Air Transport 2020 Air Transport 2020

Contributing editors John Balfour and Thomas van der Wijngaart

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Dan White [email protected] Contributing editors Published by Law Business Research Ltd John Balfour and Thomas van der Wijngaart Meridian House Clyde & Co LLP 34-35 Farringdon Street London EC4A 4HL, UK

The information provided in this publication is general and may not apply in a specific situation. Legal advice should always Lexology Getting The Deal Through is delighted to publish the fourteenth edition of Air Transport, be sought before taking any legal action which is available in print and online at www.lexology.com/gtdt. based on the information provided. This Lexology Getting The Deal Through provides international expert analysis in key areas of information is not intended to create, nor law, practice and regulation for corporate counsel, cross-border legal practitioners, and company does receipt of it constitute, a lawyer– directors and officers. client relationship. The publishers and Throughout this edition, and following the unique Lexology Getting The Deal Through format, authors accept no responsibility for any the same key questions are answered by leading practitioners in each of the jurisdictions featured. acts or omissions contained herein. The Our coverage this year includes new chapters on The Bahamas, Ireland and Spain. information provided was verified between August and September 2019. Be advised Lexology Getting The Deal Through titles are published annually in print. Please ensure you that this is a developing area. are referring to the latest edition or to the online version at www.lexology.com/gtdt. Every effort has been made to cover all matters of concern to readers. However, specific © Law Business Research Ltd 2019 legal advice should always be sought from experienced local advisers. No photocopying without a CLA licence. Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contributors First published 2006 to this volume, who were chosen for their recognised expertise. We also extend special thanks to Fourteenth edition the contributing editors, John Balfour and Thomas van der Wijngaart of Clyde & Co LLP, for their ISBN 978-1-83862-160-5 continued assistance with this volume.

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Reproduced with permission from Law Business Research Ltd This article was first published in October 2019 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2019 Contents

Global overview 3 Ireland 115 John Balfour Rory McPhillips, Stuart Kennedy and Stephen Gardiner Clyde & Co LLP Matheson

Argentina 7 Italy 122 Elizabeth Mireya Freidenberg Laura Pierallini Freidenberg, Freidenberg & Lifsic Studio Pierallini

Bahamas 16 Japan 131 Michael F L Allen Shuji Yamaguchi Higgs & Johnson Okabe & Yamaguchi

Belgium 23 Malta 136 Birgitta Van Itterbeek Tonio Grech Monard Law Dingli & Dingli Law Firm

Brazil 31 Netherlands 144 Renata Iezzi Jeroen Timmermans, Laetitia Kunst-den Teuling and Ruben Elkerbout Basch & Rameh Advogados Associados Stek

Canada 38 Nigeria 152 Laura M Safran QC and Prasad Taksal Etigwe Uwa SAN, Chinasa Unaegbunam, Omolayo Tolu-Latunji DLA Piper (Canada) LLP and Oluyemi Oyewole Streamsowers & Köhn Chile 48 Felipe Allende and José Luis Ibáñez Poland 160 Allende Bascuñán & Cía Krystyna Marut, Edyta Michalak and Anna Burchacińska-Mańko MMMLegal Legal Counsels European Union 55 Geert Goeteyn Russia 168 Shearman & Sterling LLP Mikhail Sokolov and Sergey Seliverstov Sokolov, Maslov and Partners France 71 Vonnick Le Guillou, Camille Lallemand, Alexis André, Audrey Lemniaï Spain 176 and Edouard Sarrazin Sergi Giménez Binder DLA Piper France Augusta Abogados

Germany 79 Switzerland 183 P Nikolai Ehlers Andreas Fankhauser Ehlers, Ehlers & Partner Proton Legal LLC

Greece 86 United Kingdom 191 Betty Smyrniou Thomas van der Wijngaart and John Balfour Bahas, Gramatidis & Partners Clyde & Co LLP

India 95 United States 199 Amir Singh Pasrich and Mohana Malhotra Jonathon H Foglia and Jol A Silversmith I.L.A. Pasrich & Company KMA Zuckert LLC

