Legal provisions of COM(2022)334 - Amendment of Council Regulation (EEC) No 95/93 as regards temporary relief from the slot utilisation rules at Community airports due to the COVID-19 pandemic

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2022)334 - Amendment of Council Regulation (EEC) No 95/93 as regards temporary relief from the slot utilisation rules at Community ...
document COM(2022)334 EN
date October 19, 2022


Article 1

Regulation (EEC) No 95/93 is amended as follows:

(1)Article 2 is amended as follows:

(a)in point (ba), the introductory wording is replaced by the following:

‘during the period from 30 October 2022 to 28 October 2023, “new entrant” shall mean:’;

(b)in point (f), point (i) is replaced by the following:

‘“air carrier” shall mean an air transport undertaking holding a valid operating licence or equivalent at the latest on 31 January for the following summer scheduling period or on 31 August for the following winter scheduling period; for the purpose of Articles 4, 8, 8a, 10 and 10a, the definition of air carrier shall also include business aviation operators, when they operate according to a schedule; for the purposes of Articles 7 and 14, the definition of air carrier shall also include all civil aircraft operators;’;

(2)Article 8 is amended as follows:

(a)in paragraph 2, first subparagraph, the introductory wording is replaced by the following:

‘2.   Without prejudice to Articles 7, 8a and 9, Article 10(1) and Article 14, paragraph 1 of this Article shall not apply when the following conditions are satisfied:’;

(b)in paragraph 2a, the first subparagraph is replaced by the following:

‘2a.   During the period from 30 October 2022 to 28 October 2023, and subject to capacity being available at the airport, a series of slots which was returned to the slot pool in accordance with paragraph 1 of this Article at the end of the scheduling period (the “reference scheduling period”) shall, upon request, be allocated for the next equivalent scheduling period to an air carrier which has operated at least five slots of the series in question following the application of Article 10a(7) during the reference scheduling period.’;

(c)paragraph 6a is replaced by the following:

‘6a.   Within the period during which COVID-19 coordination parameters apply, and in order to enable the proper application of such coordination parameters, the coordinator may, after having heard the air carrier concerned, amend the timing of requested or allocated slots falling within the period from 30 October 2022 to 28 October 2023 or cancel them. In this context, the coordinator shall take into account the additional rules and guidelines referred to in paragraph 5, subject to the conditions set out therein.’;

(3)Article 10 is amended as follows:

(a)paragraph 2a is deleted;

(b)paragraph 4 is amended as follows:

(i)the first subparagraph is amended as follows:

—point (d) is replaced by the following:

‘(d)judicial proceedings concerning the application of Article 9 of this Regulation for routes where public service obligations have been imposed according to Article 4 of Regulation (EEC) No 2408/92 resulting in the temporary suspension of the operation of such routes.’;

—point (e) is deleted;

(ii)the second, third, fourth and fifth subparagraphs are deleted;

(iii)the following subparagraph is added:

‘Where the impact of Russia’s war of aggression against Ukraine and the destruction of critical infrastructure affects the ability to provide air services, as well as demand for air services, coordinators shall apply the first subparagraph, point (a), to the routes between the Union and Ukraine for the duration of the airspace closure or airport closure, whichever occurs later, and an additional period of 16 weeks. The coordinator shall notify the Commission of the start date and end date of the 16-week period.’;

(c)the following paragraphs are inserted:

‘4a.   In addition, during the period from 30 October 2022 to 28 October 2023, the non-utilisation of a slot may also be justified by the introduction, by public authorities, of restrictions intended to address any major epidemiological situation, natural disaster or political unrest at one end of a route for which the slot in question was operated or planned to be operated, on condition that those restrictions significantly impact the possibility of, or demand for, travel, and that, on the routes concerned, the restrictions lead to any of the following:

(a)a partial or total closure of the border, airport or airspace during a substantial part of the relevant scheduling period;

