WILLEMSTAD – On Thursday, the court case was heard in Curaçao in which Windward Islands Airways International (Winair) has sued the Minister of Traffic and Transport of Curaçao, Charles Cooper. During the substantive hearing, Winair argued that Cooper was wrongfully refusing to issue a temporary permit for Winair to operate additional flights between St. Maarten and Curaçao.

Lawyers Rogier van den Heuvel and Peter Lange, representing Winair, argued that Winair has the right to operate these flights based on the multilateral protocol between the Netherlands and the islands. They also pointed out the detrimental effects of the lack of permits, as it has become difficult to secure a seat on a flight between the two islands.

On behalf of the minister, lawyer Giselle Hollander argued that Winair’s action was premature. “The decision on the request of June 18, 2024 (for additional flights) falls within the legally established period of 90 days. Winair’s appeal is premature, as the decision period has not yet expired,” Hollander told the court.

Hollander also mentioned that it is not just about denying or granting extra flights, but that the Curaçao Civil Aviation Authority (CCAA) also has an important role in ensuring that the market does not become saturated and that there remains fair competition and effective market functioning on the routes between the islands.

Representing the government of Curaçao, Hollander also subtly noted that the Curaçao-based Z Air is still waiting for a decision from the Sint Maarten aviation authority regarding the approval of flights to and from that island. There is also an ongoing legal procedure regarding this, as Sint Maarten has been deliberating for a year. A ruling in that case is expected on August 12. According to Hollander, who specializes in aviation law, it would also be premature to grant Winair a permit now to fill the gap created by the bankruptcy entirely with Winair.

Fair Competition

Granting the frequencies exclusively to Winair now could lead to a situation where no flights are assigned to Z Air because the market could become saturated. “Z Air’s request could then be denied due to a looming overcapacity. The route between Sint Maarten and Curaçao would then be served exclusively by Winair, which is not consistent with promoting sustainable air connections and fair competition,” Hollander said.

Hollander also perhaps redundantly noted that passengers greatly benefit from healthy competition among multiple providers. “We have all experienced how prices can evolve if no other competitors enter the market.”

Complex

The judge will need to determine after hearing the arguments whether Winair’s request for a preliminary injunction is admissible and how to proceed in the now complex case regarding permits.

Meanwhile, neither Winair nor Z Air seems to benefit from the differences in perspective that have arisen at the ministerial level between Curaçao and Sint Maarten, both in terms of requirements imposed by SMCAA on Z Air and the caution with which CCAA is handling the granting of permission for additional flights by Winair.