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What rules govern the ownership of airports (both public and private)?
All major airports in the Netherlands are majority owned by the state and municipalities. Under the Aviation Act, Amsterdam Airport Schiphol should be majority owned by the state or other governmental bodies. No specific rules apply in relation to private or public ownership of other airports.
What is the authorisation procedure for the operation of airports?
Airports are regulated by the Act on Aviation and subordinate legislation. Rules apply with regard to zoning and airport planning in accordance with International Civil Aviation Organisation Annex 14. The airport operator requires a safety certificate and is responsible for the proper operation of the airport in accordance with the law.
What ongoing operating requirements apply (including obligations relating to safety, security and facilities maintenance)?
The ongoing operating requirements of airports are largely regulated by EU regulations, as well as airport decrees and airport regulations. The Human Environment and Transport Inspectorate (ILT) is responsible for oversight.
What airport charges apply and how are they regulated?
In relation to Amsterdam Airport Schiphol, the Act on Aviation contains specific rules on the establishment of airport charges and appeal possibilities for airlines. Airport charges include charges for:
- passengers (eg, passenger service charge, security service charge and passengers with reduced mobility);
- air traffic control; and
- noise levies.
In its July 15 2015 decision, the Authority for Consumers and Markets approved the cost and revenue allocation system for aviation activities at Schiphol for 2016 to 2018.
What regulations govern access to airports?
Every airport with regional or national significance requires a so-called ‘airport decree’. These decrees are not adopted by the airports, but by the provinces and the central government. The decrees may stipulate rules for carriers in the fields of:
- noise restrictions;
- air pollution restrictions;
- types of aircraft permitted; and
- times of arrival and departure.
No distinction is made between local and international carriers.
Major airports in the Netherlands have a public service obligation, meaning that the airport authorities should accept all carriers, subject to the availability of traffic rights and proper slots. The aircraft should comply with the conditions of the airport decree.
What regime governs the allocation of airport slots (including slot transfer, revocation and disputes)?
Several airports – including Amsterdam Airport Schiphol – are slot-coordinated airports. Use of these airports is subject to availability of slots allocated to airlines by the Dutch slot coordinator. With regard to Amsterdam Airport Schiphol, a difference exists between day and night slots (ie, between 11:00pm and 7:00am).
Slots are allocated by Stichting Airport Coordination Netherlands, an independent body. In the allocation of slots, the slot coordinator follows the rules of EU Regulation 93/95 and the International Air Transport Association Worldwide Slot Guidelines. In principle airlines cannot transfer slots, but airlines within the same group of companies may transfer slots within the group and may exchange slots with other airlines on a one-for-one basis.
Disputes on slots that have been refused are subject to the competence of administrative courts in the Netherlands. An objection should be filed within six weeks from receipt of the decision of the slot coordinator. The appearance of such decisions is in practice rather informal. Any notice containing an express or implied refusal of slots should be considered as a decision, which triggers the start of the six-week window for the objection.
The Slot Allocation Decree stipulates that the operation of air services repeatedly and intentionally at times significantly deviating from the allocated slot, and the use of a slot in a fundamentally different way than was declared at the time of allocation of the slot are considered abuses of the slots.
In the above situation, the slot coordinator and the airport authorities will start discussions with the airline to prevent further abuse of slots. If the ‘gentle hand’ approach does not work, the ILT may decide to temporarily ground an aircraft to prevent its departure outside the allocated slot time. The ILT may decide to impose penalties for future violations of the slot times. Further, slot abuse may result in slot revocation or a lower slot allocation priority in a future season.
How are ground handling services regulated?
Access to the ground handling market at EU airports is regulated by EU Directive 96/67/EC. The directive has opened up the ground handling services market to competition. The rules of this directive are implemented in the Regulations on Ground Handling Airports. Access to the market by suppliers of ground handling services is free, but the number of providers can be limited by the minister for infrastructure and the environment.
Do any sector-specific competition regulatory/legal provisions apply to the aviation industry in your jurisdiction?
No sector-specific legal competition provisions apply to the aviation industry in the Netherlands. The regular competition rules set out in the Dutch Competition Act apply in cases concerning the field of competition law in the aviation industry. Dutch legislature decided that, due to the clarity of the national and European competition rules, there was no need for sector-specific legislation.
