COUNCIL OF
THE EUROPEAN UNION

Brussels, 12 March 2009

7500/09
Interinstitutional File:
2009/0042 (COD)
AVIATION 41
CODEC 349
PROPOSAL
from:
dated:
Subject:

Commission
11 March 2009
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

Delegations will find attached a proposal from the Commission, submitted under a covering letter
from Mr Jordi AYET PUIGARNAU to Mr Javier SOLANA, Secretary-General/High
Representative.

________________________

Encl.: COM(2009) 121 final

7500/09

SB/ay
DG C III

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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, nondiscriminatory 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)

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.

(2)

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.

1

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:
Article 1
In Regulation (EEC) No 95/93, the following Article 10c is inserted:
‘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.’
Article 2
This Regulation shall enter into force on the day following that of its publication in the
Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels,

For the European Parliament
The President

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For the Council
The President

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