Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 5 March 2026 (1)
Case C‑149/25
I Fly Aeroporikes Ypiresies AE,
Cycladesair Aviation GmbH,
Greenair Aviation GmbH
v
Archi Politikis Aeroporias (APA),
Interveners:
Fraport Perifereiaka Aerodromia tis Elladas A AE,
Fraport Perifereiaka Aerodromia tis Elladas B AE
(Request for a preliminary ruling from the Symvoulio tis Epikrateias (Council of State, Greece))
( Reference for a preliminary ruling – Allocation of slots at Union airports – Coordinated airports and schedules facilitated airports – Exclusion of flights operated entirely under Visual Flight Rules (VFR) – Power of Member States to complement the slot allocation regulation – Regulation (EEC) No 95/93 – Power to approve local guidelines at coordinated airports – Article 5(1)(a), Article 5(3), and Article 8(5) – Regulation (EC) No 1008/2008 – Power to adopt national rules at coordinated airports – Article 19(1) – Limitation on Member States in placing restrictions on the use of schedules facilitated airports for VFR flights )
1.        In 2023, the Archi Politikis Aeroporias (APA) (Greek Civil Aviation Authority) approved national rules on the allocation of slots (2) at Greek airports. These rules excluded flights subject to visual flight rules (‘VFR flights’) (3) from slot allocation at both ‘coordinated airports’ and ‘schedules facilitated airports’.
2.        The referring court has doubts as to whether the Member States are competent to lay down rules supplementing Regulation (EEC) No 95/93 (4) and Regulation (EC) No 1008/2008. (5) If they are competent, that court would like to know whether Member States are entitled to extend the slot allocation regime, which is applicable to coordinated airports, to cover schedules facilitated airports.
I.      Legal framework
A.      European Union law
1.      Regulation No 95/93
3.        Article 2 (‘Definitions’) states:
‘For the purpose of this Regulation:
(a)      “slot” shall mean the permission given by a coordinator in accordance with this Regulation to use the full range of airport infrastructure necessary to operate an air service at a coordinated airport on a specific date and time for the purpose of landing or take-off as allocated by a coordinator in accordance with this Regulation;
…
(g)      “coordinated airport” shall mean any airport where, in order to land or take off, it is necessary for an air carrier or any other aircraft operator to have been allocated a slot by a coordinator, with the exception of State flights, emergency landings and humanitarian flights;
…
(i)      “schedules facilitated airport” shall mean an airport where there is potential for congestion at some periods of the day, week or year which is amenable to resolution by voluntary cooperation between air carriers and where a schedules facilitator has been appointed to facilitate the operations of air carriers operating services or intending to operate services at that airport;
…
(m)      “coordination parameters” shall mean the expression in operational terms of all the capacity available for slot allocation at an airport during each coordination period, reflecting all technical, operational and environmental factors that affect the performance of the airport infrastructure and its different sub-systems.’
4.        Article 3 (‘Conditions for airport coordination’) reads:
‘1.      (a)      A Member State shall be under no obligation to designate any airport as schedules facilitated or coordinated save in accordance with the provisions of this Article.
(b)      A Member State shall not designate an airport as coordinated save in accordance with the provisions of paragraph 3.
…
3.      The Member State responsible shall ensure that a thorough capacity analysis is carried out at an airport with no designation status or at a schedules facilitated airport by the managing body of that airport or by any other competent body when that Member State considers it necessary, or within six months:
(i)      following a written request from air carriers representing more than half of the operations at an airport or from the managing body of the airport when either considers that capacity is insufficient for actual or planned operations at certain periods; or
(ii)      upon request from the Commission, in particular where an airport is in reality accessible only for air carriers that have been allocated slots or where air carriers and in particular new entrants encounter serious problems in securing landing and take off possibilities at the airport in question.
This analysis, based on commonly recognised methods, shall determine any shortfall in capacity, taking into account environmental constraints at the airport in question. The analysis shall consider the possibilities of overcoming such shortfall through new or modified infrastructure, operational changes, or any other change, and the time frame envisaged to resolve the problems. It shall be updated if paragraph 5 has been invoked, or when there are changes at the airport influencing significantly its capacity and capacity usage. Both the analysis and the method used shall be made available to the parties having requested the analysis and, upon request, to other interested parties. The analysis shall be communicated to the Commission at the same time.
…
5.      Where capacity problems occur for at least one scheduling period, the Member State shall ensure that the airport is designated as coordinated for the relevant periods only if:
(a)      the shortfall is of such a serious nature that significant delays cannot be avoided at the airport, and
(b)      there are no possibilities of resolving these problems in the short term.
…’
5.        Under Article 4 (‘The schedules facilitator and the coordinator’):
‘1.      The Member State responsible for a schedules facilitated or coordinated airport shall ensure the appointment of a qualified natural or legal person as schedules facilitator or airport coordinator …
…
4.      The schedules facilitator shall advise air carriers and recommend alternative arrival and/or departure times when congestion is likely to occur.
