UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation on August 24

, 20 10



### N OTICE OF ACTION TAKEN

– DOCKET S DOT

- OST

- 2003

- 16219 and DOT

- O ST

- 20 10

- 0199

______________________ __________________________________________________________________________________________________________ This serves as notice to the public of the action described below, taken by the Department official indicated (no additional confirming order will be issued in this matter).

Joint Applicant s : AER LINGUS LIMITED (A er Lingus ) and SPANAIR, S.A. (Spanair)

Date Filed: August 5 , 2010

Relief requested: Amendment of e xemption from 49 USC § 41301 to permit Spanair to provide scheduled foreign air transpor tation of persons, property, and mail, through code

- share service

, with Aer Lingus , between any point or points in any Member State of the European Community, on the one hand, and any point or points in the U.S. and beyond to any point or points in third c ountries, on the other hand. 1

Blanket s tatement of authorization under 14 CFR Part 212 to permit Aer Lingus to display the ( JK *) designator code of Spanair on Aer Lingus flights in conjunction with foreign air transportation of persons, property, and mail : (i) between any point or points in the United States and any point or points in the European Union (on a nonstop basis and intermediate routings via open

- skies points); (ii) between a point or points in the United States and any other point or points in the European Common Aviation Area (ECAA), where an open

- skies agreement is being applied; (iii) between EU points; and (iv) beyond the U.S. or EU to any point or points. 2

Applicant representative s : Charles A. Hunnicutt (Aer Lingus), 202

- 274

- 2957 and Michael F. Goldman (Spanair) , 202

- 944

- 3305

DOT analyst: Brett D. Kruger , 202

- 366

- 8025

Responsive pleadings: None

DISPOSITION

Action: Approved

, subject to conditions Action date: August 24 , 20 10

Effective dates of authority granted: Spana ir ’s exemption authority is effective from August 24 , 20 1 0, through August 24 , 20 1 2

. The statement of authorization granted to Aer Lingus is effective August 24 , 20 1 0 , and will remain in
effect for an indefinite duration , subject to conditions

.

Basis for approval (bilateral agreement/reciprocity): U.S.

- EU Air Transport Agreement.

Except to the extent exempted/waive d , this authority is subject to the terms, conditions, and limitations of our standard foreign air carrier exemption conditions attached as Ap pendix A and codeshare conditions attached as Appendix B

.

1 Spanair holds exemption authority in Docket DOT

- OST

- 2003

- 16219 to place its “JK” code on flights operated by U.S. carriers with
which it has a code

- share agreement . It here requests amendment of that authority to also permit code

- share services with Aer Lingus.
We note that Spanair’s existing code

- share exemption authority, to which it now seeks to add Aer Lingus, is more limited than the scope of the statement of authorization requested here by Aer Lingus and reflected in the joint applicants’ blanket code

- share
notification. See footnote 2

. Spanair would accordingly need additional exemption authority to make full use of the code

- share
services outlined in the blanket notification

. 2 The joint applicants provided blanket notification of their intent to code share on flights (a) between any point or points i n the United
Sta tes and any point or points in the European Union (on a nonstop basis and intermediate routings via open

- skies points); (b) between a point or points in the United States and any other point or points in the European Common Aviation Area (ECAA), where an o pen

skies agreement is being applied; (c) between European union points; and (d) beyond the United States or European Union to an y
open

- skies point or points.Action taken by: Paul L. Gretch, Director Office of International Aviation

_________________________________________________________ ___________________________________________________ Under auth ority assigned by the Department in its regulations, 14 CFR Part 385, we found that (1) our action was consistent with Department policy; (2) the applicant was qualified to perform their proposed operations; (3) grant of the authority was consistent with

t he public interest; and (4) grant of the authority would not constitute a major regulatory action under the Energy Policy and Conservation Act of 1975. To the extent not granted, we denied all requests in the referenced Docket. We may amend, modify, or

r evoke the authority granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set forth in this Notice under the Department’s regulati ons, 14 CFR §385.30, may file their peti tions within seven (7) days after the date of issuance of this Notice. This action was effective when taken, and the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide Web at: http://www.regulations.govAppendix A



### F oreign Air Carrier Exemption Conditions

In the conduct of the operations authorized, the foreign carrier applicant shall:



### (1) Not conduct any operations unless it hol ds a currently effective authorization from its homeland for such operations, and it has filed a copy of such authorization with the Department;

