Council Regulation (EEC) No 95/93 (3) was amended several times since the beginning of the COVID-19 crisis as the requirement set by that Regulation to operate at least 80 % of a series of slots to maintain the right to the same series of slots in the next equivalent scheduling period became unsustainable for air carriers in light of highly reduced air traffic levels.
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Figures published by Eurocontrol, which is the network manager for the air traffic network functions of the single European sky, show that air traffic has had a strong recovery since the beginning of the summer 2022 scheduling period and that the air traffic at the start of the winter 2022/2023 scheduling period is expected to be approximately 90 % of 2019 levels under the base forecast. Those figures justify a return to the 80 % requirement for slot use as a general rule for the summer scheduling period 2023, complemented with specific slot use alleviation in cases of justified non-use of slots.
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Nevertheless, due to the COVID-19 crisis, the situation in the aviation sector remains highly uncertain. As was the case at the end of 2021, new COVID-19 variants can appear and cause sudden reactions from both national authorities and consumers that can in turn negatively affect air traffic. Furthermore, certain long-haul markets continue to be affected by sanitary measures which severely impede air traffic.
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Russia’s war of aggression against Ukraine is also having an impact on air traffic and air carriers’ ability to operate their slots as Union air carriers are prevented from entering the airspace of Belarus, Russia and Ukraine.
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State-imposed travel restrictions for sanitary reasons and the impossibility of entering the airspace of what has become a war zone are beyond the control of air carriers. These circumstances can lead to the voluntary or obligatory cancellation of their air services or adjustment of schedules. In particular, voluntary cancellations protect the financial health of air carriers and at the same time avoid the negative environmental impact caused by operating flights only to retain their slots.
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Under those circumstances, air carriers that fail to use their slots in accordance with the slot utilisation rate set out in Regulation (EEC) No 95/93 should not automatically lose the precedence in respect of the series of slots, laid down in Articles 8(2) and 10(2) of that Regulation, that they might otherwise enjoy. This Regulation should establish specific rules to this effect.
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At the same time, it is important to recall the objectives of Regulation (EEC) No 95/93, which are namely to ensure the efficient use of airport capacity and to ensure fair access for all air carriers to limited airport capacity, thereby promoting competition. The adjustment of normal slot use requirements through a lower use-rate or extended justified non-use exceptions should be strictly limited to situations where slot relief is necessary and should not lead to unfair competitive advantages for those air carriers holding historic slots.
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In particular, it is necessary to ensure that air carriers prepared to provide services are allowed to take up unused capacity and that they have the prospect of maintaining such slots in the long term. That should maintain air carriers’ incentives to make use of airport capacity, which in turn would benefit consumers in terms of connectivity.
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It is therefore necessary to lay down, in accordance with those principles and for a limited period, the conditions under which air carriers continue to be entitled to series of slots under Articles 8(2) and 10(2) of Regulation (EEC) No 95/93, and to establish requirements for air carriers concerned to release unused capacity. The period should run from 30 October 2022 until 28 October 2023 in line with the recovery forecast of Eurocontrol.
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During that period, the definition of the term ‘new entrant’ should remain broad in order to increase the number of air carriers covered, thereby giving more air carriers the opportunity to establish and expand their operations.
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From 30 October 2022 until 28 October 2023, the system of slot allocation should continue to recognise the efforts of the air carriers that have operated flights using slots which are part of a series that another air carrier is entitled to under Articles 8(2) and 10(2) of Regulation (EEC) No 95/93, but which have been made available to the slot coordinator for temporary reallocation. Therefore, air carriers that have operated at least five slots of a series should receive priority for the allocation of those series in the next equivalent scheduling period, subject to airport capacity availability.
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To address the effects of Russia’s war of aggression against Ukraine and to support the recovery of connectivity between the Union and Ukraine, it is necessary to extend the period during which operators are able to rely on the reason set out in Article 10(4), point (a), of Regulation (EEC) No 95/93 to justify the non-utilisation of the series of slots on the routes between the Union and Ukraine.
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Without prejudice to the obligation of Member States to comply with Union law, in particular with the rules laid down in the Treaties and in Regulation (EC) No 1008/2008 of the European Parliament and of the Council (4), the negative consequences on passengers’ ability to travel due to possible restrictions adopted by public authorities of Member States or third countries addressing epidemiological situations, natural disasters or political unrest, such as rebellions, riots or severe public disorder, cannot be imputed to air carriers and should be mitigated where those measures significantly impact the viability, or the possibility, of travel or the demand on the routes concerned. Mitigation measures should ensure that air carriers are not penalised for failure to use slots where that failure is the result of such restrictions.