5.      The coordinator shall be the sole person responsible for the allocation of slots. He shall allocate the slots in accordance with the provisions of this Regulation and shall make provision so that, in an emergency, slots can also be allocated outside office hours.
…’
6.        According to Article 5 (‘Coordination committee’):
‘1.      At a coordinated airport, the Member State responsible shall ensure that a coordination committee is set up. …
The tasks of the coordination committee shall be:
(a)      to make proposals concerning or advise the coordinator and/or the Member State on:
…
–        local guidelines for the allocation of slots or the monitoring of the use of allocated slots, taking into account, inter alia, possible environmental concerns, as provided for in Article 8(5);
…
3.      … Any member of the coordination committee may propose local guidelines as provided for in Article 8(5). At the request of the coordinator, the coordination committee shall discuss suggested local guidelines for the allocation of slots …’
7.        Article 6 (‘Coordination parameters’) stipulates:
‘1.      At a coordinated airport the Member State responsible shall ensure the determination of the parameters for slot allocation twice yearly, while taking account of all relevant technical, operational and environmental constraints as well as any changes thereto.
This exercise shall be based on an objective analysis of the possibilities of accommodating the air traffic, taking into account the different types of traffic at the airport, the airspace congestion likely to occur during the coordination period and the capacity situation.
The parameters shall be communicated to the airport coordinator in good time before the initial slot allocation takes place for the purpose of scheduling conferences.
…’
8.        Article 8 (‘Process of slot allocation’) provides:
‘…
5.      The coordinator shall also take into account additional rules and guidelines established by the air transport industry world-wide or Community-wide as well as local guidelines proposed by the coordination committee and approved by the Member State or any other competent body responsible for the airport in question, provided that such rules and guidelines do not affect the independent status of the coordinator, comply with Community law and aim at improving the efficient use of airport capacity. …
…’
2.      Regulation No 1008/2008
9.        Article 15 (‘Provision of intra-Community air services’) states:
‘1.      Community air carriers shall be entitled to operate intra-Community air services.
…’
10.      Article 19 (‘Traffic distribution between airports and exercise of traffic rights’) stipulates:
‘1.      The exercise of traffic rights shall be subject to published Community, national, regional and local operational rules relating to safety, security, the protection of the environment and the allocation of slots.
…’
B.      Greek law. National rules on the allocation of slots at Greek airports (6)
11.      Article 2 (‘Operation of flights at coordinated or schedules facilitated airports’) stipulates:
‘1.      It is not permitted to operate a flight to or from coordinated airports or schedules facilitated airports without an approved slot (depending on the airport category). … (7)
2.      The following types of flight shall be excluded from the provisions of paragraph 1 of this article: [(a)] flights operated entirely under Visual Flight Rules (VFR), [(b)] flights diverted to an alternative airport for technical or meteorological reasons, [(c)] flights for humanitarian purposes, [(d)] search and rescue flights, [(e)] healthcare flights, [(f)] State flights and [(g)] military flights.
For some of those types of flight, the exemptions may be lifted and they may be made subject to restrictions in cases where the smooth operational functioning of the airport concerned is affected. In such cases, changes to the accepted exemptions shall be introduced by means of local rules, following an impact assessment, after consultation with the stakeholders and approval by the relevant Coordination Board.
…
6.      In order to operate ad hoc flights, interested parties must, in addition to the above, consult Greek Aeronautical Information Publications (AIP) and the corresponding NOTAMs (Notices to Airmen) at coordinated and schedules facilitated airports, as well as the local rules applicable (for example, PPR – Prior Permission Required, PNR – Prior Notice Required, or other relevant requirement).’
II.    Facts, dispute and questions referred for a preliminary ruling
12.      On 30 July 2023, I Fly Aeroporikes Ypiresies AE (‘I Fly’), Cycladesair Aviation GmbH and Greenair Aviation GmbH signed a framework agreement to cooperate in the development of a commercial action called the ‘Cycladic Project’.
13.      The Cycladic Project takes into account the circumstance that air carriers operating in the Aegean islands only offer flights with stopovers at mainland airports. The Cycladic Project business plan aims to offer users an alternative travel option, with regular direct passenger flights between these islands throughout the year.
14.      The involvement of the three companies in the Cycladic Project was as follows:
–        I Fly, a commercial air carrier, was responsible for the operational part of the project, as the holder of a valid operating licence and an Air Operator’s Certificate (AOC GR-046), issued on 9 December 2022 by the Ypiresia Politikis Aeroporias (Greek Civil Aviation Authority).
–        Cycladesair Aviation, a provider of travel agency services, was responsible for the commercial side of the project through the management of reservations and other related services.
–        Greenair Aviation, the parent company of Cycladesair Aviation, leased three single-engine fixed-wing Cessna 208B aircraft, with which I Fly operates air connections within the framework of the Cycladic Project. These aircraft are authorised to carry out VFR flights.
