BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

)

Application of )

)

AIR BERLIN PLC & CO. ) Docket DOT-OST-2013-0183

LUFTVERKEHRS KG )

)

for a Statement of Authorization )

pursuant to 14 C.F.R. Part 212 )

)

ANSWER OF DELTA AIR LINES, INC.

Communications with respect to this document should be addressed to:

Alexander Van der Bellen

Managing Director, Regulatory Affairs

& Associate General Counsel

Christopher Walker

Regional Director, Regulatory Affairs

DELTA AIR LINES, INC.

1212 New York Avenue, N.W.

Washington, D.C. 20005

(202) 842-4184

sascha.vanderbellen@delta.com

chris.walker@delta.com

October 10, 2013
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

)

Application of )

)

AIR BERLIN PLC & CO. ) Docket DOT-OST-2013-0183

LUFTVERKEHRS KG )

)

for a Statement of Authorization )

pursuant to 14 C.F.R. Part 212 )

)

ANSWER OF DELTA AIR LINES, INC.

Delta Air Lines, Inc. (“Delta”) hereby files this Answer to the Application of Air 

Berlin PLC & Co Luftverkehrs KG (“Air Berlin) for a Statement of Authorization. Air 

Berlin proposes to carry the “JU” designator code of JAT Airways a.d. Belgrade (“JAT”) 

on Air Berlin-operated services between Germany and the United States. 

As Air Berlin concedes in its application, JAT has no underlying economic 

authority to serve the United States. For all of the reasons detailed in Delta’s Answer in 

Docket OST-2013-0177, JAT’s exemption application should be denied. There is no 

bilateral agreement in place between the United States and Serbia, and the unique 

circumstances surrounding JAT’s ownership and control do not qualify for relief on the 

basis of comity and reciprocity. Delta adopts and incorporates by reference its answer 

to JAT’s exemption application, a copy of which is attached hereto.
Delta Air Lines Consolidated Answer

Page 2

Etihad will own a minority stake (49%) of JAT -- but Etihad will exert de facto

control over the Serbian carrier’s commercial activities through a variety of means, 

including the appointment of its CEO, who will work under a five year management 

contract with Etihad. (Delta Answer at 9). Etihad and JAT are both the recipients of 

large amounts of state aid, which distort the competitive marketplace and undermine the 

ability of U.S. flag carriers to develop and maintain international service. Id. at 4-8. 

Although less pervasive than is the case with JAT, Etihad also owns a 29% stake in Air 

Berlin. Id.

Because JAT does not have and should not receive underling economic authority 

to serve the United States, Air Berlin’s request for a statement of authorization is moot 

and should be dismissed. 

Respectfully submitted,

_____________________________

Alexander Van der Bellen

Managing Director, Regulatory Affairs

 & Associate General Counsel

DELTA AIR LINES, INC.
BEFORE THE 

 DEPARTMENT OF TRANSPORTATION 

 WASHINGTON, D.C. 

 

 ) 

Application of ) 

 ) 

JAT AIRWAYS A.D. BELGRADE ) Docket DOT-OST-2013-0177 

 ) 

for an Exemption pursuant to ) 

49 U.S.C. § 40109 ) 

 ) 

 ) 

Application of ) 

 ) 

ETIHAD AIRWAYS P.J.S.C. ) Docket DOT-OST-2013-0178 

 ) 

for a Statement of Authorization ) 

pursuant to 14 C.F.R. Part 212 ) 

 ) 

CONSOLIDATED ANSWER OF DELTA AIR LINES, INC.

 Communications with respect to this document should be addressed to: 

 Alexander Van der Bellen 

Managing Director, Government Affairs 

& Associate General Counsel 

Christopher Walker 

Regional Director, Government Affairs 

DELTA AIR LINES, INC. 

1212 New York Avenue, N.W. 

Washington, D.C. 20005 

(202) 842-4184 

sascha.vanderbellen@delta.com 

chris.walker@delta.com 

October 4, 2013 
 BEFORE THE 

 DEPARTMENT OF TRANSPORTATION 

 WASHINGTON, D.C. 

