When can airlines be denied access to foreign flights?

The procedure for admitting carriers to carry out international air transportation of passengers is regulated by Order of the Ministry of Transport No. 108 dated March 24, 2021. According to this document, approvals can be revoked if flights on these routes are not operated during two consecutive completed seasons of the International Air Transport Association (IATA) schedule. Also, grounds for revocation of approval may be delays of more than 10% of the total number of flights due to the fault of the carrier during two IATA seasons.

In March 2022, after Western sanctions were imposed on Russian aviation, the Federal Air Transport Agency approved a temporary algorithm for transferring the clearance of one carrier to another. This was done to be able to continue flights to destinations where a carrier with a valid clearance could not fly due to the risk of seizure of dual-registered aircraft. In this case, airlines with “cleared” airliners can request and temporarily receive someone else’s permits for three months with the possibility of auto-renewal.

Difficulties with access to international transportation for Ural Airlines began due to the dual registration of 52 Airbus in the Russian and Bermuda registers, recalls BGP Litigation Advisor Vlad Rikov. When considering the issue of returning clearances after the re-registration of 19 aircraft into the ownership of NLK Finance, he adds, preference will be given to those airlines that have a real ability to operate flights in the declared volume without the risk of arrest or delay of the aircraft.

If the regulator, for one reason or another, refuses to return the permits or terminates their validity, the chances of the airline appealing the decision will be small, the lawyer believes. There are very few such disputes on the market, and the courts in most cases refuse to satisfy the claims. Thus, when Transaero’s permits were transferred to Aeroflot, the airline failed to appeal and cancel the actions of the Federal Air Transport Agency, recalls Mr. Rikov.

Another lawyer, speaking on condition of anonymity, suggested that the logic of the regulator’s decision on a possible transfer was “a demonstration of strength and incentives for the carrier to protractedly negotiate contracts with NLC.” He notes that the admission of charter iFly, which lost access to foreign flights on tourist destinations, was not requested by other carriers.

The regulator’s decision is not a compulsion, it only states the facts, argues Yuri Fedyukin, managing partner of the legal company Enterprise Legal Solutions, in the absence of a tripartite agreement, the risks of aircraft arrest abroad remain, the presence of these risks does not allow the operation of aircraft, the carrier’s permits are not required. “In general, there are no alternative options for resolving this situation, other than concluding the notorious agreement with NLC and eliminating double registration,” he concludes. In this situation, the regulator acts within the framework of its powers, “moreover, it does not cancel permits, but only temporarily transfers them to those carriers who can use them, which is not only legal, but also meets the interests of a wide range of people, starting from carriers , ending with passengers, since such a decision could lead to an increase in flights, competition and, as a result, a reduction in ticket prices,” the lawyer emphasizes.

Compulsion, Mr. Fedyukin summarizes, would be an order to conclude such an agreement with NLC within a strictly limited period in order to avoid cancellation of approvals, “but this is not an order.”

Aigul Abdullina