Passenger numbers to double over the next 20 years

Article published on December 2014 in Legal Eye and reproduced by courtesy of Stephenson Harwood

The International Air Transport Association (IATA) released its first ever 20 year global passenger growth forecast in October 2014, which predicts annual passenger numbers will grow from 3.3 billion this year to 7.3 billion in 2034.

The Global Passenger Forecast Report, put together by the new IATA Passenger Forecasting Service, working in association with Tourism Economics, analyses airline passenger flows across 4,000 country pairs for the next 20 years, using three key demand drivers: living standards, projected population and demographics, and price and availability.

The Report forecasts that China will overtake the US as the world’s largest air passenger market by 2030, and that by 2034, the five fastest increasing markets, in terms of additional passengers per year, will be China, the US, India, Indonesia and Brazil. Eight of the ten fastest growing markets in percentage terms will be in Africa, and the highest growth in terms of country pairs is predicted to be in Asia and South America, reflecting economic and demographic growth in those markets.

The Report highlights the fact that meeting the forecast growth in global air passenger numbers, which represents a 4.1% average annual rate of growth, will require government policies that support the economic benefits that such increased levels of air connectivity will make possible.

Tony Tyler, IATA’s Director General and CEO, said the following:

“Airlines can only fly where there is infrastructure to accommodate them. People can only fly as long as ticket taxes don’t price them out of their seats. And air connectivity can only thrive when nations open their skies and their markets. It’s a virtuous circle. Growing connectivity stimulates economies, and healthy economies demand connectivity.”

Tyler points out that at present, aviation helps sustain 58 million jobs and US$2.4 trillion in economic activity, and that in 20 years time, IATA has projected that aviation will support over 105 million jobs and US$6 trillion in GDP.

IATA’s forecasts for the 10 largest air passenger markets (defined by traffic to from and within) for the next 20 years:

• The US will remain the largest air passenger market until around 2030, when it will drop to number 2 behind China;
• India will grow from being the 9th largest market to the 3rd, overtaking the UK around 2031, which will fall to 4th place;
• Japan will decline from the 4th largest market to the 6th largest by 2033, reflecting a declining and ageing population;
• Germany and Spain will decline from 5th and 6th positions to be the 8th and 7th largest markets, France will fall from 7th to 10th position and Italy will fall out of the top ten largest markets completely in or around 2019;
• Brazil will rise from the 10th largest market in 2014 to the 5th largest by 2034; and
• Indonesia will enter the top ten around 2020 and will attain 6th place by 2029.

The Report recognises that air travel has an environmental impact, and states that in 2009 the industry agreed three targets so as to ensure that aviation plays its part in ensuring a sustainable future:

• 1.5% annual fuel efficiency improvement by 2020;
• Capping net emissions through carbon-neutral growth from 2020;
• A 50% cut in net emissions by 2050, compared to 2005.

In the same week that the Global Forecast Report was published, IATA released the results of its quarterly Business Confidence Survey of CFOs and heads of cargo, which forecasts growth across the airline industry over the next year. Management of airlines are predicting largely positive profit expectations for 2015, notwithstanding some downside risks associated with the weaknesses in the Eurozone economic recovery, the Russia-Ukraine crisis, and some knock on effects from the Ebola crisis.

“Eight of the ten fastest growing markets in percentage terms will be in Africa”

Author: Paul Phillips (Partner, Head of aviation litigation and regulation with Stephenson Harwood) / Publisher: SCMO

Single European Sky – can the vested interests be overcome

Article published on February 2014 in Legal Eye and reproduced by courtesy of Stephenson Harwood

Following the failure of the first Single European Sky initiative (called SES I, launched in 2004), the European Commission launched a second package of legislation in 2009 called SES II, which was designed to remove the fragmentation caused by the inefficient use of 27 national airspaces, through the introduction of what are called "Functional Airspace Blocks" or FABs. These nine designated FABs were supposed to be operational by the end of 2012, but EU Member States have delayed dismantling their domestic air traffic monopolies in order to form these regional blocks, for political reasons. In early 2012, the EU Transport Commissioner Siim Kallas announced further new legislation proposals which he called "SES II plus", with the objective of accelerating implementation of the SES II reforms, and enabling enforcement measures to be taken against non-compliant EU Member States. Then, in June 2013 the European Commission laid out its proposals to update the four regulations creating the Single European Sky. The key proposals are as follows:

