Cross-border provision of air navigation services with specific reference to Europe : safeguarding transparent lines of responsibility and liability Antwerpen, N.A. van
Citation Antwerpen, N. A. van. (2007, November 29). Cross-border provision of air navigation services with specific reference to Europe : safeguarding transparent lines of responsibility and liability. Retrieved from https://hdl.handle.net/1887/12467
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Cross-border provision of air navigation services with specific reference to Europe: Safeguarding transparent lines of responsibility and liability
Cross-border provision of Air Navigation Services with specific reference to Europe: Safeguarding transparent lines of responsibility and liability
PROEFSCHRIFT
ter verkrijging van de graad van Doctor aan de Universiteit Leiden, op gezag van Rector Magnificus prof. mr. P.F. van der Heijden, volgens besluit van het College voor Promoties te verdedigen op donderdag 29 november 2007 klokke 11.15 uur
door
Niels van Antwerpen geboren te Nieuw-Vennep, in 1975
Promotiecommissie
promotores: prof. dr. P.P.C. Haanappel prof. mr. L.J. Brinkhorst co-promotor: dr. P.M.J. Mendes de Leon referent: dr. F.P. Schubert (CEO Skyguide, Geneva) leden: prof. B. Havel (DePaul University, Chicago) prof. dr. S. Hobe (University of Cologne) prof. mr. J.H. Nieuwenhuis mr. R.D. van Dam (EUROCONTROL, Brussels)
Een handelseditie zal verschijnen bij uitgeverij Kluwer Law International te Alphen a/d de Rijn onder ISBN 13 - 9789041126887
For I dipt into the future, far as human eye could see, Saw the Vision of the world, and all the wonder that would be;
Saw the heavens fill with commerce, argosies of magic sails, Pilots of the purple twilight, dropping down with costly bales;
Heard the heavens fill with shouting, and there rain’d a ghastly dew From the nations’ airy navies grappling in the central blue;
Far along the world-wide whisper of the south-wind rushing warm, With the standards of the peoples plunging thro’ the thunder-storm;
Till the war-drum throbb’d no longer, and the battle-flags were furl’d In the Parliament of man, the Federation of the world.
There the common sense of most shall hold a fretful realm in awe, And the kindly earth shall slumber, lapt in universal law.
From Locksley Hall (1842) Alfred, Lord Tennyson
II__
Acknowledgements
As Leonardo da Vinci said: ‘when once you have tasted flight, you will forever walk the earth with your eyes turned skyward, for there you have been, and there you will always long to return’. I was fortunate in tasting air- and space law and related policy through the post- graduate teaching program of the International Institute of Air and Space Law (Leiden University) by joining its first advanced masters of law program in air- and space law in the summer of 2000. The atmosphere of the institute, its network and, not less important, the classmates of the first year’s teaching program, have heavily contributed to the thoughts and enthusiasm that lies behind this study.
Trying to mould ideas and building paradigm shifts is definitely a challenge and a constant struggle with oneself and, not less important, one’s laptop computer. The colleagues of KLM Royal Dutch Airlines have been of great support. I wish to express my indebtedness in particular to Jan-Ernst de Groot, Barbara van Koppen, Irene Schoute, Ben Berends and the entire team of the Corporate Legal Services.
In relation to the subject to this study, I would like to thank Dr. Tissa Abeyratne, Jiefang Huang and Nicolas Banerjea-Brodeur for their spontaneous assistance to show me the way to various ICAO documents. Furthermore, in order to obtain the most topical information and further insides in the field of European air navigation services, Ann-Frédérique Pothier of EUROCONTROL has been of great support. Also, I thank Prof. Dr. Paul Dempsey of the Institute of Air- and Space Law (McGill University) for making himself available to exchange views and observations on the topic of this study and the beloved Maria D’Amico for her great help and organisational support within McGill University. Lastly, I would like to express my indebtedness to Peter van Fenema and George Tompkins Jr. who were always available to provide advice, joy and laughter.
I must also mention the help of Paula van der Wulp and Judith Sandriman for managing the organisational challenges at the Leiden University and Anna Rich for her loyal support over the years and making herself available for making the final corrections. Also I would like to express my gratitude to Frank Manuhutu who was always there to exchange views, host dinner parties and drinks as well as Jeroen Vink for the cover design. I shall of course, never forget the love, support and patience of my parents, the pater familias Theo van Antwerpen and my friends during all these years that have made the research bearable.
Niels Arnoud van Antwerpen
Leiden, November 2007
Table of Contents
ACKNOWLEDGEMENTS ...... II
TABLE OF CASES ...... VI
TABLE OF INTERNATIONAL CONVENTIONS AND OTHER AGREEMENTS ...... VII
LIST OF ABBREVIATIONS AND ACRONYMS ...... IX
CHAPTER 1 INTRODUCTION ...... 11 1.1 TECHNOLOGY AND TRAGEDIES...... 11 1.2 THE MID-AIR COLLISION NEAR ÜBERLINGEN (LAKE CONSTANCE)...... 15 1.3 OBJECTIVE AND RESEARCH QUESTIONS...... 19 1.4 DIVISION OF CHAPTERS ...... 22 CHAPTER 2 THE INTERNATIONAL LEGAL FRAMEWORK ...... 25 2.1 INTRODUCTION ...... 25 2.2 PRINCIPLES OF INTERNATIONAL (AIR) LAW...... 25 2.2.1 State, Territory, Airspace...... 25 2.2.2 Sovereignty, Jurisdiction and Delegation of National Competencies...... 26 2.3 ICAO...... 29 2.3.1 Institutions ...... 29 2.3.1.1 The Assembly, Council, Air Navigation Commission, Legal Committee and the Committee on Joint Support of Air Navigation Services...... 29 2.3.1.2 The Regional Office, PIRG, RANP and the RAN Meeting ...... 31 2.3.2 Framework for the Operation of Air Navigation Services...... 33 2.3.3 Rulemaking...... 35 2.3.4 Enforcement ...... 37 2.4 CONCLUDING REMARKS ...... 41 CHAPTER 3 THE EUROPEAN LEGAL FRAMEWORK ...... 43 3.1 INTRODUCTION ...... 43
PART 1 ECAC, EUROCONTROL AND THE EUROPEAN COMMUNITY...... 44
3.2 ECAC ...... 44 3.3 EUROCONTROL ...... 45 3.3.1 The Amended Convention...... 45 3.3.2 The Revised Convention ...... 48 3.3.3 Provisional Application of the Revised Convention...... 49 3.3.4 Institutions ...... 50 3.3.5 Rulemaking...... 51 3.3.5.1 Non-Safety related rules...... 51 3.3.5.2 Safety related rules (ESARR’s)...... 53 3.3.6 Enforcement ...... 54 3.4 EUROPEAN COMMUNITY ...... 56 3.4.1 Rulemaking...... 56 3.4.2 The Single European Sky Regulations ...... 58 3.4.2.1 Framework Regulation...... 61 3.4.2.2 Service Provision Regulation ...... 62 3.4.2.3 Airspace Regulation...... 63 3.4.2.4 Interoperability Regulation ...... 64 3.4.3 Enforcement ...... 64 3.5 PRELIMINARY REMARKS...... 65
IV Table of contents
PART 2 THE INTERRELATIONSHIP BETWEEN EUROCONTROL AND THE EUROPEAN COMMUNITY (INCLUDING EASA) ...... 66
3.6 EUROPEAN COMMUNITY, EUROCONTROL AND EASA...... 66 3.6.1 The European Community in relation to the Revised Convention...... 67 3.6.2 EUROCONTROL in relation to the Single European Sky Regulations ...... 69 3.6.2.1 Non-Safety related rules – A hybrid rulemaking framework (mandates)...... 70 3.6.2.2 A Commentary on non-safety related rules issued under the European Community ...... 73 3.6.2.3 Safety related rules (ESARRs)...... 76 3.6.2.4 A Commentary on safety related rules: implementation issues and EASA...... 76 3.6.2.5 EUROCONTROL and the Single Pan-European Sky...... 79 3.7 CONCLUDING REMARKS ...... 80 CHAPTER 4 CROSS-BORDER PROVISION OF AIR NAVIGATION SERVICES...... 85 4.1 INTRODUCTION ...... 85 4.2 CROSS-BORDER AND EXTRA-TERRITORIAL PROVISION OF AIR NAVIGATION SERVICES ...... 86 4.2.1 Cross-Border Provision of Air Navigation Services...... 86 4.2.2 Extra-Territorial Provision of Air Navigation Services...... 87 4.2.2.1 High Seas: Joint Financing, ADIZ and CADIZ...... 87 4.2.2.2 Undetermined sovereignty: Antarctica...... 91 4.2.3 Autonomy...... 93 4.2.3.1 The Netherlands Antilles and Aruba ...... 95 4.2.3.2 Hong Kong and Macao ...... 97 4.2.4 Preliminary Remarks ...... 98 4.3 RESPONSIBILITY AND LIABILITY ...... 99 4.3.1 Responsibility ...... 99 4.3.2 Liability ...... 104 4.4 CROSS-BORDER ARRANGEMENTS...... 107 4.4.1 Bilateral Arrangements...... 108 4.4.1.1 Letters of Agreement...... 108 4.4.1.2 Bilateral Agreement ...... 109 4.4.1.3 Eurocontrol Model Agreement on the Delegation of Air Traffic Services...... 112 4.4.2 Multilateral Arrangements...... 114 4.4.2.1 Maastricht UACC...... 114 4.4.2.2 CEATS...... 115 4.4.2.3 NUAC ...... 116 4.4.2.4 The draft Eurocontrol Model State Level FAB Agreement...... 118 4.4.2.5 COCESNA and ASECNA ...... 119 4.5 THE CONCEPT OF THE RESPONSIBILITY OF THE SUPERVISING AUTHORITY ...... 121 4.6 TOWARDS A MULTILATERAL VEHICLE FOR CROSS-BORDER ARRANGEMENTS...... 129 4.6.1 Amending the Chicago Convention...... 129 4.6.2 The Regional Air Navigation Plan (RANP) ...... 130 4.6.3 Positioning the RANP in international law...... 134 4.6.4 The RANP as a multilateral vehicle ...... 140 4.7 CONCLUDING REMARKS ...... 142
CHAPTER 5 ORGANISATION OF AIR NAVIGATION SERVICE PROVIDERS IN EUROPE ...... 147
5.1 INTRODUCTION ...... 147 5.2 CORPORATISATION AND PRIVATISATION ...... 148 5.3 THE ORGANISATION OF AIR NAVIGATION SERVICE PROVIDERS UNDER NATIONAL LAW...... 154 5.3.1 Luxembourg ...... 156 5.3.2 Belgium ...... 156 5.3.3 The Netherlands...... 157 5.3.4 Germany ...... 160 5.3.5 Austria ...... 162 5.3.6 Switzerland...... 163 5.3.7 Ireland...... 164 5.3.8 United Kingdom ...... 164
Table of contents V
