Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EEC) No 95/93 on common rules for the allocation of slots at Community airports
Date: 2009-03-10
Institutions: European Commission
Subjects: air transport, airport, common transport policy, organisation of transport, transport capacity, transport planning

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 10.3.2009 
COM(2009) 121 final 

2009/0042 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EEC) No 95/93 on common rules for the allocation of slots at 
Community airports 

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EXPLANATORY MEMORANDUM 

Introduction 

1.  The  global  economic  and  financial  crisis,  which  is  of  major  severity  and  scope,  is  now 
seriously affecting the activities of air carriers. It has led to a significant reduction in air traffic 
over the winter 2008/09 scheduling season. The summer 2009 scheduling season will also be 
affected by the economic crisis. 

After  six  years  of  3%  average  growth  and  zero  growth  in  2008,  in  December  2008 
Eurocontrol  was  forecasting  a  3%  fall  in  the  number  of  flights  in  Europe  in  2009.  On 
25 February 2009, it revised its estimates and is now forecasting a reduction of between 8.1% 
and 1.4%, with the most likely scenario being a 4.9%. fall. It notes that traffic collapsed at the 
end of 2008, with a 7% fall in December alone. According to Eurocontrol, low-cost airlines 
saw the first fall in their traffic in 15 years, with 4 600 flights in November 2008, 6.1% down 
on November 2007. Business flights showed a reduction of 16% in December 2008 compared 
with the same month in 2007. 

More than 80% of European airports have seen a reduction in traffic (8% to 10% in passenger 
traffic  and  25%  to  30%  in  cargo  traffic  in  January  2009),  which  means  that  the  economic 
crisis is hitting the whole of the European air transport sector.  

2.  The  figures  advanced  by  European  air  operators  (AEA)  illustrate  the  gravity  of  the 
situation. In December  2008,  the volume of cargo traffic fell by 21.4%. Passenger traffic is 
expected  to  see  a  4%  contraction  in  2009.  Operators  point  out  that,  over  the  past  25 years, 
such reductions have occurred on only three occasions: in 1986, because of Chernobyl and the 
war in Libya, in 1991, because of the first Gulf War and in 2001/02, because of the terrorist 
attacks in the United States. The AEA is forecasting cuts in capacity during summer 2009 of 
between 6% and 8% in terms of the number of flights and between 9% and 12% in terms of 
the number of seats offered (available seat kilometres). 

3.  According  to  the  International  Air  Transport  Association  (IATA),  in  December  freight 
volumes  contracted  by  22.6%  at  international  level  and  by  more  than  21%  in  the  case  of 
European  carriers.  Figures  published  on  26 February  2009  show  a  reduction  of  5.6%  in 
passenger traffic and 23.2% in cargo traffic in January 2009 compared with the same month 
in 2008. IATA notes that European carriers have compensated, in part, for a fall of 5.7% by 
reducing their capacity by 3.6%.  

4.  The  Commission  takes  the  view  that  the  current  economic  crisis  and  subsequent 
readjustments  to  services  (suspension,  reduction  of  frequencies)  constitute  exceptional 
circumstances  that  are  having  a  negative  impact  on  airline  companies.  Consequently, 
coordinators should interpret the provisions of Regulation (EEC) No 95/93 on the allocation 
of  slots  in  such  a  way  that  airline  companies  do  not  risk  losing  the  slots  they  fail  to  use 
because of the economic crisis (‘use-it-or-lose-it’ rule). 

5.  Unless  a  decision  is  adopted  to  maintain  the  ‘grandfather  status’  of  slots,  airlines  might 
keep existing capacity in the face of significantly reduced demand, which would aggravate the 
current economic difficulties. 

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The provisions of the slot Regulation 

6. The point of reference for the Regulation, as stated in Article 10(2), is the allocation and 
utilisation  of  slots  during  one  season  (‘use-it-or-lose-it’  principle)  and  in  particular  the 
situation  at  the  end  of  the  season  after  the  slots  have  actually  been  used.  In  particular,  that 
Article  stipulates  that  air  carriers  will  not  be  entitled  to  the  same  series  of  slots  in  the  next 
equivalent scheduling season, unless they can prove to the satisfaction of the coordinator that 
they have operated them, as cleared by the coordinator, for at least 80% of the time during the 
season for which they were allocated. 

7. Furthermore, Articles 8(2) and 10(2) of the Regulation provide for calculation of usage at 
the end of the season, once slots have been operated, for the purpose of acquiring rights for 
the next equivalent scheduling season. 

8.  Article  10(4)  gives  a  list  of  reasons  that  can  validly  be  used  by  air  carriers  to  justify  the 
non-utilisation of slots allocated during a scheduling season. Point (a) gives a non-exhaustive 
list of unforeseeable and unavoidable circumstances outside the carrier's control. 

9. The Regulation is  based  on  the  principle that  the  allocation  and  monitoring of  the use of 
slots are the responsibility of the coordinator (Articles 4(5) and 6). Coordinators must not only 
carry  out  their  duties  in  an  independent  manner  but  must  also  act  in  a  neutral,  non-
discriminatory and transparent way (Article 4(2) and (3)). Therefore, neither the Commission 
nor  any  Member  State  may  impose  on  coordinators  any  requirements  that  might  undermine 
their independence. 

Hence, it may be concluded that in applying Article 10(2) and (4), the coordinator must act in 
accordance with the principles set out in the abovementioned Article 4. 

10.  Under  these  circumstances,  there  is  a  danger  that  Member  States  will  interpret  the 
Regulation  differently,  which  would  lead  to  a  lack  of  consistency  in  the  application  of 
Article 10(4) within the Community. This was what occurred following the terrorist attacks in 
the United States. The Community must therefore act to guarantee in a clear and unequivocal 
fashion, as it did in 2002 and 2003 with the insertion of Articles 10a and 10b, legal certainty 
concerning the application of the ‘use-it-or-lose-it’ rule for scheduling seasons affected by the 
crisis.  

