EC Regulation 261/2004 update

If you took a straw poll among airlines operating in Europe, and asked them what the worst piece of European legislation is that affects their business, it would almost certainly be EC Regulation 261/2004.

Originally designed with the objective of putting into legislative form voluntary commitments that were being largely observed by airlines to avoid where possible involuntary denied boarding practices and unnecessary delays and cancellations, the Regulation has developed over the last eight years from a passengers’ charter into a licence to penalise airlines that have taken all available measures to avoid cancelling or delaying flights, notwithstanding the occurrence of events that are beyond their control.

The effect of this poorly drafted Regulation is that claims made by passengers against airlines have been referred on far too frequent a basis by national courts to the European Court for interpretation of the meaning of words in the Regulation, or the application of provisions in the Regulation to a particular set of circumstances – such as the obligations of airlines to provide unlimited care and assistance during the volcanic ash crisis.

Two key rulings of the European Court were the Wallentin- Hermann judgment in December 2008, clarified when a technical problem with an aircraft causing cancellation could be categorised as an “extraordinary circumstance” (thereby avoiding cancellation payments), and the Sturgeon case in November 2009, confirmed in October 2012 in the TUI judgment, in which the European Court ruled that a delay of at least 3 hours after the scheduled time of arrival entitles passengers to compensation at the same level as if the flight was cancelled.

There have been many other cases referred up to the European Court by national courts of the EU over the last eight years on the interpretation of Regulation 261, and the net effect is that the Regulation has been amended and re-written in part by the Court.

The constant flow of cases to the European Court has served to expose time and again the deficiencies in the drafting of the Regulation, and has led to a long overdue review of the Regulation by the European Commission, that started in April 2011, and culminated in the publication of a Proposal for an amended Regulation on 13 March 2013.

Key proposed amendments to the Regulation:

  • An express right to compensation for delay-effectively codifying the decision in Sturgeon as confirmed by the TUI judgment. But the proposal suggests different thresholds of 5 hours for intra-EU flights and other flights of 3500km or less,9 hours for flights between 3500 and 6000km, and 12 hours for flights of 6000km or more.
  • A definition of “extraordinary circumstances”, which follows the Wallentin-Hermann judgment, and the publication of an Annex which sets out a non-exhaustive list of extraordinary circumstances and some examples of what would not constitute extraordinary circumstances.
  • A limitation on the care obligations of airlines in cases of delays and cancellations arising out of extraordinary circumstances-with the right to accommodation being limited to 3 nights at a maximum cost of €100 per night-this limitation would override the European Court decision in McDonagh v Ryanair in January 2013, which found that an airline’s obligation to provide care and assistance was not limited temporally or monetarily.
  • Proposed changes to rerouting obligations so that where a carrier cannot re-route a passenger to arrive at their final destination within 12 hours of the scheduled arrival time, the passenger is entitled to re-route by means of an alternative air carrier or another transport mode. The catch is the other transport provider is not allowed to “charge the contracting carrier a price that goes beyond the average price paid by its own passengers for equivalent services in the last 3 months”. This is going to cause problems if it finds its way into the finalised Regulation.
  • On a connecting flight, where a passenger misses a connection because of a delay or change of schedule to the preceding flight the air carrier operating the onward connection will be responsible for providing care and assistance and re-routing, and the first carrier will have to pay the passenger compensation under the Regulation.
  • The problem with this proposed amendment is if the first carrier is a feeder flight which is unconnected to the long haul flight it may have to pay the upper limit compensation of €600 to a passenger, which could be way more than the cost of the ticket on the feeder flight. This may inhibit regional feeder services and interlining.

The Commission published its preliminary list of extraordinary circumstances following a meeting between European national enforcement bodies (NEBs) held on 12 April 2013.

So what has happened since then?

The European Economic and Social Committee gave their opinion on the proposed amendments on 11 July 2013.