5.4 THE ORGANISATION OF AIR NAVIGATION SERVICE PROVIDERS IN THE EUROPEAN COMMUNITY..167 5.4.1 Air Carrier Transportation: Operating License and Route License ...... 167 5.4.2 Air Navigation Services: Certification and Designation...... 169 5.4.3 Service Provision Regulation – Entry into Force ...... 171 5.4.4 The Organisation of Air Navigation Service Providers...... 172 5.4.4.1 Principal Place of Operation and Registered Office (Ownership and Control) ...... 172 5.4.4.2 Regulatory...... 173 5.4.4.3 Liability...... 174 5.5 LIABILITY FOR (CROSS-BORDER) AIR NAVIGATION SERVICES ...... 174 5.5.1 Traditional Liability Concepts...... 174 5.5.2 The Draft Convention on the Liability for Air Traffic Control ...... 176 5.5.3 Inter-State Liability Concepts for Cross-Border Service Provision...... 178 5.6 TOWARDS A HARMONISED CROSS-BORDER LIABILITY REGIME FOR THE EUROPEAN COMMUNITY ...... 181 5.6.1 Conceptual Liability Framework: Inter-State Liability and Third Parties on the Ground ..182 5.6.2 Contractual liability framework for the benefit of aircraft operators...... 188 5.6.2.1 The Airways Corporation of New Zealand ...... 189 5.6.2.2 Draft contractual framework for GNSS (CNS/ATM) ...... 191 5.6.2.3 Airports and Airlines...... 194 5.6.2.4 Preliminary Remarks...... 195 5.7 CONCLUDING REMARKS ...... 197 CHAPTER 6 CONCLUSIONS AND RECOMMENDATIONS...... 201 6.1 INTRODUCTION ...... 201 6.2 ESSENTIAL ELEMENTS FOR CROSS-BORDER PROVISION OF AIR NAVIGATION SERVICES ...... 202 6.3 STRENGNTHENING THE RULEMAKING ROLE OF EUROCONTROL IN THE EUROPEAN COMMUNITY ...... 205 6.4 THE ESTABLISHMENT OF TRANSPARENT LINES OF STATE RESPONSIBILITY BY ALLOCATING RESPONSIBILITY TO THE SUPERVISING AUTHORITY UNDER A MODEL DELEGATION AGREEMENT ....207 6.5 THE REGIONAL AIR NAVIGATION PLAN AS MULTILATERAL VEHICLE FOR CROSS-BORDER ARRANGEMENTS ...... 209 6.6 ESTABLISH TRANSPARENT LINES OF (INTER-STATE) LIABILITY FOR THE PROVISION OF CROSS-BORDER AIR NAVIGATION SERVICES...... 210 6.7 EXTRAPOLATING THE CONCLUSIONS AND RECOMMENDATIONS BEYOND EUROPEAN AIRSPACE....212
APPENDIX I: MODEL AGREEMENT FOR CROSS-BORDER PROVISION OF AIR NAVIGATION SERVICES...... 215
APPENDIX II: STRUCTURE OF PROPOSAL (GRAPHIC) ...... 220
SAMENVATTING (SUMMARY IN DUTCH) ...... 221
BIBLIOGRAPHY ...... 231
INDEX...... 239
CURRICULUM VITAE ...... 241
VI
Table of Cases
International Court of Justice Case Concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America)…………………………………… 137
Case of the S.S. “Wimbledon” (United Kingdom, France, Italy, Japan v. Germany)……………………………………………………………………………….. 28
Chorzów Factory case (Germany v. Poland)……………………………………………… 100
Interpretation of the Statute of the Memel Territory (United Kingdom, France, Italy, Japan v. Lithuania)……………………………………… 94
Lighthouses in Crete and Samos (France v. Greece)……………………………………… 93
European Court of Justice Flaminio Costa v. Ente Nazionale Energia Elettrica (Costa v. Enel)…………………….. 57
N.V. Algemene Transport- en Expeditie Onderneming Van Gend & Loos v. Nederlandse Administratie der Belastingen (Van Gend en Loos)……………………… 56
Germany Bashkirian Airlines v. Bundesrepublik Deutschland…………………………….... 15-19, 106
The Netherlands Vereniging Bewonersgroep Tegen Vliegtuigoverlast v. Dagelijks Bestuur van de Deelgemeente Hillegersberg-Schiebroek (Rotterdam Airport-case)……………………… 40
New Zealand Airways Corporation of New Zealand Ltd. v. Geyserland Airways Ltd. and White Island Airways Ltd……………………………………………………….…….. 189
United States of America Beattie et al v. United States of America (1984)…………………………………………... 92
Beattie et al v. United States of America (1988)…………………………………………... 92
Blumenthal v. United States of America (1960)………………………………………….... 89
D’Aleman v. Pan American World Airways (1958)……………………………………….. 89
Faat v. Honeywell Int’l (2005)…………………………………………………………….. 17
Richards v. United States of America (1962)……………………………………………… 89
Smith v. United States of America (1993)…………………………………………………. 93
VII
Table of International Conventions and Other Agreements
The treaties referred to in this study are listed in alphabetical order in accordance with the abbreviations listed below, including the place and date when they were concluded.
Accession Protocol Protocol on the Accession of the European Community to the Eurocontrol International Convention relating to Co-operation for the safety of air navigation of 13 December 1960, as variously amended and as consolidated by the Protocol of 27 June 1997 (Brussels, 8 October 2002)
Amended Convention Protocol Amending the “EUROCONTROL” International Convention Relating to Co-operation for the Safety of Air Navigation with Annexes 1, 2 and 3 (Amended Convention), 1430 UNTS 279
Antarctic Treaty Antarctic Treaty, 1 December 1959, 402 UNTS 71
ASECNA Convention Convention relative à la création de l’Agence pour la Sécurité de la Navigation Aérienne en Afrique et à Madagascar [The Convention on the creation of the Agency for the Safety of Air Navigation in Africa and Madagascar], as amended in Dakar, 25 October 1974 (Unpublished)
Chicago Convention Convention on International Civil Aviation, 7 December 1994, 15 UNTS 295
Convention on the Law of United Nations Convention on the Law of the Sea, the Sea 10 December 1982, 21 ILM 1261
COCESNA Convention Convenio Constitutivo de la Corporación Centroamericana de Servicios de Navigación Aérea [The Agreement to Constitute the Central American Corporation for Air Navigation Services] (Tegucigalpa, 26 February 1960)
EC Treaty Consolidated Version of the Treaty Establishing the European Community, 2002 OJ (C 325/3-159)
EEC Treaty Treaty Establishing the European Economic Community, 25 March 1957, 298 UNTS 3 (also referred to as Treaty of Rome)
ESCS Treaty Treaty Establishing the European Coal and Steel Community, 261 UNTS 140
EURATOM Treaty Treaty Establishing the European Atomic Energy Community (EURATOM Treaty), 298 UNTS 167
EUROCONTROL Convention “EUROCONTROL” International Convention Relating to (1960) Co-operation for the Safety of Air Navigation, 523 UNTS 117
VIII
Joint Financing Agreement Agreement on the Joint Financing of Certain Air Navigation (Greenland) Services in Greenland as amended by the Montreal Protocol of 1982 (ICAO Doc 9585)
Joint Financing Agreement Agreement on the Joint Financing of Certain Air Navigation (Iceland) Services in Iceland as amended by the Montreal Protocol of 1982 (ICAO Doc 9586)
Liability Convention Convention on International Liability for Damage Caused by Space Objects, 29 March 1092, 961 UNTS 187
Montevideo Convention Montevideo Convention on Rights and Duties of States, 26 December 1933, 165 LNTS 19
Montreal Convention Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 (ICAO Doc 9740)
Montreal Protocol The Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 23 September 1978 (ICAO Doc 9148)
Outer Space Treaty Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 10 October 1967, 610 UNTS 206
Revised Convention Protocol consolidating the EUROCONTROL International Convention Relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended, Brussels, 27 June 1997 (EUROCONTROL, September 1997 Edition)
Rome Convention Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 7 October 1952, 310 UNTS 181
Route Charges Agreement Multilateral Agreement Relating to Route Charges, 12 February 1981, 1430 UNTS 123
Vienna Convention on the Vienna Convention on the Law of Treaties, 23 May 1969, Law of Treaties 8 ILM 679
Warsaw Convention Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 137 LNTS 11
IX
List of Abbreviations and Acronyms
AASL Annals of Air and Space Law ADIZ Air Defence Identification Zone AEA Association of European Airlines Air Law Air and Space Law AJIL American Journal of International Law ANS Air Navigation Services ANSP Air Navigation Service Provider ATC Air Traffic Control ATFM Air Traffic Flow Management ATM Air Traffic Management ATS Air Traffic Services CADIZ Canadian Air Defence Identification Zone CANSO Civil Air Navigation Services Organisation CDM Collaborative Decision Making CEATS Central European Air Traffic Services Upper Area Control Centre CHICAGO Chicago Convention CFMU Central Flow Management Unit CNS Communication, Navigation and Surveillance DOHSA Death on the High Seas Act EANPG European Air Navigation Planning Group EASA European Aviation Safety Agency EC European Community ECAC European Civil Aviation Conference ECR European Court Reports EJIL European Journal of International Law ENPRM Eurocontrol Notice of Proposed Rule Making ERA European Regions Airline Association ESARR Eurocontrol Safety Regulatory Requirement ETS European Treaties Series EUROCONTROL European Organisation for the Safety of Air Navigation FAA Federal Aviation Administration FABs Functional Airspace Blocks FBA Functional Blocks of Airspace FIR Flight Information Region FTCA Federal Tort Claims Act FUA Flexible Use of Airspace GNSS Global Navigation Satellite System GPS Global Positioning System IATA International Air Transport Association ICAO International Civil Aviation Organization ILM International Legal Materials JALC Journal of Air Law and Commerce LJIL Leiden Journal of International Law LNTS League of Nations Treaty Series LoA Letters of Agreement Maastricht UACC EUROCONTROL Maastricht Upper Area Control Centre MET Meteorological Services NILR Netherlands International Law Review NUAC Nordic Upper Area Control centre
X
OJ Official Journal of the European Union PICAO Provisional International Civil Aviation Organization PIRG Planning and Implementation Regional Group RAN Meeting Regional Air Navigation Meeting RANP Regional Air Navigation Plan RU Regulatory Unit of EUROCONTROL RVSM Reduced Vertical Separation Minima SES Single European Sky SESAR Single European Sky ATM Research programme SRC Safety Regulation Commission of EUROCONTROL TCAS Traffic alert and Collision Avoidance System UNTS United Nations Treaty Series ZLW Zeitschrift für Luft- und Weltraumrecht
11
CHAPTER 1 INTRODUCTION
1.1 Technology and Tragedies
In the old days pilots depended on daylight and clear visibility in order to operate a flight. They used landmarks such as rail-tracks, rivers and roads, to navigate the aircraft to their final destination. There was no supporting radio connection from the ground and controllers at airports, if at all available, limited their services to the waiving of flags or providing guidance through signage or lightning signals to provide pilots with particular landing- or take-off instructions. From the 1930s, airport control towers were gradually equipped with radio equipment that allowed direct contact with pilots. Radio aid was improved and subsequently also used for en-route air navigation services enabling pilots to plot their position by using radio beacons on the ground. The introduction of radar after the Second World War enabled ground personnel to identify and to plot the position, heading and air speed of aircraft. With the improvement of radio communication, this gradually resulted in a worldwide system of air navigation services.