15.      On 5 October 2023, the three carriers submitted a proposal to the competent Greek authority (8) for participation in the slot allocation process for the summer 2024 coordination period at the coordinated airports of Mykonos, Santorini, Chania, Rhodes, Kythera, Kos, Heraklion and Paros.
16.      On 30 October 2023, the Director of the Greek Civil Aviation Authority adopted the contested decision.
17.      On 3 November 2023, the National Flights Coordination Authority informed the carrier I Fly that its requests for slot allocation at the coordinated airports of Chania, Rhodes, Kythera, Kos, Mykonos, Santorini, Heraklion and Paros could not be granted. That authority argued that, according to Article 2(2)(a) of the contested decision, VFR flights do not fall within the scope of the obligation to grant slot allocations.
18.      On 28 December 2023, the carriers concerned lodged an action with the Symvoulio tis Epikrateias (Council of State, Greece). Essentially, they argued that Article 2(2)(a) of the contested decision infringes Articles 2(g) and 8(1) of Regulation No 95/93.
19.      The entities entrusted by the Greek State, respectively, with the management and operation of the airports of Crete, mainland Greece and the Ionian region, as well as the regional airports in the Aegean Sea, opposed the action. (9)
20.      As managers of coordinated or schedules facilitated airports, these entities argue that Article 2(2)(a) of the contested decision correctly excludes VFR flights from the slot allocation system. The allocation of slots to these flights would complicate the smooth planning and management of operations at the airports subject to their responsibility, given the risk of delays or cancellations due to adverse weather conditions to which these flights are naturally exposed.
21.      The Greek Civil Aviation Authority also considers that the exclusion of VFR flights from slot allocation is legitimate. Article 8(5) of Regulation No 95/93 allows for the adoption by the competent national authorities of ‘local guidelines’ to introduce additional rules to assist airports with capacity problems. Furthermore, it follows from recital 5 of Regulation (EC) No 793/2004 that Member States may exclude air carriers operating aircraft used for VFR flights from the application of Regulation No 95/93.
22.      Against that background, the
Symvoulio tis Epikrateias (Council of State) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must the provisions of Regulation No 95/93, as amended and in force (in particular Articles 2(a), (g) and (i), 3, 4, 8, 10 and 14(1) thereof) – read in the light of, first, Article 15(1) of Regulation No 1008/2008 (which enshrines the right of Community air carriers to operate intra-Community air services) and, second, Articles 16 and 52(1) of the Charter of Fundamental Rights of the European Union [(‘the Charter’)] – be interpreted as exclusively and exhaustively laying down the terms and conditions for the allocation of slots at airports designated as ‘coordinated’, thereby precluding national regulatory provisions which[:]
–        on the one hand, exclude from the allocation of slots the category of air carriers operating flights entirely under Visual Flight Rules (‘VFR’);
–        on the other hand, extend the application of the slot allocation system to airports designated as ‘schedules facilitated’?
(2)      Or, by contrast, must the abovementioned provisions of Regulation No 95/93 – interpreted, in particular, in the light of recital 5 of Regulation No 793/2004 (according to which ‘specific activities’ may not be subject to slot allocation rules where those are not necessary) and Article 19(1) of Regulation No 1008/2008 (according to which ‘national’ slot allocation rules may also be adopted) – be interpreted as giving Member States the power to lay down detailed provisions on the application of that regulation,
–        on the one hand, by prohibiting the allocation of slots to the category of air carriers operating flights entirely under VFR;
–        on the other hand, by extending the slot allocation system to airports designated as schedules facilitated?’
III. Procedure before the Court of Justice
23.      The request for a preliminary ruling was received at the Court on 19 February 2025.
24.      Written comments were submitted by I Fly, Cycladesair Aviation and Greenair Aviation (all three jointly), Fraport, the Italian and Greek Governments and the European Commission.
25.      The Court did not consider it necessary to hold a hearing.
IV.    Assessment
A.      Preliminary point
26.      To enable a better understanding of the dispute, it is advisable to briefly outline some preliminary considerations.
1.      Airport organisation
27.      The Worldwide Airport Slot Guidelines adopted by the International Air Transport Association (IATA) (10) establish three levels of airports, depending on the congestion they experience. Each level has a different regime for the allocation of landing and take-off infrastructure capacity among the air carriers using the airport:
–        Level
1. No slot allocation or coordination is required.
–        Level
2. There is a ‘facilitator’ who recommends timetables.
–        Level
3. Slots must be allocated by a ‘coordinator’.
28.      EU law does not regulate the allocation of slots at Level
1 airports (airports ‘with no designation status’, as they are referred to in Regulation No 95/93). These airports are governed by the general civil aviation legislation of each country and by international guidelines. (11)
29.      Conversely, Regulation No 95/93 specifies the slot allocation system at Level
3 airports (‘coordinated airports’) and the system of voluntary cooperation for access to Level
2 airports (‘schedules facilitated airports’) within the Union.
