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2016 Contributing Editors John Balfour and Mark Bisset GETTING THROUGH THE DEAL Air Transport Air Transport Contributing editors John Balfour and Mark Bisset 2016 2016 Air Transport 2016 Contributing editors John Balfour and Mark Bisset Clyde & Co LLP Publisher Law Gideon Roberton The information provided in this publication is [email protected] Business general and may not apply in a specific situation. Research Legal advice should always be sought before taking Subscriptions any legal action based on the information provided. Sophie Pallier Published by This information is not intended to create, nor does [email protected] Law Business Research Ltd receipt of it constitute, a lawyer–client relationship. 87 Lancaster Road The publishers and authors accept no responsibility Business development managers London, W11 1QQ, UK for any acts or omissions contained herein. Alan Lee Tel: +44 20 3708 4199 Although the information provided is accurate as of [email protected] Fax: +44 20 7229 6910 September 2015 be advised that this is a developing area. Adam Sargent © Law Business Research Ltd 2015 [email protected] No photocopying without a CLA licence. First published 2oo6 Printed and distributed by Dan White Tenth edition Encompass Print Solutions [email protected] ISSN 1751-9098 Tel: 0844 2480 112 CONTENTS Global Overview 7 Iceland 90 John Balfour Erlendur Gíslason Clyde & Co LLP Logos Legal Services Afghanistan 11 India 95 M Wisal Khan and Ghazi Khan Amir Singh Pasrich and Mohana Malhotra Legal Oracles I.L.A. Pasrich & Company Argentina 15 Indonesia 106 Elizabeth Mireya Freidenberg Wahyuni Bahar and Anggia Rukmasari Freidenberg, Freidenberg & Lifsic Bahar & Partners Austria 21 Italy 110 Joachim J Janezic Laura Pierallini Recht & Co – Janezic & Schmidt Rechtsanwälte OG Studio Pierallini Bahamas 25 Japan 117 Arthur K Parris Shuji Yamaguchi ParrisWhittaker Okabe & Yamaguchi Belgium 28 Malta 121 Birgitta Van Itterbeek Tonio Grech Monard Law Dingli & Dingli Law Firm Brazil 33 Mexico 127 Renata Iezzi Javier Alegre and Carlos Campillo Basch & Rameh Advogados Associados Alegre, Calderón y Márquez Abogados Canada 38 Netherlands 133 Laura M Safran QC and Prasad Taksal Jeroen Timmermans, Laetitia Kunst-den Teuling and DLA Piper (Canada) LLP Ruben Elkerbout Stek Cayman Islands 45 Louise Groom and Ellie Crespi-McCarthy New Zealand 139 Harneys Frank Porter, Anita Birkinshaw and Rishalat Khan Buddle Findlay Denmark 49 Henrik Kleis and Rune Hamborg Nigeria 145 Delacour Law Firm Etigwe Uwa SAN, Chinasa Unaegbunam and Queenette Hogan Streamsowers & Köhn Dominican Republic 55 Rodolfo Mesa Chavez Norway 151 Mesa & Mesa Abogados Knut Boye, Ingar Fuglevåg and Camilla Flatum Advokatfirmaet Simonsen Vogt Wiig AS European Union 59 Geert Goeteyn Poland 155 Shearman & Sterling LLP Krystyna Marut, Edyta Michalak and Anna Burchacińska-Mańko MMMLegal Legal Counsels France 71 Vonnick Le Guillou, Edouard Sarrazin, Marie Bresson, Portugal 160 Jonathan Rubinstein and Guilhem Argueyrolles João Pedro Alves Pereira and João Marques de Almeida DLA Piper France APTS – Alves Pereira & Teixeira de Sousa RL Germany 77 Russia 166 P Nikolai Ehlers Mikhail Sokolov, Anna Arkhipova and Sergey Seliverstov Ehlers, Ehlers & Partner Sokolov, Maslov and Partners Greece 83 Singapore 172 Betty Smyrniou and Konstantina Linardou Rajaram Ramiah and Amos Tan Bahas, Gramatidis & Partners Quahe Woo & Palmer LLC 2 Getting the Deal Through – Air Transport 2016 CONTENTS Sweden 178 United Arab Emirates 198 Stephan Eriksson and Erik Hägnefors Sander Donald H Bunker, Ian Veall, Christine Veall and Henock Girma Advokaterna Liman & Partners AB Donald H Bunker and Associates Switzerland 183 United Kingdom 202 Andreas Fankhauser John Balfour Baumgartner Mächler Clyde & Co LLP Turkey 189 United States 208 M Ali Kartal Andrew J Harakas and Christopher Carlsen Aybay & Aybay Clyde & Co US LLP Ukraine 193 Uruguay 216 Anna Tsirat Gonzalo Yelpo Jurvneshservice International Legal Services Yelpo & Facal Abogados www.gettingthedealthrough.com 3 BELGIUM Monard Law Belgium Birgitta Van Itterbeek Monard Law General 4 Is access to the market for the provision of air transport services regulated and, if so, how? 1 Which bodies regulate aviation in your country, under what basic laws? EC Regulation No. 1008/2008 of 24 September 2008 is directly applica- ble in Belgium. A Ministerial Decree of 3 August 1994 further sets out the There are three regulatory bodies in Belgium: general authority lies with licence requirements for the commercial operation of aircraft. the Civil Aviation Authority of the Federal Public Service of Mobility and The licence and the air operator’s certificate (AOC) are issued by the Transport, which was created by the Law of 27 June 1937 and its Royal Civil Aviation Authority. Decree of 15 March 1954 (as amended); Belgocontrol is responsible for air traffic control and civil air navigation services for Luxembourg and 5 What requirements apply in the areas of financial fitness and Belgium and was created by the Law of 19 December 1997; and the Belgian nationality of ownership regarding control of air carriers? Supervising