According to the annual report issued by EUROCONTROL’s performance review commission of 2006, which covers the airspace of the member states of EUROCONTROL, there were no less than 9,2 million controlled general air traffic flights in 2005. Traffic increased by 3.9 per cent compared to the previous year.1 A long-term prediction of the number of flights up to 2025 shows a trend of sustained traffic growth. Depending on scenarios with higher economic growth and lower fuel price, the number of flights range from 1.6 times to 2.1 times higher than the total number of flights in the year 2003, which were around 8, 3 million controlled flights.2 The growth of air traffic requires the generation of sufficient airspace capacity without jeopardising aviation safety. Various techniques and organisational developments have been implemented and pursued in order to provide sufficient capacity to meet the air traffic demand.
First of all, EUROCONTROL’s Central Flow Management Unit (CFMU) has made a big contribution by enhancing the flow of air traffic throughout the European continent.3 The CFMU monitors capacity variations, delays, conflicts and unused air traffic control slots on an ongoing basis. Based on the outcome of this comparison, air traffic control slots are allocated, updated and (if applicable) re-routings are offered to aircraft operators in order to avoid overload of particular air navigation sectors as well as unnecessary flight delays. By optimising the use of the available airspace capacity and by offering alternatives to aircraft operators the CFMU safeguards the smooth flow of traffic throughout European airspace.
1 EUROCONTROL, Performance Review Commission: Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2005 (April 2006), at 5. EUROCONTROL is an international organisation which has as objective the development of a seamless pan-European air traffic management system. For additional information on the member states of EUROCONTROL and the organisation’s institutional structure, see Ch. 3.3.4. The Performance Review Commission is one of the advisory bodies within the institutional structure of EUROCONTROL. 2 EUROCONTROL, Long-Term Forecast of Flights 2004-2025 (December 2004), at 3. 3 The CFMU is an operational unit of EUROCONTROL and became operational in 1996. It matches flight-plans of aircraft operators with the available air navigation service capacity. For additional information, see EUROCONTROL, Central Flow Management Unit: Making Optimum Use of Europe’s Airspace (2001). See also EUROCONTROL, CFMU Operations: Executive Summary - Edition 2002 (2002) and EUROCONTROL, Basic CFMU Handbook: General & CFMU Systems - Edition 8 (2002).
12 Introduction
Another newly emerging technology that has been used to enlarge the available capacity of airspace to the airspace users is the implementation of Reduced Vertical Separation Minima (RVSM) in forty-one states on the European continent as of January 24, 2002. Aircraft operate along pre-defined air traffic corridors where ground-based air traffic control ensures a safe separation of aircraft. The RVSM makes it possible to reduce the vertical separation between aircraft and six additional air traffic corridors were introduced which allows more aircraft to fly in the same volume of airspace. The total volume of air traffic that can ultimately fly through a single corridor is still limited and there remain crossings of particular corridors. This continues to put a heavy burden on the ground-based controlling system that have to separate aircraft at such crossings.
The introduction of a satellite based Communications, Navigation and Surveillance/Air Traffic Management (CNS/ATM) system could break through this traditional pattern. By enhancing onboard instruments and by facilitating an interchange with satellite systems aircraft could eventually operate in an area of airborne separation systems rather then having to rely on the traditional ground-based controlling systems and fixed airspace routings. In this case, aircraft would no longer have to fly along the pre-defined routings, which would boost the available airspace capacity as aircraft could use all remaining airspace. This system presupposes a redistribution of tasks between traditional ground-based and airborne traffic systems in the aircraft. It would enable the aircraft operator to define the most efficient routing for their aircraft, rather than being bound to pre-defined routings.4
Beside the introduction of new technology, the traditional organisation of airspace blocks should also been taken into account. A revision of the airspace blocks could be a way to increase available airspace capacity. One of the achievements on the European continent has been the launch of Flexible Use of Airspace (FUA) where airspace is no longer designated for exclusive military- or civil purpose but considered as a single continuum to be used flexibly on a day-to-day basis. Airspace segregation, for example military training in a particular portion of airspace, is temporary and based on real use by the military for a specified period. Outside the time intervals used by the military, the airspace it can be used for civil purposes, which boost airspace capacity.
The flexible use of airspace, CFMU, RVSM or CNS/ATM are only partial solutions to the problem in Europe. The main obstacle is the overall organisation of controlled airspace. The national air navigation service providers traditionally offer services in the airspace over the territory of the state where they are based and restrict their air navigation service provision to the airspace boundaries that coincide with the territorial boundaries of the state.
Based on EUROCONTROL’s statistical reference of 2006 there were no less than 69 area control centres providing air traffic control to aircraft in the upper airspace.5 En-route air navigation inefficiencies alone are estimated to cost airspace users between Euro 880 million and Euro 1.4 billion per annum. The main component of the cost of fragmentation is that many national air navigation control centres operate below their optimum economic size. Other major reasons for the cost of fragmentation are the multiplication of ATM systems (piecemeal procurement, sub-optimal scale in maintenance) and duplication of associated
4 Within the United States of America this concept is commonly referred to as free flight whereas in Europe the concept is referred to as free routing. Although in principle they both refer to CNS/ATM, the difference is that in European airspace the aircraft will remain subject to clearances by air navigation service providers whereas this is not the case in the free flight environment developed in the United States of America. For additional information, see F.P. Schubert, ‘Pilots or Controllers: Who’s liable in the free flight environment’, 2002 (February) Avionics Magazine. See also J. Terlouw, ‘Air Traffic Control from the Cockpit’, 2003 (September) CANSO News. 5 EUROCONTROL, Report commissioned by the Performance Review Commission: The Impact of Fragmentation in European ATM/CNS (April 2006), at 28.
Chapter 1 13 support (training, administration and research and development).6 There are national initiatives to mitigate the adverse impact of fragmentation costs by way of the corporatisation and privatisation of national air navigation service providers. However, they tend to limit themselves to projects within a single air navigation service provider and do not focus on the efficient flow and routing of aircraft beyond the national airspace.7
Under the umbrella of the Single European Sky, the European Community tries to break through the current organisation of air navigation services. The main objectives of the Single European Sky initiative are firstly to improve safety; secondly overall efficiency; closely related to the latter is the third objective; optimise airspace capacity, and fourthly to minimise air traffic delays. The last objective of the Single European Sky is to establish a harmonised regulatory framework. This is of a different nature to the preceding objectives and should be considered as an enabler of the first four objectives.8 In terms of the aforementioned first objective, the enhancement of safety, the aim is to improve the levels of safety so that the risk per flight, i.e. the accidents and risk-bearing incidents attributed to ATM, decrease, whereas the volume of air traffic increases. With respect to the second objective, efficiency, this should be considered as a twofold objective. The first goal is to improve cost-effectiveness by reducing the unit costs of the air navigation service providers. Cost-inefficiencies arise from low productivity of the systems and high support costs, mainly due to the already previously mentioned fragmentation of the air navigation systems, duplication of infrastructure and small-scale facilities preventing full exploitation of scale effects. A reduction in unit costs will have an impact on the operating costs of the airline industry that are picking up the bill for the provision of air navigation services. At the same time, the objective efficiency has a second goal as this objective also aims to improve the flight-efficiency of the airline industry. The improvement of flight-routing will lower flight-times and increase the airline’s operating efficiency in terms of connection times but also lower its operating costs as there will be a reduction in fuel burn. Consequently, the reduction in fuel burnt and emissions will have an environmental impact. Although major improvements have already been made in respect of the third and fourth objectives, this being the optimisation of airspace capacity and reducing air traffic delays, the expected growth of general air traffic and the expected increased demand for air navigation services by very light jets makes the capacity and demand balance particularly fragile.9
One of the cornerstones of the Single European Sky is the establishment of Functional Airspace Blocks (FABs) which envisages that there are ultimately blocks of controlled airspace that are defined irrespective of the underlying national state boundaries. Within such FABs, the provision of air navigation services should no longer be exclusively the domain of air navigation service providers that are based within the territory of that state, but it should be allowed to have air navigation service providers that have their principal place of operation in the territory of another state.10 This kind of provision of air navigation services is commonly referred to as the cross-border provision of air navigation services.
In 2005, EUROCONTROL and the European Community launched the Single European Sky ATM Research Programme (SESAR) that covers civil- and military aviation players, legislators, industry operators and users, both ground and airborne. The parties will define, commit to and ultimately implement a pan-European program that eliminates the so-far
6 Ibid., at 55-56. 7 See Ch. 5.3. 8 EUROCONTROL, Performance Review Commission: Evaluation of the Impact of the Single European Sky Initiative on ATM Performance (December 2006), at 7-8. 9 Ibid., at 15-16 and 24-27. 10 For additional information on the requirements that should be met under the Single European Sky Regulations to for air navigation service providers, including the requirement of principal place of operation, see Ch. 5.4.2.
14 Introduction fragmented approach to air navigation services and supports the Single European Sky legislation. Within this context, the parties focus on the transformation of the overall European air navigation system by synchronising plans and actions of the different partners and resources. The first part of SESAR is a definition phase. By early 2008, there should be a European ATM Master Plan based on future aviation requirements identifying the actions and needs to achieve the objectives. This will be followed by a development phase (2008-2013) which covers development, validation work and preparation of regulatory measures to implement the master plan. Finally, there is the deployment phase (2014-2020). In this phase, there should be management of the changes in the European ATM, which will result in an optimal outcome.11
Notwithstanding the technological improvements and organisational developments, the European continent has also been witnessing major aircraft collisions that were interrelated with the provision of air navigation services. This study is exclusively focusing on damage resulting from air navigation service provision. Accidents or incidents connected with contributory negligence between pilots and air navigation service providers, such as in the Tenerife disaster of 27 March 1977 where in dense fog two Boeing 747 aircraft of Pan American World Airways and KLM Royal Dutch Airlines collided and where communication misunderstandings between the air traffic controller and the pilots of the KLM aircraft played an important role, will not be discussed.
