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: 2020-03-13
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: air traffic, airport, common transport policy, competition, epidemic, infectious disease, transport capacity, transport planning

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   EUROPEAN COMMISSION  Brussels, 13.3.2020  COM(2020) 111 final 2020/0042 (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  (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

• 
Regulation (EEC) No 95/931 sets the rules on the allocation of slots at EU airports. Its Article 
10  contains  a  “use-it-or-lose-it”  rule,  whereby  air  carriers  must  use  at  least  80%  of  their 
allocated  slots  within  a  given  scheduling  period  (summer  or  winter)  in  order  to  keep 
precedence in respect of the same series of slots within the corresponding scheduling period 
of the next year (so-called “grandfather rights” ). 

The outbreak of the SARS-CoV-2 virus is having a serious impact on air carriers leading to a 
significant  decline  in  air  traffic  worldwide  since  the  beginning  of  2020.  For  European  air 
carriers  this  impact  first  became  evident  for  flights  to  and  from  the  People’s  Republic  of 
China  and  Hong  Kong  Special  Administrative  Region  of  the  People's  Republic  of  China  in 
January  2020,  but  the  spread  of  the  virus  since  January  2020  has  led  to  a  more  generalised 
deterioration including in Europe. It is not possible to predict the further development of the 
epidemic or the duration of its impact. 

However,  given  the  decline  in  passenger  demand,  air  carriers  have  already  started  and 
continue  to  cancel  flights  which,  for  the  winter  2019-2020  and  summer  2020  scheduling 
periods, will result in slot usage below the 80% threshold imposed by the Regulation. 

After  3.3%  average  annual  growth  in  passenger  numbers  in  Europe  between  2009-2019, 
Eurocontrol has indicated a 10% drop in the number of flights in the first two weeks of March 
2020 compared to the same period in 2019. Given the decreasing demand caused by the crisis, 
most European air carriers are grounding aircraft. This suggests that the fall in the number of 
flights will be sustained. The negative year-on-year trend extends into the summer season, for 
which,  according  to  IATA,  air  carriers  are  experiencing  a  40-60%  year-on-year  drop  in 
forward  bookings  for  the  period  March-June  2020  for  non-Italian  routes  with  a  somewhat 
larger impact on short-haul than long-haul routes. Bookings on Italian routes have dropped by 
over 50% in early March 2020 with load factors as low as 40%. 

For  their  part  European  airports  are  predicting  a  loss  of  67  million  passengers  in  the  first 
quarter of 2020. This phenomenon is seriously affecting air transport across the Union. 

On  the  basis  of  the  information  currently  available  from  Eurocontrol,  from  air  carriers  and 
from  airports,  it  is  reasonable  to  assume  that  the  current  situation,  characterised  by  an 
exceptional  fall in  demand, will last at least  for  the months of March, April, May  and June 
2020. 

However,  under  the  slots  regulation,  in  order  to  guarantee  allocation  of  the  same  slots  in 
respect of the same season the following year, air carriers are obliged to use slots at least 80% 
of the time over the scheduling period for which they have been allocated. In the absence of 
any  measure  neutralising,  for  the  purposes  of  this  calculation,  the  effects  of  the  current 
circumstances, it is likely that air carriers will operate many flights with very low load factors 
in order to protect their grandfather rights, thus exacerbating financial losses and causing an 
adverse impact on the environment. 

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Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at 
Community airports, OJ L 14, 22.1.1993, p. 1 

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Under Regulation (EEC) No 95/93, the slot coordinator is the sole person responsible for the 
allocation  of  slots  and  is  obliged  to  act  in  accordance  with  the  Regulation  [Article  4(5) 
thereof].  In  respect  of  their  task  of  slot  allocations,  coordinators  are  independent  and  not 
subject to instructions from any party. 

Under the circumstances described, Regulation (EEC) No 95/93 should be amended so as to 
protect the grandfathering rights of air-carriers for those slots that have not been used during 
the  period  when  the  aviation  market  has  been  most  affected  by  the  outbreak  of  the  SARS-
CoV-2.  The  period  proposed  covers  the  four-month  period  between  March  2020  and  June 
2020 for all flights. Additionally, given that the severe impact of the outbreak of the SARS-
CoV-2 virus became apparent first in the People’s Republic of China and Hong Kong Special 
Administrative  Region  of  the  People's  Republic  of  China,  it  is  proposed to  protect  during  a 
longer overall period the grandfathering rights for slots used for air services to and from those 
markets. The additional period starts on 23 January 2020, the date on which the first airport in 
the People’s Republic of China was closed by the authorities. 

