1

BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, DC

)

Application of )

) Docket No. OST-2013-0204

NORWEGIAN AIR INTERNATIONAL )

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) )

)

JOINT SUBMISSION OF THE EUROPEAN TRANSPORT WORKERS' 

FEDERATION AND THE TRANSPORTATION TRADES DEPARTMENT, AFLCIO (TTD) TO DOT’S AUGUST 4 NOTICE

The European Transport Workers' Federation (ETF), is a labor organization consisting of 

trade unions in the transportation industry from the European Union, the European 

Economic Area and Central and Eastern European countries. ETF represents more than 2.5

million transport workers, among them more than 250,000 civil aviation employees. The 

Transportation Trades Department (TTD) is a U.S.-based national labor organization under 

the umbrella of the American Federation of Labor-Congress of Industrial Organizations

(AFL-CIO), representing several million transport workers through its 32 member unions. 

Specifically, TTD’s private sector aviation unions1represent the vast majority of 

employees at U.S. airlines that would be in direct competition with NAI for international 

routes.

The ETF and TTD join in this submission to express our serious objections and concerns 

outlined below. As indicated, in addition to the submissions we have made separately

regarding the severe negative impacts that this matter will have on fair competition, jobs 

and labor rights, we have deep and profound concerns that the business model being 

pursued by Norwegian Air International (NAI) raises significant security concerns. Among 

other things, we believe that critical policies and regulations adopted following the terrorist 

attacks of September 11, 2001, by the U.S. and EU to ensure the safety of its citizens could 

be at risk.

 

1 TTD’s member unions include the following private sector aviation unions: Air Line Pilots Association, 

Association of Flight Attendants-CWA, International Association of Machinists and Aerospace Workers,

and Transport Workers Union.
2

At the outset, it should be noted that the position expressed by officials from the Directorate 

General for Mobility and Transport (DG MOVE) during its meeting with the U.S. 

Department of Transportation and the Department of State on July 14, 2014, on the legal 

meaning and applicability of article 17 bis of the EU-U.S. agreement while considering the 

exemption and a foreign air carrier permit for NAI raise serious concerns. While we 

welcome the request by the U.S. government to DG MOVE to submit its position on the 

meaning and the applicability of article 17 bis "Social dimension," we vehemently disagree 

with the opinions given by DG MOVE during the meeting.

Our general and specific objections to the explanation provided by DG MOVE as 

referenced include the following:

1) DG MOVE does not represent the views of all the European signatories of the EU-US

Air Transport Agreement (ATA)

The European Commission does not have the mandate or the authority to represent the 

views of all the signatory member states to the ATA. During the meeting of the European 

Consultative Forum on 23 July 2014, several stakeholders including industry and union 

representatives raised questions and concerns to the European Commission regarding the 

business model of NAI. Several member states have indicated their support for the position 

outlined by these stakeholders. Some of them have expressed in writing their concerns

about DG MOVE’s support of NAI's practices. 

2) Article 4 c)

NAI’s interpretation of Article 4 (Authorisation) of the ATA is deeply flawed. Article 4 

reads in part:

"On receipt of applications from an airline of one Party, in the form and manner prescribed 

for operating authorisations and technical permissions, the other Party shall grant 

appropriate authorisations and permissions with minimum procedural delay, provided: 

[...]

(c) the airline is qualified to meet the conditions prescribed under the laws and regulations 

normally applied to the operation of international air transportation by the Party 

considering the application or applications."

The tortured language construction offered by NAI, taking special note that NAI is 

established in Ireland without having any substantial activity in this country, facilitates 

social dumping2, notably by employing aircrew based outside of the EU with the aim to 

 

2 Social dumping is defined as: "practice designed to take advantage of competition between workers from 

different regions or sectors. Social dumping is practiced by some employers to take advantage of 

competition between workers from different regions or sectors. Social dumping is practiced by some 

employers to hire the least protected workers with the cheapest salary, inferior working conditions, to 

increase profit margins and prevent or reduce the collective representation of workers. Geographically, 

this practice is perfectly illustrated by the phenomenon of delocalization/offshoring (the company will 

look elsewhere for the cheapest labor and less organized). At the sectoral level, the use of (agency) 
3

circumvent EU member states' legislation on social security, taxes and labour, as well as 

collective agreements. That this activity somehow meets the standards for receipt of 

operating authorizations set out in Article 4 defies common sense and must be rejected. 

Further, if NAI’s business model is allowed to operate in the trans-Atlantic marketplace it 

would render Article 17 bis meaningless. Article 17 bis, provides: "The parties recognize 

the importance of the social dimension of the Agreement and the benefits that arise when 

open markets are accompanied by high labour standards. [...]". NAI’s proposed business 

is premised on an employment model that intentionally avoids the labor standards currently 

enjoyed by U.S. and European air crews. This is inconsistent with Article 17 bis and 

contrary to any acceptable notion of “high labour standards.” As such, it is unsurprising 

that NAI’s interpretation of the Agreement would nullify any implementation or 

application of the Article. 

