Norwegian Air International Limited, OST

Transcription

1 Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street NW Washington, DC tel fax August 15, 2016 DOT Dockets Office Department of Transportation 1200 New Jersey Avenue, SE Room W Washington, D.C Josh Romanow tel: Re: Norwegian Air International Limited, OST Norwegian Air International Limited hereby submits the attached letter 1 to the Honorable Violeta Bulc, Commissioner for Transport, European Commission, in support of its application for a foreign carrier permit in the above referenced docket. Norwegian International respectfully requests that the Department act in accordance with its well-established precedents and grant Norwegian International s foreign air carrier permit requested in its application without further delay. Sincerely, Josh Romanow cc: Dan Weiss, dan.weiss@united.com; Chris Walker, chris.walker@delta.com; Malcolm L. Benge, mlbenge@zsrlaw.com; Russell E. Pommer, rpommer@atlasair.com; Russell Bailey, russell.bailey@alpa.org; Jonathan A. Cohen, jonathan.cohen@alpa.org; Edward Wytkind, edw@ttd.org; J. Christopher Lytle, clytle@portoakland.com; Kent George, kgeorge@broward.org; Mark Richardson, mrichardson@swapa.org; Robert Wirick, robert.wirick@aa.com; Francis Heil, francis.heil@aa.com; Howard Kass, howard.kass@aa.com; Airline Info, info@airlineinfo.com; Anita Mosner, anita.mosner@hklaw.com; Jennifer Nowak, jennifer.nowak@hklaw.com; Nancy S. Sparks, nssparks@fedex.com; Bailey Leopard, gbleopard@fedex.com; David Berg, dberg@airlines.org; James L. Casey, jcasey@airlines.org; Keith A. Glatz, kglatz@airlines.org; Celine Canu, cc@eurocockpit.be; Edgar N. James, ejames@jamhoff.com; Thomas S. Engle, EngleTS@state.gov; Steve Shur, sshur@traveltech.org; Eugene Alford, eugene.alford@trade.gov; David Batchelor, David.Batchelor@sesarju.eu; Ottar Ostnes, Ottar.Ostnes@sd.dep.no; John Hanlon, John.Hanlon@ELFAA.com; Robert Finamore, robert.finamore@dot.gov; Brian Hedberg, Brian.Hedberg@dot.gov; Charles Leocha, Charles.Leocha@travelersunited.org; Keith Meurlin, keith@washingtonairports.com; Paul Ruden, Agentspruden@asta.org; Roger Dow, rdow@ustravel.org 1 To the extent necessary under the Department s Rules of Practice, Norwegian International requests leave to file the attached letter.

2 The Honorable Violeta Bulc Commissioner for Transport European Commission B-1049 Brussels, Belgium Norwegian Air Shutt le ASA Bes0ksadresse: Oksen0yveien 3, 1366 Lysaker Postadresse: Postboks 115 N Fornebu, Norway Bankgiro NO MVA 1 We also appreciate the request by DG-MOVE for an urgent meeting of the EU-U.S. Joint Committee to consider the failure of the United States to grant authorization to Norwegian Air UK (NUK), which applied to DOT in December The DOT decision on 30 June 2016 to dismiss NUK's application for an exemption was, from my perspective, insupportable in view of the unambiguous legal opinions noted above. That decision appears to be inextricably linked to the multi-million dollar political campaign that our opponents in the United States have waged against Norwegian in order to prevent us from offering consumers lower fares, new routes, and better service. Thank you for the decision of the European Commission to seek arbitration under Aliicle 19 of the EU-U.S. Air Transpo1i Agreement (the Agreement) in respect of the failure of the United States to meet its legal obligation to grant authorization to Norwegian Air International (NAI). NAI applied to the U.S. Depaiiment of Transportation (DOT) for an exemption and foreign air ca1tier permit over 2 Yz years ago, and DOT's delay is as unprecedented as it is unlawful. The Commission, the Irish Government, and top legal officials at the U.S. Depaiiments of Transpo1iation, State, and Justice are in full accord that there is no basis in the Agreement to deny authorization to NAI. Dear Commissioner Bulc: Oslo, 10th August 2016 norwegian r