(b)a severe impediment to the ability of passengers to travel with any carrier on that direct route during a substantial part of the relevant scheduling period, for example, where the impediment is linked to any of the following reasons:

—travel restrictions based on nationality or place of residence, the prohibition of all except essential travel, or bans on flights from or to certain countries or geographical areas,

—restrictions of movement, or quarantine or isolation measures, within the country or region where the airport of destination is located (including intermediate points), unless quarantine can be avoided by a negative test, proof of recovery or proof of vaccination recognised by the Union,

—restrictions on the availability of services essential to directly support the operation of an air service, including the closure of hospitality and public services, including transport, leading to a severe downturn in demand at either end of the route,

—limitations on number of passengers per flight and frequencies per air carrier leading to a severe downturn in demand at either end of the route;

(c)restrictions on airline crew movements that significantly hamper the operation of air services to or from the airports served, including sudden bans on entry or the unexpected stranding of crew due to quarantine measures, unless quarantine can be avoided by a negative test, proof of recovery or vaccination recognised by the Union.

This paragraph shall apply for the period in which the restrictions referred to in the first subparagraph apply and for up to 6 additional weeks, subject to the third and fourth subparagraphs. However, where those restrictions cease to apply less than 6 weeks before the end of a scheduling period, this paragraph shall apply to the remainder of the 6-week period only where the slots in the subsequent scheduling period are used for the same route.

This paragraph shall only apply to slots used for routes for which they were already used prior to the publication of the restrictions referred to in the first subparagraph.

This paragraph shall cease to apply where the air carrier, using the slots in question, changes to a route not affected by the restrictions referred to in the first subparagraph.

When a majority of Member States representing at least 50 % of the population of the Union apply restrictions referred to in the first subparagraph which significantly impact the possibility of, or demand for, travel and lead to any of the situations referred to in points (a) to (c) of the first subparagraph, each coordinator may, following a unanimous decision by coordinators of all Community coordinated airports to the effect that non-utilisation of slots is justified in general and its notification by them to the Commission and the Member States, apply this paragraph to all slots held at such airports for the duration of the restrictions that are in force and for up to 6 additional weeks, provided that those restrictions affect a significant number of routes to or from a Community airport, thereby rendering air traffic in the Union to a large extent unviable or leading to an uneven level playing field.

4b.   When the non-utilisation of a slot is justified by the restrictions referred to in paragraph 4 or 4a, the coordinators shall consider that the slot was operated within the series of slots concerned.

4c.   Air carriers whose operations are impeded by restrictive measures adopted pursuant to Article 29 of the Treaty on European Union (TEU) or Article 215 of the Treaty on the Functioning of the European Union (TFEU), including those in force on 26 October 2022 and air carriers subject to an operating ban within the Union which are listed in Annex A or B to Commission Regulation (EC) No 474/2006 (*1) shall not be entitled to invoke a justification for the non-utilisation of slots under paragraphs 4 and 4a of this Article.

However, by way of derogation from the first subparagraph, where such air carriers are permitted to operate wet-leased aircraft of an air carrier whose operations are not impeded by such restrictive measures and which is not subject to such an operating ban, they may invoke a justification for the non-utilisation of slots under paragraphs 4 and 4a, provided that safety rules applicable in the Union are complied with.

4d.   Coordinators shall regularly exchange best practices on the implementation of paragraphs 4 and 4a with the aim of ensuring coherent and consistent application across the Union.

Coordinators shall publish and regularly update the list of destinations to which paragraphs 4 and 4a apply.