2.      Airport coordination
30.      Article 3 of Regulation No 95/93 lays down the conditions for airport coordination:
–        Paragraph 1 establishes the obligation to designate an airport as a coordinated airport when the conditions laid down in this article are met.
–        Pursuant to paragraph 3, a Member State must carry out a detailed analysis of the capacity of an airport, where it considers it necessary or at the request of air carriers representing more than half of the operations at the airport or o the managing body of the airport ‘when either considers that capacity is insufficient for actual or planned operations at certain periods’. The Commission may also request that the Member State carry out such an analysis.
–        Paragraph 5 lays down the conditions under which an airport must be designated as a coordinated airport because of capacity problems.
3.      Slot allocation system
31.      Article 8 of Regulation No 95/93 lays down the procedure for allocation of slots. These are allocated from the slot pool to the applicant air carriers in the form of permissions to use the airport infrastructure for landing or take-off during the requested scheduling period. The slot pool is regulated by Article 10 of the same regulation. (12)
4.      Terms of the reference for a preliminary ruling
32.      I agree with the Commission and the Greek Government that the two preliminary questions actually raise the same question, worded negatively in the first and positively in the second. That question, in turn, concerns two distinct problems:
–        First, whether, in the context of the application of Regulation No 95/93 and Regulation No 1008/2008, Member States have a margin of discretion allowing them to exclude VFR flights from slot allocation at coordinated airports.
–        Second, whether Member States can apply the common slot allocation rules to schedules facilitated airports.
B.      VFR flights at coordinated airports
33.      The Symvoulio tis Epikrateias (Council of State) is inclined, in principle, to uphold the applicants’ application for annulment of the exclusion of VFR flights from coordinated airports. It recognises, however, that there are reasons to doubt, at least, that this argument is clearly established.
34.      Its reasoning is as follows:
–        In principle, the allocation of slots at coordinated airports is systematically and comprehensively governed by Regulation No 95/93. This regulation establishes the allocation system at coordinated airports without allowing Member States to add exceptions to or supplement that system.
–        Regulation No 95/93 does not exclude VFR flights from its scope. Therefore, the competent authorities would not have the power to adopt national slot allocation measures for this category of flights.
–        The general exclusion of VFR flights provided for by the Greek national rules, based on technical flight characteristics, could be contrary to the principles of impartiality, transparency and non-discrimination that, in accordance with recital 2 of Regulation No 95/93, govern EU law on access to airport infrastructures.
–        Article 2(2)(a) of the contested decision should therefore be annulled in so far as it excludes air carriers operating flights operated entirely under VFR rules from the allocation of slots at coordinated national airports.
–        However, in the absence of a ruling by the Court of Justice on this issue, there are doubts as to whether Member States are able to agree national measures implementing Regulation No 95/93, by means of more specific provisions concerning slot allocation at coordinated airports.
1.      Exceptions to slot allocation at coordinated airports
35.      The applicant air carriers submit that the definition of a coordinated airport [Article 2(g) of Regulation No 95/93] implies that any air carrier holding a flight licence is entitled to the allocation of a slot.
36.      Indeed, the allocation of a slot is, in principle, essential for landing at a coordinated airport, as ‘at coordinated airports, access for an air carrier is only possible if a slot has been allocated’. (13)
37.      This is confirmed by Article 2(g) of Regulation No 95/93, in so far as it links the definition of coordinated airport to the allocation of slots for the take-off or landing of aircraft. (14)
38.      Article 2(g) of Regulation No 95/93 does provide, however, for the possibility that ‘State flights, emergency landings and humanitarian flights’ do not require the allocation of a slot. The applicant carriers and the Greek Government disagree on the scope of these exceptions: is this list exhaustive or merely indicative?
39.      In my view, the exceptions listed in Article 2(g) of Regulation No 95/93 relate to specific situations, for which priority treatment is required. If it is accepted that this is a non-exhaustive list (which could be inferred from recital 5 of Regulation No 793/2004), (15) it could only be extended to flights with similar characteristics to those listed in that provision.
40.      This is not the case for the VFR flights with which the applicant carriers aim to operate flights on a regular and scheduled basis. Given their characteristics, these flights do not fit, even by analogy, among the rather extraordinary cases in which Article 2(g) of Regulation No 95/93 authorises landing or take-off at a coordinated airport without a slot having been obtained.
2.      Power of the Member States to supplement the rules contained in Regulation No 95/93
41.      As the Commission points out, (16) Regulation No 95/93 makes no distinction between VFR and IFR flight slots. There are no differences in this respect in the definitions of ‘slot’ [Article 2(a)], ‘coordinated airport’ [Article 2(g)] and ‘air carrier’ [Article 2(f)], or in any other of its rules.
42.      On that basis, do Member States have a margin of discretion to supplement the rules contained in Regulation No 95/93 to the extent of excluding VFR flights from slot allocation procedures?