The basic message from the EESC was that they regretted that the Commission’s proposed amendments did not contain a high enough level of consumer protection, and that the Commission seemed to be rowing away from previous judgments of the European Court on Regulation 261. They welcomed the “additional legal certainty” that the Commission’s proposal brings, but rejected any movement away from the 3-hour threshold for compensation arising out of delay, and said that the proposed list of extraordinary circumstances should not be applied automatically without any consideration of the individual factual circumstances.

“It is understandable that journeys to and from third countries should be subject to thresholds that depend on the journey distance, taking into account the practical problems encountered by air carriers when addressing the causes of delays at remote airports. The EESC nevertheless considers the proposed times of 9 or 12 hours to be too long, and believes the Commission should continue its efforts to find incentives for air carriers to actually perform considerably below these thresholds. The above delay times should be reduced further for people with disabilities or reduced mobility to take into account the particular costs to these people of a long delay. The EESC sees the effective and timely implementation of the SES II+ legislation package as an important tool for decreasing air carriers’ costs, allowing them more flexibility in financing the reduction of the thresholds.”

The EESC also want to re-introduce a “shared liability fund” to which carriers would contribute, in order to deal with the re- routing of passengers in cases of airline insolvencies.

In summary, the EESC’s opinions on the proposed amendments are not very helpful.

The European Council has met on at least two occasions since March to consider the Commission’s proposals, but it has not been reported what their views are.

The European Parliament’s Transport and Tourism (TRAN) Committee Rapporteur, Georges Bach, published his draft report on 6 September 2013, which recommended that Parliament should push back on a lot of the Commission’s proposed amendments, and strengthen the revised Regulation in favour of consumer protection.

In summary George Bach recommended the following in his draft report:

  • On delay thresholds, he shared the Commission’s view that there should be one delay threshold for all journeys within the EU, and that thresholds for extra-EU flights should depend on flight distance. However, he did not share the Commission’s view that all thresholds for delay compensation should be increased, and said that the Commission’s proposed thresholds are much too long.
  • He has recommended Parliament to set the base threshold for compensation for delays to intra-EU flights at 3 hours in line with Sturgeon. For delays on extra-EU flights of less than 3,500 km, he said the threshold for compensation should also be 3 hours, and for longer extra-EU flights, the threshold should 5 hours.
  • On hotel accommodation, in cases of extraordinary circumstances, he said that an airline’s liability can be limited as regards the cost of the accommodation per night and per passenger, but should not be time-limited, unless the passenger makes their own arrangements-in which case the airline’s obligation can be limited both as to amount and to time. He suggested a €125 per night per passenger allowance, compared to the €100 limit proposed by the Commission, but unlimited as to duration, unless the passenger chooses their own accommodation, in which case the airline’s liability should cease after 3 nights.
  • On extraordinary circumstances, he has suggested that the Commission’s proposal that “extraordinary circumstances can only be invoked in so far as they affect the flight concerned or the previous flight operated by the same aircraft” should only apply to technical faults which are extraordinary circumstances. He has also attempted to strengthen the annexed list of extraordinary circumstances in favour of the passenger-more in line with the Wallentin-Hermann ruling.
  • On the Commission’s proposed apportionment of obligations where a passenger misses their connecting flight due to delay caused by the original carrier, he has said that the original carrier should provide the assistance, care and re-routing, not the onward carrier, but the original carrier’s obligation to compensate for onward delays of 3 or 5 hours or more should only be triggered if the delay on the original carrier’s sector is more than 90 minutes.
  • On the Commission’s proposal that passengers should have the right to rerouting on another carrier or another mode of transport where the operating air carrier cannot transport the passenger on its own services to arrive at the place of destination within 12 hours, provided that the other carrier shall not charge a price that goes beyond the average price paid by its own passengers for equivalent services over the last 3 months, he has said that there should be no price limitations or conditions that oblige the use of a mode of transport because of the shortcomings of another mode.
  • He has sought to dilute the Commission’s proposal that airlines should be able to pass on compensation costs to third parties by suggesting wording that liability could be passed on “without prejudice to existing contracts”.
  • He has also picked up on a potential loophole in the Commission’s proposed amendments which could have worked in favour of airlines. The Commission had proposed an amendment that a passenger must submit their complaint within 3 months of the date they were meant to travel. It was not clear from the wording of this proposed amendment what would happen if the passenger did not make a complaint within that time period. Mr Bach has said that this does not affect the passenger’s legal rights. However, he goes on to say in his draft report that if an airline does not respond substantively to the passenger within two months, then they should be deemed to have accepted the passenger’s claim.
  • Mr Bach has also said in his draft report that Parliament should ban the one-bag rule applied by carriers like Ryanair, which only allow a passenger to carry one bag as hand luggage. He says that passengers should be allowed to carry in the cabin, free of charge, essential personal items or belongings including airport shopping, in addition to the prescribed maximum cabin baggage allowance. Coincidentally, since the publication of Mr Bach’s draft report, Ryanair has announced its intention to relax its one bag rule.