2 Air Transport 2020 © Law Business Research 2019 Belgium

Birgitta Van Itterbeek Monard Law

REGULATORY FRAMEWORK As a result of Regulation (EEC) No. 3922/91, the JAR rules (subse- quently replaced by EU-OPS and then by IR-OPS) also apply in Belgium Regulators and primary legislation and have been further implemented by the Royal Decree of 25 June 1 Which bodies regulate aviation in your country? Under what 2001 (OG 15 August 2001). With the creation of the European Aviation basic laws? Safety Agency, many safety issues are now further regulated and harmonised at EU level. There are three regulatory bodies in Belgium: • general authority lies with the Civil Aviation Authority of the Federal 3 What safety regulation is provided for air operations that do Public Service of Mobility and Transport (BCAA), which was created not constitute public or commercial transport, and how is the by the Law of 27 June 1937 amending the law of 16 November distinction made? 1919 with respect to air navigation (as amended) (Belgian Official Journal (OG) 26 July 1937) and its Royal Decree of 15 March 1954 The Royal Decree of 15 March 1954 applies to all civil aircraft whether with respect to air navigation (as amended) (OG 26 March 1954); or not they are used for commercial transport. However, with respect • Skeyes (previously known as Belgocontrol) is responsible for air to the licence requirements for commercial transport, a distinction is traffic control and civil air navigation services for Luxembourg and drawn between taxi services and other commercial operations. A taxi Belgium and was created by the Law of 19 December 1997, and for service is defined as aircraft with no more than 10 seats and in respect the rationalisation of Brussels National Airport (OG 30 December of which the destination is fixed by the users without any seat going 1997); and to other commercial passengers. The licence requirements for taxi • the Belgian Supervising Authority for Air Navigation Service, which services are less stringent than for other commercial operations. If an was created in the context of the Single European Sky by the Royal aircraft is not used for commercial transport, the licence requirements Decree of 14 February 2006 for the creation of the national super- for commercial operations do not apply. Both the Royal Decrees of 9 vising authority for air navigation services (OG 28 February 2006). January 2005 with respect to technical operations and of 25 October 2013 with respect to flight operation licences make a clear distinction AVIATION OPERATIONS between the different types of aircraft.

Safety regulations Market access 2 How is air transport regulated in terms of safety? 4 How is access to the market for the provision of air transport services regulated? A distinction should be made between international conventions and treaties that are directly applicable and their implementation instru- Regulation (EC) No. 1008/2008 of 24 September 2008 is directly appli- ments, EU regulations and directives and Belgian law. cable in Belgium. A Ministerial Decree of 3 August 1994 (OG 1 October The Chicago Convention was ratified in Belgium on 30 April 1947 1994) further sets out the licence requirements for the commercial (OG 2 December 1948) and was implemented by the Royal Decree of 15 operation of aircraft. March 1954, which has been amended several times. The Law of 30 April The licence and the air operator’s certificate (AOC) are issued by 1947 has been further implemented by another 25 royal and ministerial the Civil Aviation Authority. decrees. In effect that law, together with the Law of 27 June 1937 and the Royal Decree of 15 March 1954, are the basic regulations for aviation Ownership and control operations in Belgium. 5 What requirements apply in the areas of financial fitness and The basic regulations with respect to technical operations are laid nationality of ownership regarding control of air carriers? down in the Royal Decree of 9 January 2005 regulating the conditions for technical operations of aircraft belonging to general aviation (OG The applicants must have their principal place of business and, if any, 7 February 2005) and, with respect to flight operation licences, as set out their registered office in Belgium. Applicants must have at least one in the Royal Decree of 25 October 2013 (OG 16 December 2013) imple- aircraft registered in Belgium, adequate insurance and evidence that the menting Regulation (EU) No. 1178/2011 as amended by Regulation (EU) company is and will continue to be owned directly or through a majority No. 290/2012. The Ministerial Decree of 13 February 1970, as amended shareholding by a company established and controlled by a company (see especially Ministerial Decree of 20 October 2003), sets out further or person established in the EEA. The application must be accompa- technical requirements for the operation of aircraft of 5,700kg or more nied by the documents that identify the applicant and its shareholding as well as organisational requirements for the airline and the mainte- structure and the routes it wishes to operate together with all the docu- nance of aircraft (OG 4 April 1970). ments required pursuant to Regulation (EC) No. 1008/2008. Except for www.lexology.com/gtdt 23 © Law Business Research 2019 Belgium Monard Law