There is no specific regulation for competition law assessment regarding joint ventures between airline competitors. The regular merger control rules are applicable to the acquisition of joint control in existing undertakings. In respect of newly created joint ventures, only those joint ventures performing all of the functions of an autonomous economic entity (full-function joint venture) on a lasting basis are subject to Dutch merger control rules. If a joint venture is not covered by the merger control rules, self-assessment must be carried out to ensure compliance with the rules that apply on account of the cartel prohibition and the prohibition of abuse of a dominant position.
As of May 1 2004 the European Commission no longer issues individual exemptions for agreements subject to the prohibition of cartels. Since August 1 2004, the same has applied for the Authority for Consumers and Markets (ACM). Parties themselves are held responsible for a proper self-assessment following the competition rules of proposed agreements; specifically, if they believe that their agreements conform with Article 6.3 of the Dutch Competition Act. Article 6.3 holds an exemption to the cartel prohibition.
Further, if a party discovers that it is involved in an agreement prohibited by the competition rules, it can apply for leniency to the ACM to obtain immunity from possible fines or at least a fine reduction.
Code sharing and joint ventures
What (if any) competition concerns arise in relation to code sharing and air carrier joint ventures?
There is no specific regulation for competition law assessment regarding joint ventures between airline competitors. The regular merger control rules apply to the acquisition of joint control in existing undertakings. In respect of newly created joint ventures, only those joint ventures performing all of the functions of an autonomous economic entity (full-function joint venture) on a lasting basis are subject to Dutch merger control rules. If a joint venture is not covered by the merger control rules, self-assessment must be carried out to ensure compliance with the rules applicable by reason of the prohibition of cartels and abuse of a dominant position.
Mergers, acquisitions and full-functional joint ventures are subject to merger filings in the Netherlands if the combined aggregate worldwide turnover of the undertakings concerned is more than €150 million and the net turnover of two or more of the undertakings concerned is at least €30 million in the Netherlands. The obligation to file and the turnover thresholds also apply to foreign-owned undertakings. It is prohibited to complete the transaction before clearance has been obtained from ACM. Penalties apply if the parties abstain from filing a notification with ACM before the transaction, and can be as high as €900,000 (or 10% of the global turnover, whichever establishes a higher amount). Individuals can also be fined up to €900,000.
What rules govern state aid in the aviation industry? Do any exemptions apply?
There are no national competition rules that specifically govern financial support to the aviation sector. However, EU state aid rules apply in the Netherlands. With regard to state aid, self-assessment should be carried out in accordance with current EU legislation for state aid issues. Beneficiaries of possible state aid may also be affected in case of unlawful state aid since governments and public bodies must recover financial benefits from those beneficiaries – for example, state aid cases may arise in relation to airport financing or in start-up situations of airlines departing from regional airports. The European Commission’s Guidelines on State Aid to Airports and Airlines provides member states with guidance on how to apply the state aid rules set out in Article 107 of the Treaty on the Functioning of the European Union in the aviation industry. Notable cases
Have there been any notable recent cases or rulings involving competition in the aviation industry?
On March 17 2017 the European Commission adopted a cartel decision against 11 air cargo carriers – including Air France KLM – for a price-fixing cartel.
The Court of Amsterdam recently confirmed the proper assignment of cartel claims in its August 2 2017 decision in Stichting Cartel Compensation v KLM and its September 13 2017 decision in Equilib v KLM.
What aviation-related disputes typically arise in your jurisdiction and how are they usually resolved?
Passenger compensation claims arising from EU Regulation 261/2004 continue to result in a large number of disputes that are handled by the small claims sections of the civil courts. Personal injury cases are generally settled out of court, although protective proceedings may be initiated to prevent claims from becoming time-barred. Civil courts handle a large variety of claims arising from commercial contracts between airlines, their agents and service providers and other parties involved with air carriage. In the Netherlands it is relatively easy to obtain permission for a precautionary arrest of an aircraft or bank account, and this exercise of pressure appears to assist with the speedy resolution of conflicts. Further, slot scarcity at Amsterdam Airport Schiphol and denied traffic rights have led to various legal proceedings, both before the civil courts and administrative courts. Enforcement actions of the Human Environment and Transport Inspectorate may be challenged through proceedings before the administrative courts. Air carriers, freight forwarders and other parties may face prosecution before the criminal court. Typically, these cases concern negligence in relation to passport and visa checking, improper handling of dangerous goods and other compliance issues.
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