43.      In general terms, the Court of Justice has recognised the possibility for Member States to ‘adopt implementing measures for a regulation provided that they do not thereby obstruct its direct applicability or conceal its nature as an act of EU law; that they specify that they are acting in exercise of a discretion conferred on them under that regulation; and that they adhere to the parameters laid down thereunder’. (17)
44.      Accordingly, ‘it is by referring to the relevant provisions of the regulation concerned, interpreted in the light of the objectives of that regulation, that it may be determined whether they prohibit, require or allow Member States to adopt certain implementing measures and, particularly in the latter case, whether the measure concerned comes within the scope of the discretion that each Member State is recognised as having’. (18)
45.      Regulation No 95/93, following its reform by Regulation No 793/2004, seeks to provide the system with a certain degree of flexibility, as highlighted in the abovementioned recital 5 of the latter regulation. According to that regulation, ‘specific activities such as helicopter operations should not be subject to slot allocation rules where these are not necessary’.
46.      In the same vein, several rules introduced in Regulation No 95/93 empower Member States to modulate the slot allocation regime:
–        In its Article 8, on the ‘Process of slot allocation’, paragraph 5 states that ‘the coordinator shall also take into account additional rules and guidelines established by the air transport industry world-wide or Community-wide as well as local guidelines proposed by the coordination committee and approved by the Member State or any other competent body responsible for the airport in question, provided that such rules and guidelines do not affect the independent status of the coordinator, comply with Community law and aim at improving the efficient use of airport capacity’. (19)
–        The development of local guidelines is referred to in Article 5(1)(a) where the list of tasks of the coordination committee includes ‘[making] proposals concerning or [advising] the coordinator and/or the Member State on: …
local guidelines for the allocation of slots … as provided for in Article 8(5)’. (20)
–        In accordance with Article 5(3), ‘… any member of the coordination committee may propose local guidelines as provided for in Article 8(5). At the request of the coordinator, the coordination committee shall discuss suggested local guidelines for the allocation of slots … A report of the discussions in the coordination committee shall be submitted to the Member State concerned with an indication of the respective positions stated within the committee’. (21)
47.      The use of local guidelines for the allocation of slots shows that the authorities of each Member State can introduce modulations in the slot allocation regime, precisely because they have a better knowledge of the specific attributes of their airports.
48.      Another example of flexibility in slot allocation can be found in Regulation No 1008/2008. After enshrining, in Article 15(1), the right of ‘Community air carriers … to operate intra-Community air services’, Article 19(1) makes ‘the exercise of traffic rights … subject to published Community, national, regional and local operational rules relating to safety, security, the protection of the environment and the allocation of slots’. (22)
49.      A reading of the abovementioned provisions therefore suggests that Regulations No 95/93 and No 1008/2008 empower Member States to supplement the Union rules on the allocation of slots at coordinated airports, by means of national or local rules.
50.      This power conferred on Member States is, however, subject to certain limitations. These are referred to in Article 8(5) of Regulation No 95/93: the coordinator will take into account local guidelines ‘provided that such … guidelines do not affect the independent status of the coordinator, comply with Community law and aim at improving the efficient use of airport capacity’.
51.      In this context, the appeal to Article 16 of the Charter is inappropriate. (23) The freedom to conduct a business (which, moreover, may be limited in accordance with Article 52(1) of the Charter itself) is not infringed when, in regulating the legal regime governing the use of public infrastructures such as airports, the competent authorities adopt objective criteria, applicable equally to all operators, through which they shape the framework of action in force in them. The contested decision does not affect the freedom of air carriers to shape their own decisions or adopt their business policy, within that framework.
(a)    Nature of the contested decision
52.      Does the contested decision, in so far as it excludes VFR flights from the allocation of slots at coordinated airports, fall within the category of a ‘coordination parameter’ or a national rule supplementing Regulation No 95/93?
53.      According to the Commission, the exclusion of VFR flights could be considered as one of the coordination parameters laid down in Article 6 of Regulation No 95/93. Paragraph 1 of that article requires Member States to adopt the necessary measures to ensure that, at coordinated airports, they carry out ‘the determination of the parameters for slot allocation twice yearly, while taking account of all relevant technical, operational and environmental constraints …’.
54.      However, I believe that the contested decision, rather than being based on technical, operational or environmental constraints that would serve to identify a ‘coordination parameter’, falls within a different logic. Article 2 of that decision regulates – in general and for all Greek coordinated airports – the exclusion of VFR flights from the allocation of slots, which it justifies (as I will explain below) by the lack of certainty as to whether such flights will comply with the allocated schedules, in the case of adverse visibility or weather conditions.
55.      In my view, understood in this context, the contested decision:
–        is not, I repeat, based on the existence of ‘relevant technical, operational and environmental constraints’ as required under Article 6(1) of Regulation No 95/93.
–        does not comply with the definition in Article 2(m) of Regulation No 95/93, which links ‘coordination parameters’ to the expression in operational terms of the capacity available at a particular airport.