The first accident that solely relates to the provision of air navigation services involves the collision of a Spanish chartered Coronado 990 aircraft and a DC-9 aircraft from Iberia. On 5 March 1973 amidst a strike by the civil air traffic controllers in France the aircraft collided in mid-air near the French city of Nantes. The pilot of the Coronado was able to land the damaged aircraft, but the DC9 exploded, killing all sixty-eight people on board. The French air force, that had been providing air navigation services during the strike, denied that there was a link between the accident and the strike.12 This mid-air collision has been considered the first European mid-air collision caused by air navigation services.13 Three years later, on 10 September 1976, there was another mid-air collision of two aircraft in the airspace over the former Republic of Yugoslavia. The accident occurred near the small town of Vrbovec, between a Trident aircraft of British Airways and a DC9 operated by Inex Adria. All crew and passengers, one hundred and seventy-six people, were killed. As the accident occurred whilst the aircraft were under air traffic control from the Zagreb-based air navigation service provider, the accident is commonly referred to as the Zagreb mid-air collision.14 In the evening from 1-2 July 2002, there was a mid-air collision in the airspace over southern Germany. In contrast to the previous mid-air collisions, this accident involved cross-border provision of air navigation services as the aircraft, whilst flying through German airspace, had been under the air traffic control of a Swiss based air navigation service provider. The merits of the accident shall be separately discussed in Chapter 1.2.
On other occasions, mid-air collisions have been avoided. For example on 18 February 2004, two jet-aircraft that were subject to air traffic control were on a collision course near the French city, Rheims. A collision was avoided by the swift response of the crew of Swiss International Airlines and KLM Royal Dutch Airlines. The pilots took evasive action based on their on-board Traffic alert and Collision Avoidance Systems (TCAS). If both aircraft are fitted with the TCAS system and the TCAS detects that the aircraft are on a potential collision
11 EUROCONTROL, SESAR: Single European Sky ATM Research (February 2006). 12 ‘1973: Mid-Air Collision kills 68’, BBC News on the Web: On this day 5 March 1973.
Chapter 1 15 course, the computer system on the aircraft will ultimately advise the pilot of one aircraft to descend whereas the system on board the other aircraft will at the same time advise its pilot to climb. The Swiss aircraft and KLM aircraft came within 15 and 35 seconds of colliding.15
The range of technological and organisational improvements and the mid-air collision tragedies serve as a grim introduction to this study on cross-border provision of air navigation services. After revisiting the peculiarities concerning the cross-border provision of air navigation services surrounding the mid-air collision near Überlingen and explaining why this tragic collision is of importance for this study (1.2) the objectives and research questions of this study will be specified (1.3) which will be followed by the division of the Chapters (1.4).
1.2 The mid-air collision near Überlingen (Lake Constance)
The merits of the case surrounding the mid-air collision near Überlingen (Lake Constance) and the court ruling by the German District Court are important with respect to the leitmotiv of this study, which focuses on the cross-border provision of air navigation services whilst safeguarding transparent lines of responsibility and liability. This is because the opinion of the District Court can be mirrored in similar situations where states allow cross-border provision of air navigation services in the airspace over their territory by an air navigation service provider that is based in and subject to the supervision of the authorities of another state.
On the evening of 1 July 2002, two jet aircraft collided in mid-air at an altitude of 34.890 feet (around 10.600 meters) in the airspace over southern Germany. The accident occurred north of the German city Überlingen, near Lake Constance, and involved a Boeing 757 freighter of DHL International Ltd., on its way from Bergamo, Italy, to Brussels, Belgium, and a Russian charter flight, a Tupolev TU154, operated by Bashkirian Airlines, which was heading from Moscow, Russia, to Barcelona, Spain. The aircraft were flying at the same altitude and, as illustrated in Figure 1.2 below, approach and collided at a 90-degree angle.
Figure 1.2 Collision of the Boeing 757 and the Tupolev TU154.16
Based on bilateral arrangements between Switzerland and Germany, the Swiss based air navigation service provider, Skyguide, was the provider of air navigation services in this portion of airspace over the South-German territory. Therefore, a Swiss-based air navigation services provider was in charge of the provision of air navigation services to the aircraft involved. Whilst monitoring the two en-route aircraft in German airspace, the air traffic controller was at the same time also monitoring a delayed Airbus aircraft (“Airbus”) that was approaching Friedrichshafen airport.
15 ‘Incident in French airspace’, Press Release by Swiss International Airlines of 18 February 2004. 16 This figure has been copied from the Bundesstelle für Flugunfalluntersuchung [German Federal Bureau of Aircraft Accident Investigation], Investigation Report on the Accident (near) Überlingen/ Lake of Constance/ Germany on 1 July 2002 (AX001-1-2/02) of May 2004, at 72.
16 Introduction
The air traffic controller instructed the Tupolev to descend to 350.000 feet and continued his work by concentrating on the Airbus flight operations. The Boeing and Tupolev were both equipped with airborne Traffic Alert and Collision Avoidance Systems (TCAS) and at the same time that the air traffic controller was monitoring the flight operations of the Airbus, the airborne Traffic alert and Collision Avoidance Systems (TCAS) alerted the crew of the Boeing and the Tupolev that they were flying on intersecting flight paths. The TCAS instructed the crew of the Tupolev to climb, which was contrary to the instructions of the air traffic controller and, at the same time, the TCAS instructed the DHL aircraft to descend. Because the Airbus’s call to the air traffic controller overlapped with the TCAS report by the Boeing (its crew reporting that it was going to descend) the air traffic controller did not receive this message. Furthermore, the controller was firm in his belief that the ‘descend’- instruction issued to the Tupolev was responded to in time and therefore had left the aircraft unattended, concentrating on the Airbus operations.17 The Tupolev was confronted with conflicting information and followed the air traffic controller instruction to descend, whereas its TCAS system had advised it to climb.
The air traffic controller had not realised that the Boeing had already started to descend and gave another instruction to the Tupolev to expedite descent. The latter instruction was given by the air traffic controller, as the crew of the Tupolev had not verbally replied to the first air traffic control instruction.18 On the Russian cockpit voice recorder, the investigators were able to destillate that the co-pilot pointed out the conflict between the TCAS warnings and the instructions of the Skyguide staff. The TCAS system subsequently advised the Tupolev to increase climb, increase climb but five seconds after this message it came to a collision, albeit that at the very last moment the Tupolev crew noticed the recognisable Boeing and abruptly tried to in vain to initiate a climb. Because of automated systems air traffic controllers in Germany had noted the collision course of the aircraft and have tried to notify their Swiss colleagues.19
All 71 crewmembers and passengers of both aircraft, of which 49 were children, were killed. What made the accident even more dreadful was the murder of the Swiss air traffic controller who was on duty on the night of the mid-air collision. He was stabbed to death in 2004 by a Russian relative whose wife, son and daughter had been killed in the aircraft crash.20 Skyguide accepted full responsibility for the errors made within its organisation and took immediate precautionary safety measures.21 Furthermore, at the request of Skyguide and together with the governments of Germany and Switzerland, Skyguide created a compensation fund for the financial relief of the bereaved.22 Payments would be made for loss of income, including additional compensation, on the assumption and in accordance with standards that would have been applied if the relatives had been based in Switzerland bearing
17 Ibid., at 85. 18 Ibid., at 70-71. 19 Ibid., at 44. 20 ‘Swiss Confirm Russian Father Held’, BBC News on 1 March 2004. < http://news.bbc.co.uk/2/hi/europe/3522105.stm> (Visited 3 May 2007). 21 ‘Skyguide Apologizes to the victims’ families’, Press Release by Skyguide of 19 May 2004. 22 Skyguide, Annual Report (2003), at 15.
Chapter 1 17 a Swiss nationality.23 There are reports that the compensation fund has paid out one hundred and fifty thousand US dollars per deceased.24
The Russian based aircraft operator, Bashkirian Airlines brought a claim against the Federal Republic of Germany and the German District Court of Konstanz released its opinion in July 2006.25 According to Bashkirian Airlines, the German state should indemnify the company for damage to its aircraft and indemnify the company for damage claims against the airline by third parties, including but not limited to those persons legally representing the estate of the passengers and crew on board the Tupolev, claims from DHL International Ltd. for the loss of the Boeing freighter aircraft and, last but not least, claims that could be brought against the airline by Honeywell Ltd.26 The District Court had to assess whether the Federal Republic of Germany was liable for these damages. This, despite the fact that the air navigation service provider was a Swiss-based entity operating under the supervision of the Swiss authorities. The merits of the case are therefore closely connected to the leitmotiv of this study: how to pursue cross-border provision of air navigation services whilst safeguarding transparent lines of responsibility and liability?
First, the District Court had to decide what law should be applied and what was the competent forum to deal with the case. As the accident had occurred in German airspace, the District Court held that, in terms of applicable law and competent forum, the case had to be decided in a German court and would be subject to the national laws of Germany.27 Next, the District Court had to judge whether the German state was liable for damages that had arisen from the mid-air collision. For this analysis, the District Court considered the national laws of Germany and the available bilateral cross-border arrangements between Germany and Switzerland.
Because of German law, the court argued that there was liability for the German state as far as it concerns acts of an agent performing an official function on its behalf. The performance of
23 ‘Flugunfall vom 1 Juli 2002 bei Überlingen’, Presseerklährung von Dr. Alexander von Ziegler, Vertreter des Entschädigungspools (gebildet durch die Schweizerische Eidgenossenschaft, die Bundesrepublik Deutschland und Skyguide) [Aircraft accident of 1 July 2002 near Ueberlingen, Press Release by PD Dr. Alexander von Ziegler acting as representative of the compensation fund (This fund was created by Switzerland, Germany and Skyguide)]. 24 ‘Überlingen, Weiter Streit um Schadenersatz, Zwei Jahre nach der Flugzeugkatastrophe’ [Überlingen, Additional fights over compensation: Two years after the Aircraft catastrophe], Stuttgarter Zeitung On-line of 1 July 2004.