We understand that aircrew members allegedly based in Thailand spend substantial time 

flying to and from Europe and within Europe. Their activity raises serious concerns that 

NAI may be using its crew’s unique situation to circumvent current labour law, social law 

and collective agreements applicable to aircrew governed by individual EU member states' 

statutes, regulations and policies. Regulations 593/2008/EC and 465/2008/EC clearly 

provide that the law of the member state where the worker habitually carries out his/her 

duties is applicable. In our opinion, this circumvention of the European legislation 

undermines labor standards. In addition, it is our understanding that none of NAS

experienced and unionized staff have been offered to fly on NAI aircraft. We also 

understand that the company has preferred to hire non-unionized staff, which also may be 

in contravention of European policies and legislation.

We also question NAI’s attempts to satisfy provisions concerning “principal place of 

business” as defined in the ATA, because the principal financial functions and operational 

control are not exercised from Ireland. Based on the fact that the International 

Confederation of Trade Unions together with Irish trade unions IMPACT and ALPA have 

submitted a formal complaint on 4 May 2010 to the International Labor Organization for 

breach of ILO Convention No. 98 Right to Organize and Collective Bargaining, we also 

think that Ireland could be described as a country of "flag of convenience."

3) Interpretation of Article 17 bis of the ATA

Article 17 bis cannot be interpreted in a way that would allow the undermining of labour

rights and standards in any way. It is binding and has the same legal strength as other 

articles of the ATA, namely articles 3 and 4. In terms of paragraph one, the second sentence 

("The opportunities created by the agreement are not intended to undermine labour 

 

temporary workers, subcontracting, bogus self-employment, non-organized workers, precarious 

contracts or cheapest salaries also allows the employer to reduce its personnel costs. There is then, in the 

name of "competiveness" a downgrading of working conditions, training, health and safety and wages: 

each company sights unfair competition organized by another company to justify tougher working 

conditions and impose more flexibility, wage cuts or a weakening of the welfare of its workers, such as 

the use of unsafe working practices, which increase the risks of industrial accidents."
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standards or the labour-related rights and principles contained in the Parties' respective 

laws") should be interpreted as "shall not undermine," i.e. as a mandatory clause. The 

second part of the sentence relates to "Parties' respective laws" which is a clear indication 

to the different jurisdictions of the United States and individual EU member states. 

Therefore, we cannot accept the Commission’s conclusion that this article can only be 

assessed jointly. In our opinion, the U.S. is entitled to assess it alone. However, this does 

not prevent exchanges during EU-U.S. Joint Committee meetings.

4) Safety issues (ATA Articles 4 d) & 8)

According to article 4 d), one of the preconditions to receive authorization is that "the 

provisions set forth in Article 8 (Safety)[...] are being maintained and administered." 

Despite the fact that the Irish Department of Transport dismissed any concerns regarding 

safety in its letter dated 30 July 2014,3 we still believe that there are outstanding issues that 

should be addressed. This belief is strengthened by the declaration of Captain S. Colman

to the DOT (ex-Norwegian Air captain) dated 22 July 2014 that has been submitted to your 

department (see attachment). In this declaration, he illustrated the complicated nature of 

his relation with NAS/NAI, as well as difficulties when submitting (mandatory) flight 

safety reports and the retaliatory actions from management. We wonder whether European 

civil aviation legislation provides sufficient safety guarantees for aircrews based outside of 

the EU or the U.S. The same is valid for self-employed, such as NAI cabin crew hired 

through a hiring agency "Adecco" and based in Thailand or flight crew working on 

individual employment contracts with a Singaporean hiring agency.

5) Security issues (ATA Articles 4 d) & 9)

In addition to the aforementioned, it is imperative that our serious concerns over U.S. and 

European Security are addressed.

Following the tragic September 11, 2001, terrorist attacks, new security measures were put 

in place including extensive background checks of aircrew. Given the ever-increasing 

sophistication of new threats we are mindful of any attempts, intentionally or 

unintentionally, to undermine much needed security measures to protect air crews, the 

flying public, communities, the industry and, of course, U.S. and European international, 

national and regional security. In this vein, we have sincere concerns that Thailand-based 

cabin crews hired through a hiring agency "Adecco" as utilized by NAI (established in 

Ireland) guarantee the same level of background checks that exist for European and U.Sbased aircrews. The seriousness of this concern on the overall high level of security of 

operations between the USA and Europe cannot be overstated. In addition, this 

phenomenon can potentially spread to other regions of the world.