–        can, rather, be classified as a national rule issued on the basis of the authorisation contained in Article 19(1) of Regulation No 1008/2008, to which I referred earlier. Under this provision, the exercise of traffic rights will be subject to Community, national, regional or local rules relating, inter alia, to the allocation of slots.
56.      It is for the referring court to assess whether, as would appear logical, the contested decision is of higher rank than the local guidelines of the Greek airports and, consequently, takes precedence over those guidelines.
57.      If it is confirmed that the local guidelines fall under the contested decision, the coordinator must take them into account, in accordance with Article 8(5) of Regulation No 95/93. The referring court, for its part, will be able to determine whether local guidelines that fall under the national rule are in compliance with EU law and aim at improving the efficient use of airport capacity.
(b)    Rationale for limiting VFR flights
58.      Having established that Regulation No 1008/2008 authorises, in principle, the Greek State to issue the contested decision, it is necessary to determine whether the limitations on the allocation of slots to VFR flights, as set out in that decision, are justified.
59.      According to the Greek Civil Aviation Authority:
–        The inclusion of VFR flights in the slot allocation system of a coordinated or schedules facilitated airport would have the effect of disrupting the smooth operation of the airport and the operation of IFR flights with allocated slots.
–        VFR flights, operated on the basis of the pilot’s visual contact with the ground, run an increased risk of delay or cancellation due to adverse weather or visibility conditions.
–        Any delay or cancellation of VFR flights has an impact on the operation of IFR flights in the landing, parking and take-off phases, with the consequence that air carriers operating with flight instruments are unable to meet their scheduled flight times in their allocated slots.
–        However, the operation of VFR flights is still possible, in accordance with Fraport’s PPR handbook: (24) the air carrier may submit to the managing body of the coordinated airport, fourteen days before the date of the planned flight, a request to use its infrastructure, at a point when the weather forecast is more reliably known.
60.      Most of the participants in the preliminary ruling procedure agree that the exclusion of VFR flights from the allocation of slots at Greek coordinated airports is due to the fact that these flights require good weather conditions. VFR flights are much more likely than IFR flights to be delayed or cancelled due to unforeseen disruptions that do not allow safe operation.
61.      A delay or cancellation of flights disrupts the smooth operation of the airport by causing saturation of the airport itself and its airspace, as well as delays in the landing and take-off of other flights, ultimately limiting the airport’s available operational capacity.
62.      In particular, the Greek Government (25) supports the justification for the differentiated treatment of VFR flights compared to IFR flights in rule SERA.5005, inserted in Section
5 of Annex 1 to Implementing Regulation No 923/2012 (‘Visual flight meteorological conditions, visual flight rules, special VFR flight rules and instrument flight rules’). This rule establishes harmonised rules for visual flight, in particular with regard to visibility and cloud clearance minima, weather restrictions, and specific limitations for night flights.
63.      Everything indicates that there could indeed be grounds to legitimise a measure such as the one agreed in the contested decision. The Commission rightly stresses that at saturated airports (namely coordinated airports with shortfalls that are unable to accommodate all slot usage requests), it is crucial that airport capacity is used as efficiently as possible. As VFR flights are highly dependent on weather and visibility conditions, the likelihood of delays or cancellations is much higher than for IFR flights. To the same extent, the allocation of slots to VFR flights could be detrimental to the efficient use of coordinated airports, which would negatively impact IFR flights. (26)
64.      It is, however, for the referring court, which has all the relevant information at its disposal, to assess whether, in the circumstances of the airports at which the applicant carriers requested the allocation of slots, the restriction laid down in the contested decision is justified in the public interest and proportionate to the aim pursued.
65.      Finally, it should be noted that the contested decision does not in any way prevent VFR flights from accessing Greek coordinated airports, as it permits an application mechanism for this purpose so that prior authorisation can be obtained, and thus offers an alternative solution to slot allocation. (27)
66.      Admittedly, this is a mechanism that does not satisfy the commercial interests of the applicant carriers, (28) but one whose compliance with the proportionality criteria will have to be assessed by the referring court. This will involve seeking a balance between the right of carriers to provide air services using saturated airport infrastructures (coordinated airports) and the preservation of the best conditions for efficient access to those same infrastructures.
C.      VFR flights at schedules facilitated airports
67.      The second part of the two preliminary questions concerns the possibility of extending the slot allocation system to cover schedules facilitated airports.
68.      The referring court wishes to know whether the Greek Civil Aviation Authority can also apply the slot allocation system to schedules facilitated airports.
69.      Fraport points out that, as the applicant carriers claimed that they operated flights only between the airports of Chania, Rhodes, Kythera, Kos, Mykonos, Santorini, Heraklion and Paros (all designated as ‘coordinated’ airports), they would not be affected by the ban on obtaining slots at schedules facilitated airports.
70.      It is true that, at first sight, this part of the question would appear hypothetical, as the applicant carriers expressed an interest in being granted capacity to use coordinated airport infrastructures.