3 - ~ -.. _ norwegian, ' ' U.S. Congressman Peter Defazio has recently sent to you-and made public - a letter that merits several comments. We were pleasantly surprised that Mr. Defazio has finally abandoned his past, outrageous allegations impugning the integrity of the Irish Aviation Authority and the quality of the safety oversight it provides for Irish-licensed airlines. He now states that "I have no reason to question the Irish Aviation Authority's capacity for conducting surveillance of the safety ofnorwegian's flight operations." This is a much welcome and much needed volte-face on his part, although we regret that he did not earlier check the facts before making the attacks on the IAA. Mr. Defazio has also not repeated in detail his misguided interpretation of Article 17 bis of the Agreement, but he continues to make incmtect statements about Norwegian's employment practices. His views, expressed with great conviction, are in no way supported by the Commission or the Governments of either Norway, UK or Ireland. The truth is that Norwegian complies with the local employment and labor laws of each and every jurisdiction within which it operates and have crew bases, including the laws of the United States and the states of New York and Florida, where Norwegian has two large cabin crew bases. Mr. Defazio also repeats the tired refrain that Norwegian is a "flag of convenience" cmtier, ignoring the strict Irish safety oversight ofnai (safety concerns have always been at the center of concerns about "flag of convenience " vessels in the maritime sector) and the fact that all airlines in the Norwegian Group are subject to exactly the same demanding European and Member State aviation safety and employment laws as any other European ca1tier. In our view, Mr. DeFazio has simply appropriated a derogatory term from maritime commerce and used it to imply that establishing an airline in Ireland is akin to a U.S. or European company "flagging out" ships to third-world nations such as Liberia. It's a false analogy, one that substitutes a buzzword for analysis. With respect to the law, Mr. DeFazio offers no basis for the United States to violate its binding legal obligation to grant authorization to NAI and NUK, nor can he. As noted above, the General Counsel of the Depmtment oftranspo1tation, the State Depmtment Legal Adviser, and the Office of Legal Counsel at the Depmtment of Justice have now unambiguously and unanimously endorsed the view that Article 17 bis does not provide an independent basis upon which the United States may deny a permit. This is precisely the position expressed by the Commission at the meeting with U.S. officials in Brussels on 14 July 2014, a meeting requested by Secretary of Transportation Foxx. Over two years after that meeting and now almost four months since publication of the joint legal views of DOT, State, and Justice, NAI has still not received a permit. 2

4 f : nor~egian, _ --~ - ~ - With respect to the facts, Mr. Defazio asse1is that "Norwegian bases many crewmembers operating transatlantic services in Bangkok." This is simply false. With respect to cabin crew (flight attendants) on transatlantic services, N01wegian relies today almost exclusively on individuals based in Europe and the United States. To do as Mr. Defazio asse1is would make no sense whatsoever. Indeed, were Norwegian to base crewmembers operating transatlantic operations in Asia, we would have to fly them half-way round the globe (blocking revenue generating seats), pay salary, hotel and per diem expenses and allow them to complete mandatory rest periods, all this before they could even commence their active duty on transatlantic. As a low-cost ca1tier, Norwegian cannot afford this s01i of folly. Rather, we recruit and base crewmembers in those cities where we have the largest number of flights. Our Bangkok-based crewmembers are there to serve Asia-Europe flights, which we expect to increase rapidly in the coming years. Likewise, our Europe and U.S.-based crewmembers are there to serve transatlantic flights. On occasion, crewmembers based in the United States or Europe are asked to perf01m a flight leg to Asia when duty time and geographic positioning so allow, and Bangkok-based crewmembers are asked to do a transatlantic flight in similar circumstances. Such anangements are completely legitimate and inherent in operating an efficient global network. Nevertheless, as you are aware, and even if it cause efficiency loss, I have pledged in writing to Secretary Foxx that NAI will use only European and U.S. crews for transatlantic service by NAI ( except if compelled by extraordinary and unforeseen operational reasons), once it receives a DOT pe1mit. At the EU-U.S. Joint Committee meeting that took place in January 2014, the EU delegation presented to the United States a table showing the actual remuneration levels of Norwegian crewmembers across our U.S., European, and Asian bases, and thereby rebutting with specific figures the vague allegations of "lower-paid" Asian crewmembers and "social dumping." In fact, the remuneration levels for pilots are practically identical across all the bases. The remuneration levels of the Bangkok based cabin crew are at the same levels as their U.S. and higher than some of their European colleagues. With respect to pilots, Mr. Defazio falsely asse1is that "in order to join Norwegian's workforce, they must contract with a 'crew leasing specialist' in Singapore and abide by terms governed under Singapore law." The truth is that pilots recruited for Norwegian's transatlantic services have been and will continue to be offered employment contracts governed by the laws of the United Kingdom, where Norwegian has established its largest pilot base 1. It is true that we established a pilot base in Bangkok in 2013 in order to maximize the efficiency of our air services between Europe and Thailand and other future Asian destinations. The substantive 1 In fact, the Bangkok based pilots were earlier this year given an offer to switch to UK base and UK law contracts, only a few om them selected this option, this again just proves the falsehood of Mr. DeFazio's and our opponents assertions. 3

