If ACL issues a query, is a sanction inevitable?
No. Raising a query is just the first stage of a process of thorough investigation and our raising a query in no way means that a sanction is inevitable. We will carefully assess any evidence received from the carrier and, at each stage, assess: whether there is sufficient evidence of misuse for potential action, whether the misuse should be excused as being beyond the carrier’s reasonable control or whether further queries to the carrier are merited.
At any stage in an investigation ACL can decide to take no further action or issue a warning to the carrier, rather than levy a formal sanction.
How are carriers selected for possible sanction?
We identify carriers for possible investigation either as a result of our slot monitoring activities or following a complaint (e.g. from an airport), which we will then independently review to decide whether or not the complaint merits further investigation or action.
The majority of our slot monitoring is carried out by matching the actual records supplied to ACL by the Airports against the scheduled (booked) flights in the ACL system. This is carried out on a weekly basis at all ACL coordinated airports. Discrepancies in flights operating without a coordinated slot, operating significantly off slot or operating in a significantly different way to the allocated slot are reviewed.
For our routine seasonal monitoring of on time performance, we also use a mathematical formula called the sig–t test, which was invented in the 1900s. It uses objective, consistent and non-discriminatory criteria to identify operations with a 90% statistical probability of being significantly early or late. It is able to distinguish regular (possibly intentional) off slot operations from occasional delays.
What should I do if I receive a query?
The vital thing is to ensure that you engage with ACL so that we can fully investigate the facts. When we raise a query with a carrier, we will let you know how to respond.
What evidence can ACL ask for?
We can ask for anything that reasonably assists us in investigating or assessing the potential misuse and that may include asking the carrier for data or documents to substantiate any explanation.
The regulations state that a carrier cannot be fined where the slots misuse is beyond its reasonable control (which the carrier must reasonably demonstrate to ACL on a balance of probabilities). The Misuse of Slots Enforcement Code explains in more detail what sort of evidence is required.
Can you give examples of situations which will be deemed beyond the carrier’s reasonable control?
We have to be careful giving examples because a lot will depend on the facts in each scenario and the carrier will need to explain how the specific circumstances relied on were outside of its reasonable control and how they caused the breach of Regulation 14. We may ask the carrier for data or documents to substantiate that explanation. We do provide some examples in the Misuse of Slots Enforcement Code (which is available here).
However, a carrier will always be expected to be planning and scheduling reasonably for known issues. For example, Network ATC delays are predicted by EUROCONTROL and NATS to get worse season on season for the foreseeable future. Those predictions are widely publicised and airlines are involved in the discussions on impact and mitigation and so should be taking reasonable steps to plan for these issues in pre-season scheduling (e.g. in setting block times and turn times).
What should I do if I receive a Notice of Proposed Decision?
A Notice of Proposed decision (NPD) is issued in cases where ACL thinks there is enough evidence to merit a formal sanction. The NPD is notification of the sanction proposed and is designed to give the carrier a further opportunity to engage with ACL if it feels that the issuance or the type of sanction proposed is not reasonable (in the context of the Slot Regulations).
If you feel you have grounds to challenge the proposed sanction, it is vital that you respond to the NPD clearly setting out your grounds and the reasons.
If you fail to engage with ACL at this stage, we will assume that the proposed sanction is not challenged and we will go ahead and issue our notice of final decision, which is when the sanction becomes final and binding.
If a carrier responds to a NPD, ACL’s Slot Performance Manager will review any new evidence provided with ACL’s Head of Regulatory Affairs or the Head of Coordination to decide whether to raise any further questions, to cancel or change the proposed sanction or to maintain it and issue a Notice of Final Decision.
What should I do if I receive a Notice of Final Decision?
The sanction is now active and you must act on it (e.g. where we issue a fine, you must now pay it).
You have the right to appeal against any decision set out in a NFD within 14 days of the date of the NFD. Regulation 17(4) of the Airport Slot Allocation Regulations 2006 (see here for a link to the Regulations) sets out the grounds on which an appeal can be lodged and the process that must be followed is set out in the Misuse of Slots Enforcement Code (see here for a link to the Code).
It is important that you carefully review, and follow, the grounds and procedure for appeal as failure to do so may invalidate any appeal. The independent reviewer will review whether sufficient grounds exist (as defined in Regulation 17(4) of the Airport Slot Allocation Regulations) and have been identified by the carrier before allowing an independent review to take place.
Lodging a request for independent review does not stop or freeze the effect of the sanction imposed (so for example, a financial sanction remains payable).
What do I do if I want to appeal a Notice of Final Decision?
The process for appeals is to request a review of the decision set out in the NFD by an independent reviewer. The independent reviewer is fully independent of ACL and has been approved by the Secretary of State for Transport. The decision of the independent reviewer is binding on both ACL and the carrier.
You should check the available grounds for appeal which are listed in Regulation 17(4) of the Airport Slot Allocation Regulations 2006 (see here for a link to the Regulation) to see whether you have sufficient grounds to appeal a decision. Failure to set out, in your request for a review, in full the specific grounds under Regulation 17(4) that you rely upon can invalidate your appeal.
You should then follow the procedure set out in the Misuse of Slots Enforcement Code (which is available here) which explains how you request an independent review and what information and evidence to include in your request.
A request for review must be lodged within fourteen days of the date of the NFD.
Who is the independent reviewer?
The independent reviewer is an individual who is fully independent of ACL and his/her appointment is approved by the Secretary of State for Transport.
The decision of the independent reviewer is binding on both ACL and the carrier.
Why does ACL have the right to sanction for misuse?
ACL is the UK’s designated slots coordinator. We are governed by the EU Slot Regulations (transposed into English law on 1 January 2021) and the UK Airports Slot Allocation Regulations 2006 (which is available here). These Regulations place a statutory obligation on ACL to monitor misuse of slots and to take action against misuse.
Are independent review hearings confidential?
Independent reviews are normally conducted in writing, unless the carrier requests an oral hearing. Oral hearings are not open to the public unless the carrier specifically requests it to be.
What action can the independent reviewer take?
The independent reviewer has wide powers, including directing ACL to re-consider a decision, directing that the sanction be reduced altered or directing that the decision be varied or cancelled or upholding or increasing the sanction imposed.
Who pays for an appeal?
The independent reviewer will decide who pays the cost of the review (including any legal fees) in such a way as the independent reviewed deems fair with regard to the circumstances.
How much can a carrier be fined for slot misuse?
Regulation 16 of the Airports Slot Allocation Regulations 2006 (see here for a link to the Regulation) states that a carrier can be fined up to £20,000 on each instance of slot misuse.