71.      However, restricting the ability of applicant carriers to operate scheduled commercial flights that land or take off at schedules facilitated airports could frustrate any possibility of access to these airports as a solution to the difficulties in using coordinated airports. To that extent, those carriers have standing to challenge the regime applicable to schedules facilitated airports, a claim to which the referring court must respond. (29)
72.      The analysis I have carried out with regard to the exclusion of VFR flights from coordinated airports is applicable only to this type of airport. The situation in relation to schedules facilitated airports is significantly different.
73.      Article 2(i) of Regulation No 95/93 outlines the basic characteristics of schedules facilitated airports: these airports are considered to be those where there is ‘potential for congestion at some periods of the day, week or year which is amenable to resolution by voluntary cooperation between air carriers and where a schedules facilitator has been appointed to facilitate the operations of air carriers operating services or intending to operate services at that airport’.
74.      There are elements that justify the difference in treatment between schedules facilitated airports and coordinated airports:
–        Airport capacity. At a coordinated airport, capacity is saturated or very close to its limit. At a schedules facilitated airport there is intermediate congestion, with times of high demand, but it is manageable.
–        The responsible authority. At coordinated airports this is the coordinator, who is the ‘sole person responsible for the allocation of slots’. (30) At schedules facilitated airports, this is the more mediation-oriented schedules facilitator, who has the role of advising ‘air carriers and [recommending] alternative arrival and/or departure times when congestion is likely to occur’. (31)
–        Planning: At coordinated airports this is strict and requires long-term forecasts. (32) At schedules facilitated airports, it is more elastic and allows for adjustments according to demand.
–        Slot allocation. At coordinated airports, this is mandatory (in principle, without prior slot allocation it is not possible to operate). At schedules facilitated airports, on the other hand, slot allocation is not appropriate, as the use of airport infrastructure is flexible and schedules can be more easily modified. (33)
–        Request and confirmation of operations. At coordinated airports, the allocation of slots requires the submission of a formal request within the established time periods, and slots must be allocated and confirmed by the coordinator. At schedules facilitated airports, the air carrier only provides notification of the planned schedule of operations and the facilitator recommends adjustments to avoid congestion. (34)
75.      These differences, which are in themselves relevant, justify a different treatment of the two categories of airports.
76.      In any event, the essential point is that the legal regime established essentially in Articles 5 and 8 of Regulation No 95/93 and Article 19 of Regulation No 1008/2008 confers regulatory powers on Member States to issue national rules and local guidelines only in respect of coordinated airports.
77.      The Greek Government itself expressly admits that, pursuant to Article 2(g) and (i) of Regulation No 95/93, Member States have no discretion to extend the slot allocation system applicable to coordinated airports to schedules facilitated airports. (35)
78.      In the same vein, the Commission maintains that Regulation No 95/93 does not provide for the possibility of extending the application of the slot allocation system to schedules facilitated airports. In the latter category of airports, voluntary agreement between carriers is the preferred method, where necessary with the help of the schedules facilitator. (36)
79.      I agree with the position of the Commission and the Greek Government. Consequently, a decision such as the one at issue here goes beyond the limits set by the EU legislature for Member States to be able to supplement the EU rules on schedules facilitated airports.
V.      Conclusion
80.      In the light of the foregoing, I propose that the Court of Justice should reply to the Symvoulio tis Epikrateias (Council of State, Greece) in the following terms:
‘Articles 2(a), (g) and (i), 3, 4, 6, 8, 10 and 14(1) of Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports, as amended by Regulation (EC) No 793/2004 of the European Parliament and of the Council of 21 April 2004, and Article 19(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community
must be interpreted as meaning that:
–        They give Member States the possibility to issue national rules and local guidelines supplementing the Union provisions on slot allocation at coordinated airports, in particular by excluding from slot allocation air carriers operating flights performed entirely in accordance with the rules applicable to flights subject to the Visual Flight Rules (VFR).
–        National rules and local guidelines supplementing Union provisions on slot allocation at coordinated airports must respect the principles of fairness, transparency, non-discrimination and proportionality in access to airport infrastructure.
–         National rules and local guidelines may not extend the application of the slot allocation system of coordinated airports to schedules facilitated airports.’
1      Original language: Spanish.
2      The term used in common international aviation parlance.
3      Flights subject to Visual Flight Rules (VFR) and flights subject to Instrument Flight Rules (IFR) are regulated in Section
5 of the Annex to Commission Implementing Regulation (EU) No 923/2012 of 26 September 2012 laying down the common rules of the air and operational provisions regarding services and procedures in air navigation and amending Implementing Regulation (EU) No 1035/2011 and Regulations (EC) No 1265/2007, (EC) No 1794/2006, (EC) No 730/2006, (EC) No 1033/2006 and (EU) No 255/2010 (OJ 2012 L 281, p. 1).
