CONFERÊNCIA INTERNACIONAL SOBRE CAPITAL PRIVADO EM AEROPORTOS Eduardo A. Flores ACI-LAC
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1 O REGIME JURÍDICO DA PRESTAÇÃO DO SERVIÇO AEROPORTUÁRIO E O DIREITO AEROPORTUÁRIO CONFERÊNCIA INTERNACIONAL SOBRE CAPITAL PRIVADO EM AEROPORTOS Eduardo A. Flores ACI-LAC
2 Agenda ABOUT ACI / ACI-LAC AIRPORTS ARE BUSINESS AIRPORT SERVICE LEGAL FRAMEWORK AIRPORT LAW LESSONS ON AIRPORT CONCESSIONS FINAL REMARKS
3 About ACI & ACI-LAC ACI PROMOTES THE COLLECTIVE INTERESTS OF THE AIRPORTS OF THE WORLD AND FOMENTS THE PROFESSIONAL EXCELLENCE IN THE AIRPORT MANAGEMENT AND OPERATIONS ACI-LAC IS THE ACI DIVISION THAT REPRESENTS THE INTERESTS OF THE AIRPORT OPERATORS OF THE LATIN AMERICA THE CARIBBEAN REGION AND. FOUNDED ON 1991, ITS FUNDAMENTAL OBJECTIVE IS TO PROMOTE THE COOPERATION BETWEEN THE AIRPORTS MEMBER AND OTHER PARTNERS WITHIN THE AVIATION WORLD.
4 About ACI / ACI-LAC AT THE MOMENT, ACI-LAC COUNTS WITH 70 MEMBERS THAT OPERATE 260 AIRPORTS IN 37 COUNTRIES OF THE LATIN AMERICA AND THE CARIBBEAN REGION. THROUGH THIS COOPERATION, ACI-LAC OBJECTIVE IS TO OFFER SUPPORT TO MAKE THE AIRPORT SYSTEM SAFE, STABLE, EFFICIENT AND COMPATIBLE WITH THE ENVIRONMENT 59 REGULAR MEMBERS 5 AFFILIATE MEMBERS 6 ASSOCIATE (COMMERCIAL) MEMBERS
5 Airports are Business 1970 s 1980 s 1990 s 2000 s Framework De regulation USA De regulation & liberalization Europe Open Skies Worldwide Airlines Reestructuration USA Flag Airlines Privatization Alliances & Hubs Low Cost Airports Public Entities Priivatization Hubs Competition Technology B 747 ETOPs CRS B , A340, RJs Internet A380, B787
6 Airports are Business
7 AIRPORT SERVICE LEGAL FRAMEWORK AIR LAW (SO CALLED INFRAESTRUCTURE CHAPTER) LIMITED TOPIC (DEFINITION, FACILITATION, LAND, OLD CONCEPT OF AIRPORT (NEUTRAL) WITHOUT ANY ENFORCEMENT POWER NON SPECIAL LAW APPLICATION (COMMON LAW) FRAGMENTED AIR LAW AIRPORT REGULATIONS ECONOMIC TECHNICAL CONTRACTS (CONCESSION)
8 AIRPORT LAW PUBLIC SERVICE / PUBLIC DOMAIN OBLIGATIONS OF THE AIRPORT OPERATOR RIGHTS OF THE AIRPORT OPERATOR PUBLIC DOMAIN AIRPORT AUTHORITY COMPETENCE OBLIGATIONS ENFORCEMENT MULTIPLE JURISDICTIONS FEDERAL / STATE / REGIONALS / COUNTIES
9 AIRPORT LAW PUBLIC SERVICE / PUBLIC DOMAIN PUBLIC CAPACITIES ENFORCEMENT PREVENTION INTERVENTION EXECUTION OBLIGATIONS / RIGHTS STATE AIRPORT OPERATOR ACCESS TO THE INFRAESTRUCTURE RULES AND FREE ACCESS CONTROL EFFICIENT / NON EFFICIENT
10 AIRPORT LAW RIGHTS AIRPORT OPERATOR COMPETENCE AIRPORT AUTHORITY CONTROL OF PEOPLE ACCESS RESTRICTED AREAS AIRPORT CHARGES PAYMENT (TIMELY / ACCORDINGLY) AIRPORT CHARGES PAYMENTS LEGAL CONDITION OF THE AIRPORT CHARGE EXECUTION OF PENDING PAYMENTS GUARANTEES PRE EXECUTION MEASURES AIRPORT ALLOCATION LAND SIDE COUTERS / KIOSK / CUTE AIRSIDE SLOTS
