Legal Notice No. 2 of 1999

HAVING REGARD to be COMESA vision for a future in which it will have become a fully integrated international competitive regional economic community within which there is free factor mobility with high standards of living for its people.

RECALLING the aims and objectives of COMESA, as defined in the Treaty and its Protocols, is to facilitate the removal of structural and institutional weaknesses of member States so that they are able to attain collective and sustained development.

CONSIDERING that COMESA member States have agreed on the need to create and maintain a full free trade area guaranteeing the free movement of goods and services produced within COMESA and the removal of all tariff and non-tariff barriers.

RECOGNISING that the air transport industry plays a big role in the attainment of the COMESA Free Trade Area.

NOW THEREFORE,in conformity with the COMESA Treaty, the Council of Ministers hereby make the following Regulations:

In these Regulations:
Air carrier – means an air transport company with COMESA operating licence
Air operating certificate – meaning to be as provided in the International Civil Aviation Organisation (ICAO) definitions
Air service – means a flight or series of flights carrying passengers, cargo and or mail for remuneration and or hire
Air service licence – means licence to carry out air services
Cabotage – means the right to operating an air service between two points in the member State
Capacity – means the number of seats offered to the general public on a scheduled air service over a given period
COMESA Air Service licence – means an air services licence issued by a COMESA Regulatory Authority
Competent Authority – means the COMESA Air Transport Regulatory Board
Substantial ownership
and effective control – means to be controlled by COMESA States, a national of a COMESA States or a combination of COMESA States and/or their nationals through a simple majority share holding and through both the Board and executive management
Traffic right – means the right of a carrier to carry passengers, cargo and or mail on an air service between two COMESA airports

The Council of Ministers has adopted the following time-table for implementation of the liberalised air transport industry in COMESA:
(a) Phase I
Phase I: October 1999
(i) Introduction of free movement of intra-COMESA air cargo and non-scheduled passenger services;
(ii) Introduction of free movement of intra-COMESA scheduled passenger services with frequency limit of up to two daily frequencies between any city pairs. Beyond the two daily frequencies bilateral air services agreements will apply; and
(iii) Adoption of multiple designation and elimination of capacity restrictions.
(b) Phase II
Phase II: October 2000
Free movement of intra-COMESA air transport services.

1. Any air carrier will be eligible provided it is substantially owned and effectively controlled by a COMESA Member State or a combination of COMESA member states and or their nationals.
2. The air carrier must be eligible for designation in the State/States of incorporation.
3. The air carrier must demonstrate financial, managerial and technical ability to perform the services for which the application is being made.
4. Restrictions relating to multiple designation, fifth freedom traffic rights and Cabotage (in Phase II) will be abolished to stimulate the development of the COMESA air transport services for the benefit of the users.
5. In addition to (1), (2) and (3) above, the air carrier must have an air carrier license from the appropriate licensing authority of a COMESA State.

1. To ensure fruitful accomplishment of the objective of liberalising the air transport industry, it will be necessary to define and impose non-discriminatory requirements regarding aspects such as location and control of the air carrier applying for the license.
2. In order to protect the consumer and any other parties concerned, it is necessary that the air carrier demonstrate sufficient insurance in respect of liability risks.
3. To ensure dependable and adequate services, it will be necessary to ensure that the air carrier is at all times operating at sound economic and the required safety levels.
4. Air carriers will be permitted to use aircraft owned anywhere within the COMESA region. However, the licensing Member State shall remain responsible with respect to the technical fitness of the air carrier.
5. An air carrier may lease aircraft from outside the COMESA region in exceptional circumstances or provided that the aircraft will be registered in the COMESA region. However, article 83 bis of the Chicago convention should be taken into account.
6. In the event that an air carrier violates any of the common COMESA rules and regulations, the operating license will be rendered invalid. However, there shall be a review one-year after a new operating license has been granted and every three years thereafter.
7. If an air carrier ceases operations for six months or does not start the operations six months after being granted the license, the operating license shall be deemed to have expired unless it has a valid reason approved by appropriate authority.
8. An air carrier fulfilling all the COMESA rules and regulations shall be entitled to receive an operating license. However, in order to start operating, the air carrier shall apply for specific route rights from the appropriate National Civil Aviation Authority.
9. No air carrier established within the COMESA region shall be permitted to operate commercial services anywhere within COMESA without the COMESA license.

1. In Phase I, each COMESA Member States shall:
(a) introduce free movement of inter-COMESA air cargo and non-scheduled passenger services;
(b) introduce free movement of intra-COMESA scheduled passenger services with frequency limit of up to two daily frequencies between any city pairs. Beyond the two daily frequencies bilateral air services agreements will apply; and
(c) adopt multiple designation and elimination of capacity restrictions.
2. Fifth freedom traffic rights shall be granted to COMESA air carriers based on the following criteria:
(a) during Phase I, fifth freedom traffic rights shall be limited to 30% of the carrier’s capacity on routes where third and fourth freedom traffic rights services are provided;
(b) fifth freedom traffic rights shall be granted to carriers without any restrictions on routes where there are no third and fourth traffic freedom rights services ; and
(c) during phase II fifth freedom traffic rights shall be granted without restrictions.

COMESA will as a policy encourage intra-COMESA airline alliances and commercial arrangements. However, any such alliances or commercial arrangements that undermine the COMESA rules and regulations of competition will not be permitted.

There will be no restrictions on the type and capacity of the aircraft to be used by a COMESA air carrier except as may be dictated by airport operating limitations and air-worthiness requirements.

During Phase I of the liberalisation process of air transport, COMESA Member States will not be obliged to grant Cabotage traffic rights.

Intra-COMESA cross-border investment in air transport aspects such as, airports, maintenance facilities, air carriers, ground handling services, will be permitted without restrictions and investors will be accorded national treatment.

For the exploitation of the commercial potentials resulting from the liberalisation of the COMESA air transport industry, the eligible air carriers shall be those substantially owned and effectively controlled by the Governments of the COMESA Member States and or their nationals.

1. As the liberalisation process takes place there will be more need to enhance safety surveillance and assurance mechanism to ensure that aviation safety are not compromised as the airlines take advantage of the liberalised environment.
2. Pending adoption of the proposed common technical requirements and administrative procedures, Member States may continue to apply the relevant provisions of present national air safety and security regulations and the ICAO, Standards and Recommended Practices (SARPs) and Universal Safety Oversight Programmes.

COMESA will establish an Official Air Transport Journal (in the form of a Gazette) to be used for publishing and disseminating information on all issues of interest to the public.