Legal Alert | Reminder - Slots violation and violation of the restrictions imposed at night, in Portugal

LEGAL ALERT NOV. 2023
REMINDER
Slots violation
and violation of the restrictions
imposed at night,
in Portugal
Slots violation
The take-off or landing of an aircraft at coordinated airports
in violation of the specific date of the allocated slot,
without this being due to force majeure or operational
reasons, constitutes a very serious infraction, pursuant to
point g) of paragraph 1 of article 9 of Decree Law number
109/2008 of June 26 th , as amended by Decree Law number
98/2018 of November 26 th and by Decree Law number
7/2020 of March 3 rd .
The take-off or landing of an aircraft at coordinated airports
on the date for which the slot was allocated, but in violation
of the same slot, without this being due to force majeure
or operational reasons, constitutes a serious infraction, pursuant
to point c) of paragraph 2 of article 9 of Decree Law
number 109/2008, of June 26 th , as amended by Decree law
number 96/2018 of November 26 th and by Decree Law number
7/2020 of March 3 rd .
PORTUGAL - ANGOLA - BRAZIL - CABO VERDE - GUINEA BISSAU - MOZAMBIQUE

Article 3 of DL 109/2008 states on paragraph 1 that “for the purposes
of applying the provisions of Council Regulation (EEC) No. 95/93 of 18
January, as amended by Regulation (EC) No. 793/2004 of the European
Parliament and of the Council of 21 April, Lisbon, Porto and Madeira
Airports are designated as coordinated.”
As for Faro Airport, it is designated as a coordinated airport in the
summer IATA period and as an airport with facilitated schedules in
the winter IATA period.
Ponta Delgada Airport is designated as an airport with facilitated
schedules.
This is relevant since the access to a coordinated airport shall only be
possible through the allocation of a slot to the air operator, in accordance
with Council Regulation (EEC) No 95/93 of 18 January 1993, as
amended, without prejudice to the exceptions provided for therein
(Article 6 DL 109/2008).
The problem with a slot violation may become significant since the
coordinating body may refuse to allocate a slot or series of slots and
require the return to the reserve of slots already allocated, in situations
where the air operator concerned has repeatedly and intentionally
disregarded the rules on the allocation and use of slots (paragraph 6
of article 6 of DL 109/2008).
Still, the conditions for the application of this precautionary measure
must be proven by the existence of at least three final and unappealable
convictions, in administrative offence proceedings, in the last five
years, whose object is precisely the intentional disregard for the rules
referred to in the previous paragraph, without prejudice to the mechanisms
of recidivism provided for by law (paragraph 7 of article 6 of DL
109/2008).
Article 9 of DL 109/2008 states on paragraph 6 what, for the purposes
of paragraph 1(d) and paragraph 2(b) and (c), is considered to be cases
of force majeure:
(a) Aircraft in urgent situations, taking into account meteorological,
technical failure or flight safety reasons;
(b) An unforeseen time change caused by an abnormal disturbance
in air traffic control;
(c) Unforeseen time change caused by delays not attributable
to the airport managing body or the air operator;
(d) Unforeseen time change caused by meteorological reasons.
rsa-lp.com
RSA - Advogados

LEGAL ALERT NOV. 2023
REMINDER
Slots violation
and violation of the restrictions
imposed at night,
in Portugal
3
On paragraph 7 it states that when the air operator fails to comply, for
reasons not attributable to it and which are subsumable to cases of
force majeure or operational reasons, it shall, within 72 hours, communicate
such facts to the coordinating body, proving and substantiating
the operational reasons or cases of force majeure.
Of course this will only be applicable if the air operator has the knowledge
of the problem beforehand.
Paragraph 5 of the above-mentioned article 9 of Decree Law 109/2008
states that operational reasons are those that result from the air services
interruption, that make practically and technically impossible for
the aircrafts operator to operate.
As for the violation of the operational restrictions imposed at night,
it constitutes a serious infraction pursuant to point f) of paragraph 2
of article of Decree-Law number 9/2007, of January 17 th , as amended
by Decree Law number 278/2008 of August 1st. This Decree Law approves
the General Noise Regulation so it intends to enforce rules on
the noise pollution, in order to safeguard human health in the population
that, in this specific case, resides near the Portuguese airports.
In accordance with article 2 (1) e) of DL 9/2007, this regulation is applicable
to transport infrastructures and, according to article 26 point b),
the entity responsible for the licensing or authorization of the activity
is responsible for supervising the rules laid down by this regulation.
Therefore, ANAC is the responsible entity for the supervision.
Article 20 paragraph 1 states that the landing and take-off of civil aircrafts
between 0 and 6 o’clock are prohibited at airports and aerodromes
not covered by the provisions of Decree Law 293/2003 of November
11 th , except for reasons of force majeure.
It’s also important to note that the standard time in mainland Portugal
varies under the terms defined in Decree Law 17/96 of March 8 th .
Therefore, the local time in mainland Portugal coincides with Coordinated
Universal Time (UTC) in the period from 1 am UTC on the last
Sunday in October to 1 am UTC on the last Sunday in the following
March (winter time) and it coincides with the coordinated universal
time increased by sixty minutes in the period from 1 UTC on the last
Sunday in March to 1 UTC on the last Sunday in October (daylight saving
time).
Nevertheless, Portuguese courts have been considering that it’s not
rsa-lp.com
RSA - Advogados

4
Confiança
Experiência
Partilha
Trust
Experience
Sharing
any quantum of delay that matters to be considered punishable in
administrative terms, acknowledging some tolerance of 15 minutes.
There are also exceptions, regarding cases of force majeure or operational
reasons that can exclude punishability, having the aircraft operator
to allege and prove them.
The ancillary sanction of publicity of the punishment may be applied
if one’s convicted, under the terms provided for in article 38 of the
Framework Law on Environmental Offenses (enforceable by article 28,
paragraph 4 of the General Noise Regulation).
That said, it’s very commom for an aircraft operator to be notified of
misdemeanor’s proceedings regarding slot violations and, consequently,
violation of the operational restrictions imposed at night, in
those flights that should depart until 00:00.
Considering that the fines amounts may be elevated and, mainly,
that recurrent convictions may affect the slots allocation, it is important
for the aircraft operators operating in Portugal to determine
the relevance of presenting a defense to the misdemeanor’s
proceedings, to minimize or even extinguish the penalty and / or
responsibility.
Esta comunicação contém apenas informações gerais e, por conseguinte, não constitui aconselhamento profissional
ou a prestação de serviços pela RSA LP, pelas suas sociedades membros ou pelas entidades com
elas relacionadas. Antes de qualquer acto ou omissão que o possa afectar, deverá consultar um profissional
qualificado.
Nenhuma entidade da rede RSA LP poderá ser responsabilizada por quaisquer danos ou perdas sofridas pelos
resultados decorrentes da tomada de decisões com base nesta comunicação.
This communication contains only general information and therefore does not constitute professional advice
or the provision of services by RSA LP, its member firms or their related entities. Before any act or omission
that may affect you, you should consult a qualified professional.
No entity in the RSA LP network may be liable for any damages or losses incurred by the results arising from
the decision-making based on this communication.
Para mais informações, contacte-nos:
For more information contact us:
Manuel Nobre Correia
Coordinating Lawyer
manuelcorreia@rsa-lp.com
Ana Margarida Paulo
Associate Lawyer
anamargaridapaulo@rsa-lp.com
PORTUGAL - ANGOLA - BRAZIL - CABO VERDE - GUINEA BISSAU - MOZAMBIQUE