11 AIRPORT LAW RIGHTS AIRPORT OPERATOR SECURITY SAFETY FACILITATION MASTER PLANS SLOT ALLOCATION RATIONALITY USE INCENTIVES COMMERCIAL NEGOTIATION
12 AIRPORT LAW OBLIGATIONS AIRPORT OPERATOR AIRPORT INFRAESTRUCTURE INVESTMENT MAINTENANCE OPERATION QUALITY STANDARDS (INTERNATIONAL / NATIONAL / LOCAL) AIRPORT SERVICE AVIATION SERVICES COMMERCIAL SERVICES MASTER PLAN (APPROVED ) MANDATORY (FOR EVERYBODY) FLEXIBLE IN THE LONG TERM
13 AIRPORT LAW TYPES OF USERS PASSENGERS INDIVIDUAL ASSOCIATIONS AIRLINES INDIVIDUAL ASSOCIATIONS (AOC, ALTA, IATA) SERVICE OPERATORS LANDSIDE ACCESS / OPERATION AIRSIDE ACCESS / OPERATION FEDERAL / STATE / LOCAL AGENCIAS
14 AIRPORT LAW USA CASE AIRPORT LAW IS A RECOGNIZABLE LEGAL DISCIPLINE. THE STATUTES, REGULATIONS, AND FEDERAL POLICIES GOVERNING THE OPERATION OF AIRPORTS ARE DISTINCT FROM RULES GOVERNING OTHER LAND USES AND MODES OF TRANSIT. PARTLY AS A RESULT, THE APPLICATION OF CONSTITUTIONAL PRINCIPLES AND GENERALLY-APPLICABLE STATUTORY REQUIREMENTS TO AIRPORTS HAS DEVELOPED INTO ITS OWN BODY OF LAW.
15 Airports Concession in LAC Region
16 Lessons from Airport Concessions in LAC THE GOOD THINGS: CAPACITY INVESTMENTS IMPLEMENTED SAFE & EFFICIENT OPERATIONS (COMPLYING INT. REGULATIONS) REVENUE DIVERSIFICATION (NON AERONAUTICAL) CATALYST FOR ROUTE AND TOURISM DEVELOPMENT FINAL USER SATISFACTION STANDARDS LONG TERM INVESTMENTS PROGRAMS IN PLACE COMPREHENSIVE REGULATION INTERNATIONAL ARBITRATION FOR RESOLUTION OF DIFFERENCES NEW MODELS FOR CONCESSION (3 RD GENERATION) CO FINANCE COMPETENCE FACTOR CHANGING THE NEW AI TRANSPORT REALITY LOW COST / ROUTE DEVELOP
17 Lessons from Airport Concessions in LAC THE BAD THINGS: UNCLEAR REGULATORY FRAMEWORK AIRPORT LAW STATE IS NOT ENFORCE TO COMPLIED WITH ITS OBLIGATIONS INEFFICIENT RATE-SETTING LEARNING PROCESS OVER-MARKET INVESTMENT / INFRASTRUCTURE REQUIREMENTS MIXED ROLE OF REGULATOR, OVERSEER & CONTRACTUAL COUNTER-PARTY GREAT POLITICAL INTERFERENCE REQUIRE STANDARDS PERFORMED BY THIRD PARTIES REGULATORS WITH EXCESSIVE POWERS EXCESSIVE CHARGES REGULATION REGULATION OF THE AIRPORT SERVICE NOT THE OPERATOR BAD CAMPAIGNS LOOKING FOR THEIR OWN INTEREST
18 Lessons from Airport Concessions in LAC ACI-LAC / LACAC RECOMMEND ON AIRPORT PRIVATIZATION STATE TO CLEARLY DEFINE OBJECTIVES STATE ROLE AND RESPONSIBILITIES TO BE MAINTAINED TO GUARANTEE EFFICIENT AND EFFICACY OF THE AIRPORT SERVICES ACCORDING TO INTERNATIONAL REGULATIONS. INCLUDE IN THE CONCESSION AGREEMENT THE REQUIRE ELEMENTS FOR THE OPERATOR TO BE ELIGIBLE FOR INTERNATIONAL FINANCE CONSIDERING INTERNATIONAL APPLICABLE REQUIREMENTS AND PRACTICES.
