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In Conversation With... Legal News Round-Up Sustainable Financing In LEGAL NEWS, INDUSTRY INSIGHT AND SUSTAINABLE INNOVATION EVERY QUARTER In conversation with... Barbara van Koppen, General Counsel, KLM Royal Dutch Airlines Legal news round-up Significant global developments Sustainable financing in aviation Green shoots or just greenwash? Illegal charter activity across Asia Pacific APRIL 2021 | EDITION 2 | EDITION 2021 APRIL Our joint survey with the AsBAA Introduction Contents HFW has been at the forefront of Welcome once again to HFW legal developments in the aerospace Aero, bringing you aviation news and insight with a focus on sector for over four decades. sustainability. Our clients are drawn from all spheres of the industry In this issue we are in conversation with Barbara van and our global team is one of the largest and dedicated Koppen, General Counsel of KLM. To mark its 100th anniversary KLM took the bold step of asking its to the sector of any international law firm. We have one customers to think twice about whether they needed 4 Legal news round-up of the fastest growing international networks, with a to fly at all. Two years on, Barbara tells us how the Significant global developments team of over 80 specialist aviation lawyers, positioned “Fly Responsibly” initiative has developed and why in offices around the world. upscaling the commercial production of sustainable aviation fuel is a cornerstone of KLM’s sustainability strategy. She also explains the theory behind the striking “Flying V” aircraft that you see on the front cover. Our lawyers are able to advise on all forms of dispute resolution, competition and anti-trust issues as well KLM has been in the top three of the “airlines” category of the Dow Jones Sustainability Index for 16 years and counting. On page 10 we look at the evolution of as a complete range of commercial transactions, sustainability benchmarking and how the aviation industry is positioning itself to take from mergers and acquisitions and aircraft sales, to advantage of the growing availability and sophistication of “Green Finance” products. purchases, leases and financing. We provide services to In our news roundup we explain what happened when the use of drones by the the aviation industry, aviation insurers and their brokers French police to enforce Covid restrictions fell foul of data protection law, and 7 In conversation with... Barbara van Koppen, and all major stakeholders. We bring our experience, consider whether governments in Latin America are doing enough to support the General Counsel, aviation industry. market insight, true sector knowledge and passion for KLM Royal Dutch Airlines what we do. We also present to you the results of our groundbreaking survey on illegal charters in Asia Pacific, conducted jointly with the Asian Business Aviation Association. The It’s this continued service to the industry that has been majority of respondents believe that illegal charter activity is on the increase and regulators in Asia are not doing enough to combat it. recognised time and again in the legal and business rankings, and most importantly, by our clients. We do hope that you enjoy reading. Please do get in touch if you’d like to talk to us more about any of the topics or issues that we have featured. To give any feedback on our Giles 10 Sustainable financing publication please contact GILES KAVANAGH in aviation the editor of HFW Aero: Global Head of Aerospace Green shoots or just greenwash? ASHLEIGH OVLAND [email protected] T +44 (0)20 7264 8311 E [email protected] 13 Survey highlights illegal charter activity www.hfw.com/aerospace across asia pacific Our joint survey with the Asian Business Aviation Association (AsBAA). Americas | Europe | Middle East | Asia Pacific HFW Aero | March 2021 | 3 the structure of the sector did not make purpose of the measure, i.e. protecting it necessary to help only airlines which the population from the risks inherent to held a particular national licence, given the pandemic. Therefore, there was no that the airlines operating in those serious and unlawful infringement of a Member States under a licence issued constitutional or conventional freedom. by another Member State are just In relation to the GDPR, it held that the as important for the structure of the police were not processing data. aviation sector in the Member State In response, the advocacy groups and the entire European Union. filed an accelerated appeal to the On the contrary, they argued, French Supreme Administrative assisting national airlines leads to the Court, the Conseil d’Etat, which also fragmentation of the internal market rejected the anti-privacy arguments, and the elimination of competitors provided that the drone use complied from other Member States, weakens with Police manual, i.e. a flight competition, aggravates the damage height of at least 80-100 metres caused by the Covid-19 crisis and without the use of zoom lenses. ultimately harms the structure of the However, the Conseil d’Etat concluded airline