This  amendment  would  come  in  form  of  a  rule  whereby  coordinators  shall  consider  slots 
allocated  for  the  reference  periods  in  question  as  having  been  operated.  This  rule  would 
mitigate the effects of the current crisis and provide legal certainty to the air carriers for the 
relevant  parts  of  the  scheduling  periods.  Any  slots  freed  by  air  carriers  as  a  result  could  be 
reallocated by coordinators according to needs. By nature, any such reallocation would have 
an  ad  hoc  character  only  and  would  not  affect  the  position  of  carriers  that,  under  the  rule 
proposed, would be deemed to have operated the slots in question. 

The  nature  of  the  current  circumstances  makes  it  difficult  to  predict  with  any  degree  of 
certainty  when  the  public  health  situation  will  return  to  normal  and  consumer  confidence 
returns. Prolonging the proposed measure for the entire summer 2020 season (which ends on 
24  October  2020)  could  be  disproportionate  to  the  clearly-defined  objective  should  the 
situation indeed to return to normal in the intervening period. For this reason it is proposed to 
empower the Commission to extend the period during which the measures are applicable, by 
way of delegated acts, where necessary. The Commission should base any such decisions on 
the  latest  available  information,  published  by  the  EU  Network  Manager  at  the  European 
Organisation  for  the  Safety  of  Air  Navigation  (‘Eurocontrol’),  and  on  relevant  scientific 
advice. 

• 

Consistency with existing policy provisions in the policy area 

Regulation (EEC) No 95/93 does not address the problems that air carriers are facing due to 
the  outbreak  of  SARS-CoV-2  in  relation  to  their  possibilities  to  maintain  their  slots  for 
following scheduling periods. The Regulation should therefore be amended so as to mitigate 
the effects of the current crisis, to provide legal certainty to air carriers and maintain the unity 
of the European slot allocation system. 

• 

Consistency with other Union policies 

The effective functioning of the internal  market  in  aviation  and  related services depends on 
the  economic  performance  of  the  air  carriers.  The  negative  economic  consequences  of  the 
current SARS-CoV-2 outbreak for air carriers could endanger their financial health and have 
serious negative effects on the transport system and the economy as a whole. The amendment 
of  the  slot  Regulation  to  address  the  major  current  concern  of  air  carriers  is  therefore  of 
utmost importance. 

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The measure also serves an important sustainability objective as it removes the incentive for 
air carriers to operate flights with low load factors merely to protect their slots. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  initiative  is  based  on  Article  100(2)  of  the  Treaty  on  the  Functioning  of  the  European 
Union. That provision permits the adoption of all appropriate provisions for air transport and 
already served as a basis for the adoption of Regulation (EEC) No 95/93.  

• 

Subsidiarity (for non-exclusive competence)  

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following  reasons.  Regulation  (EEC)  No  95/93  does  not  allow  Member  States,  for  reasons 
such  as  those  in  question  here,  to  oblige  coordinators  to  consider  unused  slots  as  operated. 
This  objective  may  be  achieved  only  through  an  amendment  of  the  Regulation  itself  by  the 
Union. 

• 

Proportionality 

The proposal does not go beyond what is necessary to achieve the objective of alleviating the 
impact of the current SARS-CoV-2 outbreak for the purposes of the operation of Regulation 
(EEC) No 95/93. The proposed measure is therefore proportionate including in respect of its 
application in time for the different types of destinations.  

• 

Choice of the instrument 

In  order  to  achieve  its  objective,  the  legal  instrument  must  be  of  direct  and  general 
application,  in  the  same  way  as  is  Regulation  (EEC)  No  95/93  itself.  Therefore,  the 
appropriate legal instrument is a Regulation. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

This is an urgent measure which is triggered by the sudden and unforeseeable outbreak of the 
SARS-CoV-2 virus and consequent spread of Covid-19 disease. For this reason, the measure 
is  not  relevant  for  the  regulatory  fitness  programme  and  no  ex-post  evaluation  has  been 
carried out. 