5 ~ norwegian, - ~ - \. -- ::::=_ employment laws of Thailand apply to such pilots; the "law of the contract" with the pilots is stipulated in the contract to be Singapore law, a common practice in Southeast Asia where the clarity and predictability of Singapore law are much valued. Such clarity and predictability benefit both the Thailand-based pilots and Norwegian. As to remuneration, the Bangkok-based pilots are paid salaries equal to their colleagues based in Europe, a fact also disclosed to the United States DOT at the 2014 Joint Committee meeting. Mr. Defazio also strikes out when he asse11s that "section 1-1 of the Norway Immigration Regulation... does not exempt foreign crews employed by Norway-based airlines from Norway's residency requirement." This is simply false. Norwegian's legal position - supp01ted from the outset and consistently ever since by the Norwegian Ministry of Justice - is that there is no such "residency requirement" in the Regulation for non-norwegian-citizen crew 2 To put an end to allegations to the contrary, the Norwegian Ministry of Labour earlier this year issued a clarifying amendment of the Immigration regulation that puts the matter to rest. Contrary to the false allegation of our opponents, which Mr. Defazio repeats in his letter, Norwegian never sought to establish an affiliated airline in Ireland "to avoid application of' the Norway Immigration Regulation. NAI was established in Ireland to gain traffic rights available to EU, but not Norwegian-licensed, ca1tiers and, thus, gain the ability to serve not only the United States but also the rest of the world from all or several EU member states, e.g. Canada, Brazil and Israel etc. The ever-changing focus of the attacks on Norwegian - that it did not plan to operate to Ireland (it does), that the Irish Aviation Authority lacks effective safety oversight (even Mr. Defazio now admits this was false), that it engages in the undefined sin of "social dumping" (proven false by disclosure of actual remuneration figures), that Ireland is a "flag of convenience" utilized in order to circumvent application of Norwegian laws (can be verified false by consulting the Norwegian government) - demonstrates that the multi-million dollar campaign of our opponents, to which Mr. DeFazio lends his name, is motivated by nothing but protectionism and a desire to quell new competition. 4 2 Even if theoretically there had been a residency requirement under Norwegian law it would only have applied to flights entering Norway's territory, and, thus, it would only affect Norwegians long haul flights to and from Oslo, which is only a small proportion of Norwegians total long haul production. I hasten to add that every pilot flying for Norwegian - NAS, NAI, and NUK-must have an EASA/EU pilot's license. As in the United States, pilots often choose to reside outside the city or state in which they are based. For example, a Chicago-based pilot for American Airlines might actually live in Florida, which has no state income tax. To our knowledge, neither the pilot unions nor Mr. Defazio objects to this an-angement in the United States.

6 norweg~an..-._... \ - I In conclusion, Mr. DeFazio argues in favor of a select few special interests at the expense of millions of consumers, countless business travelers, and hundreds of thousands of American and European jobs in manufacturing, travel, and tourism that all would benefit from more services and more competition on transatlantic air services. It is no surprise that the labor unions that have so stridently opposed Norwegian have been among the largest contributors to his political campaign. According to publicly available infmmation, unions that have filed in opposition to NAI--either directly or indirectly as members of the Transp01iation Trades Division of the AFL CIO-have contributed over $882,000 to Mr. DeFazio. 3 I hope that the inf01mation above is helpful. Sincerely 5 3 See https :// /conh ib.php?cycle =Career&cid=N l &type= I. The unions include: Air Line Pilots Association; Machinists /Aerospace Workers Union; Communications Workers of America; Amalgamated Transit Union; International Brotherhood of Electrical Workers; American Federation of State/County/Municipal Employees; National Association of Letter Carriers; National Air Traffic Conh ollers Association; United Transpmtation Union; Teamsters Union.