform the other Contracting Party promptly.
7. The Contracting Parties may require that the designated airlines shall make full information on prices and the general terms and conditions of carriage available to the general public.”
ARTICLE 4
The Agreement is further amended by replacing Article XIII (Taxation) with the following:
“ARTICLE XIII
(Taxation)
1. Profits or income from the operation of aircraft in international traffic derived by an airline of a Contracting Party, including participation in inter‑airline commercial agreements or joint business ventures, shall be exempt from any tax on profits or income imposed by the Government of the other Contracting Party.
2. Capital and assets of an airline of a Contracting Party pertaining to the operation of aircraft in international traffic shall be exempt from any tax on capital and assets imposed by the Government of the other Contracting Party.
3. Gains from the alienation of aircraft operated in international traffic and movable property pertaining to the operation of such aircraft derived by an airline of a Contracting Party shall be exempt from any tax on gains imposed by the other Contracting Party.
4. For the purposes of this Article:
(a) the term “profits or income” includes gross receipts and revenues derived directly from the operation of aircraft in international traffic, including:
i) the charter or rental of aircraft;
ii) the sale of air transportation, either for the airline itself or for any other airline; and
iii) interest on sums generated directly from the operation of aircraft in international traffic provided that the interest is incidental to the operation;
(b) the term “international traffic” means the transportation of persons and/or cargo, including mail, except where such transportation is principally between points in the territory of a Contracting Party; and
(c) the term “airline of a Contracting Party” means, in the case of Canada, an airline resident in Canada for purposes of income taxation and, in the case of Switzerland, an airline resident in Switzerland for purposes of income taxation.
5. This Article shall not have effect when an agreement for the avoidance of double taxation with respect to taxes on income is in effect between the two Contracting Parties.”
ARTICLE 5
The Agreement is further amended by replacing Annex I with the following:
“ANNEX I
ROUTE SCHEDULE
The Contracting Parties agree that the designated airlines of each Contracting Party may operate the routes set out in the applicable sections of this Annex, in accordance with the notes specified.
SECTION I
Airlines designated by the Contracting Parties may operate scheduled passenger-combination air services and/or scheduled all-cargo air services in either or both directions between points on the following routes and in accordance with the following:
a) Canada
| Points Behind Canada | Points in Canada | Intermediate Points | Points in Switzerland | Points Beyond |
|---|---|---|---|---|
| Any point or points | Any point or points | Any point or points | Any point or points | Any point or points |
1. Traffic may be picked up at Points in Canada and set down at Points in Switzerland and vice versa. Traffic may be picked up at Points Behind Canada, at Intermediate Points, and at Points Beyond and set down at Points in Switzerland and vice versa. Each designated airline may, on any or all flights and at its option: i) serve Points in Switzerland separately or in combination, ii) omit any points on the route, provided that all services serve at least one of the Points in Canada, without directional or geographic limitation.
2, Transit and own stopover rights shall be available at Points in Canada, at Intermediate Points, and at Points in Switzerland.
b) Switzerland
| Points Behind Switzerland | Points in Switzerland | Intermediate Points | Points in Canada | Points Beyond |
|---|---|---|---|---|
| Any point or points | Any point or points | Any point or points | Any point or points | Any point or points |
1. Traffic may be picked up at Points in Switzerland and set down at Points in Canada and vice versa. Traffic may be picked up at Points Behind Switzerland, at Intermediate Points, and at Points Beyond and set down at Points in Canada and vice versa. Each designated airline may, on any or all flights and at its option: i) serve Points in Canada separately or in combination, ii) omit any points on the route, provided that all services serve at least one of the Points in Switzerland, without directional or geographic limitation.
2. Transit and own stopover rights shall be available at Points in Switzerland, at Intermediate Points, and at Points in Canada.
SECTION II
Operational Flexibilities
1. Different flight numbers may be combined within one aircraft operation. Points Behind the territory of each Contracting Party may be served with or without change of aircraft or flight number and the designated airlines of each Contracting Party may hold out and advertise such services to the public as through services.
2. Each Contracting Party shall permit the designated airlines of the other Contracting Party, at any points on the specified route and at its option, to transfer traffic between its own aircraft without any limitation as to type, size or number of aircraft, provided that, in the outbound direction, the transportation beyond such points is a continuation of the transportation from its home country and, in the inbound direction, the transportation to its home country is a continuation of the transportation from beyond such points and provided that all passenger and combination flights involved in the transfer originate or terminate in its home country. For the purpose of code-sharing services, airlines shall be permitted to transfer traffic between aircraft without limitation.
SECTION III
Code-Sharing
a) Canada
1. Subject to the regulatory requirements normally applied to such operations by the aeronautical authorities of Switzerland, each designated airline of Canada may, at its discretion, enter into cooperative arrangements for the purposes of:
(a) holding-out the agreed services on the specified routes by code-sharing (i.e. selling transportation under its own code) on flights operated by any airline or airlines of Canada, of Switzerland, and/or of any third country or third countries; and/or on any surface transportation providers, and/or
(b) carrying traffic under the code of any other airlines that have been authorized by the aeronautical authorities of Switzerland to sell transportation under their own codes on flights operated by the designated airline of Canada.
