On 9 October 2024, the European Commission published its guidelines on the interpretation of the refuelling obligations for aircraft operators (“Refuelling Guidelines”).
EU Regulation 2023/2405 (“RFEUA”) specifies the rules on ensuring a level playing field for sustainable air transport. Article 5 RFEUA imposes obligations on aircraft operators with regard to refuelling. The Refuelling Guidelines provide additional information about the interpretation of Article 5 RFEUA.
Article 5 RFEUA requires aircraft operators to refuel at least 90% of the yearly aviation fuel required at each departing Union airport from which they operate commercial air transport flights. This is done so as to avoid the practice of fuel tankering.
There are, however, exceptions to this rule. Firstly, if a derogation is needed based on applicable fuel safety rules (Article 5(2) RFEUA). Secondly, if there are serious and recurrent operational difficulties in refuelling aircraft at that particular Union airport that prevent aircraft operators from performing turnaround flights within a reasonable time (Article 5(3)(a) RFEUA), or there are structural aviation fuel supply difficulties arising from the characteristics of a given Union airport, leading to significantly higher prices for aviation fuel (Article 5(3)(b) RFEUA). Article 5(11) RFEUA states that the Commission must adopt guidelines on the application of the exemptions. The Refuelling Guidelines provide for the Commission’s interpretation on the application of the exemptions referred to in Articles 5(2) and (3) RFEUA.
Exemptions based on Article 5(2) RFEUA
An aircraft operator will be able to derogate from the refuelling requirement if, for safety reasons, an aircraft must be refuelled at the airport of departure. The explicit safety rules are listed in specific rules and regulations.
The derogations from the refuelling requirement will have to be justified, however. For a derogation based on security reasons, an ex ante justification is allowed.
Specifically, the aircraft operator must justify why the amounts of aviation fuel fall below the 90% threshold and not the aviation fuel amounts included in the 10% buffer as Article 5(1) RFEUA provides.
The aircraft operator must also provide an indication of the routes impacted and fuel quantities associated with the fuel tanked for safety reasons.
The Refuelling Guidelines provide for a non-exhaustive list of events that would allow an exemption based on safety reasons: (i) aviation fuel shortage, (ii) aviation fuel contamination, (iii) adverse weather conditions, (iv) social actions (such as strikes or protests) (v) air traffic control delays at the destination airport, (vi) probability of ATC re-routings, (vii) security concerns such as war and (viii) natural disasters.
Exemptions based on Article 5(3) RFEUA
Article 5(3) RFEUA provides two temporary exemptions from the obligation to refuel. Both exemptions have their own set of requirements that need to be met to be granted an exemption (second condition). However, there is also a common condition that needs to be met for both exemptions (first condition).
The first condition relates to the distance of the air travel. The route for which an exemption is requested must fulfil the following criteria:
- the route must be less than 850 km long; or
- the route must be less than 1,200 km long if it connects airports situated on islands without rail or road connection.
The second condition depends on the legal basis invoked.
Firstly, an aircraft operator may rely on Article 5(3)(a) RFEUA and claim that there is a serious and recurrent operational difficulty that has led to unreasonable turnaround times.
What constitutes a serious and recurrent operational difficulty? Would strikes be a serious and recurrent operational difficulty? It is clear that one-off events such as strikes do not satisfy this requirement. On top of proving that the there is a serious and recurrent operational difficulty, the aircraft operator must also demonstrate that the operational difficulty arising at the particular Union airport has a negative impact on it.
To summarise, an operational difficulty must (i) be a repeated event, or a systematic occurrence, linked to the particular Union airport, (ii) result in an unreasonable turnaround time (see below) and (iii) have a negative economic impact on the aircraft operator.
What constitutes an unreasonable turnaround time? This requirement centres on the added times when refuelling. The aircraft operator must prove that the delay is proven to be significant and its negative economic impact on subsequent flights is demonstrated to be so great that the new turnaround times could not be considered reasonable.
Secondly, an aircraft operator may rely on Article 5(3)(b) RFEUA invoking structural fuel supply difficulties arising from geographic considerations. There are four cumulative criteria that need to be met:
- there are structural fuel supply difficulties at the Union airport;
- they are due to the geographic nature of the Union airport;
- they result in significantly higher fuel prices on average than at other Union airports; and
- they lead to a significant competitive disadvantage for the aircraft operator.
Providing the necessary documentation and justifications to prove the above criteria imposes a heavy administrative burden on affected aircraft operators. Nevertheless, the Refuelling Guidelines provide a welcome clarification of the scope of Article 5 RFEUA.