19 Lessons from Airport Concessions in LAC ACI-LAC / LACAC RECOMMEND ON AIRPORT PRIVATIZATION DEFINE A BALANCE CONCESSION AGREEMENT IN A WAY THAT THE STATE REGULATION DOES NOT UNFAIRLY LIMIT THE AIRPORT OPERATOR THE CONCESSION AGREEMENT SHOULD ALLOW FLEXIBILITY TO BE ADAPTED TO THE NEW MARKET CONDITIONS, THE AVIATION INDUSTRY DYNAMISM AND THE LONG TERM OF THE CONCESSION AGREEMENTS THE STATE SHOULD DIFFERENTIATE CLEARLY BETWEEN EVERY TYPE OF AIRPORT USERS CONSIDERING ITS OWN CHARACTERISTICS (PARTICULARITIES)
20 Lessons from Airport Concessions in LAC ACI-LAC / LACAC RECOMMEND ON AIRPORT PRIVATIZATION TO DETERMINE THE AERONAUTICAL AND NOT AERONAUTICAL SERVICES, THAT ARE TRANSFERRED TO THE PRIVATE SECTOR AND WHICH ARE KEPT IN THE STATE S POWER, DESCRIBING THE STANDARDS THAT WILL BE USED TO DEFINE THE QUALITY OF THE RENDERED SERVICES. TO ESTABLISH MASTER PLANS AND INVESTMENT PLANS ASSOCIATED WITH THE AIRPORT CONCESSION THAT DEVELOP WITH THE SUFFICIENT AND NECESSARY FLEXIBILITY, TO FACILITATE ITS MODIFICATION IN ACCORDANCE WITH THE BEHAVIOR OF THE DEMAND, CONSIDERING THE NEEDS OF THE USERS, THE STATE REQUIREMENTS AND FULFILLING THE APPLICABLE INTERNATIONAL STANDARDS
21 Lessons from Airport Concessions in LAC ACI-LAC / LACAC RECOMMEND ON AIRPORT PRIVATIZATION THAT THE SYSTEM OF CONCESSION MUST BE BASED ON WHERE, BOTH THE STATE AND THE PRIVATE SECTOR, ASSUME THE RISKS THAT CORRESPONDT TO ON EACH ONE IN THE DEVELOPMENT OF THE AIRPORT PROJECTS THE STATE MUST OFFER A FEASIBLE BUSINESS TO THE PRIVATE CONCESSIONAIRE, WITH ESTIMATIONS OF TRAFFIC AND CONSERVATIVE PROJECTIONS OF THE BUSINESS THE STATE MUST ESTABLISH A NEUTRAL AND INDEPENDENT REGULATORY ENTITY TO ENFORCE THE CONTRACT AND MAKE DECISIONS BASE ON TECHNICAL, TRANSPARENT AND PREDICTABLE CRITERIA
22 Final Remarks AIRPORTS ARE THE BEST BUSINESS PARTNERS FOR THE GOVERMENTS LONG TERM PERSPECTIVE COMMON INTERESTS IMPACT IN THE COMMUNITY
23 Will the oil crisis really affect? Source: ICAO, Airbus
24 Thank You Eduardo A. Flores Airports Council International Latin American and The Caribbean ACI-LAC Regional Secretariat
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