Possible significant change to the draft

It will be apparent, from Mr Bach’s draft report and the EESC’s opinion, that the Commission’s proposed draft Regulation could be subject to significant change in its passage through the EU co-decision process, and notwithstanding all the consultations with stakeholders, including airlines, technical experts, NEBs, and consumer groups over two years, which led to the publication of the proposed new Regulation, many of the gains made by airlines in areas like pushing out delay thresholds could be undone.

Timeframe

The draft Regulation continued its passage through the European Parliament committees following the publication of George Bach’s draft report, with the publication of a draft report by the rapporteur for the Internal Market and Consumer Protection (IMCO), Herbert Mayer, on 17 September 2013. Mayer’s draft report made some recommendations that differed from George Bach’s report – in particular Mayer said the time allowed for airlines to reroute on their own network should be 3 hours rather than 12 hours, and suggested that financial compensation for delay or cancellation should be equal to the fare paid by the passenger, but not exceed €250, for journeys within the EU and on journeys of 3500 km or less, compared to Mr Bach’s recommended €300 payment.

The MEPs on the TRAN and IMCO committees have now submitted their amendments to their respective rapporteurs’ draft reports, and these amended reports will now be debated in these committees and voted upon. The TRAN committee vote is scheduled for 17 December 2013.

The plenary vote on the draft Regulation is scheduled to take place in the European Parliament on 3 February 2014.

The timeframe for the European Council’s deliberations is less clear. The first reading is scheduled to take place on 5 December 2013, and the Council is continuing to prepare its own working paper which will incorporate its proposed changes to the Commission’s proposed draft of the new Regulation. The European Council is then expected to vote on their amendments shortly after the Parliament’s plenary session.

With European elections for MEPs coming up in late May next year, and the natural instinct of MEPs to support pro-consumer measures, which will prospectively garner them votes, as opposed to favouring the airlines’ position on the new draft Regulation, there is very real concern among the airlines and their associations that the more sensible revisions in the Commission’s proposed new Regulation could be voted out by the European Parliament in the first three months of next year.

While the draft new proposed Regulation meanders through the European legislative process, the Sturgeon ruling, as confirmed by the later TUI judgment, stands, with the effect that the floodgates were opened for passengers to make claims for compensation for flights delayed over 3 hours going back a number of years.

The effect of the TUI judgment delivered by the European Court on 23 October 2012 was to confirm the general rule that when a court interprets a rule of EU law, that interpretation applies from the time of its entry into force, in other words passengers can claim compensation for delays to flights over 3 hours going all the way back to 17 February 2005, subject to applicable national limitation periods for bringing such claims.

Some airlines have argued that the limitation period under the Montreal Convention should apply, which would mean claims for delays on flights over 3 hours could only be backdated for 2 years from 23 October 2012. But the European Court ruled in the Joan Moré v KLM case on 22 November 2012 that it is national law, not the Montreal Convention, which will dictate the relevant limitation period. So in the UK, for example, the courts would apply a six year limitation period, in Germany they would apply a 3 year limitation period, and in Italy passengers may be able to roll the clock on claims all the way back to February 2005.

Pressure to clear complaints backlog

The combined effects of these European Court judgments has been a flood of claims for compensation arising from delayed flights dating back many years. In the UK, thousands of complaints have been lodged by passengers with the CAA (being the UK National Enforcement Body or NEB) following the rejection of their claims by airlines, asking for clarification as to whether they are entitled to compensation.

