Common use of Concluding Remarks Clause in Contracts

Concluding Remarks. This chapter explored whether multiple concepts related to slot coordination offer scope for finding solutions for the specific issues experienced at super-congested airports relating to this dissertation’s research questions, primarily in the field of reflecting the public value associated with slots in coordination decisions and safeguarding airport access for the purposes of a competitive air transport market safeguarded by EU Regulation 1008/2008. The concepts discussed include the debate on who holds the legal title to a slot, the functionally and financially independent coordinator, the application of the new entrant rule, the implementation of a secondary market for slots and the relationship between the allocation of slots and competition law. In my view, slots are allocated to airlines as entitlements to use available infrastructure, subject to conditions such as utilization thresholds or allocation criteria. Indeed, they represent relevant operational, economic, legal and social interests and functions.1342 Inter alia, according to the Commission, slots are “critical inputs” for any entrant wishing to operate or expand services.1343 Although airlines, airports and governments alike have claimed they should be regarded as the legal owners of slots,1344 they cannot, in my view, be identified as property rights. At super-congested airports in particular, slots are valuable concepts to society at large as they safeguard public functions such as connectivity and airport access, as discussed in Chapter 2, sections 2.3 and 2.4. Accordingly, Chapter 6 recommends that the coordinator should ensure that scarce slots are declared, allocated and used in a way that is reflective of these public functions. Solving the debate on slot ownership by clarifying that slots are essentially public goods could contribute to making this recommendation work. Furthermore, a future slot regime should be cognizant of the shifted role of the coordinator from performing merely technical functions to that of a policymaker, so to say. At super-congested airports, slot allocation ultimately comes down to making decisions which airlines can and cannot operate to and from an airport.1345 With slot scarcity levels and the risk of judicial reviews of allocation decisions rising, coordinators play an increasingly important role in the correct application of the slot allocation rules. After all, airlines are all in the same ‘game’ for the last available slot pair and the coordinator continuously has to make trade-offs between competing slot requests. Though the coordinator has been delegated public functions, by no means was the slot coordinator intended to perform the task of policy making. Arguably, the coordinator has been handed a role it was never intended to perform.1346 In a constrained environment where the overall number of slots is largely fixed and there is no outlook for capacity increases, the possibilities for airlines to start or expand services requires incumbent airlines to exit or downscale their services at a particular airport.1347 Given the high value of slots at super-congested airports, it is unlikely that airlines will simply hand back the slots they hold to the coordinator, even in times of economic downturn. Instead, they may capitalize the slots they hold to pay off creditors in case of a bankruptcy or insolvency, or they may engage in slot transfers or lease agreements, as discussed in sections 5.3 and 5.6 above. Hence, airport access becomes foreclosed in its entirety to airlines wanting to expand or 1342 See European Commission, supra note 54, paragraph 11. 1343 See Case M.3770 – Lufthansa/Swiss, supra note 274, paragraph 27. 1344 See Abeyratne, supra note 55, at 36; Xxxx XxxXxxxxx, supra note 63, at 2-2. 1345 See ICAO, supra note 256. 1346 See Xxxxxx et al., supra note 18, at 9. 1347 See Xxxx XxxXxxxxx(II), supra note 113, at 111. start operations at super-congested airports with no slots freely available, or at peak times at other congested airports.

Concluding Remarks. This chapter explored whether multiple concepts related As the availability of slots is directly connected to the capacity of an airport at a particular date and time, a slot is a scarce resource by definition.296 The coordination of slots cannot generate additional capacity – slots are merely a tool for managing scarce capacity.297 As Xxxxxxx (2009) put it: “They [slots] are a secondary concept which overlay the primary concept of congestion.”298 Since slots are distributed at Level 3, or slot coordinated, airports with significant capacity shortfalls, a system for slot coordination offer scope for finding solutions for the specific issues experienced has to be put into place at super-congested airports relating to this dissertation’s research questions, primarily in the field of reflecting the public value associated with slots in coordination decisions and safeguarding airport access for the purposes of where constraints cannot be solved by a competitive air transport market safeguarded by EU Regulation 1008/2008voluntary cooperation between airlines. The concepts discussed include inability to provide capacity in keeping up with demand conflicts with the debate on who holds increasing demand levels created by, among others, liberalization efforts and a growing world population. Combined with the legal title to severity of political, geographic and institutional constraints in matching airport capacity supply with demand, a slot, the functionally and financially independent coordinator, the application of the new entrant rule, the implementation of a secondary market for slots and the relationship between the allocation of slots and competition law. In my view, slots are allocated to airlines as entitlements to use available infrastructure, subject to conditions