 

3 Letter of Mr. John J. Fearon, Director General of Civil Aviation, Irish Department of Transport, Tourism 

and Sport to Mr. Paul Gretch, Director, Office of International Aviation, US Department of Transportation
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6) Retaliatory Measures and Dispute Resolution

Finally, we would like to address the irresponsible claims made by some – most recently 

in comments filed by the Washington Airports Task Force (WATF) – that the denial of 

NAI’s application by DOT could “potentially invite retaliation and a trade war.” This is 

nothing more than fear mongering, and ignores the dispute resolution and arbitration 

mechanisms built into the Agreement, most notably Article 18. According to the August 4 

Notice, DG MOVE even referenced Article 18 as a mechanism for resolving concerns or 

disagreements between parties over how the Agreement is implemented. Retaliatory 

measures are a last resort that could come about if differences between parties cannot be 

resolved through the appropriate consultation and adjudication measures. To suggest that 

retaliatory actions could result from a decision (as yet not made) by one party before any 

formal consultation or adjudication process has begun is a threat that undermines the terms 

of the agreement as were negotiated in good faith between the U.S. and EU.

Respectfully submitted,

_________________________________

Eduardo Chagas, General Secretary

European Transport Workers’ Federation

Rue du Marché aux Herbes, 105 (bte 11) 

1000 Brussels

Belgium

__________________________________

Edward Wytkind, President

Transportation Trades Department, AFL-CIO

815 16th Street, NW

Washington, DC 20006

Phone: 202-628-9262

Fax: 202-628-0391

Email: edw@ttd.org
ANNEX I – LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

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ANNEX I – LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

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ANNEX I – LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

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ANNEX I – LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

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ANNEX I – LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

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ANNEX II – ANSWER OF THE ROYAL NORWEGIAN MINISTRY OF 

TRANSPORT AND COMMUNICATION TO PARAT'S REQUEST FOR 

CLARIFICATION OF VARIOUS CIRCUMSTANCES CONNECTED TO 

NORWEGIAN LONG HAUL (NLH) AVIATION OPERATIONS

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ANNEX II – ANSWER OF THE ROYAL NORWEGIAN MINISTRY OF 

TRANSPORT AND COMMUNICATION TO PARAT'S REQUEST FOR 

CLARIFICATION OF VARIOUS CIRCUMSTANCES CONNECTED TO 

NORWEGIAN LONG HAUL (NLH) AVIATION OPERATIONS

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ANNEX II – ANSWER OF THE ROYAL NORWEGIAN MINISTRY OF 

TRANSPORT AND COMMUNICATION TO PARAT'S REQUEST FOR 

CLARIFICATION OF VARIOUS CIRCUMSTANCES CONNECTED TO 

NORWEGIAN LONG HAUL (NLH) AVIATION OPERATIONS

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CERTIFICATE OF SERVICE

We certify that we have, on this 18th day of August, 2014, served the foregoing document 

on the persons identified below by causing a copy to be sent by electronic mail: 

Reese.Davidson@dot.gov; 

steve.morrissey@united.com; 

Thomas.bolling@united.com;

dan.weiss@united.com;

hershel.kamen@united.com;

sascha.vanderbellen@delta.com;

chris.walker@delta.com;

Andrea.Newman@delta.com;

mlbenge@zsrlaw.com;

rpommer@atlasair.com;

russell.bailey@alpa.org;

\david.semanchik@alpa.org;

jonathan.cohen@alpa.org;

robert.wirick@aa.com;

francis.heil@aa.com;

michael.wascom@aa.com;

howard.kass@aa.com;

jesse.elliot@faa.gov;

douglas.schwab@faa.gov;

nicholas.tsokris@faa.gov;

john.y.chen@faa.gov;

anita.mosner@hklaw.com;

jennifer.nowak@hklaw.com;

nssparks@fedex.com;

gbleopard@fedex.com;

pvs@eurocockpit.be

cc@eurocockpit.be

romanow@pillsburylaw.com;

jennifer.trock@pillsburylaw.com;

peter.nelson@pillsburylaw.com;

Melinda.hernandez@pillsbury.com;

dberg@airlines.org;

jcasey@airlines.org;

kglatz@airlines.org;

CBethke@airlines.org;

edw@ttd.org;

ejames@jamhoff.com;

info@airlineinfo.com;

clytle@portoakland.com;

kgeorge@broward.org;
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mrichardson@swapa.org;

sshur@traveltech.org;

michael.whitaker@faa.gov;

ottar.ostnes@sd.dep.no;

david.batchelor@sesarju.eu;

felix.leinemann@eeas.europa.eu;

matthew.baldwin@ec.europa.eu;

john.hanlon@elfaa.com;

dhainbach@ggh-airlaw.com;

Athar.HusainKhan@aea.be;