The Commission's June 2013 updated proposals

Better safety and oversight

The Commission is proposing full organisational and budgetary separation of national supervising authorities from the air traffic control organisations they oversee, in order to improve oversight and safety. Many supervisory authorities are currently under-resourced and dependent on the support of the entities they are supposed to oversee. Airlines will also have a new role in signing off air traffic control organisations' investment plans to ensure they are better focused in meeting customer needs.

Better air traffic management performance

The reform of Europe's air traffic management is driven by four key performance targets: safety, cost-efficiency, capacity and environment. Under the current system EU Member States can set their own performance targets and decide which corrective measures to apply if targets are not met. The Commission is proposing to strengthen the performance scheme by making the target-setting more independent, transparent and enforceable, by strengthening their own role in setting more ambitious targets and increasing the independence of the Performance Review Body as the key technical advisor, so as to enable sanctions to be applied when the performance targets are not met by Member States.

New business opportunities in support services

The Commission is proposing to open up business opportunities for more companies to provide support services to air traffic control organisations. Support services such as meteorology, aeronautical information, communication, navigation and surveillance services will have to be separated out under the new draft regulations, so they can be put out to competitive tender in an open and transparent way in accordance with normal EU procurement rules. Support services are the biggest driver of cost in air traffic management and these costs could be cut by 20% if they are put out to competitive tender.

Enabling industry partnerships

None of the nine Functional Airspace Blocks or FABs are fully operational, in spite of a deadline set in December 2012 for EU Member States to establish them. The Commission is currently examining infringement cases against all Member States, particularly where no progress towards reform is made in the next few months. However the Commission has recognised that the FABs are rather inflexible political constructs, so is proposing that service providers co-operate more flexibly by allowing the creation of "industry partnerships" – which will allow service providers to participate in more than one FAB.

Strengthening the role of the Network Manager

The proposed regulations seek to strengthen the role of the Network Manager, Eurocontrol, to ensure that co-ordination of air traffic flows between the national service provider, and tasks such as route design and co-ordination of radio frequencies are carried out more centrally. The proposals could also see the provision of a wider range of services by the Network Manager to air traffic control organisations, such as information networks, monitoring of technical systems, and airspace design. These services could be provided centrally or outsourced by the Network Manager.

The Commission's proposals to update the four regulations creating the Single European Sky will have to be approved by Member States and Parliament before they are passed into law, which could prove to be yet another stumbling block for the progress of these measures.

There has been considerable resistance to some of the measures proposed in the "SES II plus" package from some EU Member States, particularly France and Germany. The European Transport Workers Federation, which represents most of the air traffic controllers and air traffic management workers in Europe has rejected the "SES II plus" package, on the basis that it will only have negative effects on jobs and working conditions for their union members. French air traffic controllers went on strike at the beginning of October in protest at the proposed "SES II plus" package because they are concerned about losing their jobs if the Commission's proposals to deregulate the profession are passed into law. The Air Traffic Controllers European Unions' Co-ordination (ATCEUC) also called for a strike at the beginning of October across 26 European countries – the industrial action was only called off when the European Commission assured them they would take ATCEUC's views into consideration.

Although perhaps not the most exciting package of legislation being debated in Europe at the moment, it is nonetheless critically important for the industry. There are some nine million flights across European airspace annually, and EuroControl is forecasting a further 50% increase in flights over the next 10-20 years. The Commission has estimated that the EU's air traffic management inefficiencies caused by national airspace fragmentation add 42km to the average flight, waste fuel, increase emissions, and cost €4.6 billion per annum. The intransigence of EU Member States, which is rooted in the vested interests of labour protection, the revenue streams generated by national air traffic management bodies, and misplaced concerns over the protection of sovereignty over national airspace, is delaying critical progress in reforming what is a seriously inefficient system. The US controls a similar amount of airspace as Europe, with more traffic, at half the cost, and if and when the "SES II plus" measures are implemented, the European Commission says that safety will be improved by a factor of ten, airspace capacity will be tripled, the cost of air traffic management will be halved, and the impact on the environment of carbon emissions reduced by 10%.