(*1)  Commission Regulation (EC) No 474/2006 of 22 March 2006 establishing the Community list of air carriers which are subject to an operating ban within the Community referred to in Chapter II of Regulation (EC) No 2111/2005 of the European Parliament and of the Council (OJ L 84, 23.3.2006, p. 14).’;"

(d)paragraph 5 is replaced by the following:

‘5.   At the request of a Member State or on its own initiative, the Commission shall examine the application of paragraphs 4 and 4a by the coordinator of an airport falling within the scope of this Regulation.’;

(4)Article 10a is amended as follows:

(a)the heading is replaced by the following:

‘Article 10a

Allocation of slots in response to certain crisis situations’;

(b)paragraphs 1, 2 and 4 are deleted;

(c)paragraph 3 is replaced by the following:

‘3.   During the period from 30 October 2022 until 25 March 2023 and for the purposes of Article 8(2), Article 10(2) and (4) and Article 14(6), first subparagraph, if an air carrier demonstrates to the satisfaction of the coordinator that it has operated the series of slots that was allocated to it, as cleared by the coordinator, for at least 75 % of the time during the scheduling period for which it has been allocated, that air carrier shall be entitled to the same series of slots for the next equivalent scheduling period.’;

(d)paragraph 5 is replaced by the following:

‘5.   Where data published by Eurocontrol clearly shows that weekly air traffic, over a period of 2 consecutive weeks, has fallen below 80 % of 2019 levels of the corresponding weeks, due to COVID-19 crisis, other epidemiological situations or as a direct effect of Russia’s war of aggression against Ukraine, and that, on the basis of Eurocontrol traffic forecasts, the reduction in the level of air traffic as compared to the level in the corresponding period in 2019 is likely to persist, the Commission is empowered to adopt delegated acts in accordance with Article 12a to amend the percentage values set out in paragraph 3 of this Article and in Article 8(2), Article 10(2) and (4) and Article 14(6), first subparagraph, within a range between 0 % and 70 % for any scheduling period falling between 30 October 2022 and 28 October 2023. The percentage value applied shall be proportionate to the level of air traffic forecasts by Eurocontrol.

When adopting those delegated acts, the Commission shall have regard to all the following elements:

(a)data published by Eurocontrol on traffic levels and traffic forecasts;

(b)indicators relating to demand for passenger and cargo air transport, including trends regarding forward bookings, airlines planned schedules, fleet size, fleet utilisation, and load factors;

(c)measures by public authorities linked to the COVID-19 crisis or another epidemiological situation resulting in an significant effect on air traffic levels to or from Union airports, forced re-routings due to airspace closures or a prohibition on Union air carriers to enter a third-country airspace, taking into account advice from the European Union Aviation Safety Agency in its Conflict Zone Information Bulletin;

(d)data from the European Centre for Disease Control and the World Health Organisation on COVID-19 or another epidemiological situation characterised as highly contagious and likely to induce a severe downturn in air travel.

In view of the preparation of schedules by air carriers ahead of the scheduling period, the Commission shall endeavour to adopt those delegated acts pursuant to this paragraph before the start of the scheduling period, in order to allow air carriers to plan their flight schedules. The Commission may adopt such acts during the scheduling period in case of unforeseen circumstances.’;

(e)the following paragraph is inserted:

‘5a.   Where the Commission finds that due to the destruction of infrastructure and impact on living conditions as a result of Russia’s war of aggression against Ukraine, the gradual restoration of air traffic between Ukraine and the Union requires a lower use rate for routes serving Ukraine, the Commission is empowered to adopt delegated acts in accordance with Article 12a to amend the percentage values set out in paragraph 3 of this Article and in Article 8(2), Article 10(2) and (4) and Article 14(6), first subparagraph, within a range between 0 % and 70 % for slots used on routes to or from Ukraine for any scheduling period falling between 30 October 2022 and 28 October 2023.

