\\DC - 706339/000300 - 5498457 v2 BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) for an exemption under 49 U.S.C. § 40109 and a foreign air carrier permit under 49 U.S.C. § 41301 (Guadeloupe/Martinique/St. Martin-San Juan) ) ) ) ) ) ) ) ) Docket DOT-OST-2013-0200

RESPONSE OF COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) TO ADDITIONAL UNAUTHORIZED FILING OF MR. SERGE BARDER

Communications with respect to this document should be addressed to:
Robert E. Cohn HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 +1 202 637 4999 (telephone) +1 202 637 5910 (fax) robert.cohn@hoganlovells.com
Counsel for COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE)

February 25, 2014\\DC - 706339/000300 - 5498457 v2 BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) for an exemption under 49 U.S.C. § 40109 and a foreign air carrier permit under 49 U.S.C. § 41301 (Guadeloupe/Martinique/St. Martin-San Juan) ) ) ) ) ) ) ) ) Docket DOT-OST-2013-0200

RESPONSE OF COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE) TO ADDITIONAL UNAUTHORIZED FILING OF MR. SERGE BARDER Compagnie Aérienne Inter Régionale Express (CAIRE) hereby responds to the most recent unauthorized pleading of Mr. Serge Barder (yet another “Motion to Deny,” dated February 18, 2014). Once again, Mr. Barder’s unauthorized tirades should be rejected. However, in the event the Department accepts Mr. Barder’s unauthorized filing, CAIRE requests leave to submit this brief response to address the additional erroneous allegations contained in Mr. Barder’s submission, to ensure a complete and accurate record. 1. Mr. Barder produced a document purporting to indicate that he had been appointed as a Vice President for Air Antilles Express and Air Guyane Express in 2005. First, Mr. Barder’s employment claims are not relevant to CAIRE’s application pending before DOT. Second, CAIRE disputes Mr. Barder’s claim of employment and contends that a formal employment relationship with him was never established. Mr. Barder’s employment claims are currently being litigated in a court in France.Additional Response of CAIRE Page 2

\\DC - 706339/000300 - 5498457 v2 2. Mr. Barder’s longwinded discussion of Mr. Serge Tsygalnitzky’s credentials is simply wrong. Mr. Tsygalnitzky was duly appointed as Directeur Général Délégué (that is the French equivalent to delegated Chief Executive Officer) by CAIRE’s Board of Directors and is fully authorized to act on CAIRE’s behalf. Nothing more need be said on this subject. 3. When it comes to CAIRE’s IATA air carrier code assignment, Mr. Barder continues to have it backwards. There are not three distinct legal entities involved here, but one (CAIRE), using two trade names. One airline with multiple trade names may use a single IATA code for flights operated under all different trade names. That is a commonplace and accepted practice, and is precisely what CAIRE does with flights under its Air Antilles Express and Air Guyane Express trade names. 4. With respect to Mr. Barder’s claims relating to advertising, CAIRE states that the Air Antilles Express website is based in its homeland, is not targeted to U.S. consumers (its facing page is in French and it displays prices in Euros). Although for a short period of time CAIRE displayed flights to San Juan, all the flights were blocked out and unavailable for purchase, with the notation “Flights Complete.” By using this notation, CAIRE intended not to make these flights available for sale. To avoid any doubt or confusion, CAIRE has removed the references to San Juan from its Caribbean-based and marketed website.Additional Response of CAIRE Page 3

\\DC - 706339/000300 - 5498457 v2 5. In terms of the press conference and press release mentioned by Mr. Barder, there was no press release. A press conference was held on February 12, 2014, the sole purpose of which was to announce the initiation of service with a new aircraft and the formation of a new alliance between CAIRE and another Caribbean airline, Winward Island Airways International NV (“Winair”). The press conference did not relate to CAIRE’s proposed service to San Juan. At the press conference, CAIRE’s representative mentioned future service plans including plans to serve San Juan subject to governmental approval (and this fact may have been reported by the press). A statement in a Caribbean based press conference about future service does not constitute an advertisement, much less an improper advertisement or suggestion that the services were available for sale. Moreover, CAIRE did not issue a press release regarding San Juan service. Exhibit 6 attached to Mr. Barder’s filing was a press article, not a press release. 6. Mr. Barder continues to make vague and unfounded statements. This time, Mr. Barder claims that he has a “suspicion” that CAIRE is somehow taking advantage of French subsidies that may unfairly disadvantage U.S. air carriers. It would be imprudent and unwarranted for DOT to give any credence to unsubstantiated (and irrelevant) conjecture which Mr. Barder himself characterizes as “suspicion.” 7. In an attempted coup de grâce, Mr. Barder concludes his most recent filing with allegations concerning Mr. Eric Koury, including press reports in FrenchAdditional Response of CAIRE Page 4

