We reported at length in our Spring 2012 edition of Legal Eye on the detail of the proposed package of legislative measures comprised in what was called the “Better Airports Package” announced by the European Commission in December 2011, which is now simply called the “Airports Package”. By way of recap, the Airports Package will update existing EU Regulations on slots, groundhandling, and noise, and could be put in place by the end of 2013 or the beginning of 2014.

The final text of each of these proposed new Regulations will be an outcome of the European Commission’s legislative proposals in the form of draft Regulations, European Council amendments, and reports and amendments made by the European Parliament, before they are voted through. The text of each of the three new Regulations is supposed to be agreed by the end of this year with a first reading of the draft legislation in the European Parliament expected in December.

The proposed new Slot Regulation

In the proposed new Slot Regulation, the three big areas of contention are the existing 80:20 “use it or lose it” rule, and whether it should be changed to 85:15, the extension of the minimum of 5 slots in a series out to 15 for the summer season and 10 for the winter season, and the suggestion that airlines should be able to buy and sell slots freely on the secondary market; at present secondary trading of slots is legal in the UK but is banned in other European countries.

On these issues, the Council’s “general position” text has removed the slot series extension proposed by the Commission, and the Council is looking very closely at whether there needs to be any change to the 80:20 rule.

Most EU Member States favour the maintenance of the 80:20 rule. If the Commission’s proposals to extend a slot series and to introduce an 85:15 “use it or lose it” rule disappear, this will leave secondary trading as the only substantive proposed change to the existing Slot Regulation. Apparently Denmark and France are against slot trading – France is lobbying for slot trading to be linked to local rules, even at uncoordinated airports, and the major concern is that if slot trading is introduced across Europe and linked to local rules, there will be no uniformity of application. For the time being, the Council’s general position is that secondary trading should be legalised, but individual member states should be allowed to place temporary restrictions on secondary trading if a significant and demonstrable problem with such trading arises. The Commission, however, will have the right to oppose such restrictions.

The Commission felt that the text agreed upon by the Council lacked ambition and needed more time for consideration. However, the Commission’s proposals recently faced another knock-back when the European Parliament’s Transport Committee (TRAN) also rejected changes to the “use it or lose it” rule and the slot series extension.

The Cyprus Presidency of the EU is apparently committed to pushing through the Airports Package of new Regulations, but rumours coming out of Brussels suggest that the proposed text of the new Slot Regulation cannot be agreed, and in fact that it is becoming increasingly uncertain whether a new Slot Regulation will be required at all.

The proposed new Groundhandling Regulation

The proposed new Groundhandling Regulation is even more controversial, with the key proposals made by the European Commission being centred around airlines having an increased choice of groundhandling solutions at EU airports, through the proposal that all airlines should now be allowed to self-handle, and to increase the minimum number of licences granted to groundhandling companies from two to three at airports with more than 5 million passengers. There are a number of other controversial proposals. These include a requirement for companies that win groundhandling contracts to transfer staff from the previous contract holders with their full existing employment terms and conditions, including TUPE, which could be very onerous; and establishing a new role for the airport managing body as “ground co-ordinator” of groundhandling services, with powers to set “minimum quality standards”. ACI Europe (Airports Council International) has published a position paper saying that it does not want an increase in the number of groundhandlers, nor do they want airlines self-handling. The unions representing staff at groundhandling companies with existing contracts have, not surprisingly, also been vocal in challenging the proposed increase in numbers of groundhandling licences, and the proposal that all airlines should be allowed to self-handle. The groundhandling staff’s unions obviously fear these new proposals will lead to significant job losses and poorer conditions.

One of the difficulties with the proposed new Groundhandling Regulation is that the Commission, Council, and Parliament each seem to have different views on the key issues. The rapporteur for the Parliament’s Transport Committee (MEP Artur Zasada) controversially proposed that the minimum number of groundhandling companies given licences to operate at large airports should not be less than four, and that those companies must be established within the EU to be eligible. He also suggested that the provision of services for passengers with reduced mobility should be opened up to competition. The issue of the minimum number of groundhandling companies is the most difficult politically, and the rapporteur (who guides the proposal through the legislative process) referred the draft legislation to the Employment Committee of the European Parliament. However, both the influential Employment Committee and the Transport Committee are opposed to any increase in the number of groundhandling companies at large airports, and the Transport Committee has recently voted to reject the Commission’s groundhandling proposals. Parliament will vote on the Transport Committee’s rejection of those proposals in December.

The proposed new Noise Regulation

The proposed new Noise Regulation is far less controversial, with the European Commission’s proposals being slightly watered down by the European Council, in particular in the areas of the proposed rights of scrutiny of the Commission, and new definitions of “marginally compliant” aircraft. The main concerns MEPs have highlighted in their amendments to the draft text of the new Regulation are as follows:

  •  the effects of noise on the health of EU citizens should be taken into account
  •  the Commission should have no right of scrutiny before a decision on the imposition of restrictions is made
  •  operating restrictions can be adopted any time they are “necessary”, as distinct from being considered as “a last resort measure”.

Some MEPs have suggested as a solution to tackling noise “… the more effective use of… slots through the introduction of larger aircraft, a reduction in the number of uneconomic feeder flights … and a greater focus on point-to-point routes in order to reduce the number of feeder flights operated with small aircraft.”