However, this measure is  similar in scope and effect to previous amendments of Regulation 
(EEC) No 95/93 triggered by other emergencies. These included the following: 

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• 

in 2002 in the aftermath of the 9/11 terrorist attacks (Regulation (EC) No 894/2002); 

in  2003  following  the  Iraq  War  and  the  outbreak  of  severe  acute  respiratory 
syndrome (SARS) (Regulation (EC) No 1554/2003); and 

in 2009 in the midst of the global financial crisis (Regulation (EC) No 545/2009). 

Stakeholder consultations 

Given  the  urgency  of  the  matter  formal  stakeholder  consultation  has  not  been  carried  out. 
However, both Member States authorities and stakeholders have called upon the Commission 
to adopt a proposal for appropriate measures in the context of Regulation (EEC) No 95/93.  

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• 

Collection and use of expertise 

As  explained,  the  proper  collection  of  expertise  was  not  possible  due  to  the  urgency  of  the 
situation. However, the Commission has drawn on experience gained through the application 
of and amendments to Regulation (EEC) 95/93 that also included consultations with experts. 

• 

Impact assessment 

Given  the  urgency  of  the  situation,  an  impact  assessment  has  not  been  carried  out.  This 
measure  is  similar  in  scope  and  effect  to  previous  amendments  of  Regulation  (EEC)  95/93 
triggered by other emergencies. The measure is designed to alleviate financial losses suffered 
by air carriers as a result of the “use it or lose it” rule and reduce the adverse impact on the 
environment.  

• 

Fundamental rights 

Not applicable.  

4. 

BUDGETARY IMPLICATIONS 

Not applicable. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The measure does not include any specific monitoring or reporting arrangements, however the 
Commission should be obliged to follow the development of the SARS-CoV-2 outbreak and 
its impact on air transport and if necessary be empowered to adopt a delegated act extending 
the time periods concerned by the measure. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 10a is  replaced  with  a new article to  oblige the  coordinators to  consider that for the 
purposes  of  assessing  accrual  of  grandfathering  rights,  slots  allocated  for  the  period  from  1 
March  2020  until  30  June  2020  have  been  operated  by  the  air  carrier  to  which  they  had 
initially  been  allocated.  An  additional,  earlier  period  is  included  in  respect  of  slots  used  for 
flights between the EU and People’s Republic of China or between the EU and Hong Kong 
Special Administrative Region of the People's Republic of China (from 23 January 2020). As 
a  condition,  in  respect  of  cases  following  the  entry  into  application  of  the  proposed 
Regulation,  any such slots  have to  be returned to  the slot coordinator. Returned slots which 
are subsequently reallocated to other air carriers would not be eligible for grandfathering for 
the air carrier operating them. 

Article 10a also empowers the Commission to adopt delegated acts if the crisis linked to the 
outbreak  of  SARS-CoV-2  is  not  resolved  and  continues  to  have  a  negative  impact  on  air 
transport, including on the slot grandfathering rights. Given the rapidity of the development of 
the outbreak, it is necessary that the delegated acts are adopted through an urgency procedure. 

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2020/0042 (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 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
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 ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The outbreak of the COVID-19 disease caused by severe acute respiratory syndrome 
coronavirus  2  (SARS-CoV-2)  has  led  to  a  sharp  drop  in  air  traffic  as  a  result  of  a 
significant fall in demand and direct measures taken by the Member States as well as 
third countries to contain the outbreak. The consequent serious impact on air carriers 
has set in as early as January 2020 in respect of the People’s Republic of China and 
Hong  Kong  Special  Administrative  Region  of  the  People's  Republic  of  China,  has 
been  pervasive  since  1  March  2020,  and  is  likely  to  affect  at  least  two  scheduling 
periods, those of winter 2019/2020 and summer 2020.  

Those  circumstances  are  beyond  the  control  of  air  carriers  and  the  consequent 
voluntary  or  obligatory  cancellation  of  air  services  by  air  carriers  is  a  necessary  or 
legitimate  response  to  those  circumstances.  Notably,  voluntary  cancellations  protect 
the  financial  health  of  air  carriers  and  avoid  the  environmental  impact  of  empty  or 
largely-empty flights operated only for the purpose of maintaining underlying airport 
slots. 

