Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of an amended proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EEC) N° 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports
Date: 2004-02-24
Institutions: European Commission
Subjects: air transport, airport, common transport policy, competition, transport capacity, transport planning

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.2.2004 
COM(2004) 136 final 

2001/0140 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of an amended proposal for a 
regulation of the European Parliament and of the Council  
amending Council regulation (EEC) N° 95/93 of 18 January 1993 on common rules for 
the allocation of slots at Community airports  

EN 

   EN 

 
 
 
  
 
 
2001/0140 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of an amended proposal for a 
regulation of the European Parliament and of the Council  
amending Council regulation (EEC) N° 95/93 of 18 January 1993 on common rules for 
the allocation of slots at Community airports  

1- 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2001) 335 final-2001/0140(COD): 

22 June 2001. 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

20 March 2002. 

Date of the opinion of the European Parliament, first reading: 

11 June 2002. 

Date of transmission of the amended proposal: 

Date of adoption of the common position: 

8 November 2002. 

19 February 2004. 

2- 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  Commission  proposal  aims  at  introducing  more  clarity  and  transparency  to  the  current 
rules  notably  by  taking  away  any  ambiguity  regarding  the  principles  and  the  procedures  of 
slot  allocation,  the  status  of  the  coordinator  and  the  imposition  of  sanctions  to  prevent  any 
abuse of slots that would further worsen the scarcity of slot capacity at congested Community 
airports.  

To  that  end  the  Commission  has  built  its  proposal  around  the  introduction  of  effectively 
transparent and equitable procedures. This affects in particular the definition of slot capacity 
available for allocation, the process of allocation and monitoring of the  correct use  of slots, 
which in turn affects the sanctions and the right to challenge the legality of the decisions of 
coordinators.  

Clearly linked to the effectiveness of such a system is the status of the coordinator, who has to 
be  truly  independent  from  any  vested  interests  and  has  to  have  the  necessary  financial 
resources to accomplish the tasks assigned to him/her by the Regulation. For the same reason 
the  proposal  intends  to  make  sure  that  no  party  can  unduly  influence  the  coordination 
committee  and  its  decisions.  As  the  new  rules  reinforce  the  consultation  and  mediation 
functions of that committee, the proposal also requires that there is a clear separation of tasks 
between coordinator, coordination committee and Member State so as to avoid any conflict of 

2 

 
 
  
 
 
 
interests at any time in the allocation and monitoring procedure. Otherwise there is a risk that 
complaints are not properly handled and that coordinators are overly exposed to litigation. 

Lastly,  the  Commission  proposal  aims  at  introducing  a  series  of  technical  improvements  in 
form  of  clearer  definitions  and  priorities  among  the  slot  allocation  criteria,  in  a  balanced 
manner  so  as  to  maintain  the  level  of  undistorted  competition,  whilst  maintaining  the 
administrative character of the present system. To that end the Commission proposal provided 
for  three  things:  a)  introduced  the  possibility  for  incumbent  air  carriers  to  retime  slots  with 
historic  priority  (grandfather  status)  with  certain  conditions;  b)  in  the  absence  of  any 
transparent  and  non-discriminatory  market  based  mechanism  for  accessing  airports,  it 
prohibited explicitly slot trading; c) in order to avoid the worsening of competitive conditions 
at  particularly  congested  European  airports,  it  required  that  slots  exchanged  between  air 
carriers should be used, thus curbing slot trades dressed-up as slot exchanges. 

3- 

COMMENTS ON THE COMMON POSITION 

The Council  made a number of changes to the Commission's  initial and amended proposals 
that are acceptable because they would ensure its aims were met.  

These changes concern mainly the technical aspects of slot allocation. The Common Position 
confirms the aim of the Commission proposal to modernise the slot allocation procedures by 
clarifying  the  terms  used  in  the  Regulation,  setting  high  standards  of  independence  and 
accountability  of  the  slot  coordinator,  ensuring  that  the  coordination  committee  remains 
independent  from  any  party  that  may  be  concerned  in  cases  of  mediation  and,  finally,  by 
providing for sanctions against the abusive use of slots. 

With  regard  to  market  access  aspects,  the  Common  Position  already  contains  certain 
improvements  as  far  as  the  definition  of  “new  entrant”  air  carriers  and  the  priority  given  to 
such air carriers in the allocation of “pool” slots. Thus, on the basis of the Common Position, 
more air carriers than today will have the possibility to qualify for “new entrant” status; also, 
“new entrants” will have better possibilities for growth, as they will be given the possibility to 
have bigger slot portfolios than those allowed today.  