(2) Comply with all applicable requirements of the Federal Aviation Administration, the Transportation Security
Ad ministration, and with all applicable U.S. Government requirements concerning security, including, but not limited to, 14 CFR Parts 129, 91, and 36 and 49 CFR Part 1546 or 1550, as applicable. To assure compliance with all applicable U.S. Government requi rements concerning security, the holder shall, before commencing any new service (including charter flights) from a foreign airport that would be the holder’s last point of departure for the United States, contact its International Industry Representative (IIR) (formerly referred to as International Principal Security Inspector) to advise the IIR of its plans and to find out whether the Transportation Security Administration has determined that security is adequate to allow such airport(s) to be served;



### (3) Co mply with the requirements for minimum insurance coverage contained in 14 CFR Part 205, and, prior to the commencement of any operations under this authority, file evidence of such coverage, in the form of a completed OST Form 6411, with the Federal Aviati on Administration’s Program Management Branch (AFS

260), Flight Standards Service (any changes to, or termination of, insurance also shall be filed with that office);

(4) Not operate aircraft under this authority unless it complies with operational safety req uirements at least equivalent to Annex 6 of the Chicago Convention;

(5) Conform to the airworthiness and airman competency requirements of its Government for international air services;



### (6) Except as specifically exempted or otherwise provided for in a Departmen t Order, comply with the requirements of 14 CFR Part 203, concerning waiver of Warsaw Convention liability limits and defenses;

(7) Agree that operations under this authority constitute a waiver of sovereign immunity, for the purposes of 28 U.S.C. 1605(a), bu t only with respect to those actions or proceedings instituted against it in any court or other tribunal in the United States that are: (a) based on its operations in international air transportation that, according to the contract of carriage, include a point in the United States as a point of origin, point of destination, or agreed stopping place, or for which the contract of carriage was purchased in the United States; or (b) based on a claim under any international agreement or treaty cognizable in any court or other tribunal of the United States. In this condition, the term "international air transportation" means "international transportation" as defined by the Warsaw Convention, except that all States shall be considered to be High Contracting Parti es for the purpose of this definition;

(8) Except as specifically authorized by the Department, originate or terminate all flights to/from the United States in a Member State of the European Union;

(9) Comply with the requirements of 14 CFR Part 217, concerning the reporting of scheduled, nonscheduled, and charter data;

(10) If charter operations are authorized, except as otherwise provided in the applicable aviation agreement, comply with the Department's rules governing charters (including 14 CFR Parts 212 and 380); and

(11) Comply with such other reasonable terms, conditions, and limitations required by the public interest as may be prescribed by the Department, with all applicable orders or regulations of other U.S. agencies and courts, and with all applicab le laws of the United States.

This authority shall not be effective during any period when the holder is not in compliance with the conditions imposed above. Moreover, this authority cannot be sold or otherwise transferred without explicit Department app roval under Title
49 of the U.S. Code.

EU carrier 01/2008Appendix B

Th e statement of authorization is subject to the following conditions:

(a) The statement of authorization will remain in effect only as long as (i) Aer Lingus and Spanair continue to hold the necessary underlying authority to operate the code

- share services at issue, and (ii) the code

- share agreement providing for
the code

- share operations remains in effect;

( b ) Aer Lingus and/or Spanair must notify the Department no later than 30 d ays before they begin any new code

- share
service under the code

- share services authorized here. Such notice shall identify the market(s) to be served and the date on which the service will begin. Such notices should be filed in Docket DOT

- OST

- 2010

- 0199 ;



### ( c ) Aer Lingus and/or Spanair must notify the Department immediately if the code

- share agreement under which
these code

- share services are operated is no longer in effect or if the carriers decide to cease operating all or a portion of the approved code

- share services. Such notices should be filed in Docket DOT

- OST

- 20 10

- 0199 ; 1

( d ) The code

- sharing operations conducted under this authority must comply with 14 CFR Part 257 and with any amendments to the Department's regulations concerning code

- share arr angements that may be adopted. Notwithstanding any provisions in the contract between the carriers, our approval here is expressly conditioned upon the requirements that the subject foreign air transportation be sold in the name of the carrier holding out such service in computer reservation systems and elsewhere; that the carrier selling such transportation (i.e., the carrier shown on the ticket) accept responsibility for the entirety of the code share journey for all obligations established in its contrac t of carriage with the passenger; and that the passenger liability of the operating carrier be unaffected;

(e) The authority granted here is specifically conditioned so that neither Aer Lingus nor Spanair 

### shall give any force or effect to any contractua l provisions between themselves that are contrary to these conditions ; and

( f

) We may amend, modify, or revoke the authority granted at any time without hearing at our discretion.

1 We expect this notification to be received within 10 days of such non

- effectiveness or of such decision.