El Al sues Israeli government over new Air India route
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El Al sues Israeli government over new Air India route

Allowing foreign carrier to cross Saudi Arabia en route to Israel while Israeli carrier cannot violates equality and numerous state decisions, airline argues in High Court petition

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

El Al new aircraft Boeing 787 Dreamliner arrives for a welcome ceremony after landing at Ben Gurion International Airport, near Tel Aviv on August 23, 2017. (Tomer Neuberg/Flash90)
El Al new aircraft Boeing 787 Dreamliner arrives for a welcome ceremony after landing at Ben Gurion International Airport, near Tel Aviv on August 23, 2017. (Tomer Neuberg/Flash90)

El Al on Wednesday said it filed an urgent petition to the High Court of Justice against Air India’s new route connecting New Delhi and Tel Aviv, which for the first time ever crosses over Saudi airspace.

At a press conference in Tel Aviv, the airline’s president and CEO Gonen Usishkin and chairman Eli Defes argued that by allowing Air India to fly over a country that does not grant El Al the same rights, the government of Israel is violating its commitments to Israel’s national air carrier.

El Al has taken legal action against the Israeli government, its Civil Aviation Administration, Transportation Minister Israel Katz, and Air India, the airline’s spokesperson, Ran Rahav, said Wednesday.

Gonen Usishkin (R), El Al CEO and Eli Dapas, Chairman of El Al’s Board of Directors attend a press conference at Beit Sokolov in Tel Aviv, March 28, 2018.(Flash90)

Last Thursday, Air India inaugurated its new Tel Aviv-New Delhi route amid great fanfare. Flight AI 139, which took off in India at 2:30 p.m., was the first plane leaving from or headed toward Israel that flew over Saudi Arabia and Oman, two Arab states that have no diplomatic relations with Israel.

“This is a historic evening. The Israeli skies are connecting with the Saudi Arabian skies in one direct flight,” Katz said on Thursday, minutes after Air India’s Boeing 787 touched down at Ben Gurion Airport.

A Boeing 787 flight number AI139 of Indian national carrier Air India, from New Delhi, performs maneuvers on the tarmac at Ben Gurion International Airport on the outskirts of Tel Aviv, on March 22, 2018 after using Saudi airspace for the first time. (AFP PHOTO/JACK GUEZ)

During Sunday’s weekly cabinet meeting, Prime Minister Benjamin Netanyahu hailed the new Air India route as “historic.” The new service, which is significantly shorter — and thus cheaper — than all previous flights connecting Israel with India, “is significant economically, technologically, diplomatically and for tourism — significance of the highest order,” he said.

But El Al argues that allowing Air India to cross over airspace that is closed to Israeli-owned airlines violated articles 9 and 11 of the 1944 ​Convention on International Civil Aviation, as well as various Israeli government decisions.

For one thing, in its December 1994 decision to privatize El Al, the government said that Israeli civil aviation policy must ensure “equal opportunities between Israeli airlines and foreign airlines on a competitive basis” and ensure “sound and fair competition,” Rahav said.

As long as El Al is barred from flying over Saudi Arabia en route to and from Israel, it was illegal for foreign airlines to do so, Rahav argued, citing the International Air Transport Association’s principles of reciprocity and equality.

For Israel’s Civil Aviation Authority to grant Air India a permit to fly on a shortened route that El Al cannot use gives the airline an unfair competitive advantage, and therefore the court “must issue an injunction against the State of Israel and forbid Air India from flying to Israel over Saudi Arabia, as long as El Al is not permitted to fly over the Kingdom’s territory.”

Furthermore, permitting Air India’s new route also violates a bilateral agreement Jerusalem and Delhi signed in 2016, the Israeli carrier maintained. That agreement stated that Israel is obligated to allow El Al “an equal and fair opportunity” to operate the flight route between Israel and India.

“There can be no fair competition between an airline that can fly directly from destination to destination and an airline that is forced to use longer routes because of discrimination based on nationality,” Rahav concluded.

Earlier this week, El Al’s vice president for Commercial and Industry Affairs Michael Strassburger told The Times of Israel that he appreciates the importance the Air India route has for a potential improvement of Israel’s ties with the Arab world, but argued that it cannot come at the expense of an Israeli company.

“History was made on Thursday,” he said, but bitterly added that Israeli airlines must continue flying to and from the Far East on their set route, which includes a detour over the Red Sea and the Indian Ocean instead of flying over Saudi Arabia and Oman.

Michael Strassburger, vice president of commercial and industry affairs at El Al (Yonatan Blum)

“We have a lot of respect for what happened on Thursday. The idea of flights to or from Israel flying over Saudi Arabia is something that we welcome,” he stressed.

“We also welcome any competition — as long as it’s fair competition. Now this [current] situation is something that we condemn. Because it’s competition, but it’s not equal, and we’re not able to compete in the way that we should be able to.”

Israel must ensure that competition is equal, he insisted. “If one airline can fly a certain route, then the other airlines deserve to be able to do the same,” he said.

“We have unfair competition, and that is not something that will last,” he said, adding that the new status quo could cause El Al great economic damage.

“We’re not seeking any compensation. We’re not looking for any subsidies. We’re looking for one thing: to allow us to fight back,” Strassburger said. “Currently, we’re not in the position to do so.”

Air India planes park on the tarmac at Indira Gandhi International Airport in New Delhi, India, April 12, 2012. (AP Photo/Tsering Topgyal)

When news first emerged that Air India would be allowed to cross over Saudi Arabia on its way to and from Israel, El Al — which operates a weekly Tel Aviv-Mumbai flight — approached Netanyahu and Israel’s Civil Aviation Authority with the request to be granted similar privileges, to no avail.

“I can’t think of any other situation in any other country where a government discriminates, or allows for the discrimination, against its national carrier, or any other carrier based in that country,” he said.

Strassburger rejected the argument that the problem lies with Riyadh and not with Jerusalem. It could be argued that Saudi Arabia can explain allowing Air India to fly over its territory en route to Tel Aviv as a friendly gesture not to Israel but to New Delhi. Granting Israeli planes the same rights, however, might be a step the kingdom is unwilling to take.

“You cannot expect me to ask for overflight rights from a country we don’t have any diplomatic ties with,” Strassburger said. “Our address is the Israeli government, and addressing them is exactly what we did. And the Israeli government made a decision that eventually led to the discrimination of El Al.”

It is the Israeli government that provides the regulatory framework allowing Israeli airlines to operate, he argued.

“We’re a private company, sure, but the reason we’re prevented from flying over Saudi Arabia is because we’re told not to fly over Saudi Arabia by our government. It’s not our decision to make this detour. We don’t have another option, it’s the only choice we have,” he said.

El Al planes at Ben-Gurion Airport (photo credit: Shay Levi/Flash90)
Illustrative photo of El Al planes at Ben-Gurion Airport (Shay Levi/Flash90)

For the time being, El Al is not planning any operational changes, Strassburger said, noting it was too early to say whether the new Air India service to Delhi would make a dent in El Al’s business.

However, allowing its foreign competitors to shave off two hours from flights to Israel could “bring us to a very unstable situation. I cannot tell you right now the implications of that, but it could become very problematic for us.”

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