On 23 July 2013, the UK CAA published guidelines that had been developed by national enforcement bodies across the EU, clarifying what may be categorised as “extraordinary circumstances”. These guidelines were produced following close cooperation between European regulators, engagement with technical experts, and discussion with the airline industry, and are designed to give both airlines and passengers a guide as to when compensation claims can be made, which the UK CAA says should also speed up the process of assessment and payment of claims. The guidelines were produced by the CAA following the flood of complaints received from passengers seeking help after their compensation claims for delay had been rejected by airlines.

The CAA have said that they have a backlog of 10,000 complaints to get through, so they sent through spreadsheets to airlines listing the complaints held against them, and instructed airlines to respond by 27 September, asking them to state which claims they would settle and which ones they would dispute, based on the new categories of extraordinary circumstances in the guidelines. The CAA guidelines are headed “This document is for information and guidance only. The content of this document does not represent a binding opinion of the European Commission”. The reason for this is the Annex of extraordinary circumstances published by the European Commission with its proposed new draft Regulation, could be subject to change, and the CAA guidelines are based on that Annex.

It should also be noted that when the UK CAA were assessing samples of cases with their own technical experts, at the time they were drawing up their guidelines, they agreed with airlines’ assessments on whether the cause of cancellation or delay was an extraordinary circumstance in around 60% of cases, so from an airline perspective each and every claim needs to be looked at individually, and assessed by reference to the nature of the extraordinary circumstance that was or could be relied upon, such as weather or unexpected flight safety shortcomings.

Single European Sky – can the vested interests be overcome?

Following the failure of the first Single European Sky initiative (called SES I, launched in 2004), the European Commission launched a second package of legislation in 2009 called SES II, which was designed to remove the fragmentation caused by the inefficient use of 27 national airspaces, through the introduction of what are called “Functional Airspace Blocks” or FABs.

These nine designated FABs were supposed to be operational by the end of 2012, but EU Member States have delayed dismantling their domestic air traffic monopolies in order to form these regional blocks, for political reasons. In early 2012, the EU Transport Commissioner Siim Kallas announced further new legislative proposals which he called “SES II plus”, with the objective of accelerating implementation of the SES II reforms, and enabling enforcement measures to be taken against non- compliant EU Member States. Then, in June 2013 the Commission laid out its proposals to update the four regulations creating the Single European Sky.

The Commission’s proposals to update the four regulations creating the Single European Sky will have to be approved by Member States and Parliament before they are passed into law, which could prove to be yet another stumbling block for the progress of these measures.

There has been considerable resistance to some of the measures proposed in the “SES II plus” package from some EU Member States, particularly France and Germany. The European Transport Workers Federation, which represents most of the air traffic controllers and air traffic management workers in Europe, has rejected the “SES II plus” package, on the basis that it will have only negative effects on jobs and working conditions for their union members. French air traffic controllers went on strike at the beginning of October in protest at the proposed “SES II plus” package because they are concerned about losing their jobs if the Commission’s proposals to deregulate the profession are passed into law. The Air Traffic Controllers European Unions’ Co- ordination (ATCEUC) also called for a strike at the beginning of October across 26 European countries – the industrial action was only called off when the European Commission assured them they would take ATCEUC’s views into consideration.

Although perhaps not the most exciting package of legislation being debated in Europe at the moment, it is nonetheless critically important for the industry. There are some nine million flights across European airspace annually, and Eurocontrol is forecasting a further 50% increase in flights over the next 10- 20 years. The Commission has estimated that the EU’s air traffic management inefficiencies caused by national airspace fragmentation add 42km to the average flight, waste fuel, increase emissions, and cost €4.6 billion per annum. The intransigence of EU Member States, which is rooted in the vested interests of labour protection, the revenue streams generated by national air traffic management bodies, and misplaced concerns over the protection of sovereignty over national airspace, is delaying critical progress in reforming what is a seriously inefficient system. The US controls a similar amount of airspace as Europe, with more traffic, at half the cost, and if and when the “SES II plus” measures are implemented, the European Commission says that safety will be improved by a factor of ten, airspace capacity will be tripled, the cost of air traffic management will be halved, and the impact on the environment of carbon emissions reduced by 10%.

