Article 15 Entry into force
This Regulation shall enter into force on the thirtieth day following that of its publication in the Official Journal of the European Communities . This Regulation shall be binding in its entirety and directly applicable in all Member States.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal Regulation (EEC) No 95/93 1 (the ‘Slot Regulation’) lays down rules on the allocation of slots at EU airports. Its Article 10 sets out the ‘use-it-or-lose-it’ rule, according to which air carriers must use at least 80% of slots in an allocated slot series in a given scheduling period (summer or winter) to retain their entitlement to the same slot series in the next equivalent scheduling period (i.e. grandfather or historic rights). The COVID-19 pandemic caused a sudden and unprecedented decline in passenger demand (the lowest points were reached in April 2020, with an 89% decrease compared to the same weeks in 2019). As airlines could no longer comply with the normal use-it-or-lose-it rule without risking significant financial or environmental harm, the EU amended the Slot Regulation twice to adjust this rule 2 . The amended Regulation also gave the European Commission delegated powers to extend slot relief and adjust the use threshold if the reduction in air traffic due to COVID-19 persisted and was likely to continue to persist. The Commission used this empowerment three times 3 . Current slot-relief rules will expire on 29 October 2022. The Commission’s delegated powers expired on 21 February 2022 and therefore the Commission cannot extend the EU slot relief beyond the summer 2022 scheduling period. The use-it-or-lose-it rule was completely suspended from 1 February 2020 to 27 March 2021 (i.e. a full waiver). Given the subsequent recovery of air-traffic demand linked to the vaccination campaign and the introduction of the EU Digital COVID Certificate, the EU took the approach that slot relief should be targeted to what is necessary and balanced by introducing certain pro-competitive aspects. By its very nature, slot relief has the effect of giving a certain advantage to incumbent airlines to the detriment of new entrants that would potentially be able to provide air services but cannot access airport capacity. To reduce the risk of anticompetitive effects the slot use rate was gradually raised from 0% to 64% (for the summer 2022 scheduling period) 4 . When the slot use rate was raised above 0%, a number of new justified non-use of slots (JNUS) exceptions were introduced as an additional safeguard. These exceptions provide additional alleviation in specific cases where an airline cannot operate a flight because of measures imposed by public authorities to mitigate the spread of COVID-19 (for instance, flight bans, or lockdowns at either end of the route). Other rules to maximise the efficient and pro-competitive use of airport capacity were also introduced (e.g. a 3-week hand-back deadline for slots not intended for use, priority for ad hoc slot users under certain circumstances, etc.). These rules aim to maximise the benefits for the greatest number of users and allow passengers to reap the benefits of a competitive aviation market and connectivity. The current air-traffic level in Eurocontrol states is around 86% of the level in the same period in 2019. Eurocontrol figures also show that traffic to other continents is recovering at similar rates 5 . Air traffic to North America is only 8% below 2019 levels and to Africa is 37% below 2019 (with a smaller reduction to North African countries). The air traffic to South America is 20% below 2019 and to the Middle East 8% below 2019 levels. The market lagging behind most is EU-Asia, which is at 65% of 2019 levels. This is attributable to remaining travel restrictions, especially in China 6 , because of COVID-19 (slots on affected routes are protected by JNUS exceptions), and the fact that many carriers have to fly around Russian airspace to reach Asian countries. This adds significantly to flight duration on affected routes and requires airlines to reduce flight frequency . Eurocontrol’s traffic outlook (base scenario, currently outperformed) sets traffic at 90% at the start of the winter 2022/2023 scheduling period. Based on the same forecast, air traffic at the end of 2022 will be at 92% (base scenario), 96% (high scenario) or 83% (low scenario). In June 2022, year-to-date air traffic stands at 75% of 2019, with an upward trend. In May 2022, Airports Council International Europe revised their forecast on passenger numbers upward: the previously predicted -32% passenger-traffic loss for the year is now -22%. In an analysis published in May 2022, the CAPA – Centre for Aviation (which provides market intelligence) predicts that seat capacity offered may reach 2019 levels in Q3-2022. While the number of passengers is still lagging behind, the gap between seat capacity offered and passenger numbers is closing. Given this robust air-traffic recovery, it is proposed not to modify the standard 80% use rate as of the winter 2022/2023 scheduling period. Experience during the pandemic has shown that the COVID-19 epidemiological situation is unstable and unpredictable. Some public-health authorities have already warned that COVID-19 cases may intensify again during northern autumn and winter seasons. It is not possible to anticipate the impact of potential new variants or an increased number of cases on passengers’ ability to travel. Further, Russia’s military aggression against Ukraine may continue to be a disruptive factor. To mitigate the potential negative consequences on air-traffic levels if these scenarios materialise, it is important that the legal framework for slot allocation is sufficiently resilient to enable proportionate, pro-competitive and speedy slot relief. Therefore, it is proposed to grant the Commission delegated powers for a limited time to adjust the slot use rate if necessary if air traffic remains persistently below a certain threshold due to COVID-19 or direct effects of Russia’s military aggression. Further, airlines should continue to benefit from JNUS exceptions in case public authorities impose sanitary measures that restrict air travel or severely impede passengers’ ability to travel. It is also proposed to extend the exception to cover measures imposed in response to all epidemiological situations (not limited to COVID-19), natural disasters and political unrest affecting airports. This proposed extension of the JNUS exceptions has received wide approval from all stakeholder categories (further described below). While it is for slot coordinators to implement the Slot Regulation, experience has shown that closer cooperation between coordinators is necessary to uphold the objectives of the Slot Regulation, ensure consistent application of EU rules to similar situations, and maintain a level playing field. Therefore, it is proposed to strengthen the role of the European Airport Coordinators Association in issuing guidance. Transparency in the application of JNUS exceptions is very important for airlines, thus coordinators should publish to which destinations the exceptions apply. In addition, when a coordinator applies the exception to slots at one