 

 ) 

Application of ) 

 ) 

JAT AIRWAYS A.D. BELGRADE ) Docket DOT-OST-2013-0177 

 ) 

for an Exemption pursuant to ) 

49 U.S.C. § 40109 ) 

 ) 

 ) 

Application of ) 

 ) 

ETIHAD AIRWAYS P.J.S.C. ) Docket DOT-OST-2013-0178 

 ) 

for a Statement of Authorization ) 

pursuant to 14 C.F.R. Part 212 ) 

 ) 

CONSOLIDATED ANSWER OF DELTA AIR LINES, INC.

 Delta Air Lines, Inc. (“Delta”) hereby files this Consolidated Answer to the 

Application of Jat Airways a.d. Belgrade (“JAT”) for an exemption from 49 U.S.C. § 

41301 to provide scheduled foreign air transportation of persons, property, and mail 

between Serbia and the United States on a codeshare-only basis and the Application of 

Etihad Airways P.J.S.C. (“Etihad”) for a Statement of Authorization permitting Etihad to 

display the designator code of JAT on flights Etihad operates between Abu Dhabi, on 

the one hand, and various points in the United States, on the other hand, that connect 
Delta Air Lines Consolidated Answer 

Page 2 

with JAT-operated services between Belgrade and Abu Dhabi.1

 Delta opposes, and 

urges the Department to reject, both applications. 

 JAT and Etihad’s proposed codeshare services are highly circuitous, 

commercially implausible, and are likely to cause consumer confusion. Moreover, JAT 

and Etihad have not been candid with the Department in their characterization of the 

facts concerning Etihad’s ownership interest in and effective control of JAT. JAT and 

Etihad bear the burden of addressing these issues in a forthright manner, particularly 

given that the proposed services would be the product of market-distorting, anticompetitive state subsidies from which both Etihad and JAT benefit. The proposed 

codeshares are not in the public interest and, accordingly, the Department should deny 

both JAT’s exemption request and Etihad’s application for a statement of authorization. 

I. The proposed codeshare routes are irrational and do not serve the public 

interest 

While Delta believes that codeshare arrangements are typically in the public 

interest where they increase opportunities for travel and expand air service networks for 

the benefit of consumers, the codeshare services proposed by JAT and Etihad are not 

 

1

 To the extent necessary, Delta hereby moves for leave to file an answer to the Application of 

Etihad for a Statement of Authorization, dated September 19, 2013, pursuant to 14 C.F.R. § 

302.9. The Etihad and JAT applications are inextricably interrelated because the Department 

must approve both applications before JAT and Etihad may implement their proposed U.S. 

codeshare services. Thus, Delta’s answer inevitably raises issues affecting the Department’s 

consideration of the Etihad application as well as the JAT application, thereby establishing good 

cause for Delta to submit a single, consolidated answer to both applications. 
Delta Air Lines Consolidated Answer 

Page 3 

in the public interest because they have no market or consumer service based rationale 

and would only create confusion and complexity for consumers.2

 

 JAT and Etihad are proposing codeshare services on routings from Belgrade 

(BEL) to New York (JFK), Washington (IAD), and Chicago (ORD) via Abu Dhabi (AUH). 

These routes are so extraordinarily circuitous (nearly 5,000 miles of additional circuity in 

each direction) that one must question why any consumer would regard their addition to 

the marketplace to constitute a rational service option or to offer any consumer benefit. 

 Currently, there is robust competition for travel between Belgrade and 

destinations in the United States via European hubs, where convenient, non-circuitous 

codeshare and interline connections are available. JAT already codeshares with six 

European airlines that connect on to the U.S., and has interline agreements with dozens 

of other airlines with transatlantic service. At least eight different transatlantic carriers 

serve Belgrade. For example, connecting services between Belgrade and Chicago via 

Amsterdam, Munich, Vienna, or Frankfurt, involve journeys of approximately 5,000 

miles. By contrast, a routing from Belgrade to Chicago via Abu Dhabi is nearly twice as 

long: approximately 9,640 miles. Such an extremely circuitous itinerary would add 

nearly 5,000 miles to a consumer’s journey from Belgrade to the United States. 

