This issue sponsored by:

August 2009

Journal of The European Regions Airline Association

In this issue:

Fokker Services ProfileDisruptive PassengersSecurity Matters

This issue sponsored by:

3Regional International – August 2009

5. Noise is subjective, and it is increasingly diffi cult to make aircraft even quieter.

9. ATM organisations should be compelled to increase their own effi ciency.

25. Fokker continues to innovate and pioneer new approaches.

Editorial Noise trading – why? 5

Air Transport PolicyEC Opinion on delays 7

InfrastructureStop ATM costs climbing 9

Technical ServicesSecurity net widens 11

Returning personal effects – Kenyon International 13

Creeping criminalisation– BALPA article 14

The Disruptive Passenger – Interdict Security Solutions 16

JAA-TO goes solo 18

Business Databank Airline and airport traffi c 22

Member News 24

Member Profi le Fokker Services 25

Diary All the dates you should know 26

A KLM Cityhopper Fokker 70 on fi nals. Fokker was founded by Anthony Fokker in July 1919.

Mike A AmbroseDirector General

Daphne J DonnellyDirector Business Development

Simon McNamaraDirector Industry Affairs

Andrew C ClarkeAdviser Air Transport Policy

Nick MowerGeneral Manager Technical Services

Martin AmbroseManager Safety and Maintenance

Paula BangleManager Business Development

Robert PeelManager Operations and Air Traffi c Services

Lorna ReaderManager Industry Affairs

Tina RobertsManager Administration

Lesley ShepherdManager Corporate Communications

For ERA Communications Ltd:Ian SheppardManaging EditorIan.Sheppard@eraa.org

ERA Communications Ltd:Telephone: +44 1276 488039 Fax: +44 1276 855202Editorial: editorial@eracl.netAdvertising: william.burke@eracl.net

ERA Directorate:The Baker Suite, Fairoaks Airport, Chobham, Woking, Surrey GU24 8HX, United KingdomTelephone: +44 1276 856495Fax: +44 1276 857038Email: info@eraa.orgwww.eraa.org

Design:i-KOSTelephone: +44 1322 277255Email: studio@i-kos.com

The opinions and views expressed in Regional International do not necessarily refl ect ERA policy or position.

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16. Prepare for disruptive passengers through careful planning.

The ERA Directorate

5

Editorial

by Mike AmbroseDirector GeneralERA

EC Noise Trading Scheme is ‘a solution looking for a problem’

Measuring noise (defined as ‘unwanted sound’) is fertile territory for scientists a n d a c a d e m i c s b u t i s h e a v i l y complicated by the subjectivity of noise assessment by individual persons. For example, many people outside aviation who lived under Concorde’s evening departure routing from Heathrow to New York welcomed its approaching sound as a signal to step outside to watch its climb-out. Conversely, the same individuals were perfectly capable of complaining bitterly about non-stop noise from a nearby motorway.

T h e s c i e n t i s t s a n d a c a d e m i c s undertaking work in the MIME Project are sincere and professional but the type of concepts that they are proposing are surely doomed to failure and frustration? The NTS concept relies upon a ‘stimulus/response’ philosophy – that is, an assumption that because flights need more permits for noisier aircraft and operations in evening and night periods, airlines will be stimulated to respond by changing fleets and schedules.

It is a theory that will not work in the real world. Most of the European fleet at the end of the next decade will comprise aircraft built in the past

ten years or aircraft that are currently in production. Few wholly new aircraft types will have entered service and even for these aircraft successive changes in environmental performance are progressively more difficult and expensive to achieve. Fleet changes will not be dramatically accelerated by any NTS – airlines already apply strong pressure on manufacturers to provide improved noise performance. Changing schedules to avoid ‘higher noise permit’ periods is equally unlikely, given the economic pressure on airlines to achieve high aircraft utilisation and to meet market timing needs.

Lastly, airport noise is a local issue. It is predictable that, at airports already imposing noise constraints, local residents will be reluctant to agree to increases in capacity on the basis of a trading scheme that many of them will find complicated and difficult to understand. Furthermore, because noise is local, NTS would have to be applied on an airport-by-airport basis.

It was not therefore really surprising that representatives of the airline Associations and the environmental lobby agreed that the MIME Project would be ineffective, would add serious administrative costs for airlines (and their passengers) and would provide little, if any, environmental benefit: i .e. i t is ‘a solution looking for a problem’. Meanwhile, the EC still needs a simple, fair and robust means of measuring environmental performance. In its search for such a tool it should concentrate on ‘measurement’ and not use this as an opportunity for imposing yet another cost burden on airlines and airports.

