BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

______________________________________________

In the matter of )

 )

NORWEGIAN AIR INTERNATIONAL ) Docket OST-2013-0204

LIMITED )

 )

for an exemption under 49 U.S.C. § 40109 )

and a foreign air carrier permit pursuant to )

49 U.S.C. § 41301 (US-EU Open Skies) )

 )

_____________________________________________ )

RESPONSE OF KLM ROYAL DUTCH AIRLINES TO AUGUST 4 NOTICE

Communications with respect to this document should be sent to:

Michiel Laumans

Director European Affairs

KLM Royal Dutch Airlines

149 Avenue Louise/17th floor

1050 Brussels

Belgium 

Email: michiel.laumans@klm.com

August 18, 2014
BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

______________________________________________

In the matter of )

 )

NORWEGIAN AIR INTERNATIONAL ) Docket OST-2013-0204

LIMITED )

 )

for an exemption under 49 U.S.C. § 40109 )

and a foreign air carrier permit pursuant to )

49 U.S.C. § 41301 (US-EU Open Skies) )

 )

_____________________________________________ )

RESPONSE OF KLM ROYAL DUTCH AIRLINES TO AUGUST 4 NOTICE

KLM files this response to the Department’s August 4, 2014 Notice that seeks the views 

of interested parties on the Department’s summary of the July 14, 2014 meeting with DG-MOVE 

regarding the interpretation of Article 17 bis of the U.S.-EU Open Skies Agreement. KLM’s 

position is that (a) the position of the European Party to the Agreement has not been determined 

yet; (b) Article 17bis should guide the Parties in their implementation of the Agreement; (c) 

accordingly it should not bar the Department from denying Norwegian International Airlines 

(NAI)’s application for U.S.-EU scheduled authority under U.S. aviation law if it reaches the 

conclusion the application is not in the public interest. 

On February 21, 2014, KLM filed comments opposing NAI’s application in this Docket 

based on its view that NAI’s labor practices appeared questionable in light of the “high labor 

standards” referred to in Article 17bis of the EU-US Agreement as well as the U.S. statutory 
KLM Response

August 18, 2014

Page 3

policy goals under Sec. 40101(a) of Title 49. Use of Thai-based cabin crews and European pilots 

employed by Singapore-based subsidiaries raise several essential issues in terms of labor 

protections. KLM regards such employment practices to be incoherent with the European 

objectives of developing growth and jobs. Further, KLM believes that EU Authorities should 

thoroughly investigate the potential consequences of schemes of operations in which there is a 

loose contractual link between crews and the operating airline. 

The Department now seeks comments on DG-MOVE’s view that Article 17bis cannot be 

invoked by the Department or any other Party to the Open Skies Agreement alone to deny the 

application of a carrier of the other Party for a license under Article 4.

First, KLM wishes to underscore that Department officials at this stage only heard the 

views of DG-MOVE officials. The Parties to the Agreement on the European side are the 

Commission and its Member States. The Department, seeking the views of the European Union 

on Article 17bis, should find those in an official statement of the EC and the Member States as 

well.

Secondly, KLM strongly believes that the provisions of Article 17bis should guide the 

Parties in their implementation of the Agreement. In our view, Article 17bis formulates legal 

principles that ought to be taken into account in an Article 4(c) application; accordingly KLM 

believes that the implementation of the Agreement’s provisions including Article 4 should not 

“undermine labor standards or the labor-related rights and principles in the Parties’ respective 

laws.” The fact that Article 4 makes no reference to Article 17 bis is not compelling at all as

there is no language in Article 4 stating that Article 17 bis does not apply.
KLM Response

August 18, 2014

Page 4

Thirdly, KLM reads Article 4(c) of the Agreement as imposing on the Department an 

obligation to grant appropriate authorization to an applicant if “the airline is qualified to meet the 

conditions prescribed under the laws and regulations normally applied...” Those “laws and 

regulations” should include in our view the protection of the “high labor standards” secured by 

Article 17bis as well as the policy objectives provided for by U.S. statutory law (49U.S.C. §§ 

40101(a)(5), 40101(a)(15) and (e)(1)).

Article 6 bis on reciprocal recognition of citizenship and fitness determinations does not 

seem to prevent the Department from applying “public interest” considerations in deciding 

whether to grant or deny NAI’s exemption application. 

Thus, to the extent that the Department needs to act on NAI’s exemption application to 

meet a statutory deadline (e.g., 49 U.S.C. Sec. 41710), the Department is entitled to examine the 

exemption application based on the applicable “public interest” standard that governs actions 

under 49 U.S.C. Section 40109. 

Consideration of the “public interest” including the fact that the position of the European 

Party has not been determined yet would require, in our view, that the Department denies NAI’s 

exemption application at this stage. To the extent Article 6bis applies, the Department may then 

notify the European Party that it has questions whether the requirements of Article 4(c) have 

been met by NAI’s application. 

The Department will remain in a position to continue to consider NAI’s application for 

permanent authority. In that context, the Department will be able to determine, on the record, 
KLM Response

August 18, 2014

Page 5

after consultations with the EC and its Member States which position to take on NAI’s foreign 

air carrier application. 

Respectfully submitted,

Michiel Laumans

__________________________

Director European Affairs

KLM Royal Dutch Airlines

149 Avenue Louise/17th floor

1050 Brussels

Belgium

August 18, 2014