Nevertheless,  because  the  Council  did  not  go  as  far  as  proposed  by  the  Commission, 
particularly on the core question of false slot exchanges and the commercialisation of slots, 
the Commission made the following declaration to the Common Position: 

« La Commission déplore que le Conseil n'ait pas pu se mettre d'accord sur un renforcement 
des disciplines pour la distribution des créneaux. C’est pourquoi, comme elle l'avait annoncé 
en  faisant  sa  proposition,  elle  entend,  en  2004,  faire  une  seconde  proposition  portant 
spécifiquement  sur  cet  aspect,  afin  de  faciliter  l'accès  aux  aéroports  notamment  les  plus 
saturés  et  ainsi  favoriser  la  concurrence ;  cette  seconde  proposition  s'appuiera  sur  l'étude  en 
cours et une large consultation des acteurs concernés. La Commission s'attend à un examen 
rapide de cette proposition par les deux Institutions. » 

In  total  the  European  Parliament  proposed  52  amendments  in  the  opinion  it  adopted  on  10 
June 2002. The Commission was able to accept 34 of them as such, in part or in principle. The 
Council  was  able  to  incorporate  in  principle  or  with  redrafting  26  of  the  European 
Parliament’s amendments accepted by the Commission. Furthermore, the Council was able to 
follow 6 amendments proposed by the European Parliament and rejected by the Commission. 

3 

 
 
  
 
In  particular,  the  Council  was  able  to  endorse  the  objective  of  most  of  the  amendments 
proposed by the European Parliament without necessarily using the same wording. 

3.1 

Amendments accepted by the Commission and incorporated in full or in part in 
the common position 

The references below are to recitals and articles of the common position. 

Recitals  

Amendments 3, 4, 5 and 6, which are linked to recitals 5, 7, 8 and 9 respectively: the common 
position follows the text proposed in the Commission’s amended proposal (COM(2002) 623 
final of 7.11.2002) following the opinion of the European Parliament given in first reading. 

Articles 

Amendments  9  and  14  concern  the  definitions  (article  2):  the  text  of  the  common  position 
differs  from  that  proposed  by  the  European  Parliament  in  particular  with  regard  to  the 
definition of “new entrant”. However, the Commission is able to accept the common position 
as the new text constitutes a legally clear provision and improves the competitive conditions 
at congested airports by giving more air carriers the possibility to qualify for “new entrant” 
status as well as to air carriers with bigger slot portfolios than those provided in the currently 
applicable rules. 

Amendments 17 and 19 concern the conditions for airport coordination (article 3): the text of 
the  common  position  follows  the  Commission’s  amended  proposal  as  well  as  the  text 
proposed  by  the  European  Parliament  and  rejected  by  the  Commission  (see  below  section 
3.4). 

Amendments  21  and  22  concern  the  status  of  the  coordinator  (article  4):  the  text  of  the 
common  position  follows  the  Commission’s  amended  proposal  echoing  the  European 
Parliament’s position. 

Amendment 24 concerns the coordination committee (article 5): the common position mirrors 
the text proposed by the European Parliament and accepted by the Commission. 

Amendments  29  and  30  concern  the  information  for  schedules  facilitators  and  coordinators 
(article  7):  even  though  the  text  of  the  common position  does  not  follow  the  Commission’s 
amended proposal, the wording is clear and achieves the aims of the proposal, i.e. spells out 
clearly  the  obligation  of  air  carriers  to  submit  in  due  form  and  time  to  the  coordinator  the 
requested information to qualify for new entrant status. 

Amendments  32,  33  and  36  concern  the  process  of  slot  allocation  (article  8):  the  common 
position  goes  further  than  the  position  of  the  Commission  as  expressed  in  its  amended 
proposal and introduces greater flexibility for the retiming of slots allowing thus retiming not 
only  for  operational  reasons  but  also  when  the  retimed  slots  are  closer  to  the  slots  initially 
requested. 

Amendments  37,  39,  40  and  41  concern  matters  of  slot  mobility  (article  8a):  the  common 
position reflects the amendments of the European Parliament and the Commission’s amended 
proposal. 

4 

 
 
  
 
Amendment  42  concerns  the  exclusion  of  compensation  claims  (article  8b):  the  common 
position  follows  the  text  of  the  European  Parliament  and  the  Commission’s  amended 
proposal. 

