Who owns the airports?
In the European Union, there are state-owned airports and privately owned airports. The control of many airports has been transferred from state to regional authorities (in some cases to be operated by public companies), while others have been privatised.Licensing
What system is there for the licensing of airports?
This is a matter for member states’ national law.Economic regulation
Is there a system of economic regulation of airports? How does it function?
In general, this is a matter for member states’ national law. Directive 2009/12/EC (the Directive) sets out the EU rules on airport charges (ie, aircraft landing charges), charges for the processing of passengers and freight, and other charges related to the use of airport infrastructure, and it has been transposed by all member states.
The Directive does not impose a particular calculation method of charges but aims at harmonising the principles applicable to the setting of airport charges by member states’ competent authorities.
The Directive applies to EU airports with an annual passenger volume of 5 million or more, or, if none of the airports in a given member state reaches this threshold, to the airport with the highest passenger volume in that member state. The Directive allows for the differentiation of services according to the needs of individual airlines (‘tailored services’) but requires member states to apply specific principles when determining airport charges, in particular ‘non-discrimination’, and ‘transparency’. Moreover, the Directive obliges member states to put in place consultation procedures between airport managing bodies and airport users with respect to the system and the level of airport charges. An independent supervisory entity must be set up to resolve disagreements between airport users and the airport managing body.
From April to June 2018, the Commission ran a public consultation on charges for the use of airport infrastructure to assess the potential impact of a revision of the Directive. The Commission was expected to adopt a proposal for a revised Directive by the end of 2020, but none has yet been published.
In July 2019, the Commission published an evaluation of the Directive. In this evaluation, the Commission found that airport competition had increased overall, but that it remained limited in some larger capacity-constrained airports, leaving open the possibility for those airports to charge prices that would not be achievable in a market with effective competition. The evaluation also found some improvements in the transparency of charging systems but concluded that transparency remains an issue.
In addition, in February 2014, the Commission issued guidelines on state aid to airports and airlines. These guidelines consolidate and replace the 1994 guidelines on state aid to the aviation sector and the 2005 guidelines on the financing of airports and start-up aid to airlines departing from regional airports.Access
Are there laws or rules restricting or qualifying access to airports?
Under Regulation (EC) No. 1008/2008, EU air carriers enjoy the general right to provide air transport services on all routes within the European Union. Member states may impose public service obligations in respect of scheduled air services to specified regions or on vital routes for the economic development of certain regions.Slot allocation
How are slots allocated at congested airports?
Slot allocation at congested airports is governed by Regulation (EEC) No. 95/93 (the Slot Regulation), as amended by Regulation (EC) No. 545/2009, as well as Regulation (EU) No. 459/2020 dealing specifically with the impact of the covid-19 outbreak. Under the Slot Regulation, the definition of slots also includes the use of the airport infrastructure.
The Slot Regulation applies to congested airports, which fall into two differently regulated categories, as follows:
- ‘schedule-facilitated’ airports, where there is potential for congestion at some periods of the day, week or year and a facilitator has been appointed to assist the operating carriers regarding slot availability; and
- ‘slot coordinated’ airports, where more serious congestion problems occur, and a coordinator has been appointed to actively allocate take-off and landing slots to applying carriers.
The Slot Regulation is not applicable to airports not falling into either of these two categories.
A slot facilitator is not responsible for the actual slot allocation but rather advises and recommends air carriers on alternative take-off and landing times, when congestion is likely to occur. A slot coordinator, on the other hand, is fully responsible for the allocation of slots. The coordinator allocates a series of slots from the pool to the applicant carriers allowing the use of the airport infrastructure for the purposes of take-off and landing at the time and for the season for which they were requested. Once it has been determined that an airport must be schedule-facilitated or slot-coordinated, member states must appoint a knowledgeable natural or legal person as the airport’s schedule facilitator or slot coordinator. The facilitator or coordinator must be truly independent and must have the necessary financial resources to accomplish its tasks. It must act in a neutral, non-discriminatory and transparent way.