certain exceptions set out in the royal decree, an operating licence may in exceptional circumstances any required capacity to fulfil the national not be granted if the operator has not previously obtained a certificate or international requirements of Belgium. The allocation of traffic affirming that the operator has the ability and resources to ensure the rights and the possible limits on the number of flights will be deter- safe operation of the aircraft for the activities set out in the certificate. mined by the terms and conditions of the applicable bilateral treaty. A The AOC is also issued by the Civil Aviation Authority. non-Community carrier is not allowed to operate regular air transport The financial fitness criteria are those laid down in Regulation (EC) services unless it has received prior authorisation from the Minister of No. 1008/2008. Transport either through bilateral agreements or specific authorisation. Such bilateral treaties or authorisation will set out specific conditions Licensing with which the airline has to comply. Moreover, such airline may not be 6 What procedures are there to obtain licences or other rights blacklisted by the European Commission pursuant to Regulation (EC) to operate particular routes? No. 2111/2005 as an unsafe airline. Any carrier that has a trading activity in Belgium must also be Once an AOC and licence have been obtained, the airline may operate any registered in the commercial register and obtain a value added tax intra-European route and routes to third countries in respect of which a number. If such air carrier opens a branch office in Belgium it must also licence and AOC have been obtained. To be able to operate routes outside fulfil the formalities for the opening of a branch office in Belgium as EU or EEA countries, the airline must be designated by the Minister of stipulated in the Belgian Company Code. Transport under bilateral air transport treaties. This is in accordance with the Royal Decree dated 18 August 2010 with respect to the desig- Public service obligations nation of Community carriers and assignment of traffic rights for the 10 Are there specific rules in place to ensure aviation services exploitation of scheduled air services between Belgium and non-EU are offered to remote destinations when vital for the local member states (OG 17 September 2010). The application for traffic rights economy? has to be filed with the BCAA in French, German, Dutch or in English. Non-scheduled air services are considered on a case-by-case basis A distinction has to be made between intra-Community operations and within the framework of the bilateral treaties. operations with third countries. As to intra-Community operations, see Regulation (EC) No. 1008/2008. As to operations with third countries, 7 What procedures are there for hearing or deciding contested see the criteria set out in question 6. applications for licences or other rights to operate particular routes? Charter services 11 How are charter services specifically regulated? Any appeal can be lodged with the BCAA. The appeal will be reviewed by the Minister of Transport. Appeals against decisions of the minister can The EU regulatory framework makes no distinction between regular be filed with the Council of State. services or chartered services. The Royal Decree of 15 March 1954 provides, in article 47, specific licence requirements for charter services Competition policy and specifies that non-scheduled flights or series of non-sched- 8 Is there a declared policy on airline access or competition? uled flights are subject to the specific authorisation of the minister. What is it? Non-scheduled air services are considered on a case-by-case basis within the framework of the bilateral treaties. A distinction should be made between intra-European access or competition and access by airlines established outside the EEA. Belgium has Regulation of airfares implemented no state policies over and above the EU regulations in 12 How are airfares regulated? this respect. Access to the Belgian territory for airlines established outside the See Regulation (EEC) No. 2409/92, which liberalised airfares and is now EEA is laid down in bilateral treaties. replaced by Regulation (EC) No. 1008/2008. With respect to flights to third countries, restrictions or information requirements on airfares can Requirements for foreign carriers be contained in the bilateral treaties. The airfares are further subject to 9 What requirements must a foreign air carrier satisfy to Regulation (EU) No. 712/2019 and to the Belgian trade practice regula- operate in your country? tions. They may be further limited by the competition regulations. Trade practices are regulated in Belgium by the Code of Economical Law, Book A distinction has to be made between an EU air carrier and any other VI, Trade Practices and Consumer Protection, which entered into force air carriers and flight within the EU and to a non-EU member state. In on 31 May 2014 and replaced the former Trade Practices Law of 6 April accordance with Regulation (EC) No. 1008/2008, article 15, any EU air 2010 (OG 12 April 2010). It specifies how prices (including airfares) have carrier duly licensed by its home country in accordance with the above- to be published, how price reductions can be provided, it allows compar- mentioned EC regulation can freely operate intra-European routes. No ative publicity provided it is not misleading and complies with the strict member states can submit the Community air carrier to any further fairness criteria laid down in the law, and allows combined services formalities or conditions. insofar as they do not relate in principle to financial services. The Law The Royal Decree dated 18 August 2010 regulates the allocation contains strict rules on distance selling, including over the internet; of traffic rights to non-EU countries. Only EU air carriers established in for example, the information to the consumer with respect to prices, Belgium are entitled to traffic rights to non-EU member states. These costs and services has to be clear and detailed and specify whether airlines must submit a formal application to the BCAA together with the consumer can revoke its purchase within 14 days (previously seven a copy of their AOC, insurance certificate, evidence that the airline is days). The revocation right is the default position, unless the services established in Belgium in accordance with Community law, information are rendered within this 14-day period or the services are immediately on the operational and financial sustainability and information on the executed and invoiced. If these conditions are not fulfilled, the consumer planned flights and the possible acceptance of the applicant to cover is not obliged to pay.