11. It is therefore proposed to insert a new Article 10c into the Regulation, laying down that 
coordinators must accept, against the background of the economic crisis, that air carriers are 
entitled to the same slots in the summer 2010 scheduling season as allocated to them for the 
summer 2009 scheduling season (29 March 2009 to 24 October 2009). 

12. In order to avoid wasting slot capacity in seasons affected by the crisis, coordinators may 
reallocate slots not used during the summer 2009 season for the rest of the season as ‘ad hoc’ 
slots, which may be used by other air carriers without this conferring ‘grandfather rights’.  

13.  The  Commission  shall  continue  to  analyse  the  impact  of  the  economic  crisis  on  the  air 
transport sector. Should the situation continue to deteriorate during the winter 2009/10 season 
(25 October  2009  to  27 March  2010),  the  Commission  may  decide  to  renew  these 
arrangements for the winter 2010/11 season. 

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Time frame 

14. An important aspect of this proposal is its time frame. Initial slot allocation takes place at 
the IATA scheduling conferences: in November for the following summer season and in June 
for  the  following  winter  season.  Consequently,  slots  for  the  summer  2010  season  will  be 
allocated  during  the  November  2009  scheduling  conference,  while  slots  for  the  winter 
2010/11 season will be allocated in June 2010. 

Article 10(3)  of  the  Regulation  lays down that air carriers may return their slots to the pool 
before  31 January  for  the  following  summer  season  or  before  31 August  for  the  following 
winter season, without this affecting the calculation of the use made of their remaining slots. 

According to the IATA world-wide scheduling guidelines, having identified the entitlement to 
‘grandfathered’  slots,  coordinators  must  provide  each  airline  with  details  of  their 
‘grandfathered’ slots, as soon as these have been determined by the coordinator, but not later 
than: 

–  the third Monday in April for slots registered as ‘grandfathered’ slots, as actually operated 

in the preceding winter season; 

–  the  third  Monday  in  September  for  slots  registered  as  ‘grandfathered’  slots,  as  actually 

operated in the current summer season up to that time. 

15. Although the allocation of slots for the summer 2009 scheduling season was completed on 
31 January  2009,  amendment  of  the  Regulation  will  still  permit  airline  companies  to  adjust 
their activities and reduce existing capacity in order to comply with the ‘use-it-or-lose-it’ rule. 
Since the summer 2009 season begins on 29 March, the proposed rule should enter into force 
as soon as possible. 

16.  Otherwise,  there  is  a  major  risk  of  legal  challenges  from  air  carriers  allocated  slots  at 
airports  where  coordinators  did  not  accept  the  justification  of  exceptional  circumstances 
caused by the economic crisis during the summer 2009 scheduling season. 

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2009/0042 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EEC) No 95/93 on common rules for the allocation of slots at 
Community airports 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 80(2) thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Economic and Social Committee2, 

Having regard to the opinion of the Committee of the Regions3, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty4, 

Whereas: 

(1) 

(2) 

The global economic and financial crisis is now seriously affecting the activities of air 
carriers.  It  has  led  to  a  significant  reduction  in  air  traffic  over  the  winter  2008/09 
scheduling  season.  The  summer  2009 scheduling  season  will  also  be  affected  by  the 
economic crisis. 

In  order  to  ensure  that  the  non-utilisation  of  slots  allocated  for  the  summer  2009 
season does not cause air carriers to lose their entitlement to those slots, it is necessary 
to  specify  clearly  and  unambiguously  that  the  season  is  affected  by  the  economic 
crisis. The Commission will continue to analyse the impact of the economic crisis on 
the air transport sector. Should the situation continue to deteriorate during the winter 
2009/10  season,  the  Commission  may  decide  to  renew  all  or  part  of  these 
arrangements for the winter 2010/11 season. 

(3) 

Council  Regulation  (EEC)  No 95/93  of  18  January  1993  on  common  rules  for  the 
allocation  of  slots  at  Community  airports5  should  therefore  be  amended  accordingly. 

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OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ  L  14,  22.1.1993,  p.  1.  Regulation  as  amended  by  Regulation  (EC)  No 894/2002  of  the  European 
Parliament  and  of  the  Council  (OJ  L 142,  31.5.2002,  p. 3),  Regulation  (EC)  No 1554/2003  of  the 
European Parliament and of the Council (OJ L 221, 4.9.2003, p. 1) and Regulation (EC) No 793/2004 
of the European Parliament and of the Council (OJ L 138, 30.4.2004, p. 50). 

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This  amendment  in  no  way  affects  the  Commission’s  powers  as  regards  the 
application of Articles 81 and 82 of the EC Treaty, 

HAVE ADOPTED THIS REGULATION: 

In Regulation (EEC) No 95/93, the following Article 10c is inserted: 

Article 1 

‘Article 10c 

For the purpose of Article 10(4), coordinators shall accept that air carriers are entitled to the 
same  series  of  slots  during  the  summer  2010  scheduling  season  as  were  allocated  to  them 
during  the  summer  2009  scheduling  season  in  accordance  with  the  Regulation.  The 
Commission shall continue to analyse the impact of the economic crisis on the air transport 
sector. Should the situation continue to deteriorate during the winter 2009/10 season, it may 
decide, in accordance with the procedure referred to in Article 13(2), to renew all or part of 
these arrangements for the winter 2010/11 season.’ 

This  Regulation  shall  enter  into  force  on  the  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Article 2 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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