IATA's Director General, Tony Tyler, said earlier this year that progress in the implementation of the "SES II plus" package of measures is critical to the competitiveness of the European aviation industry:

"The European Commission shares the industry's frustration with the failure of European states to progress the SES. Every year that SES languishes in limbo is a €5 billion knock to European competitiveness and costs the environment 8.1 million tonnes of wasted carbon emissions."

Author: Paul Phillips (Partner, Head of aviation litigation and regulation with Stephenson Harwood) / Publisher: SCMO

Airbus - world’s fleet will double in 20 years

Article published on October 2013 in Legal Eye and reproduced by courtesy of Stephenson Harwood

In its latest Global Market Forecast in September, Airbus predicted that in the next 20 years the world will need to double the size of its aircraft fleet from 17,740 aircraft to 36,560 aircraft, as a consequence of economic growth, and increased air travel by the affluent
middle classes in fast growing markets, such as India and China. Of the new 29,220 passenger and freight aircraft predicted by Airbus to be
required, worth over £2.7 trillion, 10,400 will replace existing jets with more fuel-efficient models, with aircraft sizes increasing to make the best use of limited airport capacity.

With air travel becoming increasingly accessible in all parts of the world, the growth of the travelling middle classes, and increased
urbanisation, tourism and migration in emerging economies, Airbus predicts that by 2032 two thirds of the population in emerging markets will take at least one flight annually.

Airbus is also predicting that by 2032 domestic flights within China will be the world’s largest airline market, outgrowing the US domestic market, and that the wider Asia-Pacific region will account for 34% of the total distance travelled by fare-paying passengers.

Author: Paul Phillips (Partner, Head of aviation litigation and regulation with Stephenson Harwood) / Publisher: SCMO

EU blacklist labelled absurd

Article published on October 2013 in Legal Eye and reproduced by courtesy of Stephenson Harwood

Following the publication of the latest update to the EU blacklist of foreign carriers in July of this year, which removed Philippine Airlines and Venezuelan carrier Conviasa from the list, Tony Tyler, the Director General of IATA, spoke out again about the lack of transparency in the decision-making process followed by the EU in adding and removing airlines or whole countries to or from the EU blacklist.

In June 2013, Tony Tyler called the EU’s list of banned airlines “absurd” when speaking at the IATA Annual General Meeting in Cape Town, South Africa. Of the 20 countries currently subject to a blanket ban on the EU blacklist, 15 of them are African, and Tyler has warned that the EU’s disproportionate focus on Africa has led many observers to conclude that its blacklist is a mercantile policy masquerading as a safety policy. He says “the point that all the African airlines make – and that we certainly agree with – is that if a government isn’t exercising sufficient regulatory oversight on aviation, then that applies equally to air navigation service, ground services and everything else. So if it’s not safe for the African carrier to operate into Europe, then why is it safe for the European carrier to operate to the African country?”

The EU’s disproportionate focus on Africa has led many observers to conclude that its blacklist is a mercantile policy masquerading as
a safety policy.

IATA takes a different approach, it says, to that taken by the European Commission, by working with countries to put in place IATA operational safety audits (IOSAs), and engage with countries and carriers on the implementation of IOSA training programmes, as opposed to penalising under-performing airlines. In calling for greater transparency, Tyler said “There are no clear guidelines on what you have to do to get off the banned list...or, indeed how exactly you got on it. In America, the FAA says you’re Category 2, then it identifies what
particular tests you have failed, or what you’re not doing properly, but in Europe there is no checklist. There are no specifications about what standards they want.”

In a thinly veiled reference to the EU’s unilateral imposition of its own emissions trading scheme on foreign carriers, Tyler said:

“ICAO does its own inspections of the regulatory authorities and helps them lift their game where necessary. But Europe is going off on its own again, as it seems to love doing in this industry.”

