308 COMPETITION LAW IN TOURISM number of gates, etc. One of the most important obstacles to competition is the lack of airport capacity at congested airports throughout Europe. The lack of capacity leads to a situation in which it is impossible to guarantee that all airline companies will be entitled to a slot or, if they are given a slot, that it is at a desirable time. It appears to be obvious that if there is no slot, there is no operation and thus no competition. Article 101 (former 81) of the EUTreaty contains the most relevant provision regarding competition, which prohibits and makes void agreements preventing, restricting or distorting competition affecting trade within the EU. Article 102 (former 82), another important competition rule, prohibits abuse of dominant position. The abuse of a dominant position is likely to arise in cases where the operator of an airport seeks to alter slots to the benefit of its main customer- -airline. Both of these issues apply to slot allocation and demand further investigation. Slot allocation in the EU is ruled by Council Regulation (EEC) 95/93 of 18 January 1993 (Slots Regulation). This rule has been amended four times (in 2002, 2003, 2004 and 2009), and these amendments to the Slots Regulation represent a gradual but clear process to create a more flexible system of airport slot allocation. As a final step of this process, the EU is considering the introduction of rules for secondary trade-in slots (slot exchange) in order to increase airport efficiency. The existing system allocates slots based on several criteria and can be summarised as follows: a) Identify congested airports2; b) Nominate an independent slot coordinator; c) Slots attributed based on grandfather rights (80/20 rule)3; d) Slots returns to the slot pool if the airline fails to comply with the 80/20 rule; e) 50% of the slots in the slot pool must be delivered to new entrants. 2 According to IATA, the number of capacity-constrained airports continues to grow throughout the world, requiring a slot process to manage allocation. In summer 2018 there were 204 slot-coordinated airports worldwide and 1.5 billion passengers depart annually from a slot coordinated airport (43% of global departing passengers). 3 This rule means that if an air carrier has used a series of slots for at least 80% of the time during the season, it will be entitled to the same series of slots in the following corresponding season (“historical slots”, “grandfather rights” or 820-20 rule”). If the threshold of 80% is not reached, the slots go to the slot pool for allocation.
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