Common use of Concluding Remarks Clause in Contracts

Concluding Remarks. Although slots represent relevant operational, economic, legal and social interests,1051 they cannot, in my view, be identified as property rights.1052 Pursuant to the EU, US and industry definitions of an airport slot, slots are entitlements allocated at no cost to airlines twice yearly to land at and take-off from international airports and use the full range of airport facilities, subject to conditions such as utilization thresholds.1053 By no means do the available definitions explicitly state that airlines own slots in terms of being able to legally claim slots as property rights, which would give an unequivocal right of ownership to the airline.1054 Slots may have been allocated to airlines according to which airlines are entitled to use those slots, but that does not mean that airlines are entitled to consider slots as their property. The FAA even legally established that slots can be withdrawn if and when the FAA deems it appropriate, as discussed in section 5.2.3 above. 1049 See Xxxxxxxxx, supra note 10, at 12. Slot trade and lease agreements are subject to discussion in section 5.6 below as alternative ways to access congested airports. 1050 See Xxxxxxx X. Xxxxx, A Political Theory of the Origin of Property Rights: Airport Slots, 35 Political Science 4 (2008), at 951. 1051 See European Commission, supra note 54, paragraph 11. 1052 See Abeyratne, supra note 55, at 36. 1053 The WASG and the EU by word of “permission to use”, the US by word of “operating privilege”. Both terms appear appropriate to label the entitlement that comes with an allocated slot, see section 5.2.3 for further analysis. See also Xxxxx Xxxxxx Xxxxxx, supra note 69, at 141. 1054 See Abeyratne, supra note 55, at 36. In the view of the author, the fact that slots have been treated as part of the possessions of an airline in take-overs is ill-considered. After all, due to their public functions as discussed in Chapter 2, sections 2.3 and 2.4, slots are valuable resources to society at large for which ‘competition’ among airlines is fierce, in particular at super-congested airports. Although both airports and airlines may have invested heavily in airport infrastructure and aircraft and network expansion respectively, the beneficiary of a slot should not be determined on the basis of financial objectives of an airline or an airport. Instead of allowing private enterprises property rights over slots, which implies that slots may be used, exchanged and transferred as the owner deems fit as discussed in section 5.2.4.1, it is ultimately the public that should benefit from the socio-economic value of a slot. Hence, slots are essentially public goods. This view is reflected in the fact that the existence of slots depends entirely on the public authority that designated the airport and the coordinator that allocated the slots to airlines. Slots are allocated within the limits of the capacity declaration, and airlines may build history over these slots.1055 Once the limits of the capacity declaration change, the number of available slots changes accordingly. In other words, available capacity is a prerequisite for utilizing a slot as the permission to use the range of available infrastructure. Grandfather rights are merely a creation of legislation within the boundaries of the declared capacity, which means that airlines could not reasonably expect to enjoy them in perpetuity. Generally, legislators and courts do not regard slots as the property of an airline. It henceforth appears that grandfather rights are not synonymous with ownership rights. However, depending on the applicable law and the context in which the question of the legal title with respect to slots is considered, slots could be identified as possessions of an airline as evidenced by practices of, inter alia, the listing of slots on airline balance sheets as discussed in section 5.3.3 below. A definition of possession in legal terms again depends on the applicable law. In order to solve the existing lex lacunae on slot title, at least in the WASG and the Slot Regulation, it is critical to elucidate in the laws and regulations governing slot coordination that the independent coordinator has final control over slots that have already been allocated, and subsequently allocates them to airlines as entitlements to use the available infrastructure. Since slots are essentially public goods as concluded in the above paragraph, the coordinator should ensure that the slots are used in a way that reflects their public interest.