“1. Series of slots are allocated from the slot pool to applicant carriers as permissions to use the airport infrastructure for the purpose of landing or take-off for the scheduling period for which they are requested, at the expiry of which they have to be returned to the slot pool as set up according to the provisions of Article 10. 2. Without prejudice to Articles 7, 8a, 9, 10(1) and 14, paragraph (1) of this Article shall not apply when the following conditions are satisfied: — a series of slots has been used by an air carrier for the operation of scheduled and programmed non-scheduled air services, and — that air carrier can demonstrate to the satisfaction of the coordinator that the series of slots in question has been operated, as cleared by the coordinator, by that air carrier for at least 80 % of the time during the scheduling period for which it has been allocated. In such case that series of slots shall entitle the air carrier concerned to the same series of slots in the next equivalent scheduling period, if requested by that air carrier within the time-limit referred to in Article 7(1). ... 5. The coordinator shall also take into account additional rules and guidelines established by the air transport industry world-wide or Community-wide as well as local guidelines proposed by the coordination committee and approved by the Member State or any other competent body responsible for the airport in question, provided that such rules and guidelines do not affect the independent status of the coordinator, comply with Community law and aim at improving the efficient use of airport capacity. These rules shall be communicated by the Member State in question to the Commission....”
“Without prejudice to Article 8(2) of this Regulation and without prejudice to Article 8(1) of Regulation (EEC) No 2408/92, slots placed in the pool shall be distributed among applicant air carriers. 50 % of these slots shall first be allocated to new entrants unless requests by new entrants are less than 50 %. The coordinator shall treat the requests of new entrants and other carriers fairly, in accordance with the coordination periods of each scheduling day....”
“If the 80 % usage of the series of slots cannot be demonstrated, all the slots constituting that series shall be placed in the slot pool, unless the non-utilisation can be justified on the basis of any of the following reasons: (a) unforeseeable and unavoidable circumstances outside the air carrier’s control leading to: — grounding of the aircraft type generally used for the air service in question; — closure of an airport or airspace; — serious disturbance of operations at the airports concerned, including those series of slots at other Community airports related to routes which have been affected by such disturbance, during a substantial part of the relevant scheduling period; (b) interruption of air services due to action intended to affect these services which makes it practically and/or technically impossible for the air carrier to carry out operations as planned; (c) serious financial damage for a Community air carrier concerned, with, as a result, the granting of a temporary license by the licensing authorities pending financial reorganisation of the air carrier in accordance with Article 5(5) of Regulation (EEC) No 2407/92; (d) judicial proceedings concerning the application of Article 9 for routes where public service obligations have been imposed according to Article 4 of Regulation (EEC) No 2408/92 resulting in the temporary suspension of the operation of such routes.”
“(a) Without prejudice to Article 10(4), if the 80 % usage rate as defined in Article 8(2) cannot be achieved by an air carrier, the coordinator may decide to withdraw from that air carrier the series of slots in question for the remainder of the scheduling period and place them in the pool after having heard the air carrier concerned. (b) Without prejudice to Article 10(4), if after an allotted time corresponding to 20 % of the period of the series validity no slots of that series of slots have been used, the coordinator shall place the series of slots in question in the pool for the remainder of the scheduling period, after having heard the air carrier concerned.”
“The coordinator shall withdraw the series of slots provisionally allocated to an air carrier in the process of establishing itself and place them in the pool on 31 January for the following summer season or on 31 August for the following winter season if the undertaking does not hold an operating licence or equivalent on that date or if it is not stated by the competent licensing authority that it is likely that an operating licence or equivalent will be issued before the relevant scheduling period commences.”
“Slots may be freely exchanged between air carriers or transferred by an air carrier from one route, or type of service, to another, by mutual agreement or as a result of a total or partial take-over or unilaterally. Any such exchanges or transfers shall be transparent and subject to confirmation of feasibility by the coordinator that: (a) airport operations would not be prejudiced; (b) limitations imposed by a Member State according to Article 9 are respected; (c) a change of use does not fall within the scope of Article 11.”
“[Counsel for the Board] makes it clear that his primary submission on the construction of ‘slots may be freely exchanged’ does not depend on there being a money payment accompanying the exchange of slots (as there probably was in the present case). However, he also advances an alternative or subsidiary argument to the effect that where money changes hands, there is a sale rather than an exchange of slots. I do not accept this argument. In my judgment, where slots are exchanged, the fact that there is an accompanying money payment by the acquirer of what are perceived to be the more valuable slots does not convert the exchange into a sale and does not take the transaction out of the scope of an exchange.”