18 Introduction air navigation services in German airspace is deemed an official (public) task and liability claims for air navigation services are channelled to the German state.28 Whereas according to the national law of Germany air navigation services in German airspace are to be exclusively provided by the German air navigation service provider DFS, in reality these services were provided by the Swiss-based air navigation service provider. According to the District Court, the fact that services were being provided by Skyguide did not alter the nature of the services being offered for which, in case of failure, due to German law triggers the liability of the German state. In the interpretation by the court of German laws, with respect to the performance of its services, the Swiss based provider should be considered as the agent performing the air navigation services on behalf of the German state.29 Therefore, the German state because of its national law is the actor bearing liability for the damages arising from the accident. The District Court also examined the bilateral arrangements that were concluded between Germany and Switzerland for the sake of cross-border provision of air navigation services. The court, whilst examining a treaty (which had not been signed) and a Letter of Agreement that had been concluded at the level of the German and Swiss air navigation service providers, came to the conclusion that the states had not concluded a treaty.30 Notwithstanding the non-existence of a bilateral agreement, the District Court continued by elaborating on the fact that treaties only have a binding effect between states and that the content hereof has no binding effect on the individuals of a state. Had the parties agreed on a provision dealing with liability in a treaty and had such arrangement been incorporated into the national laws of Germany, the outcome could have been different.31 The court ruled in its partial judgement that Germany has to indemnify Bashkirian Airlines for third-party damage claims. The court has yet to rule on the other aspect of the claim lodged by the Russian carrier, which deals with the extent of damages to be awarded by the German state to
28 For further details on the organisation of air navigation services in Germany, see Ch. 5.3.4. 29 See Bashkirian Airlines v. Bundesrepublik Deutschland (case number 4 O 234/05 H), supra note 25, at 20-21. 30 Ibid., at 48-52. According to the treaty (not signed) the German state would be liable for errors made by the Swiss air navigation service provider in German airspace on the same basis as it would be liable for its own air navigation service provider. However, the District Court held that the treaty had no binding effect and the Letters of Agreement did not constitute a treaty either. 31 Ibid., at 57-58: Quote “b) Die Haftung der Beklagten nach Art. 34 GG, § 839 BGB kann im Übrigen nur durch Gesetz aufgehoben oder eingeschränkt werden (Papier in Maunz/Dürig, Art. 34 Rn 237), was auch für die subsidiäre Ausfallhaftung (§ 839 Abs. 1 S. 2 BGB) gilt (Papier a.a.O., Rn 240). Daraus folgt: Die LoA könnten selbst dann nicht die Haftung der Beklagten für das Flugzeugunglück vom 1.Juli 2002 in Frage stellen, wenn die LoA als ein wirksames Verwaltungsabkommen nach Art. 59 Abs. 2 Satz 2 GG zu bewerten wären. Verwaltungsrechtliche Vereinbarungen zwischen Hoheitsträgern entfalten Rechtswirkungen nämlich nur zwischen diesen, weil sie Ausfluss der Verwaltungs- und Organisationshoheit sind und deshalb nur exekutiv wirken (Papier a.a.O., Art. 34 Rn 283). Gegenüber Entschädigungsansprüchen betroffener Staatsbürger, wobei § 839 BGB Ausländer in seinen Schutzbereich einbezieht, haben völkerrechtliche Verträge nach Art. 59 Abs. 2 Satz 2 GG infolgedessen nur dann rechtliche Relevanz, wenn diese Vereinbarungen durch Gesetz als innerstaatliches Recht umgesetzt werden (P. Kirchhoff in Handbuch des Staatsrechts, Band III, § 59 Rn 155). Völkerrechtliche Verträge werden auch nicht allein durch den völkerrechtlichen Grundsatz der Vertragstreue in Verbindung mit Art. 25 GG zu innerstaatlichem Recht (Herdegen in Maunz/Dürig, Art. 25 Rn 8 und 9). Man kann die Rechtslage auch von der These der Beklagten (Bundesrepublik Deutschland) ausgehend betrachten und gelangt zum selben Ergebnis: Folgt man ihrer Meinung, mit den LoA seien Hoheitsrechte der Bundesrepublik auf die Schweiz übertragen und damit die eigene haftungsrechtliche Verantwortung übergegangen oder eingeschränkt worden, so wären die LoA ihrem materiellen Inhalt nach nicht nur Verwaltungsabkommen über technische Regelungen der Flugaufsicht, sondern Bundesrecht betreffende völkerrechtliche Verträge nach Art. 59 Abs. 2 S. 1 GG, die zu ihrer Wirksamkeit der innerstaatlichen Transformation durch ein förmliches Vollzugsgesetz bedurft hätten (Maunz in Maunz/Dürig, Art. 59 Rn 37).“ End of quote.
Chapter 1 19
Bashkirian Airlines.32 Germany has appealed the judgement and the partial court ruling of the District Court is not the final decision. Furthermore, beside the liability for damages, the Swiss authorities commenced criminal investigations and charged eight air traffic controllers on charges of manslaughter and negligence.33
As reflected in the opinion of the District Court, the German state is liable for damages. German national law does not allow the state to redirect the claim from Bashkirian Airlines to the Swiss-based air navigation service provider. In addition, the lack of a bilateral agreement between Germany and Switzerland prevents Germany from seeking recourse to the Swiss state to recoup any damages that it has paid towards parties like Bashkirian Airlines. It would of course be advisable for Germany to enter into a solid legal bilateral agreement with Switzerland to remedy any such discussions for the future. At the same time, the outcome of this court case also casts a shadow over the wide-scale cross-border service provision of air navigation services in general. Eventually, this could result in a slow-down of wide-scale implementation of cross-border service provision altogether. After all, on the basis of the German ruling, states may be reluctant to allow air navigation service providers that, similar to Skyguide, are based in the territory of another state and rely on the host state’s supervision to provide air navigation services in their airspace.
1.3 Objective and research questions
As illustrated in Chapter 1.1, there is a continuous increase in the flow of air traffic traversing the airspace of the European Community triggering a greater demand of air navigation services. However, there are also other problem areas in the world that encounter the difficulties of matching airspace demand of the airspace users (airlines) with the availability of suitable and sufficient air navigation services such as for example in the United States of America. The Air Traffic Organization of the Federal Aviation Administration (FAA) is guiding about 50,000 aircraft every day and the airspace in the north-eastern corridor of the United States with major international airports is one of the busiest in the world. Through airspace redesign, the FAA has increased efficiency and reliability of air navigation services in that particular aviation area. Another example of dense air traffic is the Asia-Pacific region that has seen a strong increase in commercial flights. The states in that region will in due course also have to revisit the traditional way in which their national air navigation service providers are offering air navigation services to airspace users.
32 See Bashkirian Airlines v. Bundesrepublik Deutschland, (2006) (case number 4 O 234/05 H)¸ supra note 25, at 62. The court-ruling is partial judgement (Grund- und Teilurteil). Although the German state should indemnify the Russian airline from claims of third parties, the District Court did not decide on the extent of the damage amounts claimed by the airline because of difficult questions of Russian law that had to be answered. Bashkirian Airlines was not the legal owner of the aircraft which triggered the question as to wheter or not damages can still be awarded due to the fact that the airline suffers economic loss from not being able to make use of the aircraft. The extent of the damages to be awarded shall be decided in the final court ruling of the court. 33 To the knowledge of the author the Federal Government of Germany has appealed the judgement of the District Court. See also, S. Hobe, ‘Current Liability Problems of German Air Traffic Services: Überlingen and Other More Recent Developments’, in EUROCONTROL (ed.), proceedings of the workshop: Responsibility and Liability in ATM – moving targets in a changing European Airspace, organised by EUROCONTROL in 2006, at 5. Also, P. Nikolai Ehlers, ‘Case note: Lake Constance Mid-Air Collision: Bashkirian Airlines v. Federal Republic of Germany’, (2006) 32 Air Law 75, at 79. The eight air traffic controllers faced with charges of manslaughter and negligence were all employed by Skyguide at the time of the accident and face jail sentences of up to fifteen months if found guilty. See, ‘Swiss charged over 2002 air crash’, BBC News on the Web of 7 August 2006. < http://news.bbc.co.uk/1/hi/world/europe/5253696.stm> (Visited 19 May 2007). See also ‘Swiss go on trial over air crash’, BBC News on the Web of 15 May 2007.
20 Introduction
The focus of this study is on the European Community where relatively small portions of upper airspace are subject to the provision of air navigation services by multiple air navigation service providers. Contrary to, for example, the United States of America where large air navigation service corridors can be redefined within the airspace of a single state, for the European Community counts that realignment of air navigation service corridors within the airspace of a single state is only possible up to a very limited extent. In order to enhance the efficient flow of air traffic and free up available airspace in the European Community for the purposes of air navigation services, this requires another approach. One of the solutions is the provision of cross-border air navigation services as envisioned under the Single European Sky regulations. This implies cross-border provision of air navigation services by air navigation service providers in blocks of airspace that are defined irrespective of the territorial boundaries of the underlying states. Those air navigation services could even be provided by air navigation service providers, or groups of air navigation service providers, that are based in the territory of a state, other than the state in whose airspace those services are being provided.
The mid-air collision near Überlingen illustrates the need to reflect and reconsider the way cross-border provision of air navigation services is being formalised. After all, the opinion of the German District Court illustrates that claims for damages are not per se directed against the air navigation service provider, but depending on the preference of the plaintiffs and subject to the applicable national law, can also be directed against the state in whose airspace the air navigation services are being provided. Besides the question as to where to file the claim, there is also the question as to what is the applicable law and competent forum according to which the liability claims should be dealt with. Depending on the circumstances of the damage inflicted because of a mid-air collision damage claims can be filed against the operator and the owner of the aircraft, airline personnel, passengers on board the aircraft (or in case of death those persons legally representing their estate), owners of cargo which was on board the aircraft, as well as by third parties suffering damage on the ground. At the same time, due to the nature of cross-border service provision where the air navigation service provider has his principal place of operation in a state other than the state in whose airspace the services are being provided, damage may be inflicted on the state in whose airspace the cross-border services are being provided and this state may also wish to claim damages.
This study will focus on three main aspects dealing with the provision of cross-border air navigation services in European airspace, and more particularly the European Community. First, the international- and European legal framework dealing with air navigation services will be considered. Secondly, the question of state responsibility for the provision of air navigation services will be taken into account and, last but not least, attention is paid to the question of liability for damages inflicted by air navigation service providers. Due to the ongoing flow of position papers, documents and legal articles in the field of air navigation services, the author has made the decision to base its findings, paradigm shifts on the available resources on this topic up to 1 June 2007.
For the sake of clarity, this study does not focus on the complications faced by certain air navigation service providers that are offering both civil- and military air navigation services. In The Netherlands there is a separate provision of military- and civil air navigation services. The military has its own air navigation service system that is in charge of policing national airspace. However in Germany and Switzerland the air navigation service providers are providing air navigation services both for civil- and military airspace users. The military policing of German and Swiss airspace are therefore embedded in the organisational structures of both air navigation service providers. This complicates matters if these organisations wish to expand their provision of air navigation services beyond their national airspace. After all, the state in whose airspace services are being offered may, although not being reluctant against the civil expansion of the foreign air navigation service provider in its airspace or collaboration efforts undertaken between the civil aspects of air navigation
Chapter 1 21 services, not look forward to have foreign military control and involvement in its airspace for reasons of national security. Beside brief reference to civil- and military arrangements as far as flexible use of airspace is concerned in Chapter 1.1 this study will not further elucidate this matter but will concentrate on the civil aspects related to air navigation services and will examine the international- and national legal framework for purposes of cross-border provision of air navigation services for civil aviation.
