IL DIRITTO DELLA CONCORRENZA, CON PARTICOLARE RIGUARDO AL TRASPORTO AEREO

ABSTRACT The thesis deals with the application of competition laws in the field of air transport within the Italian-Community legal system. The work addresses particularly one issue which currently hinders a further development of competition laws in this sector, namely the subject of slot allocation. In fact, within infrastructure issues, slot and gate scarcities, which are also seen as ‘non commercial' entry barriers, represent the most obvious physical barrier to entry, as without a slot and a gate, an airline cannot operate. The thesis is divided into four parts. In the first part of the work, it has been analyzed the deregulation and liberalization process, both in EU and in US. It has been pointed out that slot allocation is a means by which governments intervene in the air transport sector regulating it, but in a way very different from the past, when flag carriers dominated the market. Moreover, competition issues have been analyzed internationally, especially under the ICAO and IATA umbrella. In the second part of the thesis, the ratio and the legal nature have been addressed deeply. It has been backed up the idea that slots are natural resources which belong to States, which in turn exert their sovereignty over them. Slots are complex goods, and they relate to the time, from one hand, and to the air space, from the other hand. This is why slots are considered public goods, hence they are not tradable in the marketplace as a private good. Neither air carriers nor others (whoever they are) could claim property rights over slots, which according to Regulation No. 95/93 are ''permissions'' allocated by a public authority, namely the so-called airport Coordinator. Then, the air traffic airport coordination has been studied, taking into account the threefold classification of congested airports: coordinated, not coordinated and facilitated. In terms of airport congestion, a very important difference we did is that between traffic rights and airport slots. In this regard, in January 2010 the Italian Constitutional Court clarified that the two profiles have to be kept separated, because they refer to different aspect of airport congestion. A different stance is taken by ICAO and some States (especially African ones), which have pointed out the linkage between traffic rights and airport slots. Furthermore, the legal nature of the airport Coordinator has been addressed. According to our research, it seems to be a private entity responsible for public functions. In the third part of the work, the slot allocation and the slot mobility have been dealt with. Particularly, the slot allocation is an administrative process under which slots are allocated as permissions by a Coordinator. Consequently, slots may be freely exchanged or transferred, but not traded or sold, because of the public nature of the good ''slot'', and in light of both Community and international Regulations in this subject. It has been criticized a recent Communication issued by the European Commission which de facto introduced arbitrarily the secondary trading in the European legal system. The last part of the thesis is devoted to the Italian, Community and international public controls in the slot allocation system. In Italy, the Minister of Transportation together with ENAC (Ente Nazionale Aviazione Civile) carry out administrative controls over the activities and duties of the Italian Coordinator (Assoclearance). As concerns judicial reviews, administrative and civil Courts have jurisdiction in the field of slot allocation according to the nature of breaking. In the European Union, the European Commission is tasked of controlling - under an administrative point of view - the Member States' entities appointed to allocate slots. The judicial review is carried out by the European Court of Justice and by the European Court of Human Rights. Internationally, dispute settlement mechanisms are worked out at IATA and ICAO. These lust mechanisms are not binding for airlines and States respectively, so they have little effectiveness. The conclusion is that the slot allocation system should remain of administrative nature, because in those systems where market mechanisms have been developed (such as in the US) competition issues have not been solved; rather, much more problems have been created as incumbent airlines are reluctant to sell slots to their competitors. It is suggested to reinforce the application of the use-it-or-lose it rule in order to enable new air carriers to have access to the market. In this way, competition might be fostered in the European legal system and the aims of Regulation no. 95/93 attained.