“The Regulation simply does not establish the co-ordinator as the kind of investigatory or regulatory body to which [counsel for the Board] refers. In the context of Art. 8(4), its duties are limited to confirmation of feasibility by reference to the three stated matters. It seems to me that this is plainly the meaning of the provision. Moreover, as [counsel for IATA] goes on to submit, the imposition of a duty of the kind contended for by [counsel for the Board] would be both unworkable and undesirable. It would require an investigation into every transaction of slots exchanged which in turn would prevent the present rapid and efficient confirmation of exchanges particularly in the context of the periodic schedule co-ordination conferences. At present, co-ordinators are able to respond to requests for slot exchanges almost immediately. The imposition of a duty to investigate or regulate as envisaged by [counsel for the Board] would frustrate this process. The evidence shows that the consequent delays would have global implications, and would risk the fossilising of schedules to the detriment of customers and others. Disputes about the permissibility of a particular exchange might necessitate oral hearings, cross-examination and legal submissions. Procedures which pass wholly unmentioned in the Regulation (apart from the duty to provide information set out in Art. 7) would have to be implied. I agree with the submission made by [counsel for IATA] that the absence of such procedures in the Regulation points away from [counsel for the Board’s] contentions.”
“As [counsel for the Board] concedes, this issue is intimately connected with the previous issues in respect of the lawfulness of the exchanges and the validity of ACL’s confirmation of them. I have come to the same conclusion as in relation to previous matters. It follows that reallocation under Art. 8(1)(a) is not constrained by the restriction for which the Board contends. Moreover, for the same reasons as were identified in relation to issue 3, ACL does not have the kind of investigatory and regulatory function in respect of these matters which would be necessary if the Board’s contentions were correct.”
“exchanged, one for one, between two air carriers where both air carriers involved undertake to use the slots received in the exchange”
“In not incorporating these provisions, the Council was primarily concerned that the whole issue of market access should be considered in the wider context of a more thorough revision of the slot allocation rules, which could be the subject of a separate Commission proposal in the future.”
“But in the UK ACL has itself sought to facilitate slot exchanges between active carriers. To this end, ACL has provided services in order better to satisfy airline scheduling and contribute to efficient use of airport capacity (including by putting together airlines which it knows wish to make exchanges), and created slots which it will be difficult or impossible to use without further steps being taken (e.g. a night slot or a slot without an accompanying Air Traffic Movement (ATM) (which might be described as ‘dummy slots’)).”
“An undertaking shall be granted an operating licence by the competent licensing authority of a Member State provided that: (a) its principal place of business is located in that Member State; (b) it holds a valid AOC [i.e. air operator certificate] issued by a national authority of the same Member State whose competent licensing authority is responsible for granting, refusing, revoking or suspending the operating licence of the Community air carrier; (c) it has one or more aircraft at its disposal through ownership or a dry lease agreement; (d) its main occupation is to operate air services in isolation or combined with any other commercial operation of aircraft or the repair and maintenance of aircraft; … (g) it meets the financial conditions specified in Article 5….”
“1. The competent licensing authority may at any time assess the financial performance of a Community air carrier which it has licensed. Based upon its assessment, the authority shall suspend or revoke the operating licence if it is no longer satisfied that this Community air carrier can meet its actual and potential obligations for a 12-month period. Nevertheless, the competent licensing authority may grant a temporary licence, not exceeding 12 months pending financial reorganisation of a Community air carrier provided that safety is not at risk, that this temporary licence reflects, when appropriate, any changes to the AOC, and that there is a realistic prospect of a satisfactory financial reconstruction within that time period. 2. Whenever there are clear indications that financial problems exist or when insolvency or similar proceedings are opened against a Community air carrier licensed by it the competent licensing authority shall without delay make an in-depth assessment of the financial situation and on the basis of its findings review the status of the operating licence in compliance with this Article within a time period of three months…. … 5. In case a Community air carrier’s AOC is suspended or withdrawn, the competent licensing authority shall immediately suspend or revoke that air carrier’s operating licence.”
“an undertaking with a valid operating licence or equivalent”
“an air transport undertaking with a valid operating licence”
“As matters stand, and based on the information provided by the Administration Companies, we do not consider it likely that it will be possible to rescue any of the Administration Companies as a going concern. During the administration, none of the Administration Companies will operate or book any further flights or holidays and, due to safety reasons, it will not be appropriate for the Proposed Administrators to continue to operate the [Monarch] airline business. However, I and the other Proposed Administrators are satisfied that the purpose of an administration order for each of the Administration Companies to which they are proposed to be appointed will be achieved in that it will be possible to realise property in order to make a distribution to one or more of the secured creditors. In respect of the Administration Companies we believe … that it will be also be possible to achieve a better result for the company’s creditors as a whole than would be likely if the company were wound up (without first being in administration).”