Author: Paul Phillips (Partner, Head of aviation litigation and regulation with Stephenson Harwood) / Publisher: SCMO

Merger creates the world’s largest airline

Article published on October 2013 in Legal Eye and reproduced by courtesy of Stephenson Harwood

The filing of an anti-trust suit by the US Department of Justice back in August to block the merger of American Airlines and US Airways on grounds that it would eliminate competition, reduce route choices, and raise prices, looked as though it would, at worst, completely derail the merger or, at best, delay the process by several months.

The DoJ’s blocking move seemed to represent a seismic shift in its attitude to consolidation in the US airline industry, which it has generally approved in recent years. It was also in stark contrast to the more relaxed stance of the European Commission, which approved the merger in double-quick time, albeit with minor conditions.

US Airways and AMR Corporation, AA’s parent company, that has been in Chapter 11 bankruptcy protection since November 2011, responded aggressively to the DoJ’s announcement, saying it would mount a “strong and vigorous defence” of its plans for the US$11 billion merger. Both US Airways and AA pointed to the advantages of the wave of consolidation over recent years in the US airline industry that has cut the number of large carriers in the US market from eight down to five, and how the reduction in cut-throat competition had enabled the consolidated airlines to operate more profitably and improve services for consumers.

In explaining its position, the DoJ maintained that it had learned important lessons from the 2008 merger of Delta and Northwest Airlines, and the 2010 merger between United and Continental, and were not convinced that the AA – US Airways merger would improve the lot of consumers further. Assistant Attorney General, Bill Baer, said that both US Airways and AA were in a position to be “competitive, aggressive and successful on their own, and that passengers would suffer if the merger was allowed to proceed”. The DoJ focused on how the merger would affect travellers from Washington’s Reagan National Airport, from which the merged airlines would have controlled 63% of nonstop flights, and on the fact that four US airlines would control over 80% of all US commercial flights.

Baer observed “If this merger goes forward, even a small increase in the price of airline tickets, checked bags or flight change fees would result in hundreds of millions of dollars of harm to American consumers.” He did not, however, rule out alternative ideas to a straightforward merger block, in order to preserve competition.

Faced with the prospect of unpicking what would be a very complex merger, which US Airways and AMR Corporation had been planning for over a year, and a costly and time-consuming anti-trust trial scheduled to start on 25 November, settlement negotiations were initiated to try and break the legal deadlock, and the parties agreed to consult a court appointed mediator.

On 12 November 2013, AMR and US Airways announced that they had settled the litigation with the Department of Justice, challenging the merger. Under the terms of the settlement the airlines will divest 52 pairs of slots at Washington Reagan National Airport and 17 pairs of slots at New York LaGuardia Airport, as well as certain gates and related facilities to support services at those airports. The airlines will also divest two gates and related support facilities at Boston Logan International Airport, Chicago O’Hare, Dallas Love Field, Los Angeles International and Miami International airports. The divestitures will take place through a DoJ approval process following the
completion of the merger. As part of the settlement agreement with the Department of Justice, the newly merged airline group has agreed to maintain its hubs in Charlotte, New York (JFK), Los Angeles, Miami, Chicago O’Hare, Philadelphia and Phoenix, in line with its historical operations, for a period of three years. In spite of the enforced divestitures, the new American Airlines Group Inc., as the combined airline will be called, is still expected to generate more than US$1 billion in annual net synergies from the merger, beginning in 2015.

Commenting on the settlement of the litigation and the approval of the merger, Bill Baer said that the airlines’ agreement to divest slots at key airports will allow low-cost carriers to expand and “will disrupt today’s cosy relationships among the incumbent legacy carriers and provide consumers with more choices and more competitive airlines”.

This agreement has the potential to shift the landscape of the airline industry

The settlement was approved by the US Bankruptcy Court on 27 November 2013, and Judge Sean Lane advised that the merger should be completed “without delay”. American Airlines and US Airways were planning to close their merger by 9 December 2013.

The US Attorney General, Eric Holder, commenting on the approved merger said:

“This agreement has the potential to shift the landscape of the airline industry. By guaranteeing a bigger foothold for low-cost carriers at key US airports, this settlement ensures airline passengers will see more competition on nonstop and connecting routes throughout the country.”

Author: Paul Phillips (Partner, Head of aviation litigation and regulation with Stephenson Harwood) / Publisher: SCMO