 

2

 In order for the Department to approve the JAT and Etihad applications, it must find that the 

services proposed are in the public interest See 49 U.S.C. § 40109(c); 14 C.F.R. § 212.11. 

Moreover, as JAT concedes in its application, the Department is not subject to any obligation 

imposed by a bilateral air service agreement to approve the JAT application. JAT Application at 

2. 
Delta Air Lines Consolidated Answer 

Page 4 

Accordingly, it is highly unlikely that a rational consumer would seek out itineraries via 

Abu Dhabi unless fares were artificially low, i.e., unless JAT and Etihad plan to engage 

in capacity dumping at below-market fares. 

 We note that the JAT/Etihad proposal does not comply with IATA fare rules on 

maximum permitted miles (MPM). MPM on the JFK-Belgrade route is 5,404 miles, 

which the JAT/Etihad routing via Abu Dhabi exceeds by a whopping 2,469 miles. 

 Thus, not only would the proposed codeshare routes not satisfy any new or 

currently unmet consumer demand; they would cause confusion and complexity in the 

marketplace (e.g., by cluttering schedule and fare displays and obscuring the 

consumer-facing availability of superior itineraries and service options). 

 Accordingly, the Department should reject JAT’s and Etihad’s applications 

because their proposed codeshare arrangements are not in the public interest. 

II. The proposed codeshare arrangements are ripe for market abuse in light of 

Etihad’s and JAT’s receipt of state subsidies 

 The proposed codeshare involves two state-owned airlines and one, Etihad, that 

is heavily state-subsidized. The Department has, previously, expressed concern about 

state subsidies in its consideration of the “public interest.”3

 Moreover, the Department 

has specifically stated that among its core policy objectives is to “[e]nsure that 

 

3 See, e.g., Applications of Iberia, Lineas Aereas de Espana, S.A. and Carnival Air Lines, Order 

94-9-23 at 4 (“we share American’s concerns on the issue of subsidies. Indeed, Secretary Pena 

has already written to Marcelino Aquirre, EU Commissioner for Transport and Energy, 

specifically to express his serious concern regarding the European Commission’s policy on 

state aid.”). 
Delta Air Lines Consolidated Answer 

Page 5 

competition is fair and the playing field is level by eliminating marketplace distortions, 

such as government subsidies ...”.4

 Here, both JAT and Etihad have benefitted from the 

direct infusion of government capital,5

 and Etihad in particular has benefitted from unfair 

tax advantages, subsidies for fuel and airport fees, and sizeable government 

investments in infrastructure.6

 These subsidies have a market-distortive effect and are 

inconsistent with U.S. international aviation policy. 

 In recent years, certain Gulf states have increasingly used their flag carriers “to 

expand their services and widen their networks in support of national policies to develop 

incoming tourism or local business activity and trade.”7

 This is the case in Abu Dhabi, 

which has been using its vast oil wealth to rapidly expand Etihad’s network and fleet as 

 

4

 Statement of United States International Air Transportation Policy, 60 Fed. Reg. 21841, 21844 

(Dep’t Transportation May 3, 1995). 

5 See, e.g., “Etihad to Buy Stake in Serbia’s JAT as CEO Hogan Reworks Carrier,” Misha Savic, 

Bloomberg.com (Aug. 1, 2013) (noting that “Serbia will match” Etihad’s $100 million investment 

in JAT and that it will “assume liabilities of its flag carrier ‘so Air Serbia is a new company, a 

clean sheet of paper”). 

6

 See, e.g., Hearing of the Terrorism, Nonproliferation and Trade Subcommittee of the House 

Foreign Affairs Committee Subject: "The Abu Dhabi Pre-Clearance Facility: Implications for U.S. 

