The joint board of the National Civil Aviation Agency (Anac) approved sending for public consultation a draft resolution with new rules on airport coordination and allocation and monitoring of the use of airport infrastructure. The main reason for the proposal was the halting of the operations of Oceanair Linhas Aéreas S.A. in 2019, when Anac and the Administrative Council for the Defense of Competition (Cade) identified a possible increase in concentration in some airports, a fact that could cause impacts on the Brazilian air market.

Following a temporary redistribution of Oceanair's slots (airport infrastructure allocated to the air operator to perform a landing and takeoff operation at specific date and time), Anac identified the need to revise the existing regulation (Anac Resolution 338/21) to better address operational issues, minimize competitive impacts, and increase efficiency in the use of airport infrastructure.

One of Anac's greatest concerns is the criteria for slot distribution at airports with saturated infrastructure and the potential impediment to access by new operators. In revising Resolution 338/21, the agency found that the allocation criteria are not sufficient to promote market deconcentration and allow the operation of new airlines, making competition unviable and reducing the possible benefits for users.

To remedy the problem, the regulatory agency proposes to create a category of airport called "coordinated saturated airport - level 4", that which "has a level of airport capacity saturation that compromises any of the critical components (runway, tarmac, or terminal), as well as conditions that result in barriers to entry, with potential damage to the contestability of the market and effective competition", according to the wording of the draft of the new resolution.

By establishing new criteria, Anac intends to mitigate the problem of lack of infrastructure and seeks to offer better services to society. The technical note that supports the draft resolution indicates a series of technical arguments and international principles that help support the idea of a new regulation. The structuring principles of the new standard are as follows:

  • Efficiency - optimizing the use of available airport infrastructure;
  • Contestability of the market - establishing a regulation that no longer represents a barrier to new entrants and that allows for increased competition;
  • Regulatory stability - alignment of Brazilian norms with international standards;
  • Operational/administrative cost improvement - creation of methods to decrease the operational costs of airlines and Anac's administrative costs related to slot distribution and redistribution processes.

Another important point in the draft resolution, which may bring about significant changes for the dynamics of the Brazilian air market, is the regulation of slot transfers and exchanges, currently prohibited by Resolution 338/21. By removing the limit for the assignment and exchange of slots, Anac intends to enable the operation of companies that did not obtain slots due to lack of availability. By allowing the assignment or exchange of slots, Anac intends to increase access to the market and reduce the occurrence of corporate transactions conducted for the sole purpose of acquiring the right to use the slot. The slots still do not constitute assets of the air transport company and represent exclusively the right to use the airport infrastructure on a temporary basis. The maintenance of this right is linked to compliance with the criteria established in the resolution.

The exchange or assignment of slots will need to be approved by Anac, which will evaluate the characteristics of the operation of each of the parties involved and the airport’s capacity. An airline that gives up slots will be prohibited from receiving them from the slot pool for three equivalent seasons, except in cases where there are no other interested parties. In addition, only companies that have had a recognized slot history for three consecutive equivalent seasons will be able to assign slots. In cases involving saturated airports (level 4), only companies with a percentage equal to or lower than the percentage defined in a specific declaration submitted by the airport operator when preparing the coordinated airport declaration may receive slots.

If approved, the new resolution will cause significant changes in the planning of air transport companies. The text of the resolution is still subject to change and can be accessed on Anac's official website. Contributions to the draft may be made by any citizen or company until December 9, 2021, through the appropriate electronic form, also available on the official website of Anac.