In relation to the first part of this study, the international- and European legal framework dealing with air navigation services, the provision of air navigation services states have always been subject to the rulemaking- and, to a certain extent, enforcement competencies of international organisations. Besides the global international legal framework for air navigation services laid out in the Chicago Convention and the role of ICAO, there are at least three international bodies in the European Community that, up to a certain extent, have rulemaking- and enforcement competencies. These are the European Civil Aviation Conference (ECAC), the European Organisation for the Safety of Air Navigation (EUROCONTROL) and, last but not least, the European Community with its agency the European Aviation Safety Agency (EASA). To what extent have these international organisations received rulemaking- and enforcement competencies in the field of air navigation services? Within this context, this study will look closely at the interrelationship between EUROCONTROL and the European Community. Despite the different institutional structures of the two international organisations, each having its own regulatory- and enforcement mechanisms, the European Community has aceeded to the revised convention of EUROCONTROL and therefore became bound to its law-making and enforcement competencies. At the same time, the European Community incorporates rules established through EUROCONTROL rulemaking procedures in its own legal order. What is the impact of such accession on the rulemaking- and enforcement competencies of the international organisations as far as this concerns the operational efficiency of cross-border provision of air navigation services? Does the legal order of the European Community prevail over the legal order of EUROCONTROL?
The second part of this study concentrates on state responsibility and, more specifically, how to establish clear lines of state responsibility in the context of cross-border provision of air navigation services. States are encouraged through the aforementioned developments and to enhance efficiency by facilitating cross-border provision of air navigation services and allow air navigation service providers to offer air navigation services in their airspace whilst the providers have their principal place of operation outside their territory (or vice versa). Meanwhile states have entered into various forms of bilateral- and multilateral arrangements to facilitate limited cross-border service provision in their airspace. Have they considered the issue of state responsibility in the arrangements they concluded? Is it possible to relieve a state from state responsibility if such state allows the provision of air navigation services in their airspace by a foreign air navigation service provider that has his principal place of operation in another state in the event the air navigation service provider fails to meet international obligations imposed on the state under the aforementioned international- or European legal framework?
The last part of this study concentrates on liability for damages arising out of the provision of air navigation services. Whereas traditionally air navigation service provision was performed by air navigation service providers that formed part of the governmental structure, such providers have been transformed into corporatised and privatised entities outside the governmental structure. However, have states also considered imposing a clear liability regime on the air navigation service provider if things go wrong and, furthermore, have they considered the issue of liability if their air navigation service providers engage in cross-border service provision activities? In order to determine whether states have laid down a clear liability framework under their national law in terms of the liable actor, the laws to be applied and the competent forum, an analysis must be made of the national laws of states. Due to the
22 Introduction rearrangement of national air navigation service provision envisioned by the European Community through its Single European Sky regulatory framework, an analysis of these regulations must also be made. Beside the issue of national laws, how should questions of inter-state liability be dealt with? For the benefit of transparent lines of liability, should states enact specific inter-state liability regimes that at the same time take into account the issue of damages suffered by third parties on the ground? Moreover, is it useful for aircraft operators to engage in a contractual-based liability framework with the air navigation service providers for the benefit of transparent lines of liability in case of cross-border provision of air navigation services? An attempt will be made to answer these questions in accordance with the structure that is explained in the following Chapter 1.4.
1.4 Division of chapters
Chapter 2 will start by giving a brief overview of the principles of public international law such as state, territory, sovereignty and jurisdiction, after which the international legal framework of the Chicago Convention will be set out. ICAO, through its rulemaking- and enforcement powers, has played an important role for the development of air navigation services. The organisation has implemented a harmonised framework of air navigation services and imposes obligations to which states are bound when air navigation services are provided in their airspace.
Chapter 3 will analyse and evaluate the European legal framework for air navigation services, which is imposed by international bodies such as ECAC, EUROCONTROL and the European Community. On the basis of the analysis and evaluation of the regulatory- and enforcement competencies of EUROCONTROL and the European Community, this Chapter will discuss the interrelationship between the two organisations, including EASA. Also, a number of comments and observations will be made with respect to the manner in which these international organisations could co-exist in the field of air navigation.
Chapter 4 will analyse the concept of cross-border provision of air navigation services and differentiate this type of provision of air navigation services from other kinds of air navigation service provision. This Chapter will discuss extra-territorial air navigation service provision over the high seas and in airspace of undetermined sovereignty and, lastly, the provision of air navigation services in autonomous entities. This Chapter focuses on the need to establish transparent lines of responsibility when states or their air navigation service providers engage in cross-border provision of air navigation services. After setting out on what basis states bear state responsibility for the provision of air navigation services in their airspace, a number of inter-state bilateral- and multilateral cross-border arrangements will be examined. To what extend have states dealt with the rationale of state responsibility when allowing a foreign air navigation service provider of another state or an international organisation providing air navigation services in their airspace? After the above analysis, this Chapter will consider whether the international legal framework laid down by the Chicago Convention allows states to delegate state responsibility when they engage in cross-border provision activities and allow a foreign air navigation service provider (subject to the regulatory and enforcement competencies of another state) to provide air navigation services in their airspace. Can states be relieved from state responsibility for cross-border provision of air navigation services and, if so, to what extent can they give binding effect to such delegation of state responsibility against third-party states? Does such possibility exist under the Chicago Convention?
Chapter 5 concentrates on the establishment of transparent lines of liability. Traditionally, air navigation service was provided by governmental agencies that could be subject to state liability. However, many air navigation service providers have been subject to a first wave of restructuring where states restructured the traditional governmental agencies into corporatised or privatised entities. In this respect, states have enacted specific national laws governing their
Chapter 1 23 air navigation service providers and several national air navigation service providers and their national laws will be analysed in this Chapter. This is followed by a review of the Single European Sky regulations as these regulations are designed to trigger a second wave of restructuring of air navigation service providers in the European Community.
Next, the national laws and obligations under the Single European Sky will be revisited for the purpose of establishing transparent lines of liability in case of cross-border provision of air navigation services. Which entity is liable, what laws should be applied and what is the competent forum? After the review of the traditional liability concepts embedded in the national laws of states, the issue of cross-border provision of air navigation services is taken into account. Have states considered transparent lines of liability in their national laws when their air navigation service providers engage in cross-border provision of air navigation services? Have states concluded inter-state liability agreements that deal with damage arising from the provision of air navigation services by an air navigation service provider that has his principal place of operation in the territory of another state, but causes damage to third parties on the ground in the territory of the other state? Furthermore, should aircraft operators and air navigation service providers engage in contractual agreements establishing transparent lines of liability in case of cross-border provision of air navigation services? Last, to what extent should a legislator take up action in this respect?
Triggered by the consolidation developments and the regulatory restructuring that are taking place in the European air navigation services industry, this study will restrict itself to establishing transparent lines of responsibility and liability for cross-border provision of air navigation services in the airspace of the European Community. On the basis of the findings in this study, Chapter 6 will enumerate the essential elements required for cross-border provision of air navigation services and provide a number of final recommendations and conclusions on the best way to pursue cross-border provision within the European Community. This Chapter will conclude by extrapolating the conclusions and recommendations for the benefit of cross-border provision of air navigation services beyond European airspace.
25
CHAPTER 2 The International Legal Framework
2.1 Introduction
Any legislative efforts in the field of air navigation services and, more specific, cross-border provision of air navigation services, should first be approached from an international angle. After all, in an effort to create a level of international uniformity in the field of civil aviation the International Civil Aviation Organization (ICAO) has, as an international legislator, established the international legal framework for air navigation services. For the development of such a unified framework of air navigation services, ICAO relies on rulemaking- and enforcement competencies that are embedded in the founding treaty of that international organisation, the Convention on International Civil Aviation (henceforth also cited as the Chicago Convention or Chicago).34 This Chapter discusses the rulemaking and enforcement powers of ICAO in the field of air navigation services, with special reference to the cross- border provision of air navigation services.
The topics that will be dealt with in this Chapter have been divided in the following manner: first, for the purpose of understanding the principles state, territory, airspace as well as the intrusion on state sovereignty because of the voluntary restriction on the exercise of national competencies by states in favor of international organisations, attention will be paid to these fundamental principles of international law (2.2). Next, the institutional structure of ICAO will be discussed by picturing the core bodies as well as the regional air navigation regions and regional bodies including their respective interrelationships (2.3.1). The global structure of air navigation services and terminology as developed by ICAO will then be dealt with (2.3.2). This is followed by the analysis and evaluation of rulemaking competencies that have been awarded by the member states to ICAO (2.3.3). In addition, the limited enforcement competencies of ICAO will be analysed and evaluated (2.3.4). Final remarks and conclusions shall serve as an introduction to the alternative developments that are taking place in the context of the European legal framework, which will be discussed in Chapter 3 (2.4).
2.2 Principles of International (Air) Law
2.2.1 State, Territory, Airspace
There are no cogent standards as to what constitutes a state, but the objective criteria as enacted in the Montevideo Convention appear to represent the qualifications that should be met.35 According to the opening article of the Montevideo Convention, the state as a person of international law should possess the following qualifications: it should have a permanent population, a defined territory, a government exercising government authority and, lastly, a capacity to enter into relations with other states.
Shaw addresses that, despite the fact that there is no rule prescribing the minimum area of territory, in order to qualify as state, it should at least possess some portion of the earth’s surface.36 The territory of the state includes the airspace above its land, national waters and territorial sea, but the vertical limit of the airspace remains unclear. Air law has defined the term airspace, thus leaving unanswered the question as to where precisely the boundary lies in relation to outer space. The boundary has been held to be between 80 and 120 kilometres, although states, for licensing space activities, have sometimes fixed an arbitrary limit in their national laws where activities over a certain altitude (100 kilometres) are subject to particular
34 1944 Convention on International Civil Aviation, 15 UNTS 295. 35 1933 Montevideo Convention on Rights and Duties of States, 164 LNTS 19. 36 M.N. Shaw, International Law (1997), 331.
26 The international legal framework licensing requirements.37 If the lack of a suitable definition results in serious complications, states always fix an arbitrary limit to the upper frontier of their territories by way of bilateral or multilateral agreements.38 When considering the term “territory” under international law, territory is not limited by adopting analogies of real property but concentrates on the extent of governmental capabilities exercised, or capable of being exercised, within a designated area and population.39 The same reasoning applies to the Chicago Convention.40 According to this Convention, the territory of a state shall be deemed the land areas and territorial waters adjacent thereto that are under the sovereignty, suzerainty, protection or mandate of such state.41 The drafters of the Chicago Convention therefore also presumed that there should at least be a state that is capable of exercising particular powers over a particular territory.
