Article written by FTPA Aviation Law team: Claire Vaquette, Nathalie Younan et Agathe Robles.
In a hundred years of existence, the aviation sector has undergone fundamental changes and turned to become one of the most efficient transportation modes. While constantly evolving, carriers face many challenges. Since the 90’s, due to the densification of air traffic and the increase of the number of airlines operating on the market, the issue of airport capacity and congestion arises.
With these new challenges, European states have adopted common rules on the allocation of slots.
A slot is defined as “the scheduled time of arrival or departure available or allocated to an aircraft movement on a specific date at an airport coordinated under the terms of this Regulation”.
The allocation of slots between airlines is now regulated at the European level by Regulation 95/93 dated 18 January 1993 (“Regulation 95/93”), setting common rules for slot allocation in European Union airports.
The slot allocation in airports at European level
Regulation 95/93 provides that the allocation of airport slots falls under the responsibility of a coordinator appointed in each Member State.
Article 4 of the Regulation stipulates that the coordinator must be “a natural or legal person with detailed knowledge of air carrier scheduling coordination as airport coordinator after having consulted the air carriers using the airport regularly, their representative organizations and the airport authorities. The same coordinator may be appointed for more than one airport.”
The coordinator must act in a neutral, transparent, and non-discriminatory way.
In France, the Association pour la Coordination des Horaires (hereinafter “COHOR”), bringing together most French airlines and airport managers, is the appointed coordinator.
Before slot allocation is carried out, the availability in each airport concerned should be determined. To that end, the competent authorities meet twice a year, based on the summer and winter seasons, and then communicate the collected data to the coordinator.
The slot allocation procedure, governed by Article 8 of the abovementioned Regulation, is based on the following logic: “a slot that has been operated by an air carrier as cleared by the coordinator shall entitle that air carrier to claim the same slot in the next equivalent scheduling period.”
Thus, if the air carrier has sufficiently operated its slot, the slot will be reassigned to it. To keep its slot, the airline must nevertheless operate at least at 80%. If not, the slot will then be reallocated.
Indeed, Article 10 of Regulation 95/93 provides for the creation of a “pool” grouping the unused slots, newly created or abandoned slots or slots which have become available.
Finally, it should be noted that the non-use of a slot may be justified, then allowing the airline to keep it. However, the justifications are limited.
The situation of a pandemic such as that of Covid-19 is not considered.
The impact of Covid-19 on slot allocation in airports
Since the beginning of 2020, the aviation sector has been massively impacted by the Covid-19 crisis, which led to an unprecedented fall in air traffic.
To comply with the rule introduced by Regulation 95/93 requiring airlines to use at least 80% of allocated slots, air carriers were forced to maintain flights with low occupancy rates.
Besides the fact that this situation seems disastrous from an economic point of view, it also generates an unnecessary environmental cost.
To remedy this situation, many air transport stakeholders called for more flexibility to be introduced at European level.
Thus, on 13th March 2020, the European Commission submitted a draft amending Regulation 95/93, considering the current context. The text was adopted on the 26th March by the European Parliament and the Council and amends Article 10 of the Regulation.
The new measure provides that the rule requiring that airlines use at least 80% of their slots is suspended until 24th October 2020.
This derogation shall take effect from 1st March 2020. An extension of the measure may be considered in accordance with the evolution of the health situation.
Furthermore, this derogation also applies to non-operated slots allocated for the period from the 23rd January to 29th February 2020 for flights between the European Union and China.
The flexibility of the rule imposed by Article 10 of Regulation 95/93 will therefore have a considerable impact on the air transport sector, both at economic and environmental levels. Airlines are now free to cancel flights whose continuity is not justified until 24th October 2020.
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