30.4.2004 Official Journal of the European Union L 162/1 (Acts whose publication is obligatory) REGULATION (EC) No 868/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 April 2004 concerning protection against subsidisation and unfair pricing practices causing injury to Community air carriers in the supply of air services from countries not members of the European Community THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- PEAN UNION, Having regard to the Treaty establishing the European Com- munity, and in particular Article 80(2) thereof, Having regard to the proposal from the Commission ('), Having regard to the opinion of the European Economic and Social Committee (), Acting in accordance with the procedure laid down in Article 251 of the Treaty (), Whereas: (1)  The competitive position of Community air carriers when providing air services to, via or from the Com- munity could be adversely affected by unfair and discri- minatory practices of non-Community air carriers providing like air services. 20 Such unfair and discriminatory practices may result from subsidisation or other forms of aid granted by a government or regional body or other public organisa- tion of a country not being a member of the Community or from certain pricing practices by a non-Community air carrier which benefit from non-commercial advan- tages. (3) It is necessary to define the redressive measures to be taken against such unfair practices. (4)  Within the Community there are strict rules regarding the granting of State aid to air carriers, and for Com- munity air carriers not to be placed at a competitive disadvantage and suffer injury there is a need for an instrument to offer protection against non-Community air carriers who are subsidised or receive other benefits from governments. () O] C 151 E, 25.6.2002, p. 285. () O] C 61, 14.3.2003, p. 29. (}) Opinion of the European Parliament of 14 January 2003 (O] C 38 E, 12.2.2004, p. 75), Council Common Position of 18 December 2003 (O] C 66 E, 16.3.2004, p. 14). Position of the European Parliament of 11 March 2004 (not yet published in the Of?icial Journal) and Council Decision of 30 March 2004. () (10) This Regulation is not intended to replace air services agreements with third countries that can be used to deal effectively with practices covered by this Regulation; where a legal instrument exists at Member State level which would enable a satisfactory response to be made within a reasonable period of time, that instrument would take precedence over this Regulation for that period. The Community should be able to take action to redress such unfair practices resulting from subsidies granted by the government of a country which is not a member of the Community; the Community should also be able to address unfair pricing practices. It should be determined when a subsidy shall be deemed to exist and according to which principles it should be countervailable, in particular whether the subsidy has been targeted at certain enterprises or sectors or is contingent upon air service supply to third countries. In determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribu- tion by a government or regional body or other public organisation via a transfer of funds or that debts of any kind representing government revenue that are other- wise due are foregone or not collected, and that a benefit has thereby been conferred on the recipient enterprise. It should be determined when an unfair pricing practice shall be deemed to exist; an examination of the pricing practices of a third-country air carrier should be restricted to those limited number of cases where the air carrier is benefiting from a non-commercial advantage which cannot be clearly identified as a subsidy. It should be made clear that an unfair pricing practice can be deemed to exist only in cases where that practice is clearly distinguishable from normal competitive pricing practices; the Commission should develop a detailed methodology for determining the existence of unfair pricing practices.