end of the route, the coordinator at the other end of the route should consider whether to apply it as well, provided it does not unduly prejudice airport operations or fair access to limited airport capacity, or both. Further, it is proposed that if a majority of the EU population is affected by measures severely impeding air travel, all slot coordinators may grant JNUS exceptions to all slots. During its regular contact with stakeholders, the Commission has become aware of the need to address certain impacts of Russia’s military aggression against Ukraine on air traffic. The prohibition on air carriers from the Union and other countries to enter the airspace of Belarus, Russia and Ukraine is having an impact on scheduled operations. The need to re-route flights may add significant duration to the flight-time making it impossible to comply with the originally allocated slot timing. Firstly, the Commission fully supports that coordinators use the flexibility granted under Article 8(4) of the Slot Regulation to retime slots used for direct routes affected by the prohibition to enter Russian, Belarusian and Ukrainian airspace Secondly, it is proposed to clarify that once Ukrainian airspace reopens, airlines whose slots on routes between the EU and Ukraine are protected by Article 10(4)(a) should be granted an additional recovery period of 16 weeks before slot-use requirements become applicable again. Thirdly, to aid the recovery of Ukraine and encourage airlines to restore connectivity between the EU and Ukraine, it is proposed to empower the Commission to adopt delegated acts to reduce the slot use rate on those specific routes between EU and Ukrainian airports. Lastly, it is proposed to explicitly clarify that air carriers subject to restrictive measures adopted under Article 215 of the Treaty on the Functioning of the EU (TFEU) or on the EU safety list cannot benefit from the application of Article 10(4) and (4a) of the Slot Regulation. Their slots should be withdrawn to avoid blocking airport capacity. The Commission held a call for evidence from 26 April to 24 May 2022 and invited stakeholders to react to the proposed initiative to extend slot relief. The Commission received 43 replies in total, out of which 29 are publicly available on the Better Regulation portal . All respondents support the continuation of slot relief, especially: (i) the continuous availability of JNUS exceptions; (ii) coordination among slot coordinators when applying these exceptions; and (iii) giving the Commission delegated powers to lower the use rate (which almost all stakeholders supported). Of all respondents, 5 stakeholders (3 airlines and 2 associations, representing most of the EU’s airports) explicitly called for reinstating the 80% use rate, while 26 expressly called for a lower use rate (airlines mainly asked to maintain the current 64% use rate). Some stakeholders, mainly Member States, did not mention any preferred use rate but supported the proposal to empower the Commission to adopt delegated acts. Further, stakeholders broadly supported that airlines that used ad hoc slots during the period of slot relief should be given priority access to these slots, subject to available capacity. The Commission recognises that the request to maintain a lower use rate is linked to uncertainties concerning COVID-19 and Russia’s military aggression against Ukraine and resulting economic impacts. COVID-19 cases may rise again during the winter scheduling period, which is generally one of lower demand. However, Eurocontrol expects air-traffic to be at 90% of 2019 levels at the start of the winter scheduling period. Therefore, announcing a lower use rate at this stage is not justified. The Commission holds that there are sufficient safeguards against unanticipated adverse developments, namely the possibility to lower the use rate by adopting delegated acts at any time (if necessary by using the urgency procedure), coupled with the continuing availability of JNUS exceptions. The Commission has also repeatedly stated that air traffic does not need to return to 2019 traffic levels for normal slot-use rules to be reinstated as it is likely that consumer preferences will have changed, to which the market must adapt. It is essential that airport capacity is used efficiently and pro-competitively for the benefit of consumers and connectivity. Many airlines were in favour of broadening the application of the JNUS exceptions, for example to cover public recommendations against travel, to cover not only directly affected routes but also feeder traffic, and to cover unavailability of essential ground-handling services or other business essential to support air operations. The Commission recalls that the JNUS exceptions constitute an exception to the normal rules and, therefore, should be limited to what is strictly necessary not to unduly limit competition, which could in turn harm consumers. State recommendations against travel may affect passengers’ willingness to travel; however, they do not as such constitute a severe impediment to travel and travel does still take place. If there are severe restrictions at the other end of the route, such as mandatory quarantine, lockdowns, etc., the exception applies and thus provides suitable protection. On the request to broaden JNUS to cover feeder traffic, the Commission holds that this goes beyond what is necessary. Many passengers may be on a given flight to an airline’s hub to connect to various destinations – some of these destinations being affected by travel restrictions or the need to reroute, others not. Therefore, it is not simple to determine for which route any given flight constitutes a feeder flight. Further, passengers may adapt their demand to the given circumstances. For example, while fewer passengers may choose to fly to Asian countries, they may choose to travel to North or South American destinations instead while still connecting through a hub in the EU. To accept the application of JNUS in these scenarios would go beyond the objective of JNUS under Article 10(4)(e) of the Slot Regulation and would contradict the principle that slots are not route specific. Airlines can adjust schedules and networks in line with demand, as many airlines have done during the pandemic. Lastly, on staff shortages, the Commission notes that this may become a more serious problem during the current summer season. However, the proposal will not be adopted in time to cover the current season and other solutions are being explored by stakeholders together with the Commission. As is the case for airport capacity reductions due to sanitary measures, the Commission favours an open dialogue between the parties concerned and an orderly reduction of capacity to minimise the negative consequences for passengers. Resulting cancellations and/or re-timings should be presented to airlines and/or their associations transparently and should be spread across them proportionately to the number of slots or the capacity used by airlines at the airport concerned. 
Revised version (Article 15 Entry into force):
This Regulation shall enter into force on the thirtieth day following that of its publication in the Official Journal of the European Communities .