“This is because the purposes of administration do not include the rescue of Monarch Airlines as a going concern. That means that, following administration, Monarch Airlines will be wound up. Accordingly, there is no basis on which the company will in the future be in a position to provide public transport operations to any person, such that it requires an [operating licence].”
“8. On2 October 2017 , approximately 1,900 Monarch employees were made redundant. Approximately 200 employees were retained to support the administration. 9. All the aircraft operated by [Monarch] on the day prior to its entry into administration are in the process of being repossessed by lessors.”
“[r]escue of [Monarch] as a going concern is one of the statutory purposes of administration” and “if, during the course of the administration, it appeared practicable to rescue the company as a going concern then the administrators would seek to do this.” “Apart from the slot exchange transactions, [Monarch’s] administrators are not currently negotiating any transaction which they feel at this stage are likely to materialise such that it is worth raising with [the CAA]”, the skeleton argument said, but “because administration is a fast moving process, this is not impossible over the three month period.”
“The imposition of such a duty would not accord with the underlying objects and policy of the Slots Regulation or the Licensing Regulation. Furthermore, it is clear that, by26 October 2017 , when slots were allocated by ACL, Monarch was no longer an air carrier within the meaning of the Slots Regulation as it was no longer an air transport undertaking. It therefore fell outside the language of the Slots Regulation.”
“60. The relevant part of the definition of ‘air carrier’ in Article 2 of the Slots Regulation has two essential elements. The air carrier must be an ‘air transport undertaking’ and it must hold ‘an operating licence’. The definition includes the words ‘air transport’ before undertaking and those words need to be given meaning; the Monarch submission fails to do so. There is no definition of air transport undertaking in the Slots Regulations. However, in our judgment, the phrase means that the undertaking is engaged in the provision of air transport. In the context of the Slots Regulations, that means the provision of air services, i.e. the carrying of passengers or cargo for reward. Indeed, that definition of air transport, and its importance in the definition of air carrier, is reinforced by a reading of the Slots Regulation as a whole. It is concerned with the allocation of the use of airport infrastructure for take-off and landing. The purpose is to facilitate the operation of air transport services. 61. Furthermore, that conclusion is consistent with the Licensing Regulation. As discussed in paragraph 56 above, the material provisions and the definition provisions of that regulation read as a whole focus on licensing those engaged in the operation of air services and turns on them doing so. 62. Accordingly, having regard to the text of both the Slots and the Licensing Regulations, we are unable to discern any duty to allocate slots to an undertaking that has ceased to operate air transport services and has no realistic prospect of resuming them. For the avoidance of any doubt, different considerations may well apply to an undertaking that, for example, is no more than temporarily unable to operate air transport services; that is not because the wording and definitions in the Regulations have more than one meaning but because their application is necessarily fact specific.”
“we reach the clear conclusion that there was no duty on ACL to allocate the Summer 2018 slots to Monarch. The regulatory authority had suspended Monarch’s AOC. It had done so because Monarch had entered into administration and could no longer demonstrate that it could satisfy the requirements imposed under EU law. It could not lawfully engage in the operation of air transport services whilst its AOC was suspended. Indeed, the regulatory authority had commenced proceedings to revoke, or alternatively, to suspend Monarch’s operating licence. Furthermore, it was clear that there was no more than a theoretical possibility that Monarch would resume air transport operations again. The directors of Monarch and the administrators had made it plain in their evidence to the court which granted the administration order that they did not consider it likely that Monarch could be disposed of as a going concern; the purpose of administration was to realise assets to pay secured creditors and achieve a better result for Monarch’s creditors. Furthermore, nothing has changed since. The regulatory authority correctly identified, and the administrators confirmed, that Monarch had no aircraft at its disposal through ownership or dry lease agreements and no pilots (save for three qualified pilots who were in management posts) and no plans to resume air operations. Monarch had ceased to be a functioning airline and any suggestion that it could resume the operation of air transport services was no more than a mere theoretical possibility.”
“We were properly informed by Monarch’s solicitors that, on the9 November 2017 , the CAA took the decision to revoke Monarch’s operating licence. Our judgment in no way rests on this development but our views are fortified by it.”
“where a provision of Community law is open to several interpretations, only one of which can ensure that the provision retains its effectiveness, preference must be given to that interpretation”