Amendment 44 concerns the slot “pool” (article 10) in particular article 10§4 and 5: the text 
of  the  common  position  goes  even  further  than  the  Commission’s  amended  proposal 
regarding  exceptional  circumstances,  notably  following  the  experiences  of  the  events  of  11 
September 2001 and the effect that the war in Iraq and the outbreak of SARS have had on the 
use of slots at Community airports. 

Amendments 47 and 48 concern the complaints and the right of appeal against the decisions 
of  the  coordinators  (article  11):  the  text  of  the  common  position  echoes  the  Commission’s 
amended proposal. In particular, the text regarding the liability of coordinators has been fully 
endorsed. 

Amendments 51 and 52 concern the sanctions (article 14): the text of the common position is 
acceptable,  as  even  though  it  does  not  use  the  wording  proposed  by  the  Commission  in  its 
amended proposal it fully safeguards the aim of the provisions in question (paragraphs 4 and 5 
– sanctions against abusive slot operations). 

3.2 

Amendments accepted by the Commission and not incorporated in the common 
position 

Amendments 10, 11, 12, 13, and 16 concern the definitions (article 2 b) – “new entrant” and 
article 2 o) – “taxiing time”): as explained earlier, the common position followed rather the 
structure of the currently applicable definition of “new entrant” and instead of endorsing the 
percentage suggested by the Commission (7% of total number of slots available at the airport 
in question)and supported by the European Parliament was broken down to 5% and 4%. The 
Commission has been able to accept these percentages as they are higher than those provided 
in the current rules (3% and 2%). The notion of taxiing time was relevant for the imposition 
of  sanctions;  as  the  corresponding  provision  (article  14§1)  has  become  optional,  the 
Commission accepts that such definition does not appear necessary any more. 

Amendment  27  concerns  the  coordination  parameters  (article  6):  the  text  of  the  common 
position  reflects  the  Commission’s  initial  proposal,  which  was  broader  in  scope  (airspace 
congestion)  than  the  amendment  proposed  by  the  European  Parliament  (local  airspace 
congestion). 

Amendment 31 concerns the possibility to restrict slot “entitlements” (“permissions”) to series 
operated with a minimum aircraft size (article 8§2 last indent): the common position reflects 
the  decision  of  the  qualified  majority  not  to  include  this  provision  in  the  present  revision 
exercise as it is considered to be a market access measure.  

Amendment  49  concerns  the  sanctions  (article  14§1  -  rejection  of  flight  plan):  the  common 
position  rendered  the  measure  optional,  making  thus  redundant  the  inclusion  of  “taxiing 
time”.  

5 

 
 
  
 
3.3 

Amendments rejected by the Commission and not incorporated in the common 
position 

Recitals  

Amendments 1 and 2 concern recitals 2 and 3 respectively: they would affect significantly the 
balanced  approach  of  the  proposal,  which  aims  to  ensure  that  all  interests  in  the  aviation 
sector (air carriers, airports and consumers) are duly considered. 

Amendments 7  and 8 concern recitals 13 and 16 respectively: the common position accepts 
that the text proposed by the European Parliament would prejudice the outcome of the study 
on the introduction of a market mechanism and thus the content of a further revision of the 
slot  allocation  rules.  Similarly,  the  common  position  does  not  accept  that  the  coordinator 
should  be  exempted  from  liability  in  all  cases,  but  as  is  clearly  stipulated  in  article  11§2 
(corresponding  amendment:  48),  the  coordinator’s  liability  is  limited  to  cases  of  gross 
negligence and wilful misconduct. 

Articles 

Amendment 15 concerns the definition of “group of air carriers” (article 2 f) ii): the Council 
accepted that the amendment was lending itself to confusion with groundhandling services. 

Amendments  25,  26  and  34  concern  the  functions  and  composition  of  the  coordination 
committee (article 5): the text of the common position states clearly who can and who cannot 
be  member  of  that  committee  and  that  it  obligatorily  draws  its  rules  of  procedure  to  ensure 
transparency. Text similar to amendment 26 has been inserted into recital 7.  

Amendment  28  concerns  the  determination  of  coordination  parameters  (article  6§3):  the 
Council  accepted  that  the  proposed  amendment  would  broaden  unduly  the  scope  of 
application of the proposed measure (provision of information to interested parties). 

Amendment  43  concerns  the  possibility  to  reserve  slots  for  the  operation  of  routes  where  a 
public  service  obligation  has  been  imposed  (article  9):  the  Council  followed  the 
Commission’s amended proposal not to accept any restrictions of the right to reserve slots for 
the operation of such routes.  

