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BỘ NGOẠI
GIAO
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CỘNG HÒA XÃ
HỘI CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số:
42/2012/TB-LPQT
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Hà Nội, ngày
22 tháng 8 năm 2012
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THÔNG BÁO
VỀ ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định của Luật Ký kết, gia nhập và
thực hiện điều ước quốc tế năm 2005, Bộ Ngoại giao trân trọng thông báo:
Nghị định thư sửa đổi Hiệp định giữa nước Cộng
hòa xã hội chủ nghĩa Việt Nam và Vương quốc Hà Lan về vận chuyển hàng không giữa
và qua lãnh thổ hai nước, ký tại La Hay ngày 28 tháng 9 năm 2011, có hiệu lực
kể từ ngày 08 tháng 8 năm 2012.
Bộ Ngoại giao trân trọng gửi Bản sao Biên bản kỳ
họp theo quy định tại Điều 68 của Luật nêu trên./.
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TL. BỘ TRƯỞNG
KT. VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
PHÓ VỤ TRƯỞNG
Lê Thị Tuyết Mai
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PROTOCOL
AMENDING THE AGREEMENT – BETWEEN THE SOCIALIST REPUBLIC OF
VIET NAM AND THE KINGDOM OF THE NETHERLANDS FOR AIR SERVICES BETWEEN AND BEYOND
THEIR RESPECTIVE TERRITORIES
The Government of the Socialist Republic of Viet
Nam and the Government of the Kingdom of the Netherlands (hereinafter "the
Parties )
Referring to the Agreement between the Socialist
Republic of Viet Nam and the Kingdom of the Netherlands 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 Socialist Republic of
Viet Nam and 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 Authority 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 designated.
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 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 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 prevent 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 reasons 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 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 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.
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 air line (s) of each
Contracting Party shall have the right to establish offices in the territory of
the other Contracting Party for promotion -land sale of air services and other
ancillary or supplemental 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 currencies to the degree permitted by national laws and
regulations, provided that they are applied on a non-discriminatory basis.
The designated airline(s) of each Contracting
Party shall be entitled, in accordance with the laws and regulations of the
other Contracting 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 Contracting
Party and authorized to perform such services in the territory of such other
Contracting Party.
Article 6
A new Article 10 bis shall
be added to the Agreement:
ARTICLE 10 bis. USER CHARGES
2. User charges that may be imposed by the competent
charging authorities 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 airline(s) using the services and facilities. Each Contracting
Party shall encourage the competent charging authorities and the airlines to
exchange 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 procedures 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 subject of complaint by the other Contracting Party within
a reasonable 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 14 bis. 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 consultations shall take place within 30 (thirty) days of that request.
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 Chicago Convention, the first Contracting Party shall notify the other
Contracting 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 Contracting 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 Agreement.
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 pursuant 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 purposes 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 operated, are not equal to or above the minimum standards
established pursuant 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 Contracting 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 paragraph 4 above arise and draw the conclusions referred to in
that paragraph,
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 paragraphs 2 or 6 above shall be discontinued once the basis
for the taking of that action ceases to exist.
Article 8
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 interference forms an integral part of this Agreement. Without
limiting the generality of their rights and obligations under international
law, the Contracting 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 Suppression 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 International 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 aircraft and other unlawful acts against the safety of such
aircraft, their passengers 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 conformity with the aviation security standards and,
so far as they are applied by them, the Recommended Practices established by
the International 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 residence 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 notified 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
boarding 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 measures 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
communications 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 Article, 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 worn' and to adopt in the framework of the ICAO security
standards, the actions necessary to establish the appropriate conditions 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 seizure or other acts of unlawful interference which has landed
in its territory is detained on the ground unless its departure is necessitated
by the overriding duty to protect human life. Wherever practicable, such
measures 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) designated by the Government of the Socialist Republic of Viet
Nam shall be as follows in either or both directions:
Any point in Viet Nam - 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) designated 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 Viet Nam — any beyond
point.
Section III
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 territories 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 services 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 available 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 traffic 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 airline(s) immediately upon agreement between the civil aviation
authorities of both Contracting Parties.
Article 10.
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 signature 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
countries 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 28 day of
September 2011, in the English language.
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FOR THE GOVERNMENT OF THE
SOCIALIST REPUBLIC OF VIET NAM
DEPUTY MINISTER OF TRANSPORT
Ngo Thinh Duc
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FOR THE
GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS
STATE SECRETARY FOR INFRASTRUCTURE AND THE ENVIRONMENT
Joop Atsma
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