Figures published by the EU Network Manager at the European Organisation for the 
Safety  of  Air  Navigation  (‘Eurocontrol’),  indicate  a  year-on-year  fall  in  the  order  of 
10% in air traffic for the European region in the first half of March 2020. Air carriers 
are  reporting  large  falls  in  forward  bookings  and  are  implementing  significant 
cancellations  of  flights  into  the  winter  2019-2020  and  summer  2020  scheduling 
periods as a result of the outbreak. 

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OJ C , , p. . 
OJ C , , p. . 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Under Article 8(2) read in conjunction with Article 10(2) of Council Regulation (EEC) 
No 95/93, the failure by an air carrier to operate 80% of a series of slots which it has 
been allocated at a coordinated airport threatens the historic precedence for these slots. 

Article 10(4) of Regulation (EEC) No 95/93 allows slot coordinators to disregard, for 
the  purpose  of  calculating  historic  precedence,  the  non-operation  of  airport  slots  for 
periods during which the air carrier is unable to operate the planned air services due to, 
for example, airport closures. However, this Article does not address situations like the 
outbreak  of  SARS-CoV-2.  It  is  therefore  appropriate  to  adopt  a  corresponding 
measure. 

In light  of known forward bookings  and epidemiological  forecasts, it can reasonably 
be expected at this stage that a significant number of cancellations attributable to the 
outbreak  of  SARS-CoV-2  will  occur  over  the  period  between  1  March  2020  and  at 
least  30  June  2020.  The  non-utilisation  of  slots  allocated  for  this  period  should  not 
cause  air  carriers  to  lose  their  historic  precedence  they  would  otherwise  enjoy.  It  is 
therefore necessary to define the conditions under which non-operated slots should be 
considered  as  operated  slots  for  those  purposes,  in  respect  of  the  corresponding 
following season. 

Slots at coordinated airports are a valuable economic resource. Despite the general fall 
in air traffic, the cancellation of air services should not prevent the use of airport slots 
by  other  air  carriers  which  may  nonetheless  wish  to  use  them  on  a  temporary  basis 
without such slots accruing  grandfathering rights. Therefore,  when they  are not  used 
by  the  air  carrier  to  which  they  were  allocated,  slots  should  be  returned  to  the 
coordinator without delay.  

The  further  development  of  SARS-CoV-2  and  its  further  impact  on  air  carriers  are 
difficult to predict. The Commission should continuously analyse the impact of SARS-
CoV-2  on  the  air  transport  sector  and  the  Union  should  be  in  a  position  to  prolong 
without  undue  delay  the  period  during  which  the  measures  envisaged  by  this 
Regulation apply should the adverse conditions persist. 

In order to extend, if necessary and justified, the measures set out in this Regulation, 
the power to adopt acts in accordance with Article 290 TFEU should be delegated to 
the  Commission  to  amend  this  Regulation  to  prolong  the  period  during  which  the 
measures  envisaged  by  this  Regulation  apply.  It  is  of  particular  importance  that  the 
Commission  carries  out  appropriate  consultations  during  its  preparatory  work, 
including at expert level, and that those consultations be conducted in accordance with 
the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better 
Law-Making.  In  particular,  to  ensure  equal  participation  in  the  preparation  of 
delegated acts, the European Parliament and the Council receive all documents at the 
same time as Member States’ experts, and their experts systematically have access to 
meetings of Commission expert groups dealing with the preparation of delegated acts. 

(10) 

In  view  of  the  urgency  entailed  by  the  exceptional  circumstances  justifying  the 
proposed  measures,  it  is  appropriate  to  provide  for  an  exception  to  the  eight-week 
period referred to in Article 4 of Protocol No 1 on the role of national Parliaments in 
the Union, annexed to the Treaty on European Union, to the Treaty on the Functioning 
of  the  European  Union  and  the  Treaty  establishing  the  European  Atomic  Energy 
Community. 

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(11) 

In  view  of  the  urgency  entailed  by  the  exceptional  circumstances  justifying  the 
measures established, it is appropriate to provide for an immediate entry into force of 
this Regulation,  

HAVE ADOPTED THIS REGULATION: 

Regulation (EEC) No 95/93 is amended as follows: 

(1) 

Article 10a is replaced by the following: 

Article 1 

‘Article 10a 

For the purposes of Articles 8(2) and 10(2), coordinators shall consider slots allocated 
1. 
for  the  period  from  1  March  2020  until  30  June  2020  as  having  been  operated  by  the  air 
carrier to which they had initially been allocated.  

