GHOST FLIGHTS CAUSED BY THE ‘USE IT OR LOSE IT’ RULE UNDER EU LAW

The COVID-19 outbreak is having a huge impact on all aspects of our everyday life. Especially the aviation industry does not have the ability to cope with these circumstances without assistance. To combat the virus, many countries have implemented a mixture of travel bans and social-distancing measures, which has greatly reduced air travel demand. Despite this enormous decrease in air travel demand, airlines have continued to put empty ‘ghost flights’ in the sky. But why?

Under the EU Airport Slots Regulation (EEC 95/93), airlines are subject to a ‘use it or lose it’ rule which requires them to operate 80% of their allocated slots or lose their right to the slot in future seasons. When they succeed in operating 80% of their allocated slots, they maintain their so-called ‘grandfather rights’. The aim of this regulation is to ensure that where airport capacity is scarce, the available landing and take-off slots are used efficiently and ‘distributed in an equitable, non- discriminatory and transparent way’. In case airlines fail to operate 80% of their allocated slots, all the slots in that series are placed in a ‘slot pool’. Consequently, other airlines can make an appeal for utilisation of the slots, unless the non-utilisation can be justified.

Justification can only take place for the specific reasons as described by EU Slot Regulation. The European Airport Coordinators Association (EUACA) gives an interpretation of ‘force majeure’ as ‘events outside the air carrier’s control, caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’. The force majeure list is exhaustive, an exceptional circumstance such as the COVID-19 outbreak leading to lower air demand is not within its scope. Examples of circumstances included on the force majeure list are ‘closure of an airport or airspace’ or ‘grounding of the aircraft type generally used for the air service in question’.

At the beginning of March, the International Air Transport Association (IATA) and the European Airport Coordinators Association (EUACA) contacted aviation regulators worldwide to request that the rules governing use of airport slots be suspended immediately as well as for the whole 2020 season, due to the impact of COVID-19. The importance for the airlines having the EU agree and follow the full season to be waived in terms of the slot usages is because of both the economic and environmental damage the empty ghost flights cause. The call for help was heard and as of the 8th of April 2020 an amended regulation, the ‘Waiver Regulation’, is in effect. This legally requires carriers to ensure all slots that are dated for operation April 9th onwards must be returned to the coordinator in charge of slot allocation in advance in order for the COVID-19 use-it-or-lose-it rule alleviation to be granted.

Amendments in the EEC 95/93 rules on air slots were made in the past in order to help the aviation industry cope with unforeseeable circumstances outside the scope of the force majeure clause. After 9/11 they inserted an article in the EU Slot Regulation saying coordinators shall accept that air carriers are entitled to the same series of slots as had been allocated to them on the date of 9/11 for the summer season. Also, as a result of the SARS epidemic they decided to waive the 80%-requirement and appointed the same slots as the year before. The last time they decided to relax the air slot rules was at certain points during the 2008’s financial crisis.

The measures taken in respect of the adjustment of the ‘use it or use it rule’ will help both the European aviation industry and the environment, as it releases pressure on industry and it also decreases emissions by avoiding the earlier discussed ‘ghost flights’ where airlines fly almost empty

aircrafts to keep their slots. The amendment is therefore considered as very welcome by both EUACA and IATA.

Written by: Anne-Solaine Kooijman