IATA’s Director General, Tony Tyler, said earlier this year that progress in the implementation of the “SES II plus” package of measures is critical to the competitiveness of the European aviation industry:

“The European Commission shares the industry’s frustration with the failure of European states to progress the SES. Every year that SES languishes in limbo is a €5 billion knock to European competitiveness and costs the environment 8.1 million tonnes of wasted carbon emissions.”

The Commission’s updated proposals

  • Better safety and oversight

Full organisational and budgetary separation of national supervising authorities from the air traffic control organisations they oversee, in order to improve oversight and safety. Many supervisory authorities are currently under- resourced and dependent on the support of the entities they are supposed to oversee. Airlines will also have a new role in signing off air traffic control organisations’ investment plans to ensure they are better focused in meeting customer needs.

  • Better air traffic management performance

The reform of Europe’s air traffic management is driven by four key performance targets: safety, cost-efficiency, capacity and environment. Under the current system EU Member States can set their own performance targets and decide which corrective measures to apply if targets are not met. The Commission is proposing to strengthen the performance scheme by making the target-setting more independent, transparent and enforceable, by strengthening their own role in setting more ambitious targets and increasing the independence of the Performance Review Body as the key technical advisor, so as to enable sanctions to be applied when the performance targets are not met by Member States.

  • New business opportunities in support services

Open up business opportunities for more companies to provide support services to air traffic control organisations. Support services such as meteorology, aeronautical information, communication, navigation and surveillance services will have to be separated out under the new draft regulations, so they can be put out to competitive tender in an open and transparent way in accordance with normal EU procurement rules. Support services are the biggest driver of cost in air traffic management and these costs could be cut by 20% if they are put out to competitive tender.

  • Enabling industry partnerships

None of the nine FABs are fully operational, in spite of a deadline set in December 2012 for EU Member States to establish them. The Commission is currently examining infringement cases against all Member States, particularly where no progress towards reform is made in the next few months. However the Commission has recognised that the FABs are rather inflexible political constructs, so is proposing that service providers co-operate more flexibly by allowing the creation of “industry partnerships” – which will allow service providers to participate in more than one FAB.

  • Strengthening the role of the Network Manager

Strengthen the role of the Network Manager, Eurocontrol, to ensure that co-ordination of air traffic flows between the national service provider, and tasks such as route design and co-ordination of radio frequencies are carried out more centrally.

State aid update

In July 2013, the European Commission published revised draft rules on state aid for airports and airlines, and invited stakeholders in the aviation industry to comment on the draft rules, with a view to the adoption by the Commission of revised guidelines at the beginning of 2014.

The European Commission considers that a revision of the 1994 and 2005 Community Guidelines on Financing of Airports and Start-Up Aid to Airlines Departing From Regional Airports (the Aviation Guidelines) is long overdue, because the aviation industry has changed considerably over the last ten years, with low cost carriers now accounting for a larger share of intra- European traffic than incumbent legacy carriers. The airport sector has also transformed, with regional and local authorities investing in and subsidising terminals and runways to try and attract low cost carriers and regional carriers. The Commission say their experience in applying the current rules has shown the need for an update, and also observed that responses by stakeholders to a previous consultation carried out in 2011 emphasised the need for more clarity on the application and active enforcement of the applicable rules. In particular, the rules for the financing of airports need to become more transparent.

The Commission refers in the new draft guidelines to a perceived over capacity of smaller airports i.e. airports with less than one million passengers per annum, subsidies and support packages being given to unviable airports, and suggests that aid given to airports may be being channelled through to airlines.

