On 7 March 2022, the European Commission Directorate-General for Mobility and Transport (DG) announced the launch of a public consultation for the revision of the Air Services Regulation (ASR),(1) which provides for rules for air services in the European Union. According to the DG, the underlying goals are to make aviation smarter and more resilient, sustainable and socially responsible, while at the same time ensuring connectivity and competition, protecting consumer interests and preserving "high quality employment".
The call for evidence concluded on 6 December 2021, while the current consultation period will run until 26 May 2022. The adoption of the new ASR is scheduled for the fourth quarter of 2022. The German Federal Ministry of Transport and Digital Infrastructure (BMVI)(2) has provided positive feedback regarding the aim to evaluate the ASR.
Regulation (EC) No. 2020/696 of 25 May 2020 already amended the ASR in view of the covid-19 pandemic. The upcoming revision of the ASR must be viewed and assessed in connection with the European Green Deal and the Sustainable and Smart Mobility Strategy.
As part of the review's political context, the call for evidence for an impact assessment(3) also states that it includes the 2021 special report from the European Court of Auditors on air passenger rights during the covid-19 pandemic.
An evaluation of the ASR was conducted prior to the covid-19 pandemic, the results of which were published in a European Commission staff working document dated 9 July 2019.(4) The three areas of improvement that, going forward, were to be most strongly prioritised were:
- operating licence provisions;
- ownership and control rules; and
- traffic distribution between airports.(5)
In the course of the aforementioned call for evidence, feedback from 32 parties was received, including:
- large airline companies;
- aviation associations (including the Federal Association of the German Air Transport Industry);
- airport operators; and
- environmental associations.
With regard to resilience-related issues, stakeholders are worried about legal uncertainties in connection with the handling of state aid across different European jurisdictions, expressing a desire for clear rules for financial measures taken in the name of public interest, including health-related measures.(6) At the same time, stakeholders are aware of necessary flexibilities within the internal market.(7) Stakeholders mostly unanimously support the ultimate goal of the Green Deal, but uphold warnings in regard to unrealistic milestones and potential substantive loss of connectivity caused by such measures.(8) Airlines also emphasise the importance of consumer choice on existing transport alternatives and reject the idea of some flights being "necessary" and others being "unnecessary".(9) As way of reducing demand, pricing of carbon on all flights is considered to be imaginable.(10)
As for Germany, the Federal Ministry of Transport and Digital Infrastructure has provided positive feedback(11) regarding the aim to evaluate the ASR as such while at the same time pointing at dangers related to amendments of ownership and control rules: "A possible change in the regulations must not be allowed to jeopardise German and European interests in the areas of connectivity, jobs, fair competition and working conditions."
In particular, the BMVI is of the strong opinion that, as a solid financial performance is key to capital acquisition, rules for ownership and control should only be liberalised restrictively at most. In the same context and in regard to crisis resilience, certain equity capital requirements are essential to ensure liquidity. Furthermore, the BMVI pleads for sufficient options for airlines to reflect increasing external costs in their ticket pricing.
While the BMVI seems to be relatively clear on its position, the European Union will have to bring the stakeholders' input into an equilibrium, the result of which remains to be seen.
For further information on this topic please contact Daniel Bunsen at Arnecke Sibeth Dabelstein by telephone (+49 69 979885 465) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
(1) Regulation (EC) No. 1008/2008 of 24 September 2008.
(2) The BMVI was renamed to the "Federal Ministry for Digital and Transport" (BMDV) by the newly elected government.
(3) Ref Ares (2021) 6862480 – 8 November 2021.
(4) Commission Staff Working Document, Evaluation of the Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community – SWD (2019) 295 final.
(5) SWD (2019) 295 final, pages 97 et seq.
(6) Flughafen Wien AG, feedback reference F2761177 of 6 December 2021, page 1.
(7) Flughafen Wien AG, feedback reference F2761177 of 6 December 2021, page 2; IAG, feedback reference F2761195 of 6 December 2021, page 3.
(8) Flughafen Wien AG, feedback reference F2761177 of 6 December 2021, page 2; IAG, feedback reference F2761195 of 6 December 2021, page 2.
(9) EasyJet, feedback reference F2761205 of 6 December 2021, page 3; IAG, feedback reference F2761195 of 6 December 2021, page 2.
(10) EasyJet, feedback reference F2761205 of 6 December 2021, page 4.