What are the current flight restrictions imposed by Portugal?

  • Flights to and from countries outside the European Union (with certain exceptions)

It was decided to ban air traffic to and from Portugal from all flights to and from countries outside the European Union, with the exception of: (a) countries associated with the Schengen area (Liechtenstein, Norway, Iceland and Switzerland); (b) Portuguese-speaking countries (although, as concerns Brazil, only flights from and to São Paulo and from and to Rio de Janeiro are allowed); and (c) the United Kingdom, the United States of America, Venezuela, Canada and South Africa, given the presence of important Portuguese communities.

These travel bans are not applicable to: (a) flights intended to enable the return to Portugal of national citizens or to holders of residence permits in Portugal; (b) flights to enable foreign nationals currently in Portugal to return to their respective countries, provided that such flights are promoted by the authorities of such countries, subject to prior request and agreement, and in compliance with the principle of reciprocity (c) State aircraft and Armed Forces; (d) aircraft that are included or will be included in the “Special Mechanism for Rural Fire Fighting”; (e) flights for the exclusive transport of cargo and mail; (f) flights of humanitarian nature or of medical emergency and (g) technical landings for non-commercial purposes.

The order has been extended until May 18.

  • The special case of Spain and Italy

Some specific measures were taken regarding Spain, namely, suspension all flights, from all air carriers, commercial or private, from or to Spain, to or from Portuguese airports or aerodromes (with the exception of State aircraft, Armed Forces, aircraft that are included or will be included in the “Special Mechanism for Rural Fire Fighting”, flights for the transport of cargo and mail, as well as humanitarian or medical emergency flights and technical landings for non-commercial purposes). Restrictions were also imposed on road, rail and river traffic. The restrictions are subject to some exceptions (for instance, they are not applicable to national citizens and diplomatic personnel) and are of a temporary nature (they will end at 00:00 on 14 May). The suspension of flights to and from Italy is maintained (with the exceptions already ordered – which include State aircraft, flight for exclusive transport of cargo and mail, humanitarian or medical emergency flights or technical landings for non-commercial purposes - , as well as aircraft that are included or will be included in the “Special Mechanism for Rural Fire Fighting”) until 5 May.

Was Covid-19 deemed as an “extraordinary circumstance” for the purposes of Regulation 261/2004 on air passenger rights?

The European Commission has release on 19 March, the “Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19” under which air passengers rights following flight cancelations were analysed. Typically, in case of flight cancelations, and depending on the circumstances, passengers may be entitled to (i) reimbursement (refund); (ii) re-routing; (iii) right to care and (vi) a compensation. However, the operating air carrier will not be obliged to pay the abovementioned compensation if it can prove that the cancellation is caused by “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

In this respect, the Commission considered that this condition should be deemed as fulfilled:

  • “where public authorities either outright prohibit certain flights or ban the movement of persons in a manner that excludes, de facto, the flight in question to be operated” or
  • “where the airline decides to cancel a flight and shows that this decision was justified on grounds of protecting the health of the crew”.

The Commission also considered that the abovementioned condition could also be deemed as fulfilled, depending on the circumstances, “where the flight cancellation occurs in circumstances where the corresponding movement of persons is not entirely prohibited, but limited to persons benefitting from derogations (for example nationals or residents of the state concerned).” This means that in the first two cases mentioned above, compensations to passengers in case of flight cancelation will not be owed and, in the last case, it may not be owed, depending on the circumstances. It is also worth highlighting that the abovementioned “extraordinary circumstances” cannon be deemed as exhaustive.

What are the measures related to slot allocation to mitigate Covid-19 impacts?

The recent Regulation (EU) 2020/459 of the European Parliament and of the Council, of 30 March 2020, amended Council Regulation (EEC) no. 95/93 on common rules for the allocation of slots at Community airports, allowed the suspension of the general rule "use it or lose it". Under such rule, air carriers, in order to maintain their right (i.e. grandfather right) to use the slots (both landing and take-off slots) allocated to them in a given scheduling period during the next equivalent scheduling period, must provide evidence of usage for at least 80% of the time during the scheduling period for which they have been allocated.

Under the exemption now approved, the following slots must be considered as having been operated by the air carrier to which they were initially allocated: i) slots allocated for the period 1 March 2020 to 24 October 2020, (although in respect of slots with a date later than 8 April 2020, they will be considered as operated where the relevant unused slots have been made available to the coordinator for reallocation to other air carriers); and ii) slots allocated for the period 23 January 2020 to 29 February 2020 as regards air services between airports in the 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.

The evolution of the Covid-19 outbreak will be monitored by the European Commission which should issue a report on this matter to the European Parliament and to the Council by 15 September 2020. If the Commission finds, (a) on the basis of figures published by Eurocontrol, that the reduction in the level of air traffic as compared to the level in the corresponding period in the previous year is persisting and is likely to persist and (b), on the basis of the best available scientific data, that the situation results from the impact of the Covid-19 outbreak, the Commission shall adopt delegated acts (in accordance with the abovementioned Regulation) in order to amend the period specified in (i) above. These measures entered into force on 1 April 2020.