The state should have the capacity to perform acts in the international sphere and have exclusive competence with respect to issues affecting its territory up to the extent that it has voluntarily limited or delegated the exercise of these capabilities based on an international agreement. These subjective criteria are captured in terms of sovereignty and jurisdiction and will be discussed in Chapter 2.2.2 below. State refers to the highest degree of political organisation and should not be confused with nation. Nation refers to a body of people of more or less the same race, religion, language and historical traditions, commonly referred to as nationals.42
2.2.2 Sovereignty, Jurisdiction and Delegation of National Competencies
According to Article 1 Chicago, the contracting states to the Chicago Convention recognise that every state has complete and exclusive sovereignty over the airspace above its territory. This is followed by Article 2 Chicago that says that the territory of a state shall be deemed the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such state.
International law is based on the concept of the state. The state on its turn relies upon the foundation of sovereignty, where the external dimension of sovereignty expresses the supremacy of the state as legal person, whereas sovereignty internally expresses the supremacy of the governmental institutions.43 Sovereignty is sometimes erroneously interchanged with jurisdiction. Whereas sovereignty is shorthand for the legal personality of the state, jurisdiction refers to particular aspects of the substance, especially rights, claims, liberties and powers of the state.44 In other words, the internal dimension of sovereignty stands for the absolute and comprehensive jurisdiction over the people who find themselves
37 According to the Space Activities Act of Australia (as amended in 2002) which regulates the launch from, and the return to, Australia of space objects and the launch of space objects by Australian nationals outside Australia, any launching activities over 100 kilometres are subject to the licensing requirements as further defined in this Act. Upon defining this boundary, the Australian government explained to the legal subcommittee of the Committee on the Peaceful Uses of Outer Space of the United Nations that it did not try to define or delimit outer space, but merely tried to give greater certainty about where the Act applies and the activities that the Act regulates. For additional information, see the Space Activities Act 1998 (Act No. 123 of 1998 as amended in 2002) of Australia. See also, United Nations, Committee on the Peaceful Uses of Outer Space: National legislation and practice relating to definition and delimitation of outer space, UN Doc. A/AC.105/865/Add. 1 (2006), at 2. 38 B. Cheng, The Law of International Air Transport (1962), 121. 39 J. Crawford, The Creation of States in International Law (1979), 42. 40 1944 Convention on International Civil Aviation (Chicago Convention), 15 UNTS 295. 41 Art. 2 Chicago Convention. 42 C.N. Okeke, Controversial Subjects of Contemporary International Law (1973), 20. 43 See M.N. Shaw, supra note 36. 44 I. Brownlie, Principles of Public International Law (1998), 106.
Chapter 2 27 on the territory of that state.45 In order to avoid any ambiguity within the context of this study when referring to sovereignty, this term will refer to the external dimension, the state as actor on the international playing field having statehood. Jurisdiction, in this study, refers to the internal dimension of the sovereign entity on which basis the state exercises rulemaking- and enforcement powers. Jurisdiction is broken down into jurisfaction, the power to legislate and interpret legislation, and jurisaction, the power to enforce said legislation and carry out laws, judgements and sentences.46
What does this distinction imply when applied to the Chicago Convention? According to the aforementioned opening articles of the Chicago Convention, every contracting state has complete and exclusive sovereignty over the airspace above its territory and the territory shall be deemed the land areas and territorial waters adjacent thereto under the sovereignty of such state. The Chicago Convention is open for adherence by states, whether or not members of the United Nations or associated states.47 Combining this requirement with the opening articles of the Chicago Convention, the Convention picks up the external dimension of sovereignty – statehood- which is a prerequisite for becoming a signatory state to the Convention whereas the reference to sovereignty in the opening articles of the Chicago Convention should be understood as referring to the internal dimension hereof, the jurisdiction of the state.
Due to the recognition in the Chicago Convention of the internal dimension of sovereignty and the fact that no scheduled international air service may be operated over or into the territory of a contracting state, except with the special permission or other authorisation of that State and in accordance with the terms of such permission or authorisation, states retained exclusive control of the air columns above their territories.48 This gave states the opportunity to control market access and protect their home market and their flag-carrier against the international air traffic market to/from and through their territory. Through the framework of bilateral air services agreements states were able to control access to their airspace by negotiating air traffic rights.49 Because this study focuses on the provision of cross-border air navigation services, this will not be further discussed.
The Chicago Convention explicitly recognises the fact that aircraft must comply with local rules and regulations of the underlying state whilst flying through its airspace, at any altitude, albeit that this should be on a non-discriminatory basis. The laws and regulations of a contracting state relating to the operation and navigation of aircraft while within its territory shall be applied to the aircraft of all contracting states without distinction as to nationality and
45 P.H. Kooijmans, ‘Tolerance, sovereignty and self-determination’, (1996) 43 NILR 211. 46 The phraseology jurisfaction and jurisaction is commonly used in air- and space law and introduced by Professor Cheng. For additional information, see B. Cheng, ‘The Legal Regime of Airspace and Outer Space: The Boundary Problem Functionalism versus Spatialism: The Major Premises’, (1980) 5 AASL 323, at 340. See also, B.Cheng, ‘The Commercial Development of Space: The Need for New Treaties’, (1991) 19 Journal of Space Law 17, at 37. 47 Arts. 92-93 Chicago Convention. 48 Art. 6 Chicago Convention. 49 B. Havel, In Search of Open Skies: Law and Policy for a New Era in International Aviation (1997), 29-48. In the European Community the liberalisation of the air traffic rights in 1992 implied that negotiations of air traffic rights were no longer required, which extended itself to neighbouring countries like Norway, Iceland, Liechenstein and Switzerland. Beyond the European Community, air traffic services remained subject to the negotiation of air traffic rights. Although several member states of the European Community concluded on an individual basis so-called Open Skies agreements with the United States of America with unlimited frequencies, these were rendered invalid by the European Court of Justice as being incompatible with EU law. The European Community has meanwhile negotiated and concluded on behalf of its member states an air transport agreement with the United States of America. The agreement was signed 30 April 2007, and will take effect on 30 March 2008. The agreement, enables any carrier from the European Community to operate from any point within the European Community to any point in the United States of America without frequency restrictions and vice versa.
28 The international legal framework shall be complied with by such aircraft upon entering into or departing from or while within the territory of that state.50 Furthermore, each contracting state undertakes to adopt measures to ensure that every aircraft flying over or manoeuvring within its territory and every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulation relating to the flight and manoeuvre of aircraft there in force.51 In addition, conditions may be applied to the use by aircraft of air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation, provided these are uniform conditions.52 Lastly, states may designate the air routes to be followed by any international air services within the airspace over their territory.53
Sovereignty is the legal authority that is not depending on any other earthly authority. It implies independence within and without the borders of the country.54 The state has the capacity to perform acts in the international sphere and has exclusive competence with respect to its internal affairs. At first only states were recognised as possessing international rights and duties and maintaining rights by bringing international claims against another entity possessing international legal personality. The most serious and important inroads into this traditional concept of state sovereignty have been made by the creation of international organisations.55 Gradually, states delegated the exercise of particular competencies to international organisations.
Before an international organisation can make an impact in the international arena, it must be afforded some form of international personality. The extent of the legal personality of the international organisation, or in the words of the author the restrictions on the exercise by states of their national competencies by virtue of such delegation to the international organisation, follow from the constituent document.56 The international organisation only possesses international personality up to the extent that contracting states allow. The conclusion of any treaty by which a state undertakes to perform or refrains from performing a particular act does not result in an abandonment of its sovereignty. The state continues to be sovereign, but the treaty could place a restriction on the exercise of the sovereign right of the state, in the sense that it requires the state to exercise such sovereign rights in a certain way.57 Despite any delegation of competencies, the state continues to be sovereign and only the exercise of, for example, a particular governmental function is entrusted to another entity.58 For the avoidance of doubt, this study will in such cases of delegation of the exercise of sovereign rights refer to the delegation of the exercise of national competencies.
There has been a restriction on the exercise of national competencies by states in favour of international organisations in the field of air navigation services. From a global level, the International Civil Aviation Organization (ICAO) has been delegated rulemaking- and enforcement competencies in the field of air navigation services enabling the organisation to lay down a global harmonised framework of air navigation service throughout the airspace of the member states. This will be considered in Chapter 2.3. Beside the global delegation of the exercise of particular national competencies in the field of air navigation services, there has also been a delegation of such rights to regional organisations in Europe. The European legal framework that encompasses such delegation will be discussed in Chapter 3.
50 Art. 11 Chicago Convention. 51 Art. 12 Chicago Convention. 52 Art. 15 Chicago Convention. 53 Art. 68 Chicago Convention. 54 R. Jennings and A. Watts (eds.), Oppenheim’s International Law (1992), Volume I (Part I), at 122. 55 M.M. Martin Martinez, National Sovereignty and International Organizations (1996), at 66. 56 R.M.M. Wallace, International Law (1997), at 68-69. 57 The Case of the S.S. “Wimbledon” (United Kingdom, France, Italy, Japan v. Germany), PCIJ Series A, No 1(1923), at 25. 58 See J. Crawford, supra note 39, at 27.
Chapter 2 29
2.3 ICAO
2.3.1 Institutions
The delegation of the exercise of particular competencies to international organisations implies at the same time a restriction on the exercise of these rights by the delegating state. Of course, the restriction is subject to the conditions defined in the founding treaty under which the particular competencies were delegated to the international organisation in the first place.
In order to understand the regulatory and enforcement competencies of ICAO in the field of air navigation services attention will first be paid to the institutional structure of the international organisation with its core- and regional institutions, including their interrelationships. When analysing the regional institutional structure, particular attention will be paid to the ICAO air navigation regions and the role of the Regional Air Navigation Meeting and its Regional Air Navigation Plan. The analysis is of importance for positioning the Regional Air Navigation Plan in the context of cross-border provision that will be more extensively discussed in Chapter 4.6.
ICAO was set up as an organisation with the Assembly, and the Council as its principal bodies and such other bodies as may be necessary.59 A variety of bodies have meanwhile been established either by means of specific provisions in the Chicago Convention or by one of the aforementioned bodies. The institutional structure of ICAO falls apart in two categories: first, a category of core bodies that are involved in the decision-making processes and initiatives throughout the world and second, a group of bodies that are involved exclusively on a regional basis. An overview of the core bodies is given in Figure 2.3.1 and the regional bodies and their interrelationship with the core bodies are shown in Figure 2.3.2 below.