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Drones Future regulation 13 How is the operation of unmanned aircraft systems (drones) The Delegated Regulation harmonises the technical requirements of the regulated? UAS while the Implementing Regulation sets out the rules and procedures for the operation of the unmanned aircraft system (UAS). Both Drones are no longer the reserve of hobbyists, the military and tech- regulations feature annexes that go into further detail. nologists. Following a Royal Decree dated 10 April 2016 with respect to The implementing regulation creates three categories: open, the use of remote piloted aircraft (OG 15 April 2016) (the Drones Law), specific and certified: drones are now recognised as aircraft, allowing their commercial use. • The open categories are in principle low-risk drones. They do not The Drones Law entered into force on 25 April 2016. However, the rules require prior authorisation by the competent authorities, nor a of the EU’s Basic Regulation on aviation safety rules transferred the declaration by the drone operator before the operation takes place. competence for all drones, including small drones weighing less than But if the drone weighs more than 250 grams, the drone operator 150kg, to the EU. Consequently, the European Commission has adopted will need to be registered. The requirements refer to line-of-sight respectively on 12 March 2019 and 24 May 2019 a Delegated and an operations, maximum platform weight of 25kg, maximum altitude Implementing Regulation, which came into force on 1 July 2019 and will 120 metres above ground level (except where flying over a fixed apply from 1 July 2020 onwards. obstacle over 70 metres), limited flight over uninvolved people and For now, the 2016 Drones Law still regulates the commercial use meet criteria of classes C0–C4. The remote pilot must have the of small (with a take-off weight not exceeding 150kg), remotely piloted ability to take control so autonomous operations are excluded. aircraft on Belgian soil or airspace. • The specific category means a category of drone operations that, The Drones Law is not applicable to the recreational use of drones considering the risk involved, require authorisation by the compe- with a maximum take-off weight of less than 1kg, the indoor use of tent authority before the operation takes place. The exception to drones or the use of drones for public policy (such as military use, this rule applies to standard scenarios for which a declaration by customs, police, salvage, coast guards and firefighting). The commercial the drone operator is sufficient or when the operator holds a light use of drones is classified in the following two categories: drone operator certificate with privileges. • class 1: a flight operation with a high (1a) or moderate (1b) risk: • The certified category means a category of drone operation that • every operation that potentially may imply moderate or high requires certification of the drone and its operator as well as risk for aviation safety or the safety of people or goods on licensing of the flight crew. This is the most futuristic of the catego- the ground, such as an operation in an area where the safety ries, as it applies to UAS with dimensions of more than 3 metres, of people on the ground is possibly put at risk in case of an or if it transports dangerous goods or people. Nevertheless, under emergency, or which by its very nature and the area where it current Belgian law the transportation of goods or passengers by is operated, may imply such a high risk; a UAS is prohibited. • the pilot is at least 18 years of age; • the pilot must have a drone pilot licence; and The Delegated Regulation sets out the product requirements for drones, • the maximum flight altitude is 300 feet above ground level. with the main focus being open-category drone operations. It divides • class 2: a flight operation with a low risk: them into five classes, classes C0–C4, which need to be visible on the • every operation with a drone with a take-off weight of less drone itself through a class identification label. Furthermore, this regu- than 5kg for low risk activities such as air photography, lation provides an electronic identification system in the form of a direct geodesy and observation; remote identification . • the pilot is at least 16 years of age; As stated above, both Regulations will apply from 1 July 2020 • the pilot must have a drone pilot certificate; and onwards. However, there will be a two-year transition period there- • the maximum flight altitude is 150 feet above ground level. after to suspend certain open category requirements. The Regulations will then be fully applicable by 2022. The classifications and provisions Specific aviation rules apply. The Drones Law also prohibits the transport contained in the Belgian Drone KB will have to be amended after the of persons or goods, spray flights, formation flights, aerobatics flights, new Regulations come into effect, as they are directly binding and will towing and flights on air traffic service routes. However, in individual replace a great deal of the Belgian Royal Legislative Act. cases the Minister of Transport or the BCAA can allow an exception. As required for aircraft, drones also need to be insured for their For class 1 drones a specific pilot licence is required, whereas professional or commercial operation and use, in accordance with only a pilot certificate is required for class 2 drones. The certificate and article 7 of Regulation (EC) No. 785/2004 of the European Parliament licence are valid for life provided that the pilot has a valid medical certif- and of the Council of 21 April 2004 on insurance requirements for air icate for recreational pilots and executes at least six flights of at least carriers and aircraft operators. For the recreational use of a drone, civil two hours each during the preceding 24 months. liability insurance is required. A drone can only be commercially operated in the following cases: • the manufacturer has a conformity certificate for the drone, which AIRCRAFT must be obtained from the BCAA; • the drone is registered with the BCAA in the special and separate Aircraft register register for drones (the drone will be registered by the BCAA and 14 Who is entitled to be mentioned in the aircraft register? What a registration certificate will be issued upon fulfilment of the regis- requirements or limitations apply to the ownership of an tration conditions listed in the Drones Law); aircraft listed on your country’s register? • for class 1b operations: after an analysis, a preliminary declaration is obtained, stating that these operations are low risk; and The Royal Decree of 15 March 1954 provides that the following aircraft • for class 1a operations: a preliminary admission is obtained. can be registered in the Belgian aviation register: • civil aircraft that are fully owned by nationals of an EU member The operation of a drone is thus subject to the supervision of the BCAA. state or nationals of an EEA country who are domiciled in Belgium; or www.lexology.com/gtdt 25 © Law Business Research 2019 Belgium Monard Law