Which deadlines (concerning licenses, endorsements and medical certificates) have been extended by ANAC (the Portuguese Civil Aviation Authority)?

According to ANAC’s Aeronautical Information Orders (“AIOs”) no. 02/2020, of 13 March and nos. 03/2020 and 04/2020, both of 20 April, it was set forth that:

1. The validity periods are deemed as extended from 13 March 2020 to 15 June 2020 as regards: a) licences of the aeronautic maintenance personnel (issued in accordance with Commission Regulation (EU) no. 1321/2014, of 26 November 2014); b) endorsements on air traffic controller licences (issued under Commission Regulation (EU) no. 2015/340 of 20 February 2015);

2. A four months extension may be requested during the period from 13 March 2020 to 23 July 2020 for the following deadlines/validity periods: a) the validity period of endorsements, privileges and certificates contained in licences issued in accordance with Commission Regulation (EU) no. 1178/2011 of 3 November 2011; b) the validity period of the recommendations issued by training organisations for students to take the theory tests; c) the maximum deadline for carrying out the theoretical examinations; d) the validity period of licenses and privileges of flight operations officers (issued under ANAC Regulation no. 840/2010, of 15 November); e) the validity period of pilot licenses for ultralight aircraft, ratings and privileges (issued under Decree-Law no. 238/2004, of December 18);

3. The validity periods of are deemed as extended from 13 March 2020 to 23 July 2020 as regards: a) the pilot medical certificates; b) the cabin crew medical reports; c) the air traffic controller medical certificates (issued under Commission Regulation (EU) no. 2015/340 of 20 February 2015); and d) the certificates of aero-medical examiners with Class 1, Class 2, Class 3, LAPL and CC privileges.

AIOs 03/2020 and 04/2020 also impose mitigation measures regarding the extension of these deadlines, i.e. it lays down requirements that the interested parties must meet in order to benefit from the abovementioned extensions.

Finally, under Advisory Circular no. 20-05, of 19 April 2020, ANAC granted an exceptional extension of 6 months to the validity of Airworthiness Review Certificates issued pursuant to Commission Regulation (EU) no. 1321/2014 of 26 November 2014 that (i) have already been extended twice and (ii) expires before 31 July 2020.In order to benefit from the extension operated by this Advisory Circular, the requirements listed therein must be met, namely the lack of evidence or indications that the aircraft is not airworthy.

Are there specific concerns as regards air cargo operations during COVID-19 outbreak?

The European Commission, through the Communication (2020/C 100 I/01), published on 27 March 2020, regarding the “European Commission Guidelines facilitating Air Cargo Operations during COVID-19 outbreak” (“Guidelines”) requested Member States to facilitate air cargo operations during the COVID-19 outbreak.

In that context, the European Commission encouraged the Member States to implement a series of operational measures, for the duration of the COVID-19 crisis, to facilitate air cargo transport and help reduce additional costs. These measures include: a) For transport from outside the EU, granting without delay all necessary authorisations and permits, including, where legally possible, temporary traffic rights for additional air cargo operations, even when conducted with passenger aircraft; b) Temporarily removing, or applying flexibly, night curfews or slot restrictions at airports for essential air cargo operations; c) Facilitating the use of passenger aircraft for cargo-only operations, including for the re-positioning of air cargo flight crew, medical staff and anyone involved in the transport of goods regardless of the transport mode; d) Ensuring that air cargo crew as well as handling and maintenance personnel are qualified as critical staff in cases of lockdown or curfew; e) Ensuring that, where possible, sufficient cargo capacity is maintained when regional airports are closed for economic reasons or considering keeping airports open for air cargo only, and in any case ensuring that open airports maintain sufficient air cargo handling capabilities to ensure timely treatment and delivery; f) Exempting from travel restrictions asymptomatic transport personnel, including aircrew, engaged in the transport of goods; g) Exempting from containment measures asymptomatic aircrew, cargo personnel and airport personnel working on the ramp, if adequate health protocols are in place; h) Allowing fast-track ad-hoc exemptions to address unforeseen situations such as sudden and unforeseen emergency operations; i) Allowing ramp personnel to do their work both safely as well as efficiently, by providing staff with guidance on health precautions in an air cargo environment and support them with appropriate supplies of hygiene products; j) Encouraging that cargo and express airlines exceptionally reserve capacity for the supply of essential goods, in particular medical and emergency supplies, and apply reasonable shipping rates for such supplies.

These measures should apply to both EU citizens and third country nationals alike if they are essential to provide free movement of cargo to and inside the EU.

The European Commission will continue to monitor the situation, and will provide further guidance, as appropriate.

In this regard, all travel bans approved by Portugal mentioned in our comment to query 1 above, provide some sort of exception concerning flights for the transport of cargo and mail.