JetBlue Airways (B6, New York JFK) has filed a complaint against the Dutch government and the European Union over a planned capacity cap in aid of noise and carbon emissions control at Amsterdam Schiphol, calling for drastic countermeasures that could impact KLM Royal Dutch Airlines.

In a regulatory filing, the budget carrier called for an immediate, targeted, and impactful response from the US Department of Transportation (DOT) in light of what it claimed was the threat of its imminent expulsion from Schiphol in 2024 at the end of the coming winter season due to the proposed capacity cap.

The September 28 filing revealed that its complaint lodged with the DOT was filed under the International Air Transportation Fair Competitive Practices Act (IATFCPA). It supported a separate complaint filed by Airlines for America (A4A) on September 22 over the same issue.

Legal challenges

The Dutch government's plan to cut capacity at Schiphol from 500,000 to 440,000 flights annually is hugely unpopular with the wider aviation industry, with KLM itself leading a campaign against it, along with the International Air Transport Association (IATA); A4A, which represents ten major US airlines; and industry associations BARIN, Air Cargo Netherlands (ACN), Airlines for Europe (A4E), and the European Regions Airline Association (ERA).

Legal steps to try to halt the cap have been unsuccessful, with the Amsterdam Court of Appeal overturning a lower court's decision that the scheme contravenes European Union requirements for a balanced approach to noise and carbon mitigation. The appeals court ruled that the Dutch state may establish a temporary experimental scheme, which is now pending before the European Commission. The Dutch cabinet will make a final decision once Brussels has responded.

In the meantime, the Dutch government on September 26 granted the airport a nature permit allowing it to reduce its capacity to 440,000 flights annually but also allowing up to 500,000 until the cabinet decides on the matter.

"Flagrant violation"

As a new entrant in the US-Dutch market, JetBlue claims it faces expulsion from Schiphol if the Netherlands approves the scheme as it will drastically reduce airport capacity "without regard for legally binding procedures or any provision whatsoever for new entrant access" and "in flagrant violation" of the US-EU open skies air agreement.

It said that instead of heeding its request to suspend implementation, "the Dutch government has doubled down [...], announcing on September 1, 2023, that, effective with the summer 2024 IATA scheduling season, which begins on March 31, 2024, AMS operations will be capped at 460,000 annually - an 8% reduction in the airport's current annual cap. Thereafter, effective with the winter 2024/2025 scheduling season, which begins on October 27, 2024, the cap will be further reduced to 452,000, nearly 10% below the airport's pre-Covid level of operations."

JetBlue claimed the first phase of the scheme would see the confiscation of carriers' slots at Schiphol. As it only recently began its service to Amsterdam from New York JFK and Boston, and based on communication from Dutch slot coordinator Airport Coordination Netherlands (ACNL), it "reasonably expects that it will not be allocated any slots at all for the Summer 2024 scheduling season."

It added: "The situation cannot be allowed to stand. The Dutch government's action is precisely the type of 'unjustifiable or unreasonable restriction on access' that the IATFCPA is intended to remedy. The time has come for the Department to take immediate and decisive responsive action".

JetBlue suggested that the DOT impose schedule filing requirements on Dutch-flagged carriers flying to the US. Based on this, the DOT could determine reciprocal reductions, which it argued, would send "an immediate message to the Dutch carriers and their government that the Department is ready to act in defence of US carriers' bilateral rights.

KLM, in a statement shared with ch-aviation, responded as follows: "KLM is also disappointed with the decision taken regarding this experimental rule. KLM focuses on the cassation case to demonstrate that the procedure followed does not comply with legislation and regulations. In addition, the EU's so-called balanced approach procedure is currently underway, in which KLM shows with the alternative plan 'cleaner, quieter, more economical' that the aimed noise reduction can also be achieved without a lower cap on flights. We have repeatedly pointed out to the Dutch government the possible consequences that a forced downsizing could entail."

A spokesperson for Schiphol said: "The most important thing for Schiphol is that aviation becomes quieter, cleaner, and better. From the airport's perspective, we are doing this through our recently launched eight-point plan, among other things." That plan includes transitioning to new noise and CO2 agreements, banning noisy aircraft, a nighttime curfew, and reserving 2.5% of slots for cargo flights from 2025/26.