• civil aircraft wholly owned by legal entities incorporated under Detention Belgian law and whose main shareholders, managing share- 16 What rights are there to detain aircraft, in respect of unpaid holders, directors or agents are nationals of an EU member state airport or air navigation charges, or other unpaid debts? or an EEA country. There are three types of liens under Belgian law: liens such as repair- The following aircraft can be registered with the prior authorisation of men’s liens, statutory liens or liens with respect to salvage and the Minister of Communications: conservation costs (see Geneva Convention); temporary seizure; and • civil aircraft part-owned by: forced sale. • nationals of an EU member state or an EEA country who are Temporary seizures are regulated by article 1413 et seq of domiciled in Belgium; or the Judicial Code and are limited by the Convention of Rome on • legal entities formed under Belgian law and whose main Precautionary Arrest. The exercise of this right is conditional on there shareholders, managing shareholders, directors or agents are being urgency and a manifest undisputed claim that is certain, due nationals of an EU member state or an EEA country; and liquid. • civil aircraft wholly or part-owned by: The seizure for forced sale is regulated by article 1494 et seq of the • Belgians residing abroad who have elected to domicile in Judicial Code and by the Geneva Convention. A forced sale requires an Belgium for registration purposes; enforceable title (such as a judgment) and a manifest undisputed claim • legal entities governed by Belgian law whose main share- that is certain, due and liquid. No self-help is possible under Belgian law. holders, managing shareholders, directors or agents are not No specific measures have been implemented in Belgium with nationals of an EU member state or an EEA country; respect to the rights of Eurocontrol pursuant to Annex 4 to the protocol • legal entities of an EU member state or an EEA country that to the Eurocontrol Convention of 27 June 1997. have a place of business, an agency or an office in Belgium; or • foreign nationals of a country that is not a member of the EU Maintenance or the EEA who have resided in Belgium for at least one year 17 Do specific rules regulate the maintenance of aircraft? What or who have maintained an office, place of business or agency are they? in Belgium for at least one year; • civil aircraft that have been leased under a finance lease to any of See question 2. the persons listed above; or • civil aircraft operated by any of the persons listed above under a AIRPORTS lease for at least six months. Ownership Mortgage register 18 Who owns the airports? 15 Is there a register of aircraft mortgages or charges? How does it function? Brussels Airport, which is the main airport in Belgium, is owned by a private limited company, the Brussels Airport Company. Although the Belgium ratified the Geneva Convention on the International Recognition state still owns 25 per cent of the shares, the other 75 per cent are of Rights in Aircraft on 22 October 1993, but failed, until recently, to privately owned, 39 per cent by Canadian Penson fund OTTP and 36 per implement a law recording of security interests on aircraft in a public cent by a consortium consisting of Dutch pension fund APG, Australian register. A law dated 11 July 2013 as amended from time to time on Investor QIC and insurer Swiss Life. security interest on mobile goods introduced a national register for all Skeyes (previously Belgocontrol) manages the safety and the security interests on mobile goods, including aircraft pledges which will policing at the airport and the air traffic control and civil air naviga- record any security interest created over such mobile good (Pledge tion services. law). It entered into force on 1 January 2018; The cost of registering a The other airports in Belgium are Liège Airport at Bierset, close pledge over an aircraft or engine depends on the value thereof, but its to Liège, the Brussels South Charleroi Airport in Charleroi, the Ostend- maximum is €500. The Pledge Law allows a dual regime for pledges, Bruges International Airport and Antwerp Airport in Deurne. Both namely a possessory and non-possessory pledge. In the case of a regis- Ostend-Bruges International Airport and Antwerp Airport are owned by tered pledge, the pledge functions as a mortgage. This means that the the Flemish Region with respect to the infrastructure, but the manage- pledgor can remain in possession of the aircraft. The perfection of the ment of both airports has been granted to a privately held company pledge towards third parties is achieved through the registration in the named EGIS Projects. Liège Airport is 50 per cent owned by the Leasing national register. For non-registered aircraft pledges, the perfection and Financing Company, 25 per cent by the Walloon Region (Walloon is only achieved through dispossession either by way of the appoint- Airport Society, established in 2001 by Decree of 6 May 1999) and 25 ment of a third-party pledge holder or by delivering possession to the per cent by Paris Airport Management. The Brussels South Charleroi pledgee. The date of registration or date of signature and dispossession Airport is owned by Sambrinvest – a private investment vehicle of the for possessory pledges will determine the ranking. The register is a Walloon Region. public register and will relate to all mobile goods and not only aircraft. A registered aircraft pledge creates a security right in rem over an Licensing aircraft, which gives the pledgee rights similar to those of a mortgagee, 19 What system is there for the licensing of airports? namely a right, in the event of default by the debtor, to sell or lease the aircraft and a preferential right to the sale or lease proceeds or both. Brussels Airport is regulated by the Law of 19 December 1997 and by the Royal Decree of 27 May 2004 (OG 24 June 2004). The Walloon airports are regulated by the Decree of 23 June 1994 (OG 15 July 1994). There is no separate decree in Flanders where the airports fall under the general environmental legislation for licensing.

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Economic regulation Air traffic control 20 Is there a system of economic regulation of airports? How 24 Who provides air traffic control services? And how are they does it function? regulated?