sector which the aid scheme at that the images collected were issue is supposed to preserve. Sustainable Finance personal data falling within the scope The General Court rejected the of the GDPR and that the collection Disclosure Regulation challenges and said that extending of such images by the police was now in force France’s tax deferral to non-French personal data processing. Such Legal news round-up On 10 March the Sustainable companies “would not… have made processing required a declaration and Finance Disclosure Regulation it possible to achieve the objective of impact assessment to be filed with the (SFDR) came into force in the EU. making good the economic damage Commission Nationale Informatique et Consumer rights to the of their tickets following Covid-related KLM, Lufthansa and TAP Air Portugal. The SFDR is a key component cancellations. The VCP is a voluntary, suffered by the airlines operating in Libertés (CNIL, the French equivalent Sweden made available a loan of the EU’s Green Deal and fore in Latin America expedited process which aims to achieve France in so precise a manner and to the UK ICO). As the police had not guarantee scheme to airlines holding aims to address concerns about an amicable resolution to the dispute without a risk of overcompensation.” made such a filing they were ordered Airlines and consumer agencies have a Swedish operating licence, while “greenwashing” - the practice of within up to six months. If no agreement It held that the Swedish scheme to immediately stop using drones to clashed in Latin America as carriers France agreed to defer the payment by overstating the Environmental, is reached, SERNAC could decide to file a was proportionate, appropriate and monitor Covid-19 restrictions in Paris. struggle to find the cash to reimburse French-licensed airlines of certain taxes Social and Governance (ESG) class action against the airline. SERNAC presumed to have been adopted in the passengers for flights cancelled due on airline tickets due on a monthly Despite this ruling, the Préfet de credentials of investments for is also considering whether to make interest of the European Union. to Covid. In Colombia, an emergency basis during the period from March to Police reinstated the use of drones to commercial or PR reasons. The similar filings against other airlines. law passed at the beginning of the December 2020. Ryanair has confirmed that it will monitor demonstrations and strikes aim is to bolster confidence in pandemic had authorised the option Within the Latin American region, appeal to the CJEU. in Paris in November 2020, once the credibility of ESG claims by State Aid is prohibited under EU law but of offering vouchers instead of cash governments have offered very little again without making the necessary imposing discipline and increasing the Commission may allow a scheme refunds. A previous attempt to financial support to their local carriers. Use of drones for police declaration to the CNIL. A second transparency. It is hoped that this where it satisfies certain conditions. challenge the emergency law in the The continuing trend for expanding ruling of the Conseil d’Etat on 22 will funnel more capital towards Both France and Sweden notified surveillance in France Constitutional Court had failed, but in passenger rights appears to be December 2020 held once again that investment in sustainable activities. their schemes and were granted The use of drones to monitor the the police were in breach of the GDPR. January this year the Superintendence displacing any interest in protecting The SFDR imposes obligations exemptions by the Commission. The observance of the Covid-19-related of Transportation shocked the industry airlines in their time of need. on asset managers to provide Swedish Scheme was approved on lockdown in Paris has been successfully Finally, on 14 January 2021, the by declaring that the issue of vouchers information about ESG risks across the grounds that it was intended to challenged by advocacy groups which enforcement arm of the CNIL issued a violated the passenger’s consumer Ryanair challenges to their entire portfolios, not just those remedy a serious disturbance in the promote digital and human rights. statement condemning the Ministry of rights and fining an airline over which are badged as sustainable EU State Aid rejected economy of a Member State and the The Paris Préfet de Police used a fleet the Interior (under whose remit police US$50,000 for doing so. The reasoning investments. Where enhanced French tax deferral on the grounds that of surveillance drones to watch Paris activity falls) for the illegal use of drones behind this concerning decision is Conversely, in Europe, government ESG performance claims are it constituted aid to make good the citizens from the sky and provide air and requiring it to cease immediately explored in our briefing, in which we assistance has been more forthcoming, made, these must be supported damage caused by natural disasters or support to ground police units.
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