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To reduce the risk of distortions of competition and to ensure the efficient use of airport capacity, specific relief from the effects of the imposition of those restrictions should be of limited duration and scope, thus ensuring that the effect of the mitigation measures is limited to the period for which they were justified. Slots covered by such measures mitigating the effect of restrictions should be deemed to have been operated for the purposes of Regulation (EEC) No 95/93.
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It is necessary to clarify that the provisions on the justified non-use of slots exceptions do not apply to air carriers that are the object of 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), or to 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 (5). In order to ensure the effective application of those measures, the impossibility to invoke the provisions on the justified non-use of slots exceptions should apply also to the air carriers that are already the object of such restrictive measures in force on the date of entry into force of this Regulation.
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The cooperation between coordinators should be strengthened to ensure uniform implementation of Regulation (EEC) No 95/93 across the Union.
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Coordinators should exchange best practices on the implementation of Regulation (EEC) No 95/93, including through the European Airport Coordinators Association (EUACA). The EUACA is encouraged to continue issuing guidance to ensure a harmonised implementation of Union rules, in particular regarding the provision on the mitigation of the restrictions. Moreover, whether the mitigation is applied or not is an important piece of information for air carriers when planning their schedules. Therefore, it is necessary to ensure transparent communication from the coordinators.
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While measures mitigating the restrictions should be interpreted strictly since they represent an exception to the normal slot use requirements, in certain instances it should be possible to require common action by all coordinators to ensure a level playing field across the Union. Under certain conditions, and based on a unanimous decision, coordinators should be able to apply that provision to all slots held at coordinated airports.
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The robustness of traffic forecasts for the winter 2022/2023 scheduling period is negatively affected by uncertainty concerning the evolution of various crises, in particular the situation in Ukraine and the COVID-19 crisis. Consequently, air carriers should be released, to the extent necessary, from the requirements to operate slots in order to retain entitlement to the same slots in the next equivalent scheduling period. This would enable air carriers to increase the provision of services when circumstances allow, with a view to applying the regular rules for the operation of slots from the summer 2023 scheduling period, subject to those adaptations made by the Commission in specific circumstances to react to certain challenges to the air transport sector.
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In order to address the evolving impact of the COVID-19 crisis or of other epidemiological situations, as well as the direct devastating impact of Russia’s war of aggression against Ukraine on air traffic and to support connectivity to or from Ukraine, and to respond flexibly, where strictly necessary and justified, to the challenges that the air transport sector is facing in consequence, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending the percentage values of the minimum usage rate within a certain range and for any scheduling period within the period from 30 October 2022 until 28 October 2023 in line with the recovery forecast of Eurocontrol and in respect of amending the percentage values of the minimum usage rate within a certain range for the routes between the Union and Ukraine and for any scheduling period from 30 October 2022 until 28 October 2023. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level, and that those consultations are conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (6). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
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Airports, airport services providers and air carriers need to have information on available capacity for the purpose of adequate planning. Air carriers should continue to make available to the coordinator for possible reallocation to other air carriers any slot that they do not intend to use at the earliest possible opportunity and no later than 3 weeks before the planned date of their operation. Where air carriers repeatedly fail to comply with that requirement, they should not benefit from a reduced slot operation rate.
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Where a coordinator is satisfied that an air carrier has ceased operations at an airport, the coordinator should withdraw the slots from the air carrier in question and place them in the pool for reallocation to other carriers.
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The prohibition on air carriers to fly into Union airspace in application of restrictive measures adopted pursuant to Article 29 TEU or Article 215 TFEU or of an operating ban pursuant to Regulation (EC) No 474/2006 could result in the unjustified blocking of slots at Union airports. While slots previously used by such air carriers can be re-allocated on an ad hoc basis during the scheduling period, this does not sufficiently encourage the efficient use of slots enabling airlines to increase long-term competition and connectivity for the benefit of consumers. The slots should therefore be immediately withdrawn from the air carriers concerned.
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Since the objective of this Regulation, namely the establishment of specific rules and the relief from the general slot utilisation rules for a limited period of time in order to mitigate the effects of an epidemiological crisis and Russia’s war of aggression against Ukraine on air traffic, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the proposed action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary to achieve that objective.
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In view of the urgency entailed by the exceptional circumstances related to the COVID-19 crisis and Russia’s war of aggression against Ukraine, it is considered to be appropriate to invoke the exception to the 8-week period provided for in Article 4 of Protocol No 1 on the role of national Parliaments in the Union, annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community.
(26)
In order to allow for the prompt application of the measures provided for in this Regulation, it should enter into force as a matter of urgency on the day following that of its publication in the Official Journal of the European Union,