As mentioned in question 18, the licence and thus the operating condi- Air traffic control is carried out by Skeyes in accordance with the Law tions of the airports are regulated at regional level, except for Brussels of 19 December 1997. In the context of the Single European Sky, the Airport, which is regulated at national level. Belgian Supervising Authority for the Air Navigation Service has been The licence for Brussels Airport, for example, is contained in the created by the Royal Decree of 14 February 2006. Royal Decree of 21 June 2004 (OG 15 July 2004). The licence not only The tasks of Skeyes are set out in its management contract with sets out environmental conditions, but also regulates landing rights of the Belgian state, including the tariffs to be charged by Skeyes. aircraft, cargo and mail, security, and infrastructure of the aircraft, and how Brussels Airport can charge fees for such services. LIABILITY AND ACCIDENTS The current licence contains no fixed fees except for landing rights, but it does contain detailed guidelines and consultancy procedures with Passengers, baggage and cargo respect to airport taxes. Part of the activities of the airport that relate to 25 What rules apply in respect of death of, or injury to, public services are furthermore subsidised by the Belgian state. passengers or loss or damage to baggage or cargo in respect of domestic carriage? Access 21 Are there laws or rules restricting or qualifying access to Air carrier liability for passengers and their baggage and cargo is airports? governed by the Montreal Convention as implemented by Regulation (EC) No. 889/2002, amending Regulation (EC) No. 2027/97 and by the The operating licence sets out which type of aircraft may land at the Belgian Law of 13 May 2003 (OG 18 May 2004), which also applies to airport and when. There are specific noise restrictions relating to the domestic carriage. type of aircraft, its weight and the time of landing. These restrictions are different for each airport. The landing fees are calculated based on Surface damage parameters of weight, noise and the time of landing. 26 Are there any special rules about the liability of aircraft Further noise restrictions for aircraft are laid down in the Royal operators for surface damage? What are they? Decree of 25 September 2003 (OG 26 September 2003) setting out operating restrictions at Brussels Airport and by the Ministerial Decree of The Royal Decree of 3 May 1991 (OG 28 May 1991) sets out the safety 3 May 2004 (OG 11 June 2004). The Brussels Region has issued strict measures for civil aviation. It contains specific safety measures that noise restrictions which are very much debated (Decree of 17 July 1997, must be complied with by the air carriers. Skeyes is also responsible for decision 27 May 1999 and 19 May 2016). See also restrictions for chapter safety on the runways. Any accidents on the runways as a result of any 2 aircraft laid down in Council Directive 2006/93/EC. More restrictions breach of the applicable police rules can be subject to administrative are contained in the Royal Decree of 16 December 2005 (implementing sanctions. Otherwise, general civil liability rules apply. Directive 2004/36/EC) with respect to the safety of aircraft of third countries wishing to land at a Belgian airport (OG 23 January 2006). Accident investigation 27 What system and procedures are in place for the Slot allocation investigation of air accidents? 22 How are slots allocated at congested airports? Pursuant to the Royal Decree of 9 December 1998 (OG 29 December Regulation (EEC) No. 95/93 has been implemented in Belgium by 1998), an independent unit has been created within the Ministry of the Royal Decree of 23 June 2003 with respect to slot coordination Transport, namely the accidents and incidents investigation unit. The at Brussels Airport (OG 8 August 2003). The Royal Decree has put in unit is responsible for the independent investigation of any accident or place a slot coordinator who, in case of congestion, allocates slots in incident and is especially independent from the Civil Aviation Authority, accordance with their noise efficiency. The slot coordinator also has the which is responsible among other things for the control on the airwor- general task of slot management in accordance with Regulation (EEC) thiness of the aircraft. No. 95/93, as amended by Regulation (EC) No. 793/2004. The accident and incident investigation unit will, following any accident or incident, carry out a full investigation and draft a report within Ground handling 12 months to be available on a database for those responsible for safety 23 Are there any laws or rules specifically relating to ground in aerospace. Such report is furthermore communicated to the compa- handling. What are they? nies involved, the Civil Aviation Authority, the European Commission and the international civil aviation organisations. The investigators have free Ground handling is regulated by the Royal Decree of 12 November access to all data relating to the aircraft and accident or incident. 1998 (OG 25 December 1998). The Royal Decree allows only two ground Following an accident, no repair can be carried out without prior handlers for each of the following activities: baggage handling, cargo approval of the Civil Aviation Authority, unless such repair is carried handling, fuel supply and platform handling. None of them may be out in accordance with the manufacturer’s manuals and maintenance directly or indirectly owned by more than 25 per cent by the airport or programme. any of its users. The selection must be based on objective, transparent Skeyes is also responsible for safety in the air and on the ground. and non-discriminatory criteria.

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Accident reporting • undertakings with a total turnover in Belgium of more than €100 28 Is there a mandatory accident and incident reporting system? million; and How does it operate? • at least two of the undertakings each generates a turnover in Belgium of at least €40 million. The Royal Decree of 22 April 2005 (OG 23 May 2005) sets out the reporting requirement to the accident and incidents investigation unit. There is no system of clearances for cartels. Only those accidents or incidents that could have endangered the life of passengers or third parties or the aeroplane need to be reported. A list Assessing competitive effect of those accidents and incidents is attached to the Royal Decree. 33 What are the main standards for assessing the competitive The airline or the pilot must notify the inspection unit within 72 effect of a transaction? hours of the accident or incident. (The Royal Decree extends this noti- fication requirement to, among others, the maintenance providers, In the Delta Air Transport/Virgin Express decision, the Competition handling agents, Skeyes or similar agencies abroad, and the Civil Council, although there was a concentration on two routes, took into Aviation Authority.) consideration the availability of slots in the relevant airports and that Any accident or incident also needs to be reported to Skeyes, the absence of such a merger might lead to the disappearance of both the Civil Aviation Authority and the local competent authorities if the airlines and that one larger airline might instead lead to a more compet- accident or incident has occurred abroad. This is an obligation incum- itive environment. bent on the pilot, who is commander on board, in accordance with the Ministerial Decree of 13 February 1970 relating to technical measures Remedies for the operation of aircraft weighing more than 5,700kg (OG 4 April 34 What types of remedies have been imposed to remedy 1970) and the Royal Decree of 9 January 2005. concerns identified by the competition authorities?