Under the Slot Regulation, a carrier has the right to retain slots allocated to it for the next corresponding season, provided it can satisfactorily demonstrate to the coordinator that it has operated such slots for at least 80 per cent of the time. If this is not the case, slots must be returned to the pool (the ‘use it or lose it’ principle). The rights of a carrier to retain already held and used slots are called grandfather rights. The Commission has in certain extraordinary circumstances (eg, the terror attacks of 11 September 2001 and the SARS outbreak of 2003) made exceptions to the 80 per cent usage rule. A similar amendment to the 80 per cent usage rule entered into force in June 2009 with respect to the 2010 summer scheduling period in response to the severe economic downturn that led to a substantial decline in air traffic. The most recent time such amendment to the 80 per cent usage rule was made was in March 2020, when Regulation (EU) No. 459/2020 was adopted, clarifying that slots unused due to the outbreak of covid-19 would be considered as having been operated.
The Slot Regulation further provides that 50 per cent of the slots in the slot pool at a given airport must be provided to new entrants. In situations where requests cannot all be accommodated, preference is to be given to commercial air services, scheduled services and programmed non-scheduled air services. In cases of competing requests under the same category, priority will be given to year-round operations. Slots may be transferred between air carriers that hold a slot for an alternative route or between parent and subsidiary companies.
Secondary slot trading is the process whereby slots are exchanged in return for monetary or other compensation. Following a 2008 Commission communication, this practice is considered compatible with, but not mandated by, the Slot Regulation, provided it takes place in a transparent manner and it respects all the other administrative requirements for the allocation of slots.
On 1 December 2011, the Commission announced its Better Airports Package, comprising legislative proposals on slots, ground handling and noise as well as a communication. As concerns the proposed amendments to the Slot Regulation, key proposals included an express permission for secondary slot trading and stricter ‘use it or lose it’ rules, including increasing the slot utilisation threshold from 80 to 85 per cent. A ‘General Approach’ was agreed upon by the European Council in October 2012, however, the text, which had also been reviewed by the European Parliament, deviated from the Commission’s proposal significantly and did not include the Commission’s proposal to increase the ‘use it or lose it’ threshold. In December 2012, the European Parliament voted to maintain the current slot utilisation rules (80 per cent ‘use it or lose it’ rule), as well as the current slot series length. The European Parliament instead favoured strengthening the penalty system to dissuade air carriers from holding slots without using them or taking too long to return them to the pool. The European Parliament supported the Commission’s proposals expressly to permit secondary trading of slots. Despite the Gibraltar dispute having been resolved as a result of Brexit, the proposal is still making its way through the legislative procedure involving the European Council and Parliament. In its communication ‘An Aviation Strategy for Europe’, the Commission urged the European Council and Parliament to adopt the revised Slot Regulation.Ground handling
Are there any laws or rules specifically relating to ground handling? What are they?
Directive 96/67/EC provides the regulatory framework with respect to ground handling services at EU airports and has been transposed into member states’ national law. This directive applies to all types of airside and landside ground handling services, such as passenger and baggage handling, aircraft services and aircraft maintenance, fuel and oil handling and catering services at all EU airports open to commercial traffic with annual traffic over two million passenger movements or 50,000 tonnes of cargo.
The main aim of Directive 96/67/EC was to open up the ground handling market to competition. For example, it prescribes that for certain services the number of suppliers may be no fewer than two for each category of service. It also governs self-handling, access to installations, selection procedures for suppliers and the separation of accounts for ground handling services from other activities.
On 1 December 2011, the Commission announced its Better Airports Package, comprising legislative proposals on slots, ground handling and noise as well as a communication. The Commission had proposed the replacement of Directive 96/67/EC with a ground handling regulation that would aim at further liberalising the European ground handling market, providing more control to airports over ground handling services at the airport and giving extra protection to ground handling workers, in particular by providing for their transfer when the contract for ground handling services transfers from one provider to another. However, in early 2015, the Commission decided to withdraw the regulation proposal, stating that there was ‘no foreseeable agreement’ and announced in its communication ‘An Aviation Strategy for Europe’ that it would undertake an evaluation of the ground handling services directive and then decide if the legislation needs to be reviewed. Regulation (EU) No. 1139/2018 introduces additional safety requirements on ground handling services and empowers the Commission to adopt detailed rules on safe ground operations.Air traffic control
Who provides air traffic control services? And how are they regulated?