For the purposes of Articles 8(2) and 10(2), coordinators shall consider slots allocated 
2. 
for the period from 23 January 2020 until 29 February 2020 as having been operated by the 
air  carrier  to  which  they  had  initially  been  allocated,  in  so  far  as  it  concerns  air  services 
between airports in the European Union and airports either in the People’s Republic of China 
or in the Hong Kong Special Administrative Region of the People's Republic of China. 

3. 
In respect of slots with a date later than one week following the entry into application 
of  this  Regulation,  paragraph  1  shall  only  apply  where  the  relevant  unused  slots  have  been 
made available to the coordinator for reallocation to other air carriers. 

4. 
When  the  Commission  finds  on  the  basis  of  figures  published  by  the  EU  Network 
Manager at  the European Organisation for the Safety of Air Navigation (‘Eurocontrol’)  that 
the  reduction  in  the  level  of  air  traffic  is  persisting  in  comparison  to  the  level  in  the 
corresponding  period  in  the  previous  year  and  is  likely  to  continue,  and  on  the  basis  of  the 
best  available scientific  data that this  situation is the result of the impact of the outbreak of 
SARS-CoV-2, the Commission shall  adopt  delegated acts  in  accordance with  Article 12a to 
amend the period specified in paragraph 1 accordingly. 

5. 
The Commission shall continuously monitor the situation in light of the criteria set out 
in paragraph 4. Based on the information available to it, it shall present a summary report on 
this matter by 15 April 2020. If necessary, it shall as soon as possible adopt the delegated act 
provided for in paragraph 4. 

6. 
Where, in the case of a prolonged impact of SARS-CoV-2 on the air transport sector 
in the European Union, imperative grounds of urgency so require, the procedure provided for 
in Article 12b shall apply to delegated acts adopted pursuant to this Article.’ 

(2) 

The following Articles 12a and 12b are inserted: 

‘Article 12a 

Exercise of the delegation 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 

1. 
conditions laid down in this Article. 

The power to adopt delegated acts referred to in Article 10a shall be conferred on the 

2. 
Commission for a period of one year from the entry into force of this Regulation.  

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3. 
The delegation of power referred to in Article 10a may be revoked at any time by the 
European  Parliament  or  by  the  Council.  A  decision  to  revoke  shall  put  an  end  to  the 
delegation  of  the  power  specified  in  that  decision.  It  shall  take  effect  the  day  following  the 
publication  of  the  decision  in  the  Official  Journal  of  the  European  Union  or  at  a  later  date 
specified therein. It shall not affect the validity of any delegated acts already in force. 

4. 
Before adopting a delegated act, the Commission shall consult experts designated by 
each  Member  State  in  accordance  with  the  principles  laid  down  in  the  Interinstitutional 
Agreement on Better Law-Making of 13 April 2016. 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 

5. 
the European Parliament and to the Council. 

6. 
A  delegated  act  adopted  pursuant  to  Article  10a  shall  enter  into  force  only  if  no 
objection  has  been  expressed  either  by  the  European  Parliament  or  by  the  Council  within  a 
period of two months of notification of that act to the European Parliament and the Council or 
if,  before  the  expiry  of  that  period,  the  European  Parliament  and  the  Council  have  both 
informed  the  Commission  that  they  will  not  object.  That  period  shall  be  extended  by  two 
months at the initiative of the European Parliament or of the Council. 

Article 12b 

Urgency procedure 

1. 
Delegated acts adopted under this Article shall enter into force without delay and shall 
apply as long as no objection is expressed in accordance with paragraph 2. The notification of 
a delegated act to the European Parliament and to the Council shall state the reasons for the 
use of the urgency procedure. 

2. 
Either  the  European  Parliament  or  the  Council  may  object  to  a  delegated  act  in 
accordance with the procedure referred to in Article 12a(6). In such a case, the Commission 
shall  repeal  the  act  immediately  following  the  notification  of  the  decision  to  object  by  the 
European Parliament or by the Council.’ 

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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