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May 29, 2024
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UPDATE – While the Dutch Minister for Transportation, environmentalist groups, and citizens cry victory, the airline industry is confused (or even flabbergasted) by the U-turn taken today by the Dutch Court of Appeal. It annulled an April ruling by a lower court and said that capacity at Amsterdam Schiphol can be reduced to 460.000 movements after all. When this will happen, is unclear, but likely with the 2024 summer season in March. Dutch Court of Appeal makes U-turn on capacity cap Schiphol.

When Minister Mark Harbers presented his plans a year ago to curb capacity from the maximum 500.000 to 460.000 movements from November 2023 and to 440.000 by November 2024, the initial reaction of the airline industry was a wait-and-see approach. The Dutch State motivated its plans by saying that noise reduction in the wider Amsterdam region had to be curbed to reduce noise pollution for citizens in surrounding communities. He wanted to end the situation in which noise infringements were tolerated since 2015 when the ‘preferred runway’ was used for ATC purposes.

As Harbers progressed with his ‘experimental rule’, a group of airlines led by KLM, Corendon, but also backed by easyJet, Delta Air Lines, jetBlue, British Airways, United Airlines, Vueling, Lufthansa, Air Canada, FedEx, Airlines for America, and IATA, went to court in Haarlem in March. A month later, the court ruled in their favor, saying that the State had not followed to correct procedure for the reduction to 460.000 movements. Even for the interim step, it had to follow a Balanced Approach procedure outlined by the European Commission. Harbers is using this for his cap of 440.000, having just completed the consultation phase until mid-June.

Not happy with the outcome of the April ruling, the State appealed… and won today. The Court of Appeal in Amsterdam ruled that the experimental rule doesn’t require the Balanced Approach procedure because it is a temporary step to reduce capacity. Furthermore, it says that it is not in the interest of citizens if the current situation of tolerating noise infringements is continued.

The fear of the airlines that they will suffer serious damage as a result of the proposed measures is no reason for the Court of Appeal to arrive at a different outcome in the context of these interim measures on the basis of a weighing of interests, not even in combination with other interests, whether or not from third parties, such as maintaining employment, Schiphol’s hub function and passengers,” the Court says.

More clarity in two months

In a letter to Parliament, Secretary Mark Harbers welcomed the ruling and said that the legal position of citizens has been safeguarded by terminating the situation in which noise infringements were tolerated (by his own regulatory agencies since 2015 …).

Harbers said the Ministry will now study the ruling and inform Parliament in September what will be his next step. He also offered to consult with the airlines to discuss the situation.

KLM could be hit hard at its home base when it is forced to reduce capacity. The airline might have to cut 43.000 flights a year on the European and Intercontinental network. (Richard Schuurman)

Amsterdam Schiphol Airport, which under the interim CEO Ruud Sondag earlier welcomed the capacity reduction as a “necessary step”, accepts the outcome of the Court of Appeal. The airport expects the State to provide further clarity about the number of flights within two months, when “we need to determine the capacity declaration for the 2024 summer season.”

“As we have said before, we believe that a new airport traffic order should be introduced as soon as possible with clear and enforceable environmental limits that provide clarity and perspective for all parties involved. Because the most important thing for us is that Schiphol becomes quieter, cleaner, and better.”

Airlines disappointed

Airlines and unions respond with disappointment and concerns and fear that the proposed capacity reduction next March and another one in November will erode the attractiveness of Schiphol as an international hub. In a statement, the airport’s main operator KLM said:

“We are disappointed about the ruling and are studying it. The court does not specify in concrete terms how an experimental regulation can be applied. As a result, it is currently unclear when, how and in what way the ruling will be implemented and what it means for the number of aircraft movements at Schiphol.”

“KLM will continue to engage with other stakeholders in seeking the best way to reduce the number of people affected by aircraft noise. To this end, we have submitted a plan for cleaner, quieter, more fuel-efficient flight operations on 15 June. We are convinced that these measures will enable us to reduce noise impact and CO2 emissions, while retaining our network.”

“We would very much like to achieve this in cooperation with government and airport authorities, Air Traffic Control the Netherlands (LVNL) and other stakeholders, within the framework of the balanced approach required by the EU in the context of the noise reduction targets the ministry has set.”

IATA wants EC to intervene

In similar wording, IATA is disappointed by the Court of Appeal ruling. Director General Willie Walsh has been very vocal in his criticism of the capacity reduction, notably last month during the Annual General Meeting in Istanbul. Airline CEOs in Istanbul, including Emirates President Sir Tim Clark, reacted with disbelief that the Dutch government is self-destroying one of the most efficient hubs in the airline industry.

IATA maintains its position that the Dutch government needs to follow the Balanced Approach procedure, which is part of the annexes to the Chicago Convention and of European legislation. “The full impact of this decision on the planned capacity cuts is unclear and there are no established international processes for such a retrograde exercise. We also urge the European Commission to defend its laws and air service agreements,” Walsh says in a media statement.

“And most importantly, we continue to ask the Dutch government to revert to the Balanced Approach which is the most effective and only internationally accepted means of dealing with the noise concerns of the local community.” 

Complications

To make the situation most complicated is that the Dutch government resigned on Friday evening over differences between the four coalition parties over migration policies. This situation will result in new elections sometime this autumn, although this needs to be confirmed. The consequence is that the capacity reduction plan likely will be declared a controversial topic on which the outgoing administration can’t make any decisions.

author avatar
Richard Schuurman
Active as a journalist since 1987, with a background in newspapers, magazines, and a regional news station, Richard has been covering commercial aviation on a freelance basis since late 2016. Richard is contributing to AirInsight since December 2018. He also writes for Airliner World, Aviation News, Piloot & Vliegtuig, and Luchtvaartnieuws Magazine. Twitter: @rschuur_aero.

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