122 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 2. THE 80/20 RULE Under Article 10 of Council Regulation (EEC) no 95/93 of 18 January 1993, airlines are subject to the 80/20 rule, which is also known as the “use it or lose it” rule. This 80/20 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 “80/20 rule”). But, if the threshold of 80% is not reached, the slots go to the slot pool for allocation to a different airline carrier. The coronavirus crisis has resulted, in its first moment, in a considerable drop in the number of European flight bookings made. The effect of this has been tremendous, with airlines operating empty (ghost flights) or almost empty flights for the sole reason of not losing their allocated slots. Slots are assets to the airline companies and they are treated with care, as they represents a real value to its holders, especially when we have on table the EU Proposal to make the exchange of airport slots valid and promoting the “tradeable” nature of these rights under EU law. Finally, these slot rights should be considered as contractual rights and not property rights, opening the way to apply rules and principles coming out from the contractual ruling. The existence of a given slot allocated to an airline carrier should not mean any kind of property, but a right contractually granted to use an airport. 3. POSSIBLE REACTIONS TO PROTECT AIRLINE COMPANIES This problem can have, in our opinion, two possible approaches: the legislative approach; and the contractual approach. 3.1. The legislative approach The 80/20 rule can be suspended by rule of law. In fact, this would be nothing new as this rule has been suspended on previous occasions, including after the 9/11 terrorist attacks, following the Severe Acute Respiratory Syndrome (SARS) outbreak, during the 2003 war in Iraq and the 2009 financial crisis.
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