Travel chaos at Schiphol: The need for tripartite dialogue
Travel chaos at Schiphol is one of the post-pandemic labour challenges to the aviation industry and this disaster will continue till the end of March 2023. What solutions do lawyers have?
Amsterdam Schiphol Airport (AMS) is one of the busiest airports for international passengers. According to 2022 figures from the Airports Council International, it is the third busiest airport for international passengers around the world. Since the summer of 2022, however, untold numbers of departing passengers have had to queue for hours and many even missed their flights. The challenges are not limited to Schiphol though, which can never be an exceptional case in this post-pandemic era. For instance, London Heathrow Airport has imposed a 100,000 daily cap on passenger numbers since the summer, London Gatwick Airport is witnessing long queues snaking out of buildings and hundreds of cancelled flights, and Dublin Airport is advising passengers to allow an extra hour to get through the airport.
This blogpost aims to provide an overview of the causes of the travel chaos, the measures adopted by Schiphol, and the role of air law in mitigating the negative effects of crises.
Reactions from Schiphol
The COVID-19 pandemic has been severely impacting the civil aviation sector since the beginning of 2020. When Schiphol experienced a dramatic reduction in flights, Royal Schiphol Group, as Amsterdam Schiphol Airport’s corporate entity, cut several hundred jobs in the midst of the pandemic. The result is that staffing levels are now lower than what Schiphol requires to meet passenger demand and ensure that flights depart and arrive on time.
In response, Schiphol introduced the following plans to limit crowds and queues. Firstly, Schiphol is actively recruiting new employees, especially security personnel, ground handlers and cleaners to fill current vacancies. Secondly, the airport is increasing wages to improve employment at airports through better rosters and higher productivity. Schiphol, the Netherlands Trade Union Confederation (FNV), and the Christian National Trade Union Federation (CNV), recently reached a joint agreement to increase wages for employees working in security, cleaning, PRM (providing assistance to passengers with reduced mobility), ground handling and private bus transport. Thirdly, Schiphol is also optimising passenger flows in the terminals by, for instance, introducing security coaches who help prepare passengers for the security check. Last but not least, Schiphol has decided to cap the number of flights and departing passengers through to the end of March 2023. The fact that travel chaos continues to puzzle passengers and the reduced capacity is forcing people to have recourse to alternative traffic options can exert negative impacts on the reputation of airlines among passengers. This leads to serious financial challenges to the aviation industry which is struggling to recover from the COVID-19 pandemic. Apart from these measures to reduce travel inconveniences, Schiphol has introduced a compensation scheme for passengers who missed their flights due to long waiting times at security. This compensation scheme now applies to the period from 12 August to 31 October 2022.
Legal gaps in air law
While flight limitations and travel chaos keep causing problems for airlines and passengers around the world, there are no air law instruments specifically designed to address the liability of airports in cases of flight delays or cancellations. The Chicago Convention (1944), as the Magna Carta of international air law, focuses on aviation safety and security. The Montreal Convention (1999) only covers the liability of airlines in prescriptive situations, without touching upon liability of airport operators for the damage suffered by passengers. Moreover, Regulation (EC) No 261/2004, establishing minimum rules for the protection of passengers under EU law, does not address the liability of airports. There remains the possibility that airlines shall be liable for flight delays or cancellations to the extent that they could have rescheduled their flights according to airport capacity conditions. How far this grievance regime can proceed depends on the discretion power and disposition of judges in the interpretation.
Another barrier to granting relief to passengers is the perception of the status of airports. The position of airports differs from one jurisdiction to another. In the EU, following the decision of the Court of Justice of the European Union in Aéroports de Paris, airports are qualified as civil undertakings, implying that they may be subject to liability. Still, the increasing private ownership of European airports is a relatively recent phenomenon. Schiphol is entitled to exceptional competition rules, though the Netherlands Competition Act generally applies to the civil aviation sector as a whole. As a matter of fact, Royal Schiphol Group is owned by the State of the Netherlands (69.77%), Amsterdam (20.03%), Rotterdam (2.20%) and Groupe ADP (8.00%). Notably, Royal Schiphol Group is also the major owner of Eindhoven Airport (51.00%) and Rotterdam The Hague Airport (100%), to which some flights have been moved from Schiphol. This increases the complexity of applying competition law to deal with the travel chaos at Schiphol.
Then the question arises as to what industrial stakeholders can do to cope with travel chaos at Schiphol post-pandemic.
On the one hand, while airlines can further restrict ticket sales, they shall also have recourse to legal strategies to ameliorate situations at Schiphol. These include claims such as breach of contract and anti-competitive effects arising from the monopolistic position of Schiphol. On the other hand, the regulatory authorities of the EU and the Netherlands shall adopt regulatory measures to enable civil aviation operations to resume. Labour issues are not restricted to Schiphol or even the airport sector. The Air Line Pilots Association (ALPA) in the US announced that 94% of the nearly 10,000 United Airlines pilots voted to reject the tentative contract with unfavourable conditions, and Delta Air Line pilots voted 99% in favour of authorising a potential strike. Perhaps the more important thing lies in what painful lessons we can learn from this pandemic, including the changes to labour arrangements adopted by aviation stakeholders. With increasing involvement of governments, representatives of employers and employees, social dialogue can prospectively contribute to more flexible and sustainable aviation employment structures to counter the volatile capacity demands of air transportation.
The travel chaos at Schiphol will hopefully end eventually, but it remains to be seen whether long periods of flight restrictions will lead to negative impacts on Schiphol’s competitive position on the European and global playing field.