The key proposed changes to the current guidelines are as follows:

Investment aid

For airport infrastructure, whereas the current guidelines leave open the issue of investment and intensities (i.e. the level of aid that can be granted in relation to eligible costs of a project), the revised draft rules define maximum permissible aid intensities depending on the size of the airport. The Commission says that airports with annual passenger traffic above 5 million passengers per annum are usually profitable, and should be able to cover their operating and investment costs, so no investment aid would be allowed. For airports with passenger traffic between 3-5 million per annum, 1-3 million per annum and less than 1 million per annum, investment aid up to 25%, 50% and 75% respectively would be permitted under the revised draft rules. Of the 460 airports in the EU, only 71 handle more than 5 million passengers, 33 airports handle 3-5 million passengers annually, and the majority of the remaining airports handle less than 3 million passengers per annum, with 275 airports handling less than a million passengers, and 185 of those handling fewer than 200,000 passengers annually.

Operating aid

Operating aid to airports is not allowed under the current guidelines. The new draft rules propose allowing operating aid to be given to airports that handle less than 3 million passengers annually for a transitional period of 10 years, under certain conditions, in order to give managers of regional airports time to improve their finances through gradual increases in airport charges, introduction of rationalisation measures by adjusting their business models, and time to attract new airlines and customers.

Start-up aid to airlines

The new draft rules suggest that compatibility conditions for start-up aid to airlines should be streamlined and adapted to developments in the market. With this in mind, the Commission has proposed in the new draft rules that only airlines departing from airports with fewer than 3 million passengers per annum (save in the outermost under-serviced regions of the EU/EEA) should be granted start-up aid for launching a new route or new schedule involving more frequent services, provided that the new route or schedule increases the connectivity of a region, and is granted for a limited duration of up to 24 months. The start-up aid would be allowed to cover no more than 50% of the start- up costs and should be allocated on a non-discriminatory basis. An “ex ante” business plan of the route should show that the route will become profitable for the airline after a start-up period of 24 months.

In fact, a key element for the compatibility of the proposed new guidelines on investment and operating aid to airports, and for start-up aid to airlines, is the application of an “ex ante” business plan, which is essentially an assessment of the profitability prospects over the expected duration of the aid arrangements, to test whether a private investor, operating under normal market conditions, would have accepted such terms and made an investment. This is called the market economy operator principle (or MEOP).

There are reportedly over 60 pending state aid cases concerning regional airports under investigation with the Commission – it remains to be seen how the new draft guidelines, when they are passed into law, will affect these cases.

In the meantime, the Commission will continue with its formal investigations into restructuring aid granted to Cyprus Airways, SAS, LOT, and most recently Alitalia.

Revision of aircrew fatigue rules

In 2009, the European Commission asked the European Aviation Safety Agency (EASA) to work on a revision of the current flight and duty time limitations and rest requirement rules for aircrew (called FTL rules, for short), in the light of the latest scientific and technical evidence, and best practices.

In general, the FTL rules were adequate, but needed adjustment. The current EU safety rules on pilot and crew fatigue were established in 2006 under EC Regulation No 1899/2006 (EU- OPS) – the rules are usually referred to as “Subpart Q”, and their aim is to ensure that flight and cabin crew members perform safety functions on board an aircraft at a proper level of alertness. The current FTL rules are the only EU aviation safety rules that are still outside the common legislative framework of the basic EU Safety Regulation – which creates confusion as to who is responsible for what and makes it more difficult to oversee the correct implementation of the FTL rules.

Following recommendations made by EASA, the European Commission proposed a new draft Regulation to update Subpart Q and the current national rules which complement Subpart Q. On 9 October 2013 the European Parliament voted in favour of the Commission’s proposal, controversially rejecting its own Transport Committee’s recommendation to modify the proposed Regulation.

The new draft Regulation proposes more than 20 provisions aimed at improving protection of aircrew from fatigue and includes:

  • The reduction of flight duty time at night by 45 minutes (to a maximum of 11 hours instead of 11 hours 45 minutes);
  • The reduction of the maximum number of flying hours from 1,300 to 1,000 hours in 12 consecutive months;
  • The increase of the weekly rest by 12 hours (2 days instead of 1.5 days) twice a month;
  • The grant of up to 5 days of rest at home base in case of significant time zone crossing (replacing the current 2 days);
  • Reduction of the maximum duty time (i.e. standby plus flight time) in case of airport standby (16 hours instead of 26-28 hours in some Member States).