I t is only on rare occasions that a i r l ine industry representat ives share a common view with leading environmental lobbyists, yet this was the surprising result when a recent meeting of stakeholders reviewed proposals for possible Noise Trading Schemes (NTS) put forward by the team under taking the European Commission’s (EC’s) MIME Project.

The MIME Project, rumoured to be costing around €3m, is charged with developing possible methodologies for market-based mechanisms, using trans ferable permits , to provide improved control over aircraft noise impacts at airports. It was explained to stakeholders that, through the use of such mechanisms, it might be possible for aviation to achieve greater use of existing airport capacity rather than having to endure proliferation of increasingly stringent and potentially more arbitrary constraints.

The EC’s main interest seems to focus on achieving a tool that would allow structured and objective measurement of environmental per formance at airports in line with the performance measurement obligations included in its second Single European Sky package.

Even the environmental lobby agrees that imposing a noise trading scheme on aviation would achieve little and cause confusion.

Regional International – August 2009

If you would like to comment on this article, or any other article in this issue of Regional International, please contact: editorial@eracl.net

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7Regional International – August 2009

ECJ suggests long delay is not cancellationovernight delays to flights. In both cases the passengers received the assistance to which they were entitled under the “delay” provisions of the Regulation. In one case, the passengers were rerouted on a dif ferent airline, although subsequently their original fl ight did in fact operate.

Under the “cancellation” provisions of the Regulation, the passengers would also be entitled to monetary compensation, unless the airline could prove that the cancellation was due to “extraordinary circumstances”. However, as the airlines stated that the flights were delayed rather than cancelled, no such compensation was due.

The passengers claimed that, due to the length of the delays, the original fl ights were effectively cancelled, and monetary compensation was due (unless “extraordinary circumstances” could be proved).

The judge delivering the Opinion has stated that it is not possible for the ECJ to declare that a delay automatically becomes a cancellation after a period of time. One reason is that there is clear reference within the Regulation to the possibility of overnight, or even longer, delays.

This point was made strongly by the ERA Directorate when the issue was previously discussed in a meeting called by the European Commission to discuss implementation and enforcement of the Regulation.

The judge concludes that the legislators must amend the Regulation if such a condition is required.

Air Transport Policy

by Andy ClarkeAdviser AirTransport Policy

Passenger compensation is available for denied

boarding or cancellation (barring “extraordinary

circumstances”) but not for a ‘mere delay’.

Whether there is a point where a delay should

be deemed to become, in effect, a cancellation

is being considered by the ECJ. Early signs are

that it will decline the opportunity to create new

law and leave it to legislators – essential the EC

and EU Council – to sort out what is recognised

to be a poorly drafted Regulation.

In July one of the Advocates-General of the European Court of Justice (ECJ) delivered a formal Opinion calling into question the legality of the European Union Regulation 261/2004, which governs compensation and assistance for passengers in the event of denied boarding, cancellations or long delays.

The Opinion s tates that i t is for legislators (the European Parliament and Council of Ministers), not the ECJ, to defi ne whether a delay automatically becomes a cancellation after a certain period of time. It then goes on to say that, because passengers subject to the same conditions (a long delay to their planned journey) are of fered different remedies according to whether their flight is cancelled or delayed, the Regulation may be illegal, being discriminatory in its effect.

The ECJ’s procedures allow for one of its judges (known as Advocates-General) to issue a formal Opinion as non-binding guidance to the judges who are determining the case. The Opinion is published after the submission of evidence and any oral hearing and, in the vast majority of cases, the fi nal judgement of the ECJ refl ects the views expressed in the Opinion – even though the judges are permit ted to reach a different conclusion.

Delay or cancellation?T h e O p i n i o n e m a n a t e s f r o m consideration of various referrals by national courts to the ECJ on the interpretation of the Regulation, among which there are two cases which ef fec t ively ask whether a delay can automatically become a cancel la t ion af ter a per iod oftime.

In the cases of Sturgeons vs Condor and Böck & Lepuschitz vs Air France, which are being heard together as they cover similar ground, there were lengthy

“ The judge delivering the Opinion has stated that it is not possible for the ECJ to declare that a delay automatically becomes a cancellation after a period of time.”

If the ECJ agrees with the Opinion in its final judgement, and determines that certain aspects of the Regulation are illegal, the implications will be very significant. Not least, the Regulation will need to be amended as a matter of urgency.