4      Council Regulation of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1). This was amended, inter alia, by Regulation (EC) No 793/2004 of the European Parliament and of the Council of 21 April 2004 (OJ 2004 L 138, p. 50).
5      Regulation of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3).
6      Rules approved by Decision No 28893 (FEK B’ 6288/1.11.2023) of the Director of the Greek Civil Aviation Authority of 30 October 2023; ‘the contested decision’.
7      Version of paragraph 1 replaced by paragraph 1 of Decision No 9329/12.3.2024 (FEK B’ 1784/19.3.2024) of the Director of the Greek Civil Aviation Authority.
8      Ethnikos Organismos Syntonismou Ptiseon (National Flights Coordination Agency, Greece).
9      Fraport Perifereiaka Aerodromia tis Elladas A AE and Fraport Perifereiaka Aerodromia tis Elladas B AE. In the following, I will refer to both using the short form ‘Fraport’.
10      https://www.iata.org/contentassets/4ede2aabfcc14a55919e468054d714fe/wasg-edition-4-english-version.pdf. Part 1, paragraphs 3, 4 and 5; ‘the IATA Guidelines’.
11      According to the IATA Guidelines (Section
1, point 3.2.1), air carriers are free to schedule their operations at these airports, subject to the duty to communicate their operating schedules.
12      At the end of each allocation period at coordinated airports, unused slots are returned to the pool. These slots are reallocated again in the following period, with priority being given to air carriers using at least 80% of their slots (‘historic slots’), and at least half of the pool is allocated to new entrants. This is essentially a mechanism to recover and redistribute unused slots in order to facilitate a balance between efficiency and openness to competition.
13      Recital 15 of Regulation No 793/2004.
14      According to this provision a ‘coordinated airport’ is an airport where, ‘in order to land or take off, it is necessary for an air carrier or any other aircraft operator to have been allocated a slot by a coordinator …’.
15      ‘Airports with a serious shortfall in capacity should be designated as “coordinated airports” on the basis of objective criteria after a capacity analysis has been conducted. At coordinated airports detailed rules are required to ensure that the principles of transparency, neutrality and non-discrimination are fully adhered to. Specific activities such as helicopter operations should not be subject to slot allocation rules where these are not necessary.’
16      Paragraph 17 of the written observations from the Commission.
17      Judgment of 30 March 2017, Lingurár (C‑315/16, EU:C:2017:244, paragraph 18 and the case-law cited).
18      Ibid., paragraph 19.
19      Emphasis added.
20      Emphasis added.
21      Emphasis added.
22      Emphasis added.
23      The order for reference contains two very succinct references to Article 16 of the Charter and fails to explain why this provision could have a bearing on the outcome of the dispute.
24      Article 2(6) of the contested decision provides an avenue for the operation of ad hoc air services.
25      Paragraphs 28 to 30 of the written observations from the Greek Government.
26      Paragraphs 27 and 28 of the written observations from the Commission. The Commission notes that, according to Article 8(3) of Regulation No 95/93, ‘in a situation where not all slot requests can be accommodated to the satisfaction of the air carriers concerned, preference shall be given to commercial air services and in particular to scheduled services and programmed non-scheduled air services. In the case of competing requests within the same category of services, priority shall be given for year round operations’.
27      According to the Commission, this alternative to slot allocation for VFR flights has also been introduced in one other Member State (Austria).
28      This is emphasised by the national court in paragraph 11 of the order for reference, after stating that the period of 14 days prior to the operation of a flight is not sufficient for the necessary planning of scheduled flights. That court adds that, in any case, it is doubtful whether the managing body of a coordinated airport would accede to such a request from an air carrier.
29      In paragraph 11 of the order for reference, the national court states that the circumstance that it is impossible to allocate slots to VFR flights for a commercial passenger air transport service at Greek coordinated or schedules facilitated airports causes common damage to the applicant carriers, as it jeopardises the implementation of their business plan. It unequivocally recognises the interest of those carriers (and thus their standing) in challenging the contested decision in its entirety.
30      Article 4(5) of Regulation No 95/93.
31      According to Article 4(6) of Regulation No 95/93, ‘the schedules facilitator shall monitor the conformity of air carriers’ operations with the schedules recommended to them’ (emphasis added).
32      Article 6(1) of Regulation No 95/93. According to point 1.4.1 of Section
1 of the IATA Guidelines, Level
2 airports are those where there is the potential for congestion during certain periods of the day, week or season, which can be resolved by schedule adjustments mutually agreed between the air carriers and the facilitator.
33      Article 2(g) and (i), Article 3, Article 8a and Article 8b of Regulation No 95/93. In accordance with point 1.7.1(b) of Section
1 of the IATA Guidelines, no slots are allocated at a Level
2 airport.
34      Article 4, Article 8, Article 8a and Article 8b of Regulation No 95/93.
35      Paragraph 52 of the written observations from the Greek Government.
36      Paragraph 38 of the written observations from the Commission.