Businesses and National Security", Statement by Representative Brad Sherman (D-CA) (July 

10, 2013); “Air France-KLM chief urges Europe to restrict Gulf carriers,” Claire Valdini, 

ArabianBusiness.com (Apr. 1, 2013); “Jobs on a wing and a prayer,” Paul Howes, Sunday 

Telegraph (Sydney) (Apr. 1, 2012); “Abu Dhabi Airports Company Receives Executive Council 

Approval to Build the Midfield Terminal Complex,” Press Release, Abu Dhabi Airports Company 

(Feb. 1, 2012). 

7

 Rigas Doganis, Flying Off Course: Airline Economics and Marketing, p. 322 (Routledge Taylor 

& Francis Group, 4th ed. 2010). 
Delta Air Lines Consolidated Answer 

Page 6 

part of a strategy to develop Abu Dhabi as a hub and economic center.8

 These policies 

– which include the introduction of excess capacity on routes and place network 

expansion above all else, including profitability – are highly disruptive and traderestrictive, depressing fares and cargo yields and destabilizing global markets.9

 In support of Abu Dhabi’s broader aviation strategy, Etihad has acquired a 40 

percent stake in Air Seychelles; a 29.2 percent stake in Air Berlin; a 9 percent stake in 

Virgin Australia; and around a 3 percent stake in Aer Lingus.10 Etihad is also in the final 

stages of a $379 acquisition of a 24 percent stake in Jet Airways of India as part of its 

“acquisition binge.”11 The JAT acquisition, while the most aggressive in terms of the 

size of Etihad’s equity stake and the control that Etihad will exercise over JAT, is part of 

this pattern of rapid network expansion. 

 Beyond Etihad’s acquisition of JAT, its activities are all closely connected to Abu 

Dhabi’s broader industrial policy for the aviation sector. For example, earlier this year, 

Etihad acquired three companies – Abu Dhabi Airport Services, Abu Dhabi In-Flight 

Catering, and Abu Dhabi Cargo Company – from the Abu Dhabi Airports Company 

 

8 See “UAE’s Etihad to buy 49 percent stake in Serbian airline,” Ivana Sekularac, Reuters (Aug. 

1, 2013) (“Backed by oil wealth, Etihad has aggressively expanded its global reach through 

codeshares and minority stakes.”). 

9

 Doganis at 322.

10 “The Aussies Behind the Best Airline You’ve Never Flown,” Kenneth Rapoza, Forbes (March 

12, 2013). 

11 “Etihad Close To Taking Minority Stake in India’s Jet Airways,” Kenneth Rapoza, Forbes 

(Sept. 19, 2013). 
Delta Air Lines Consolidated Answer 

Page 7 

(“ADAC”), a state-owned and operated entity.12 In 2012, ADAC announced that it would 

begin construction of a new Midfield Terminal Complex at Abu Dhabi International 

Airport for the primary benefit of Etihad.13 Such coordination between Etihad and ADAC 

is emblematic of the Abu Dhabi government’s aviation industrial policy, which is 

dependent in large part on ensuring Etihad’s global competitiveness. As Ulrich SchulteStrathaus, then-president of the Association of European Airlines said of Etihad and 

other Gulf carriers in 2011, “[they] are owned by their respective governments and 

operated as an instrument of national strategy ... and they are integrated vertically 

across commerce, tourism and foreign policy.”14

 Etihad’s receipt of subsidies makes the proposed codeshare arrangements with 

JAT ripe for market distortion and abuse. These routes, as discussed above, are highly 

circuitous, not responsive to any market demand, and thus unlikely to be profitable in 

their own right. In order to attract any consumer to utilize these proposed codeshare 

services, JAT and Etihad would have to price at below-market fares. The Department 

should scrutinize the proposed JAT/Etihad codeshare to better understand how the 

carriers intend to offer competitive service without artificially dumping capacity. Insofar 

as the proposed codeshare is enabled through the airlines’ receipt of state subsidies or 

 

12 “Etihad to acquire Abu Dhabi airport services firms,” Trade Arabia (May 19, 2013). 

13 “Abu Dhabi Airports Company Receives Executive Council Approval to Build the Midfield 

Terminal Complex,” Press Release, Abu Dhabi Airports Company (Feb. 1, 2012). 