COMPETITION LAW In the Delta Air Transport/Virgin Express case, no remedies were imposed. Specific regulation 29 Do sector-specific or general competition rules apply to FINANCIAL SUPPORT AND STATE AID aviation? Rules and principles As to Belgian competition law rules, the general competition rules apply. 35 Are there sector-specific rules regulating direct or indirect financial support to companies by the government or Regulator government-controlled agencies or companies (state aid) in 30 Is there a sector-specific regulator, or are competition rules the aviation sector? Is state aid regulated generally? applied by the general competition authority? There are no state-owned airlines in Belgium. General EU state aid rules Competition rules are applied by the Competition Council. apply in the aviation sector. There are no national specific rules in the aviation sector. Market definition 31 How is the relevant market for the purposes of a competition 36 What are the main principles of the state aid rules applicable assessment in the aviation sector defined by the competition to the aviation sector? authorities? See question 35. On 24 December 2004, the Competition Council made a pronounce- ment on the merger between Delta Air Transport and Virgin Express Exemptions at holding level. The Competition Council considered that the relevant 37 Are there exemptions from the state aid rules or situations in market had to be analysed based on the method place of origin and which they do not apply? place of destination. Each combination of place of origin and place of destination can as such be considered as a separate market. But for See question 35. the purposes of defining the market, any alternative airport in the same region and any alternative means of transport must be considered as Clearance of state aid well as any direct and indirect flights. 38 Must clearance from the competition authorities be obtained before state aid may be granted? What are the main Code-sharing and joint ventures procedural steps for doing so? 32 How have the competition authorities regulated code-sharing and air-carrier joint ventures? See question 35.

Joint ventures on the basis of a joint venture company are subject to Recovery of unlawful state aid Belgian merger control if the turnover thresholds are met. Joint ventures 39 If no clearance is obtained, what procedures apply to recover based solely on a cooperation agreement, such as a code-share, may be unlawfully granted state aid? subject to the rules on the prohibition of cartels, which are similar to EU antitrust law. Parties can obtain regulatory clearance for mergers from See question 35. the Belgian Competition Authority under the terms of article IV.9 Code of Economic Law (CEL). It is only necessary to notify the BCA of mergers that meet the following turnover thresholds as laid out in article IV.7 CEL:

CONSUMER PROTECTION to be indemnified for the cancelled flight. If passengers booked their flight by way of a credit card, they may be able to obtain reimbursement Passengers by asking for a charge-back within 60 days. 40 What rules regulate denied boarding, cancellation or (tarmac) Passengers with reduced mobility may require assistance pursuant delay? to Regulation (EC) No. 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons Regulation (EC) No. 261/2004 is directly applicable in Belgium, as well as and persons with reduced mobility when travelling by air. The BCAA Regulation (EC) No. 1008/2008. No separate national legislation exists. is also the competent authority for the application of Regulation (EC) The BCAA is responsible for most of the application of Regulation No. 1107/2006 with regard to disabled persons and persons with (EC) No. 261/2004. reduced mobility travelling by air who use or intend to use commercial The denied boarding authority in Belgium is the Denied Boarding air services for passengers before departure from, transit through or Authority of the BCAA. A claim can be filed online through a web form on arrival at a Belgian airport or for passengers on flights departing for a the site of the FPS Mobility and Transport by the passenger whose claim third country with arrival at a Belgian airport, provided that the airline for compensation has been rejected by the airline (www.mobilit.fgov.be/ operating the flight is a Community air carrier. applications/Internet/EasyWebForms.nsf/PassengerRights_NL.xsp). Airlines and tour operators must provide certain passenger data, namely passenger reservation data (PNR data) as well as data Package holidays appearing on an authentic document (such as ID card or passport) to 41 What rules apply to the sale of package holiday products? the Passenger Identification Unit (BelPIU) pursuant to: • the Law of 25 December 2016 (as amended from time to time and Package holidays are regulated by the Law of 21 November 2017 imple- most recently on 2 May 2019) on the use of passenger data, implementing Directive 2015/2302/EU of the European Parliament and of the menting the EU Directive of 27 April 2016 on the use of passenger Council dated 25 November 2015. It entered into force on 1 July 2018 name record (PNR) data for the prevention, detection, investigation with respect to package holidays entered into as of that date. and prosecution of terrorist offences and serious crime; A package holiday is defined as a combination of two of the • the Royal Decree of 18 July 2017, which executes the PNR law for following services: the air sector; and • passenger transport; • the Royal Decree of 21 December 2017, which organises the BelPIU. • accommodation that is not included in passenger transport; • rental of cars or other vehicles; and The law on the processing of passenger data (of 30 July 2018) forbids • any touristic service that does not form part of the other services the collection and use of sensitive data. Data about race or ethnic origin, listed above and form an important or essential part of the trip. It religion or philosophical beliefs, political opinions, trade union member- must concern a trip lasting longer than 24 hours. ship, health, sexual life or sexual orientation cannot be asked or stored. Passengers have the following rights under the EU General Data The passengers must receive pre-contractual information setting out Protection Regulation in relation to their personal data: their rights and the essential information relating to purchase of the • the right to be informed about the collection and use of their travel package. personal data; Parties must sign a package holiday agreement containing the • the right to access their personal data; pre-contractual information. The tour operator can only cancel the • the right to rectification to have inaccurate personal data rectified, agreement without indemnity if the minimum number of passengers or completed if it is incomplete; is not reached or in the case of unforeseen and extraordinary circum- • the right to have personal data erased; stances. If part of the trip cannot be completed the tour operator has to • the right to request the restriction or suppression of the processing use its best efforts to provide equivalent solutions. If the return cannot of their personal data; take place due to unforeseen and extraordinary circumstances the tour • the right to data portability that allows individuals to obtain operator has to provide lodging for a maximum of three nights except in and reuse their personal data for their own purposes across cases where it relates to handicapped persons, pregnant women, unac- different services; companied minors and persons requiring special medical assistance. • the right to object to the processing of their personal data in certain This liability must be insured by the tour operator (see Royal circumstances; and Decree of 29 May 2018). • specific rights in relation to automated decision-making and profiling (eg, information obligation, request for human intervention). Other consumer legislation 42 Is there any other aviation-specific consumer legislation? INSURANCE AND SECURITY

