The complaint by JetBlue and others regarding the final decision has been approved by the U.S. Department of Transportation (DOT). The government agency will take a closer look at the flight operation of KLM and others to the US. Dutch airlines KLM, Martinair and “TUI Airlines Netherlands” have been asked to submit their planned flight schedules to and from the U.S. to the ministry for revision within seven days. This is stated in ‘Order 2023-11-6 – IATFCPA – Order Approving Complaints – Part 213 Phase 1[91]’ as held by Travmagazine. The conclusion in the document reads as follows: ‘The Department has decided to approve the Joint Complaint of members of A4A and the Complaint of JetBlue. Also, the Department will require Dutch carriers to file schedules pursuant to Part 213 for all of their services to and from the United States.’ This in response to Schiphol’s slot allocations for summer 2024, which were announced yesterday. The U.S. Department of State calls the JetBlue case “an unjustifiable and unreasonable restriction on access of an air carrier to the U.S.-Amsterdam market.” It may mean that KLM and other Dutch airlines will have to surrender slots to American destinations in response to the Dutch decision. It is especially bad news for KLM in the all-important U.S. market. TUI Netherlands has a much smaller operation at Miami and Orlando Sanford. Open Skies The complaint was filed by JetBlue and the Members of the Air Transport Association of America (A4A). JetBlue would have to depart from Schiphol as early as summer due to the decision. The airline previously stated that ‘The non-allocation of slots is in violation of the Open Skies Treaty between the US and the EU, which regulates that airlines have free access to each other’s markets‘. As it was announced yesterday, 24 airlines without ‘historical landing rights’ will have to surrender their slots, and others will have to shrink. Many airlines are taking steps, considering them or resigning themselves to them. Out of the ordinary This complaint has now been upheld by the DOT. “We find that this practice, in the totality of the circumstances presented, constitutes violations of the U.S.-EU Agreement, and we conclude that approval of the complaints is warranted. The Dutch airlines’ operation on the U.S. is now under closer scrutiny. It is an uncommon decision, one that actually did not apply under the Open Skies agreement. Slot restrictions for Dutch airlines in the US are therefore a real option. From the decision “Finally, we remain concerned that the actions taken by the Government of the Netherlands effectively preclude opportunities for new entrant carriers to operate at AMS. Indeed, we find particularly alarming that JetBlue, a relative new entrant at AMS, has been notified that it will receive no slots for the Summer 2024 season. While we are careful to not conflate slots with traffic rights under the U.S.-EU Agreement, we are deeply troubled by the notion that new entrants will be completely foreclosed from slot access at AMS, without any secondary or alternative means to obtain access at AMS, particularly if those alternative options are precluded on a basis that is discriminatory toward unaligned or unaffiliated carriers. As we have conveyed to the Dutch Ministry before, we believe this step poses a serious risk to the open-entry predicate required for the Department’s grants of antitrust immunity to joint ventures operating in the U.S.-AMS market. Against that background, we find that the implementation of the Government of the Netherlands’ Phase 1 noise reduction plan at AMS constitutes an unjustifiable and unreasonable discriminatory and anticompetitive practice, and we further find that the Government of the Netherlands has imposed an unjustifiable and unreasonable restriction on access of an air carrier to the U.S.-Amsterdam market. We find that this practice, in the totality of the circumstances presented, constitutes violations of the U.S.-EU Agreement, and we conclude that approval of the complaints is warranted. We accordingly grant the relief requested by A4A and JetBlue to the extent that they request the Department to initiate consultations. We also find, based on the above, that it is in the public interest to exercise our authority under Part 213 of the Department’s regulations to require Dutch carriers — KLM, Martinair, and TUI Airlines Nederland — to file schedules for their services to or from the United States within seven (7) days of the date of this Order.” KLM has been asked for comment, more later.