Authority for Air Navigation Service, which was created in the context of the Single European Sky by the Royal Decree of 14 February The applicants must have their principal place of business and, if any, their 2006. registered office in Belgium. Applicants must have at least one aircraft reg- istered in Belgium, adequate insurance and evidence that the company is Regulation of aviation operations and will continue to be owned directly or through a majority shareholding by a company established and controlled by a company or person estab- 2 How is air transport regulated in terms of safety? lished in the European Economic Area (EEA). The application must be A distinction should be made between international conventions and trea- accompanied by the documents that identify the applicant and its share- ties that are directly applicable and their implementation instruments, EU holding structure and the routes it wishes to operate together with all the regulations and directives and Belgian law. documents required pursuant to EC Regulation No. 1008/2008. Except for The Chicago Convention was ratified in Belgium on 30 April 1947 and certain exceptions set out in the royal decree, an operating licence may not was implemented by the Royal Decree of 15 March 1954, which has been be granted if the operator has not previously obtained a certificate affirm- amended several times. The Law of 30 April 1947 has been further imple- ing that the operator has the ability and resources to ensure the safe opera- mented by another 24 royal and ministerial decrees. In effect that law, tion of the aircraft for the activities set out in the certificate. The AOC is together with the Law of 27 June 1937 and the Royal Decree of 15 March also issued by the Civil Aviation Authority. 1954, are the basic regulations for aviation operations in Belgium. The financial fitness criteria are those laid down in EC Regulation No. The basic regulations with respect to technical operations are laid 1008/2008. down in the Royal Decree of 9 January 2005 and, with respect to flight operation licences, in the Royal Decree of 10 January 2000. The Ministerial 6 What procedures are there to obtain licences or other rights to Decree of 13 February 1970, as amended (see especially Ministerial Decree operate particular routes? of 20 October 2003), sets out further technical requirements for the opera- Once an AOC and licence have been obtained, the airline may operate tion of aircraft of 5,700kg or more as well as organisational requirements any intra-European route and routes to third countries in respect of which for the airline and the maintenance of aircraft. a licence and AOC have been obtained. To be able to operate routes out- As a result of EC Regulation No. 3922/91, the JAR rules also apply side EU or EEA countries, the airline must be designated by the minister of in Belgium and have been further implemented by the Royal Decree of transport under bilateral air transport treaties. In accordance with the Law 25 June 2001. With the creation of the European Aviation Safety Agency of 3 May 1999 with respect to scheduled air service an airline can be so des- (EASA), many safety issues are now further regulated and harmonised at ignated if it has an operating licence issued by the Kingdom of Belgium in EU level. accordance with the EU regulations. Moreover, the minister can take into account the following elements in designating an airline: 3 What safety regulation is provided for air operations that do • compliance with bilateral treaties; not constitute public or commercial transport and how is the • the interests of passengers; distinction made? • the investments realised or to be realised for the operation of the ser- The Royal Decree of 15 March 1954 applies to all civil aircraft whether vices for which it will be designated; or not they are used for commercial transport. However, with respect to • the consequences of such operations for the development of Belgium the licence requirements for commercial transport, a distinction is drawn as an economic centre and for employment in the air transport sector; between taxi services and other commercial operations. A taxi service is • the environmental nuisance; and defined as aircraft with no more than 10 seats and in respect of which the • the use of the fleet for the needs of the government in times of crisis. destination is fixed by the users without any seat going to other commercial passengers. The licence requirements for taxi services are less stringent Non-scheduled air services are considered on a case-by-case basis within than for other commercial operations. If an aircraft is not used for commer- the framework of the bilateral treaties. cial transport, the licence requirements for commercial operations do not apply. Both the Royal Decrees of 9 January 2005 with respect to technical 7 What procedures are there for hearing or deciding contested operations and of 10 January 2000 with respect to flight operation licences applications for licences or other rights to operate particular make a clear distinction between the different types of aircraft.
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