When adopting those delegated acts, the Commission shall have regard to the following elements:

(a)data published by Eurocontrol on traffic levels and traffic forecasts on routes between the Union and Ukraine;

(b)indicators relating to demand for passenger and cargo air transport, including trends in forward bookings and planned airline schedules;

(c)forced re-routings due to airspace closures or prohibition on Union air carriers to enter a third country airspace taking into account advice from the European Union Aviation Safety Agency in its Conflict Zone Information Bulletin.’;

(f)paragraphs 6 and 7 are replaced by the following:

‘6.   Where, as a result of the prolonged impact of the COVID-19 crisis, of other epidemiological situations or of the direct effects of Russia’s war of aggression against Ukraine, imperative grounds of urgency so require, the procedure provided for in Article 12b shall apply to delegated acts adopted pursuant to this Article.

7. During a period where slot relief applies according to paragraph 3, 5 or 5a of this Article, air carriers shall make available to the coordinator, for reallocation to other air carriers, any slot that they do not intend to use, no less than 3 weeks before the date of intended operation. Without prejudice to Article 10(4) and (4a), where an air carrier fails to make available to the coordinator more than three slots in a series in accordance with this paragraph, that carrier shall be entitled to the entire series of slots in the next equivalent scheduling period only if the entire series of slots has been operated, or if the entire series of slots has been deemed to have been operated in accordance with Article 10(4b), by the carrier for at least 80 % of the time, regardless of whether Article 8(2) and Article 10(2) have been amended by the delegated act referred to in this Article.’;

(5)in Article 11, paragraph 1 is replaced by the following:

‘1.   Without prejudice to rights of appeal under national law, complaints regarding the application of Article 7(2), Articles 8, 8a and 10, Article 10a(7), Article 14(1) to (4) and Article 14(6) shall be submitted to the coordination committee. The committee shall, within a period of 1 month following submission of the complaint, consider the matter and if possible make proposals to the coordinator in an attempt to resolve the problem. If the complaint cannot be settled, the Member State responsible may, within a further 2-month period, provide for mediation by an air carriers’ or airports’ representative organisation or other third party.’;

(6)in Article 12a, paragraph 2 is replaced by the following:

‘2.   The power to adopt delegated acts referred to in Article 10a shall be conferred on the Commission until 28 October 2023.’;

(7)in Article 14, paragraph 6 is replaced by the following:

‘6.   Without prejudice to Article 10(4) and (4a), if the 80 % usage rate as defined in Article 8(2) cannot be achieved by an air carrier, the coordinator may decide to withdraw from that air carrier the series of slots in question for the remainder of the scheduling period and place them in the pool after having heard the air carrier concerned.

Without prejudice to Article 10(4) and (4a), if after an allotted time corresponding to 20 % of the period of the series validity no slots of that series of slots have been used, the coordinator shall place the series of slots in question in the pool for the remainder of the scheduling period, after having heard the air carrier concerned.

During the period from 30 October 2022 until 28 October 2023, when a coordinator determines, on the basis of information at its disposal, that an air carrier has ceased its operations at an airport and is no longer able to operate the slots which it has been allocated, the coordinator shall withdraw from that air carrier the series of slots in question for the remainder of the scheduling period and place them in the pool, after having heard the air carrier concerned.

During the period from 30 October 2022 until 28 October 2023, when a coordinator determines, on the basis of information at its disposal, that an air carrier that is subject to the restrictive measures adopted pursuant to Article 29 TEU or Article 215 TFEU, including those in force on 26 October 2022, or an air carrier that is subject to an operating ban within the Union and is listed in Annex A or B to Regulation (EC) No 474/2006, is not able to operate slots for a substantial part of the scheduling period, the coordinator shall, after having heard the air carrier concerned, withdraw from that air carrier the series of slots in question for the remainder of the scheduling period and place them in the pool.

However, where an air carrier is subject to an operating ban within the Union and is listed in Annex A or B to Regulation (EC) No 474/2006, and is permitted to operate wet-leased aircraft of an air carrier whose operations are not impeded by such restrictive measures and which is not subject to such an operating ban, the fourth subparagraph of this paragraph shall not apply to that carrier’s slots, provided that safety rules applicable in the Union are complied with.’.

Article 2

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

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