Air traffic control and management services are principally provided by the national control units. As previously mentioned, a long-term overhaul of the European air traffic management is currently underway: the Single European Sky (SES) programme (in its various iterations), aims to create a truly pan-European air traffic management system, built around nine functional airspace blocks (FABs) covering EU airspace.
The SES programme covers not just the EU member states but most European countries. It is being developed and regulated by Eurocontrol, an intergovernmental body of which the SES member states are members and, in parallel, the European Union.
The SES I package consisted of the following:
- a framework regulation (Regulation (EC) No. 549/2004) (the Framework Regulation), which established the Commission as the regulator for the civil sector and the Single Sky Committee to assist it in its regulatory activities;
- the Service Provision Regulation (Regulation (EC) No. 550/2004), which establishes a common licensing system for civil air traffic management providers;
- the Airspace Regulation (Regulation (EC) No. 551/2004), which will establish a single European Upper Information Region and within it organise airspace into functional airspace blocks; and
- the Interoperability Regulation (Regulation (EC) No. 552/2004), which aims to ensure that systems, equipment and procedures operate seamlessly.
In 2009, a significant reform of the SES I took place based on five key and interrelated pillars (SES II), as follows:
- environment (including decarbonisation of the sky);
- capacity and cost-efficiency;
- performance monitoring; and
- incentive mechanisms.
As part of this reform, the Framework Regulation and the three technical regulations were all amended by Regulation (EC) No. 1070/2009.
The SES II package of legislation now also comprises the following:
- Regulation (EU) No. 317/2019 laying down a performance scheme for navigation services and network functions;
- Implementing Regulation (EU) No. 123/2019 laying down detailed rules for the implementation of air traffic management (ATM) network functions, which repealed Regulation (EU) No. 677/2011; and
- 2011 Commission Decision on the nomination of the network manager for air traffic management network functions of the SES.
Also relevant is the legislation on airport safety.
The aim of the SES II reform is to improve aviation performance, to adapt the legislation to changes having arisen since SES I and to succeed in creating a truly unified European airspace. In July 2014, the Commission formally requested 18 member states, members of six different FABs, to make a decisive move towards common airspace management by implementing their FABs.
In June 2013, the Commission attempted to accelerate the implementation of SES. To this end, it issued a communication and proposed further measures (SES2+) to build on the previous reforms. The proposal aims to update the SES package and amends the rules governing the European Aviation Safety Agency and focuses on the improvement of the oversight of air traffic control organisations, the strengthening of air traffic management performance, the creation of new business opportunities in support services and the enabling of industrial partnerships. However, the SES2+ package has faced resistance from certain stakeholders, including some unions. In March 2014, the European Parliament preliminarily approved the SES2+ proposals. One of the Commission’s proposals was withdrawn in July 2018 as the Commission considered that its content had been incorporated in Regulation (EU) No. 1139/2018. The remainder of the package was blocked in the legislative process, owing to disagreement between the United Kingdom and Spain over the application of the text to Gibraltar airport. Now that Brexit has removed this hurdle, the European Council and Parliament are discussing the revised proposal.
Licensing of air traffic controllers is carried out at a national level, but Eurocontrol is responsible for the development of a harmonised licensing policy for air traffic controllers employed within the European civil aviation countries. The Framework Regulation also sets the licence standards to be applied by national authorities.
Within the framework of European air traffic control, the following further legislative instruments are also of importance:
- Regulation (EC) No. 2150/2005 on the flexible use of airspace, which establishes rules and procedures between civil and military authorities responsible for air traffic management;
- Regulation (EU) No. 373/2017 laying down common requirements for providers of air traffic management/air navigation services and other air traffic management network functions and their oversight, which repealed Regulation (EU) No. 1034/2011 and Regulation No. 1035/2011 (effective as of 2 January 2020);
- Regulation (EU) No. 1185/2016 on airspace classification and access of flights operated under visual flight rules above flight level 195; and
- Regulation (EU) No. 373/2017 on common requirements for providers of air traffic management and air navigation services and other air traffic management network functions and their oversight.
As mentioned above, SESAR is the technological pillar of SES and seeks to improve ATM performance by modernising and harmonising ATM systems through the definition, development, validation and deployment of innovative technological and operational ATM solutions.