such as utilization thresholds or allocation criteria. Indeed, they represent relevant operational, economic, legal and social interests and functions.1342 Inter aliapurely supply-side solution seems rather impossible.299 Hence, according to the Commission, slots are “critical inputs” for any entrant wishing airport congestion is an enduring challenge to operate or expand services.1343 Although airlinesthe orderly development of a competitive international air transport market.”300 Coupled with growing public concerns regarding noise exposure, airports carbon emissions and governments alike have claimed they should be regarded as the legal owners of slots,1344 they cannotland use planning, in my view, be identified as property rights. At super-congested airports in particular, slots are valuable concepts to society at large as they safeguard public functions such as connectivity and airport access, as discussed in Chapter 2, sections 2.3 and 2.4. Accordingly, Chapter 6 recommends it is expected that the coordinator should ensure that scarce slots are declared, allocated and used in a way that is reflective issue of these public functions. Solving slot coordination will continue to place constraints on the debate on slot ownership by clarifying that slots are essentially public goods could contribute to making this recommendation work. Furthermore, a future slot regime should be cognizant development of the shifted role air transport industry worldwide and will become more prevalent.301 On top of a deepening of the coordinator from performing merely technical functions to that ‘Airport Capacity Crunch’ and the emergence of a policymaker, so to say. At super-super- congested airports, slot allocation ultimately comes down to making decisions which airlines can and cannot operate to and from an airport.1345 With slot scarcity levels and the risk of judicial reviews of allocation decisions rising, coordinators play an increasingly important role especially in the correct application EU, a lot has changed with regard to society’s perspective on air transport. Quality-of-life factors increasingly influence the economic development of air transport, including slot coordination. Moreover, each capacity-constrained airport is constrained for a different reason and will have different needs and coordination parameters which are liable to affect the allocation of slots. To add to that complexity, each airport fulfills different functions to society and therefore serves different markets, passenger needs and traffic mixes.302 It is clear that the societal focus has changed since the 20th century, which has its impact on the aviation industry as we know it. As Lykotrafiti (2015) put it, “the industry’s modus operandi points to a different reality”.303 It is questionable, however, whether the current slot rules are reflective of the slot allocation rulesneeds of contemporary society and thus of the public value of slots. After all, airlines are all With the coming into existence of the first edition of the WASG in the same ‘game’ for the last available slot pair and the coordinator continuously has to make trade-offs between competing slot requests. Though the coordinator has been delegated public functions, by no means was the slot coordinator intended to perform the task of policy making. Arguably2020, the coordinator has been handed a role it was never intended to perform.1346 In a constrained environment where prime objective of slot coordination is the overall number of slots is largely fixed and there is no outlook for capacity increasesefficient 295 See Abeyratne, the possibilities for airlines to start or expand services requires incumbent airlines to exit or downscale their services supra note 55. 296 See Xxxxxxxxx, supra note 10, at a particular airport.1347 Given the high value of slots at super-congested airports, it is unlikely that airlines will simply hand back the slots they hold to the coordinator, even in times of economic downturn35. Instead, they may capitalize the slots they hold to pay off creditors in case of a bankruptcy or insolvency, or they may engage in slot transfers or lease agreements, as discussed in sections 5.3 and 5.6 above. Hence, airport access becomes foreclosed in its entirety to airlines wanting to expand or 1342 297 See European Commission, supra note 5426, paragraph 11at 9. 1343 298 See Case M.3770 Xxxxxxx X. Xxxxxxx, An overview of the airport slot challenge in the US and EU, Panel Paper for the 2009 Annual Meeting of the American Bar Association Forum on Air & Space Law – Lufthansa/SwissChicago, Illinois’ (DePaul University College of Law 2009). 299 See Xxxxxxx X. Xxxxx and Xxxxxxxxxxxx Xxxxxxxx, Airport slot allocation: A time for change?, 17 Transport Policy (2010), at 274. 300 See Xxxxx and Xxxxxxx, supra note 274, paragraph 27. 1344 See Abeyratne, supra note 55233, at 36; Xxxx XxxXxxxxx, supra note 63, at 2-2116. 1345 301 See ICAO, supra note 256. 1346 See 78, paragraph 2.3; Xxx Xxxxxx et al.and Burghouwt, supra note 18, at 922. 1347 302 See Xxxx XxxXxxxxx(II)ACL, supra note 113118, at 1112. start operations 303 See Lykotrafiti, supra note 10, at super-congested airports with no slots freely available85. declaration, or allocation and use of scarce airport capacity to consumers by establishing an unequivocal coordination process, subject to international, regional and national regulations, which will be discussed in detail in Chapters 3 and 4. Interestingly, previous editions of the WASG – up until 2019 – put “benefits to the greatest number of airport users” instead of the wider term “consumers” at peak times the heart of the system. It seems tenuous at other congested airportsbest that the prime objective of slot coordination appears to have changed, without subjecting the key principles governing the process that need to meet the system’s objectives to a wholesale review.