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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
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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

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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

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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 French
Additional Response of CAIRE

Page 4

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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 shares1(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

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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

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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)

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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

howard.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