14 See “Gulf Carriers Push For Long-Haul Corporate Business,” Amon Cohen, 

BusinessTravelNews (Feb. 14, 2011). 
Delta Air Lines Consolidated Answer 

Page 8 

to further commercial or foreign government policy objectives that do not relate to the 

U.S. public interest, the Department should deny the JAT and Etihad applications. 

III. JAT and Etihad have mischaracterized Etihad’s ownership and effective 

control of JAT, which are significantly more extensive than suggested 

 The Department’s policy requires that a foreign air carrier be substantially owned 

and effectively controlled by citizens of its homeland in order to qualify to receive a 

foreign air permit or exemption authority to serve the United States.15 JAT states in its 

application that it is “owned and controlled by Serbian citizens.”16 Then, in a footnote, 

JAT states that it is “in negotiations” for Etihad to acquire a 49 percent stake in JAT, but 

that in any event “JAT will remain substantially owned and effectively controlled by 

Serbian citizens.”17 However, according to recent press reports that (to the best of 

Delta’s information) have not been contradicted by Etihad or JAT, Etihad’s investment in 

JAT and the steps Etihad is taking to exert control over JAT, are much more definite; in 

fact, it seems clear that JAT/Etihad’s proposed codeshare services to the United States 

via Abu Dhabi are predicated on the consummation of Etihad’s plans to own and control 

JAT. 

 

15 See, e.g., Notice of Action Taken (Corrected Copy), issued March 13, 2013, Docket DOT 

OST-2013-0021 (granting exemption to Boliviana de Aviacion (BoA)). 

16 JAT Application at 4. 

17 JAT Application at 4, n. 7. 
Delta Air Lines Consolidated Answer 

Page 9 

 According to recent press reports, Etihad has agreed to acquire a 49 percent 

stake in JAT, JAT Catering, and JAT’s handling division SU-PORT. Etihad’s 

relationship with JAT extends far beyond its equity investment, however; newly branded 

“Air Serbia” Airbus A319 aircraft will be operated by Etihad crew; Etihad will negotiate 

with Airbus over the terms of previously ordered A319s; Etihad will invest in upgrades at 

Belgrade Airport Terminal 1; and, through the operation of four agreements between 

Etihad and the Republic of Serbia, Etihad will provide immediate equity infusions into 

the Serbian airline.18 Moreover, although the Republic of Serbia will maintain a majority 

ownership interest, Etihad will acquire de facto control over JAT. Indeed, JAT’s CEO 

reportedly will work under a five-year management contract with Etihad.

19 In short, JAT 

will be a wholly controlled (even if not wholly owned) subsidiary of Etihad. 

 Etihad itself has acknowledged the true nature of its plans for control of JAT. In a 

briefing to JAT staff, Etihad CEO James Hogan explained that “Etihad Airways has 

been appointed to a five-year management contract, effective 1 August”; in other words, 

Etihad views itself as the management of JAT.20 Etihad envisions “shared resources” 

between the airlines; the “insourcing” or ground handling, catering, and line 

 

18 “South East Europe: Etihad Takes Over JAT,” International Meetings Review (Sept. 2, 2013), 

available at http://www.internationalmeetingsreview.com/south-east-europe/south-east-europeetihad-takes-over-jat-96727. 

19 “Etihad to Acquire 49% Of New Serbian Airline,” Jens Flottau, Aviation Week (Aug. 1, 2013). 

20 Air Serbia Staff Briefing (Aug. 1, 2013), available at 

http://new.livestream.com/etihad/AirSerbiaStaffBriefing (minute 4:48). 
Delta Air Lines Consolidated Answer 

Page 10 

maintenance; the “consolidation of some key tasks in Abu Dhabi”, such as scheduling 

and revenue management; an “identical in-flight product” on Air Serbia and Etihad 

narrow-body fleets; joint training of pilots and crews; and joint procurement of services 

and supplies.21 Etihad’s management and commercial co-opting of JAT demonstrate a 

level of effective control by Etihad that is not reflected in JAT’s misleading 

characterization of the Etihad acquisition. 