Since 2007 the position of the ERA Board has been that, while recognising the very poor quality of the Regulation, it opposes the notion of amending it on the basis that it is unlikely legislators would evaluate properly the impact of any proposed changes.

If you would like to comment on this article, or any other article in this issue of Regional International, please contact: editorial@eracl.net

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8

The pros and cons of strict liabilityIn Apr i l/May 20 0 9, ICAO delegates met in Montreal for a diplomatic conference to debate two ‘final draft ’ c o nve n t i o n s o n d a m ag e to third parties caused by aircraft, at the end of which the conventions were adopted. But will they enter into force?

BackgroundICAO initiated a process in 2000 to develop a code to provide compensation for innocent third parties who suffer damage caused by an aircraft to replace the 1952 Rome Convention on Surface Damage. Lack of consensus over the treatment of damage caused by acts of terrorism meant that two draf t Conventions were produced – one dealing with general risks, the other with “unlawful interference” with aircraft.

Both draft Conventions followed the same basic approach to balancing the desire to compensate third party victims with the need to protect the air travel industry, by imposing on “operators” (normally airlines) strict liability, but with a cap on such liability.

In the case of ‘general risks’, such an imposition was not so controversial. W i th the Unlaw ful In ter ferenc e Convention, however, there remains a division of opinion over the concept of creating a liability for operators in respect of acts over which they would normally have no control.

Additionally, the Unlawful Interference Convention provides for the creation and management of a compensation fund, the International Fund. This means that the travell ing public will also be made to pay for acts of ‘unlawful interference’.

Despite reports of disagreements on the subjects of breakability of limits and certain definitions, both Conventions were adopted on 2 May 2009, and are now open for signature.

Insufficient support?B e f o r e c o m i n g i n t o f o r c e , t h e Conventions each require at least 35 ratif ications. In the case of the Unlawful Interference Convention, these s ignator ies together must represent airlines that carried at least 750 million domestic and international passengers in the year prior to the date of ratification – a logical requirement given the funding obligations for the International Fund.

So far only seven states, none of which is a major aviation player, have signed the Conventions, and there are few signs of enthusiasm among major states. It looks as though these Conventions may suffer from the problem that beset their predecessor, the 1952 Rome Surface Damage Convention – insuf f icient support.

A Convention too far?The absence of suppor t for the Conventions reflects divided opinion. At a conference held at the UK Royal Aeronautical Society on 5 March 2009, where Peter Macara and Nicholas Medniuk o f C lyde & Co gave a presentation on the scope of application of the Unlawful Interference Convention, some notable commentators on air law advocated for adopting the two Conventions, and some against.

However, there is one point for which there seemed to be agreement – that, in an ideal world, airlines should not be asked to cover the cost of terrorist attacks when the intended target is a government or society.

Despite the general recognition that the industry does not operate within an ideal environment, some say that the Unlawful Interference Convention is simply not needed, on the basis that current national laws have always proved sufficient in the past – or that, in moments of a crisis (such as the 9/11 attacks), governments will step in to provide financial compensation.

Others say that the Convention is necessary in order to bring legal cer tainty and financial stability to the liability faced by airlines in a uniform way, so that they do not face differing regimes depending where they are flying, and so that they are not at risk of being wiped out by huge liabilities. Some critics consider that a fair balance between airlines’ and victims’ interests is not achieved because the limitation on liability is not unbreakable.

Levels of liability are capped, with the operator liable up to a maximum ranging from 750,000 to 700 million Special Drawing Rights (SDRs) depending on the mass of the aircraft, and the International Fund up to a further 3 billion SDRs. There is therefore a total potential pot of 3.7 billion SDRs available to victims, but in the face of a large scale incident this might well be insufficient.

Accordingly, there is no escaping the necessity for government funding. However, as there is no guarantee that such financial support would actually be provided, whatever the system in place, the principle of fair compensation to victims can never be assured.

The Conventions will be described in more detail in the September issue of Regional International.

Andy ClarkeAdviser AirTransport Policy

This is an edited version of an article that appeared in Beaumont Bulletin (July 2009). Beaumont Bulletin is published by Clyde & Co LLP, an ERA Member voted Global Aviation Law Firm of the Year in 2005, 2006, 2007 and 2008

“ With the Unlawful Interference Convention there remains a division of opinion over the concept of creating a liability for operators in respect of acts over which they would normally have no control.”