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Guido de Vos Air Law Lawyer AKD lawyer & notaries
Protect the network, break down the walls W
hile Lufthansa Cargo is still waiting on the outcome of her appeal to the State Council concerning the refusal of cargo flights, consisting mainly of flowers, to Schiphol, the discussion about the limited access of foreign air carriers to the Dutch airfreight market flares up again. In this article, I explain why the government should exhibit more opportunistic thinking and show less risk aversion with a request for landing rights concerning cargo flights at Schiphol. What happened in the last few weeks? A newspaper has reported about AF/KLM further reducing its cargo fleet from 14 to only 10 full freighters. In the same newspaper EVO advocates in a letter for additional cargo flights at Schiphol. According to EVO however, the State Secretary will not give his permission, because the Dutch Government does not think these flights will ad value. Freight Forwarders are diverting to other airports for handling additional cargo . New distribution centres are also not located in the Netherlands, but abroad. Reason enough for Ton Elias to ask questions in parliament. But as it often happens, Secretary Mansveld skilfully removes the sting out of the questions without actually engaging the discussion. Time for a legal analysis of the situation.
In the current free trade market, supply and demand determine which airlines operate flights to and from Schiphol Airport. However, regarding international aviation, there is a different starting point. It is forbidden to load and unload passengers or cargo at Dutch airports, unless the Dutch government grants you permission.
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The Dutch Government has negotiated on behalf of its National Airlines for market access in other states. On the basis of freedoms of trade, traffic rights were exchanged and agreements made on routes and route points operated by the airlines involved. Capacity, flight frequencies and fares were equally appointed. Thanks to an active and liberal Dutch governmental policy, KLM was able to set up a large international network, to which Schiphol airport largely owes its role as a hub.
The importance of the Schiphol hub function has been studied extensively. Studies show that the loss of a local carrier and its network consisting of long-haul non-stop flights will have a big impact on the sectors’ employment oppurtunities and the economy. Protecting the Schiphol hub function is therefore an important governmental policy.
‘Thanks to an active and liberal Dutch governmental policy, KLM could set up a large international network’ Since specific permission is required to carry out flights, the government can control the market with an access policy. These options should not be overestimated. In recent decades, the government has limited the scope for protectionist policies considerably. The European airspace for intra-community transport is fully liberalized. With the EU-US “Open Skies” treaty (since 1992) as a blueprint, third world countries are also encouraged to grant European carriers free access into their airspace. All this gives Western airlines more possibilities to operate external markets, other than their local one. The freedoms created by globalization unfortunately do not come without the burden. European and bilateral agreements obligates airlines to share their airspace with more flights from foreign airlines, even when these affect the interests of AF/KLM at Schiphol. Then there are also principles of European law that the government must respect, such as the prohibition of discrimination based on nationality. Recently, the Court of Justice struck down on a German measure, under which German airlines were given priority in