 Thus, despite JAT’s assertion in its application, Etihad’s investment in the airline 

raises important questions about whether JAT is (or will remain) “effectively controlled 

by Serbian citizens.” Delta urges the Department to require clarification from JAT and 

Etihad with respect to Etihad’s ownership and control over JAT. 

IV. The lack of a U.S.-Serbia aviation bilateral agreement requires JAT to 

demonstrate clear public benefit 

In the absence of an aviation bilateral agreement, the Department should 

carefully examine JAT’s proposal to ensure public benefit. Rather than proposing an 

analogous codeshare agreement to those currently serving the U.S.-Serbia market, 

where United Airlines and US Airways operate routings with partners that have less 

than 1% circuity, 22 JAT is proposing routes with 100% circuity, which would be highly 

 

21 Air Serbia: New Era, New Direction, presentation by James Hogan to Air Serbia staff (Aug. 1, 

2013), available at http://exyuaviation.blogspot.com/2013/08/jat-airways-takeover.html. 

22 JAT Application at 2.
Delta Air Lines Consolidated Answer 

Page 11 

susceptible to capacity dumping and state-subsidy market distortions. As discussed 

above, such service is not in the public interest. 

V. The Department should discourage the abuse of TSA pre-clearance in Abu 

Dhabi

 In April, 2013, ABAC signed an agreement with U.S. Customs and Border 

Protection to open a pre-clearance screening facility at Abu Dhabi International 

Airport.23 The preclearance infrastructure, like the Abu Dhabi International Airport itself, 

would be financed by the Government of Abu Dhabi for the benefit of Etihad.24 U.S. 

airlines, including Delta and other members of Airlines for America, have vigorously 

objected to this agreement as being inimical to the interests of U.S. airlines and contrary 

to U.S. international aviation policy.25 The proposed JAT/Etihad codeshare raises 

additional concerns that the Government of Abu Dhabi and Etihad intend to use preclearance at Abu Dhabi to distort competition for international air travel by driving air 

traffic to Abu Dhabi under circumstances in which such preclearance offsets the obvious 

disadvantages of the proposed codeshare routes’ circuity. Such an abuse of preclearance is inconsistent with the interests of the U.S. aviation industry and U.S. 

international aviation policy objectives. 

* * * 

 

23 “Where the Short Customs Lines Are,” Scott McCartney, The Wall Street Journal (July 31, 

2013). 

24 Id. (noting that Abu Dhabi “has agreed to cover most of the costs.”). 

25 “Lawmakers Hear Strong Arguments Regarding Abu Dhabi Preclearance,” Michael Bruno, 

Aviation Week (July 10, 2013). 
Delta Air Lines Consolidated Answer 

Page 12 

 For the foregoing reasons, Delta objects to the above-captioned applications of 

JAT and Etihad and urges the Department to deny them both. 

 Respectfully submitted, 

 

 _____________________________ 

 Alexander Van der Bellen 

 Managing Director, Government Affairs 

 & Associate General Counsel 

 DELTA AIR LINES, INC. 
CERTIFICATE OF SERVICE

A copy of the foregoing Answer has been served this 10th day of October, 2013, upon the 

following persons via email:

ESahr@eckertseamans.com

anita.mosner@hklaw.com

Jennifer.Nowak@hklaw.com

robert.wirick@aa.com

francis.heil@aa.com

anbird@fedex.com

sllunsford@fedex.com

dan.weiss@united.com

howard.kass@usairways.com

rsilverberg@sgbdc.com

jjohnson@sgbdc.com

tom.fosko@airtransport.com

jcanny@amerijet.com

jrichardson@johnlrichardson.com

rpommer@atlasair.com

john.palo@evergreenairlines.com

charters@evergreenairlines.com

matwood@cozen.com

mlbenge@zsrlaw.com

kevin.montgomery@polaraircargo.com

peter.beckett@polaraircargo.com

john.allen@faa.gov

Russell.Bailey@alpa.org

dberg@airlines.org

kglatz@airlines.org

paul.gretch@dot.gov

todd.homan@dot.gov

Peter.Irvine@dot.gov

info@airlineinfo.com