The Commission will now formally enact the Regulation. It is expected to come into force at the end of this year and become fully applicable in 2015.

Holding pattern for EU Airports Package

The progress of the European Commission’s EU Airports Package, which was published in December 2011 to address issues on slots, groundhandling, and noise, has stalled. The European Parliament has approved all three elements of the package of legislation, with some substantive amendments, at First Reading stage, but the European Council has not.

Slots

The slots proposal was amended and approved at first reading by the European Parliament on 12 December 2012. The Parliament made some changes to the Commission’s original proposal, maintaining the current ratio of the use it or lose it rule at 80:20, and reduced the Commission’s proposal for the qualifying length for a series of slots from 15 to 5 in Summer and 10 to 5 in Winter. The amendments are now with the European Council for consideration. The rumours coming out of Brussels are that the text of the proposed new Slot Regulation is not agreed and that it is becoming increasingly uncertain whether a new Slot Regulation will be required at all.

One ongoing concern for airlines is that the European Commission and Parliament are resentful that airlines have control of their own slots, and that they (the EU legislature) may reserve the right to tackle the issue of who should own slots at a later date. This issue is of particular concern because airlines have capitalised the value of their slots as assets in their balance sheets, so any indication of an attempt by EU legislators to introduce measures to change slot ownership has to be monitored carefully.

Groundhandling

The proposed increase in the minimum number of ground handling companies given licences to operate at large airports is politically very sensitive, with the German groundhandlers’ unions, particularly at Frankfurt and Munich airports, exerting considerable lobbying pressure on MEPs.

The European Commission proposed an increase in groundhandlers at large airports from 2 to 3 at airports with more than 5 million passengers per annum. The Rapporteur for the TRAN Committee of the European Parliament, Polish MEP, Arthur Zasada, proposed in his working report to the TRAN Committee an increase in groundhandlers from 2 to 4 at qualifying airports. The TRAN Committee rejected this proposal, requiring the Rapporteur to significantly amend his report and find a compromise with the demands of the Employment Committee of the European Parliament. The text that was adopted by the TRAN Committee in March 2013 proposed a smaller increase in groundhandlers from 2-3 only at airports with over 15 million passengers per annum over a 10 year period. The TRAN Committee also proposed more stringent social terms and conditions and protection of employment conditions. These revised recommendations have been narrowly voted through the first reading of the European Parliament, but have not been voted on yet by the European Council – where there are reported to be significant differences of opinion. The timeline for the European Council to vote on this proposed new Regulation is unclear.

Noise

The proposed new noise Regulation is far less controversial than the proposed groundhandling Regulation. The European Parliament agreed on amendments on 12 December 2012 but approval by Council is still pending.

The current EU Lithuanian Presidency did not include the Airports Package in the European Council work plan for its six month Presidency of the EU, which expires in December 2013, which is why progress on the Airports Package has stalled at Council level. The EU Transport Commissioner, Vice President Siim Kallas, wants to have the Airports Package adopted in full, and there has been no move by the European Commission to disaggregate the three component parts of the Package, so the three draft Regulations in their current state look set to stagnate until the Greek Presidency takes over in January 2014. The Greek Presidency has not yet said whether it is going to prioritise the Airports Package, but if it does, it will face political difficulties in pushing the proposed new groundhandling regulations through. It seems likely that it will not prioritise this package of regulations until after the European Parliament elections have taken place in May next year.

EASA approves use of mobile devices during take-off

The European Aviation Safety Agency (EASA) has approved the use of electronic devices during take-off and landing, and will publish its guidance regarding safety testing, and which devices can and cannot be used during all phases of flights by the end of February 2014.

EASA’s approval follows the FAA’s ruling in October that personal electronic devices including e-book readers, tablet computers and portable games consoles can be used during all phases of flight. Mobile phones will also be allowed, provided their cellular radios are switched off, or they are switched to “flight mode”. Passengers are currently banned from using electronic equipment, including mobile phones, e-readers, MP3 players and iPods while aircraft are taxi-ing, taking off and landing.