Regulation (EC) No. 261/2004 is directly applicable in Belgium, as well Insurance for operators as Regulation (EC) No. 1008/2008. No separate national legislation 43 What mandatory insurance requirements apply to the exists, other than with respect to airfares, where the Code of Economical operation of aircraft? Law, Book VI, Trade Practices and Consumer Protection, which entered into force on 31 May 2014 applies (see question 12). Regulation (EC) No. 785/2004 entered into force on 1 May 2005, as Tour operators must cover their liability by way of insurance. Most amended by Commission Regulation (EU) No. 285/2010, and is directly Belgian tour operators are insured by Garantiefonds Reizen. In the case applicable in Belgium. of bankruptcy, passengers can make a claim with Garantiefonds Reizen. No such mandatory insurance exists for airlines. With respect to airlines established in Belgium, passengers can initiate a claim via the website Regsol (www.regsol.be). Passengers are unsecured creditors and it is very unlikely in the case of bankruptcy that they would be able www.lexology.com/gtdt 29 © Law Business Research 2019 Belgium Monard Law

Aviation security 44 What legal requirements are there with regard to aviation security?

The general safety requirements are laid down in the Royal Decree of 3 May 1991. The licence for Brussels Airport contains further detailed safety rules that the airport must implement and respect. Birgitta Van Itterbeek Serious crimes [email protected] 45 What serious crimes exist with regard to aviation? Avenue de Tervueren 270 Criminal sanctions are set out in the Law of 27 June 1937 and depend 1150 Brussels on the offence committed. The criminal sanctions vary from one day’s Belgium to one year’s imprisonment and monetary fines. This law applies to Tel: +32 2 234 67 10 almost all applicable royal and ministerial decrees regulating aviation Fax: +32 2 280 47 79 in Belgium. www.monardlaw.be Other sanctions are included in international conventions such the Hague Convention, especially with respect to hijacking and offences committed on board aircraft.

UPDATE AND TRENDS

Emerging trends 46 Are there any emerging trends or hot topics in air transport regulation in your jurisdiction?

Creation of a Belgian single airspace Belgium has several zones in the air, including a large number of zones reserved for the military, which often prevents commercial airlines from choosing the most efficient route. Given the increase in air traffic, due to the surge in commercial aviation and the emergence of drones, this distribution of airspace is becoming a problem. In addition, the divi- sion of airspace management between three different players, namely Skeyes, the Belgian army and Eurocontrol, is not efficient. This situation should soon belong to the past with the creation of a single airspace in which the deployment of zones will be dynamic instead of the static no-go zones of today. This should ensure that the available airspace for commercial aviation is enlarged. To this end Skeyes, the BCAA, the army and Eurocontrol consulted each other. As a result, the parties drafted ‘Belgian Airspace Vision 2030’. This expansion of airspace capacity calls for joint air traffic control. This is why military air traffic control and its civilian counterparts in Skeyes are now being brought together at the air traffic control centre in Steenokkerzeel. For the time being, however, each party is still working with its own air traffic control system, which is planned to be integrated in the future.

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