2. All airlines involved in code‑sharing arrangements shall hold the appropriate underlying route authority.
3. Code-sharing services by each designated airline of Canada involving transportation between the Points in Switzerland shall be restricted to flights operated by airlines authorized by the aeronautical authorities of Switzerland to provide services between the Points in Switzerland. All transportation between the Points in Switzerland under the code of each designated airline of Canada shall only be available as part of an international journey.
4. The aeronautical authorities of Switzerland shall not withhold permission for code-sharing services identified in paragraph 1(a) by the designated airlines of Canada on the basis that the airlines operating the aircraft do not have the right from Switzerland to carry traffic under the codes of the airlines designated by Canada.
5. All participants in such code-sharing arrangements shall ensure that passengers are fully informed of the identity of the operator and the mode of transportation for each segment of the journey.
b) Switzerland
1. Subject to the regulatory requirements normally applied to such operations by the aeronautical authorities of Canada, each designated airline of Switzerland may, at its discretion, enter into cooperative arrangements for the purposes of:
(a) holding-out the agreed services on the specified routes by code-sharing (i.e. selling transportation under its own code) on flights operated by any airline or airlines of Switzerland, of Canada, and/or of any third country or third countries; and/or on any surface transportation providers, and/or
(b) carrying traffic under the code of any other airlines that have been authorized by the aeronautical authorities of Canada to sell transportation under their own codes on flights operated by the designated airline of Switzerland.
2. All airlines involved in code-sharing arrangements shall hold the appropriate underlying route authority.
3. Code-sharing services by each designated airline of Switzerland involving transportation between the Points in Canada shall be restricted to flights operated by airlines authorized by the aeronautical authorities of Canada to provide services between the Points in Canada. All transportation between the Points in Canada under the code of each designated airline of Switzerland shall only be available as part of an international journey.
4. The aeronautical authorities of Canada shall not withhold permission for code-sharing services identified in paragraph 1(a) by the designated airlines of Switzerland on the basis that the airlines operating the aircraft do not have the right from Canada to carry traffic under the codes of the airlines designated by Switzerland.
5. All participants in such code-sharing arrangements shall ensure that passengers are fully informed of the identity of the operator and the mode of transportation for each segment of the journey.
SECTION IV
Intermodal Services
Each Contracting Party permits the designated airlines of the other Contracting Party, when operating in its territory:
(a) without restriction, to employ in connection with the agreed services 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 customs facilities, and including, where applicable, the right to transport cargo in bond under applicable laws and regulations;
(b) to have access to airport customs processing and facilities for cargo moving by surface or by air; and
(c) to elect to perform their own surface transportation or to provide it through arrangements with surface carriers, subject to regulatory requirements, including surface transportation operated by other airlines.
These intermodal cargo services may be offered at a single, through price for the air and surface transportation combined, provided that shippers are fully informed of the identity of the operator and the mode of transportation for each segment of the transportation.
SECTION V
Notwithstanding Article IX (Time-table Submissions) of this Agreement, for security reasons, a Contracting Party shall require that the designated airlines of the other Contracting Party notify its aeronautical authorities of air services to be operated between third countries and its territory ninety (90) days in advance or such lesser period as may be authorized by its aeronautical authorities, and each of the points may be changed on ninety (90) days’ notice to its aeronautical authorities or such lesser period as may be authorized.”
ARTICLE 6
The Agreement is further amended by adding Annex II as follows:
“ANNEX II
AUTHORISATION OF DESIGNATED AIRLINES
OF SWITZERLAND
Paragraph 1c) of Article IV (Revocation of operating authorization) of the Air Transport Agreement between Canada and the Swiss Confederation provides that each Contracting Party has the discretion to take action with respect to authorizations issued to the designated airlines of the other Contracting Party on the basis that substantial ownership and effective control of those airlines may not be vested in the nationals of the other Contracting Party. The Government of Canada undertakes that it will not take action with respect to authorizations issued by Canadian aeronautical authorities to airlines designated by Switzerland as of September 24, 2010, based on their ownership and control structure on that date provided that:
1. The aeronautical authorities of Switzerland exercise the necessary oversight to ensure compliance by its designated airlines with the provisions of the Agreement;
2. The designated airlines maintain their principal place of business in Switzerland;
3. Operational control of the aircraft remain with the designated airlines while they operate the agreed services, unless otherwise authorized by the aeronautical authorities of Canada, and those operations are conducted in accordance with the provisions of the operating certificate of the designated airlines issued by the aeronautical authorities of Canada.
4. In the event the foreign ownership and control structure, or name and brand of any of the designated airlines changes, the aeronautical authorities of Switzerland shall notify the aeronautical authorities of Canada for their review as to the continued acceptability of such change in the context of Article IV.”
ARTICLE 7
This Protocol shall enter into force on the date of the last diplomatic note by which the Contracting Parties have notified each other that all necessary internal procedures for its entry into force have been completed.
This Protocol shall remain in force for the same period of time and under the same modalities as the Agreement itself.
IN WITNESS WHEREOF, the undersigned, duly authorized by their respective Governments, have signed this Protocol.
DONE in duplicate at Ottawa, on this 29th day of January 2019, in the English and French languages, each version being equally authentic.
Marc Garneau
FOR THE GOVERNMENT
OF CANADA
Beat Nobs
FOR THE SWISS
FEDERAL COUNCIL