In the long-term, EASA is looking at new ways to certify the use of mobile phones on board aircraft to make phone calls during flights, but the FAA, in relaxing their guidelines on the use of personal electronic devices, have made it clear that mobile phone calls from an aircraft are still forbidden, because of concerns that the mobile signals might interfere with aircraft communications systems. The largest association of flight attendants in the US has opposed plans to allow mobile phones during flight and has issued a statement saying that allowing calls could be “loud, divisive and possibly disruptive”, and that it is important to maintain a calm cabin environment. Delta Airlines is the first major carrier to say that it will not allow voice calls on flights even if the Federal Communications Commission allows them.

Sorry, you’re too fat to fly – but we can adjust your seat!

The Times Newspaper reported recently that British Airways ground staff prevented a 36 stone Frenchman from boarding an aircraft at Chicago Airport on grounds that his size made it unsafe for him to fly, even though his family claimed that he had weighed the same on the outbound trip. The Frenchman, who had flown to the US to receive treatment for a hormone disorder, had to sail home, and is now threatening legal action.

According to the World Health Organisation, more than 1 billion adults in the world are overweight, and at least 300 million of them are clinically obese. The WHO warns that childhood obesity is already epidemic in some areas, with an estimated 17.6 million children worldwide under five estimated to be overweight. According to the US Surgeon General, the number of overweight children in the US has doubled and the number of overweight adolescents trebled since 1980. The problem is global and is extending now into developing countries.

In this context, the British aircraft seat designer Seymourpowell has designed a form of adjustable seating that would allow economy passengers to pay for the space they need. The seat’s design enables the width of the seat to be changed, creating larger or smaller seats – slim seats designed for small people and young children could be priced cheaply, while larger travellers or those who simply want more room could be asked to pay more for the privilege. Seymourpowell said that the new seat design, called “Morph” seats, could not be retrofitted – they would have to be fitted into newly built aircraft, but said that aircraft manufacturers Airbus and Boeing had shown interest in the concept. Currently some airlines ask oversized passengers to buy two seats, and it would no doubt be controversial for airlines to charge higher prices to overweight passengers – so watch this space!

EU blacklist labelled absurd

Following the publication of the latest update to the EU blacklist of foreign carriers in July of this year, which removed Philippine Airlines and Venezuelan carrier Conviasa from the list, Tony Tyler, the Director General of IATA, spoke out again about the lack of transparency in the decision-making process followed by the EU in adding and removing airlines or whole countries to or from the EU blacklist.

In June 2013, Tony Tyler called the EU’s list of banned airlines “absurd” when speaking at the IATA Annual General Meeting in Cape Town, South Africa. Of the 20 countries currently subject to a blanket ban on the EU blacklist, 15 of them are African, and Tyler has warned that the EU’s disproportionate focus on Africa has led many observers to conclude that its blacklist is a mercantile policy masquerading as a safety policy. He says “the point that all the African airlines make – and that we certainly agree with – is that if a government isn’t exercising sufficient regulatory oversight on aviation, then that applies equally to air navigation service, ground services and everything else. So if it’s not safe for the African carrier to operate into Europe, then why is it safe for the European carrier to operate to the African country?”

IATA takes a different approach, it says, to that taken by the European Commission, by working with countries to put in place IATA operational safety audits (IOSAs), and engage with countries and carriers on the implementation of IOSA training programmes, as opposed to penalising under-performing airlines. In calling for greater transparency, Tyler said “There are no clear guidelines on what you have to do to get off the banned list…or, indeed how exactly you got on it. In America, the FAA says you’re Category 2, then it identifies what particular tests you have failed, or what you’re not doing properly, but in Europe there is no checklist. There are no specifications about what standards they want.”

In a thinly veiled reference to the EU’s unilateral imposition of its own emissions trading scheme on foreign carriers, Tyler said:

“ICAO does its own inspections of the regulatory authorities and helps them lift their game where necessary. But Europe is going off on its own again, as it seems to love doing in this industry.”