Amendment 46 concerns the possibility of new entrants to refuse slots within a certain limit of 
time (article 10§7): the common position reflects the Commission’s amended proposal, which 
did not accept any restrictions to that measure. 

Amendment  50  concerns  the  “return  dates”  for  slots  which  air  carriers  are  not  going  to  use 
during  the  next  scheduling  season  (article  14§2):  the  Council  followed  the  Commission’s 
amended  proposal  and  did  not  accept  to  alter  these  dates,  as  this  would  disturb  established 
international practice in the scheduling procedures. 

3.4 

Amendments  rejected  by  the  Commission  and  incorporated  in  the  common 
position 

Amendment 18 and 20 concern the determination of the airport capacity (article 3§§4 and 5): 
the  common  position  follows  the  amendment  of  the  European  Parliament,  whereby 
passengers’  organisations  are  not  consulted  in  this  process  as  well  as  the  possibility  to 
designate an airport as “coordinated” for periods shorter than a full scheduling season. 

6 

 
 
  
 
Amendment  23  concerns  the  coordinator’s  status  and  functions  (article  4§8):  the  common 
position strikes a balance between the Commission’s proposal and the European Parliament’s 
amendment by describing in a non-exhaustive manner those who are recognised as “interested 
parties”.  

Amendment  35  concerns  the  possibility  to  refuse  slots  for  reasons  of  inter-modality  (old 
article  8§6):  the  common  position  followed  the  opinion  of  the  European  Parliament  and 
deleted the proposed provision. 

Amendment 38 concerns one of the core issues of the proposed revision of the slot allocation 
rules,  namely  the  prohibition  of  false  slot  exchanges  (article  8a§1c  and  article  8a§3d):  the 
common  position  followed  the  text  proposed  by  the  European  Parliament  and  deleted  this 
restriction from the present revision exercise. 

Amendment  45  concerns  the  allocation  of  “pool”  slots  to  new  entrants  (article  10§6):  the 
common  position  introduces  text,  which  even  though  does  not  completely  reflect  the  text 
proposed by the European Parliament, stipulates clearly that slot requests from new entrants 
and  incumbents  shall  be  treated  “fairly”  so  as  not  to  unduly  discriminate  against  any  air 
carriers.  

3.5 

New provisions accepted by the Commission – not affected by any amendment 

A number of provisions in the Commission proposal - not affected by any amendments from 
the  European  Parliament,  have  been  changed  by  the  Council.  They  concern  the  following 
issues: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The  definition  of  “slot”  (article  2a):  the  term  “entitlement”  has  been  considered  as 
bearing prejudice on any further revision of the slot allocation rules and has therefore 
been  replaced  by  the  term  “permission”,  which  reflects  technically  the  function 
performed by the coordinator. 

The airport capacity analysis (article 3§3): the analysis is to be carried out not only by 
the managing body of the airport but also “by any other competent body”. 

The  prohibition  of  slot  trading  (article  8a§2):  the  Council  considered  that  this  is  an 
issue, which clearly affects market access, and therefore excluded it from the present 
revision  exercise.  The  Commission  finally  accepted  this  exclusion;  however  it 
presented the declaration referred to above. 

As a reaction to recent difficulties in the airline sector, the common position foresees 
by  means  of  a  derogation  from  the  rules  provided  for  in  article  8a§3,  that  slots 
previously operated by new entrants can be transferred in the case of legally authorised 
takeovers of the activity of bankrupt undertakings. 

Complaints (article 11§1) are to be dealt within an overall shorter period of time (three 
months) than the one proposed by the Commission (minimum three months). 

Sanctions:  the  withdrawal  of  flight  plans  for  operations  “without  a  slot”  is  rendered 
optional (article 14§1). Pecuniary penalties (article 14§5) are by the standard reference 
to be “effective, proportionate and dissuasive sanctions or equivalent measures”. 

7 

 
 
  
 
(7) 

In view of the specific requirements to put in place procedures for the judicial review 
of  decisions  of  coordinators  and  sanctions,  articles  11§2  and  14§5  are  to  enter  into 
force  12  months  after  the  publication  of  the  Regulation,  whereas  the  rest  of  the 
proposal is to enter into force three months after its publication. 

4- 

CONCLUSION 

For the reasons explained above, the Commission considers that the common position adopted 
on 19 February 2004 by qualified majority is acceptable and thus can support it. 

8