\\DC - 706339/000300 - 5498457 v2 regarding certain court actions relating to Mr. Koury. CAIRE will not comment on those cases, which involve Mr. Koury’s activities prior to his having any relationship with CAIRE and which CAIRE has been advised are being appealed. Suffice it to say that CAIRE’s fitness and qualifications to provide the service have been determined by the French aviation authorities. Nothing presented by Mr. Barder provides grounds for DOT to call into question the French aviation authorities’ fitness determination concerning CAIRE. Moreover, CAIRE wishes to point out that, contrary to Mr. Barder’s assertion, Mr. Koury is not the “majority shareholder and controlling interests” (Exhibit 7) in CAIRE. The Koury family (and not Mr. Eric Koury individually), through intermediary companies, is an indirect shareholder of less than 40% of CAIRE’s voting shares 1 (i.e., a non-majority shareholder). The ultimate intermediary is one of three CAIRE shareholders holding more than 15% of CAIRE. Moreover, Mr. Koury is not an officer or employee of CAIRE and the institutional shareholder he represents (which itself holds no voting shares) has only one of six seats on CAIRE’s Board of Directors. 8. Finally, CAIRE submits that the issuance of an AOC and Operating License to CAIRE by the French aviation authorities conclusively demonstrates that CAIRE is “qualified to meet the conditions prescribed under the laws and regulations normally applied to the operation of international air transportation” by France, as provided for in Article 4 of the EU-U.S. Open Skies Agreement.

1 Through the intermediary, Mr. Koury himself indirectly owns only 4% of CAIRE’s voting shares.Additional Response of CAIRE Page 5

\\DC - 706339/000300 - 5498457 v2 In addition, under Article 4 of the Agreement, the Party "shall grant appropriate authorizations and permissions with minimum procedural delay," provided the airline is substantially owned, effectively controlled, licensed and has its principal place of business in the EU. There is no dispute as to these elements of CAIRE’s application. In addition, Article 6 bis of the EU-U.S. Open Skies Agreement states that a Party shall “not enquire further into” airline fitness and citizenship unless that Party has “a specific reason for concern ... that the conditions prescribed in Article 4 ... have not been met” by the other Party (i.e., by France), in which case the U.S. is limited to pursuing remedies through consultations and in the U.S.-EU Joint Committee. Again, the issuance of the AOC and Operating License by the French aviation authorities establishes that CAIRE is qualified to provide the proposed service under the laws of France. Nothing contained in Mr. Barder’s serial filings remotely undercuts the determinations of the French aviation authorities. Accordingly, the Department is required to “grant [CAIRE] appropriate authorizations and permissions with minimum procedural delay.” EU-U.S. Open Skies Agreement, Article 4. The failure to do so “could affect [CAIRE’s] fair and equal opportunity to compete.” See Memorandum of Consultations signed by D. Calleja and J. Byerly (March 2, 2007), Paragraph 33.Additional Response of CAIRE Page 6

\\DC - 706339/000300 - 5498457 v2 In conclusion, CAIRE urges the Department promptly to dispose of Mr. Barder’s unauthorized filings and grant CAIRE’s application in accordance with the EU-U.S. Open Skies Agreement and Reciprocal Recognition Procedures.

Respectfully submitted,

______________________________ Robert E. Cohn HOGAN LOVELLS US LLP 555 13th Street, NW Washington D.C. 2004 +1 202 637 4999 (telephone) +1 202 637 5910 (fax) robert.cohn@hoganlovells.com
Counsel for COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS (CAIRE)\\DC - 706339/000300 - 5498457 v2 CERTIFICATE OF SERVICE I hereby certify that the foregoing Response of CAIRE was served this 25th day of February, 2014, upon the following addressees:
atc@prw.net serge.barder@gmail.com h oward.kass@aa.com francis.heil@aa.com sascha.vanderbellen@delta.com dan.weiss@united.com gfoss@seaborneairlines.com ismael.bonilla@aerostarairports.com paul.gretch@dot.gov robert.finamore@dot.gov brett.kruger@dot.gov urskr@state.gov

Jonathan Echmalian