2.3.1.1 The Assembly, Council, Air Navigation Commission, Legal Committee and the Committee on Joint Support of Air Navigation Services
The Assembly considers and approves proposals for modification or amendment to the Chicago Convention. Furthermore, the Assembly delegates competencies to the Council, examines and takes appropriate action on reports of the Council and decides on matters referred to it by the Council.60 In accordance with the preamble to the Chicago Convention proclaiming the desirability to avoid friction, and the promotion of co-operation between nations and the development of international air transport services on a basis of equality of opportunity, all contracting states to the convention have an equal right to be represented in the meetings of the Assembly. All states have a single vote and decisions are generally taken by a majority of votes.61
Although the Council has a secondary role within the ICAO structure, this body is the permanent and executive political body of the organisation. The Council has been delegated competencies either by reference from the Chicago Convention or, as indicated above, by means of delegation by the Assembly. The Council is composed of thirty-three member states but these are elected in accordance with a fixed model. Those states of chief importance to air transport, those making the largest contribution to the provision of facilities for international civil air navigation, and those states whose designation will assure that all major geographic areas of the world are represented on the Council. 62
59 Art. 43 Chicago Convention. 60 Ibid., Art. 49. 61 Ibid., Art. 48. 62 Ibid., Art. 50.
30 The international legal framework
The Assembly has legislative competencies regarding modification or amending the Chicago Convention, the Council plays a decisive role with respect to the organisation’s competencies in the field of air navigation services. The Council considers recommendations of the Air Navigation Commission with respect to amendments to Annexes and may even adopt and amend Annexes.63
Assembly
Council
Air Navigation Commission Air Transport Committee Legal Committee Committee on Joint Finance Committee (ANC) Support of Air Navigation Services
Figure 2.3.1 The core bodies of the International Civil Aviation Organization
As outlined in Figure 2.3.1 there are five subsidiary bodies assisting the Council. The Air Transport Committee and the Air Navigation Committee were established on the basis of specific provisions in the Chicago Convention.64 On the basis of the competencies expressed in the Chicago Convention, the Assembly is able to establish bodies as well and it has so far established the Legal Committee, Committee on Joint Support of Air Navigation and the Finance Committee. The Air Transport Committee and Finance Committee focus on economical and administrative objectives in the international civil aviation, whereas the other three bodies have had impact that is more serious on the development of air navigation services and therefore deserve closer attention.
First, the Air Navigation Commission is tasked to consider and recommend modifications to Annexes to the Chicago Convention establish technical sub-commissions and advise the Council concerning the collection and communication to the contracting states of the Chicago Convention on all information it considers necessary and useful for the development of air navigation.65 The Air Navigation Commission is one of the core bodies within the ICAO structure with a both a co-ordinating and harmonising role.66 This body also plays a very important role in the regional activities undertaken by the regional institutions as is further illustrated in Figure 2.3.2 below.
Second, the Legal Committee is the successor of the former Comité International Technique d’Experts Juridiques Aériens (C.I.T.E.J.A.) which was constituted by the Assembly in 1947 for the development of a code of private international law.67 The Legal Committee consists of various legal experts designated by contracting states and advises on matters concerning interpretation and amendment to the Chicago Convention referred to it by the Council. By direction of the Assembly or the Council, or on its own initiative and subsequent approval by the Council, the committee may, similar to C.I.T.E.J.A., also study problems of private air law affecting international civil aviation.68 One of the items on the working program of the committee was the Draft Convention on Liability of Air Traffic Control, which is further discussed in Chapter 5.5.2. Beside the Legal Committee, there is a Legal Bureau conducting legal studies and undertaking preparations on air law between sessions of the Legal Committee.
63 Ibid., Art. 54(l) and (m). 64 Ibid., Art. 54 (d) and (e). 65 Art. 57 Chicago Convention. 66 J. Schenkman, International Civil Aviation Organization (1955), 172-175. 67 I.H. Ph. Diederiks-Verschoor, An Introduction to Air Law (2006), 9-10. 68 ICAO, Memorandum on ICAO (January 1994) (15th ed.), at 28.
Chapter 2 31
The last subsidiary body worth mentioning is the Committee on Joint Support of Air Navigation Services. The committee has played an important role with respect to the development of extra-territorial provision of air navigation services over the high seas by concluding joint financing agreements for air navigation services. The joint financing arrangements will be further discussed in Chapter 4.2.2.1.
2.3.1.2 The Regional Office, PIRG, RANP and the RAN Meeting
Next to the core bodies, there are also regional bodies that are worth mentioning. Regional air navigation problems, like areas with mountains or oceanic areas, require different operational and technical solutions, which simply cannot be managed from a single point. Furthermore, planning is best done through consultation among a limited number of states rather than through planning on a global basis.69 In order to meet specific needs of member states, ICAO divided the world into nine air navigation regions, the boundaries of the regions coinciding with the world’s continental and oceanic masses. Each region is subject to oversight and steering by regional institutions of ICAO. The interrelationship between the regional- and the core institutions of ICAO are pictured in Figure 2.3.2 and the nine ICAO Air Navigation Regions are set forth in Figure 2.3.3.
Assembly
Council Regional Office Planning and Implementation Regional Group (PIRG)
Regional Air Navigation Plan (RANP)
Air Navigation Commission Air Transport Committee Legal Committee Committee on Joint Finance Committee (ANC) Support of Air Navigation Services
Regional Air Navigation Meeting (RAN Meeting)
Figure 2.3.2 The regional bodies of the International Civil Aviation Organization
69 ICAO, Familiarization Course: Regional Affairs Office, Lecture No. 1, FAM/RAO/1 (2006).
32 The international legal framework
Figure 2.3.3 ICAO Air Navigation Regions70
The nine ICAO Air Navigation Regions are controlled by seven Regional Offices. The Asia (ASIA) and Pacific (PAC) region is managed by the Regional Office in Bangkok. The Middle East (MID) region is taken care of by the Regional Office in Cairo and the African-Indian Ocean (AFI) region comprising Western and Central Africa is taken care of by the Regional Office in Dakar. The Eastern and Southern part of Africa is dealt with by the Nairobi office and the Mexican Regional Office takes care of both the North American (NAM) and the Caribbean (CAR) region. The Regional Office in Lima covers the South American (SAM) region and, last but not least, the Paris office governs the European (EUR) and North Atlantic (NAT) region.
Each Regional Office is tasked to promote the ICAO concepts issued from the centralised headquarter in Montreal. They are field offices of ICAO, acting as representatives of the organisation and should match operational and technical peculiarities from the area’s particular geographical location and at the same time ensure the continuation of a harmonised air navigation system around the globe. This is done by promoting the global implementation of ICAO policies, decisions, standards and recommended practices.71
Each region conducts a periodical Regional Air Navigation Meeting (RAN Meeting), facilitating detailed planning of facilities and services. The RAN Meeting formulates supplementary procedures to support expected increases in traffic density and instalments of new air routes. At the same time, it mirrors the regional requirements for the operation of civil
70 This figure of the ICAO Air Navigation Regions is copied from: ICAO, Report of the Special European Regional Air Navigation Meeting (Doc 9639 SP EUR), Vienna 5-14 September 1994, Agenda Item 3, Appendix A, Preliminary material concerning the transition from the present to the future air navigation system in the EUR Region, Figure 1, at 3-A-9. 71 ICAO, Compendium of Information on Regional Offices (December 2000), Paras. 1.2.4.- 1.2.5. See also, M. Milde, ‘The Chicago Convention – After Forty Years’, (1984) 9 AASL 119, at 127.
Chapter 2 33 aviation with ICAO’s worldwide air navigation framework. On the basis of these meetings, the participating states enhance unified regional air navigation planning throughout the particular region. This leads to a Regional Air Navigation Plan (RANP). The PICAO Interim Council concluded that, although the function of the regional meetings would be to adapt and apply standards and recommendations to regional problems and regional needs, the regional air navigation meetings form the regional representative bodies of ICAO.72 On this basis, the RAN Meeting is pictured in the framework of regional institutions in Figure 2.3.2. The role of the RANP in the context of air navigation services shall be more extensively discussed in Chapter 4.6.
Next to regional subsidiary bodies such as the Regional Office and RAN Meeting, there is another body called the Planning and Implementation Regional Group (PIRG). The PIRG are established by the Council and tasked to ensure continuous and coherent development of the various RANP’s and to monitor and foster implementation thereof, including reviewing, evaluating and closer studying.73 The PIRG for Europe operates under the name European Air Navigation Planning Group (EANPG) and, in summary; the EANPG has to ensure that actions undertaken in the European region are coherent and compatible with adjacent ICAO regions, including ICAO’s global air navigation provisions. This should be properly reflected in the European RANP. Furthermore, the body should align the work of other regional European institutions with that of ICAO such as ECAC, EUROCONTROL, the Joint Aviation Organisation (JAA) and air navigation programmes issued through the Commission of the European Communities.74
2.3.2 Framework for the Operation of Air Navigation Services
ICAO has created a leading global framework for the operation of air navigation services. The entire structure of air navigation services, terminology and interrelationship of the various operating units has been widely acknowledged and implemented throughout the world. As pictured in Figure 2.3.4 the framework of air navigation services comprises four pillars, which in their turn fall apart in various sub-services.75
ANS
ATM CNS MET Ancillary Aviation Services AFS AMS SAR AIS ATS ASM ATFM NAV SURV Alerting Services FIS
ATC Approach Aerodrome Area Control Service Control Service Control Service
Figure 2.3.4 Framework of Air Navigation Services
72 PICAO, International Conference on European and Mediterranean Route Service Organization, Final Report of the Conference, (Doc P.232, GEN P.38) of 25 May 1946, at 3. See also J. Schenkman, supra note 66, at 237. 73 See Compendium of Information on Regional Offices, supra note 71, Paras. 12.2.-12.3. 74 ICAO, European Air Navigation Planning Group, EANPG Handbook (2002), at 3-4. 75 For additional background information on the framework for Air Navigation Services, see ICAO, International Standards and Recommended Practices, Air Traffic Services, Annex 11 to the Convention on International civil Aviation 13th ed. (2001), Annex 11, Chapter 1, Definitions. See also, ICAO, Air Traffic Services Planning Manual (Doc 9426-AN/924) of 1984, Part V, Section 1, Terms and Abbreviations. Also, ICAO, ICAO’s Policies on charges for Airports and Air Navigation Services (Doc 9082/6) of 2001, Appendix 2: Guide to the Facilities and Services to be taken into account by providing authorities in determining the total costs of Air Navigation Services.
34 The international legal framework
The term Air Navigation Services (ANS) used in this study covers the four pillars: Air Traffic Management (ATM), Communication, Navigation and Surveillance (CNS), Meteorological Services (MET) and Ancillary Aviation Services.
The first pillar of ATM falls into three subgroups, with the first subgroup being Air Traffic Services (ATS), which covers Alerting Services, a service notifying the appropriate organisations in the event aircraft are in need of search and rescue aid, and Flight Information Services (FIS) rendering advise and information regarding safe and efficient conduct of flights. The Air Traffic Control (ATC) unit executes both these services. The primary task of ATC is to avoid collisions by maintaining sufficient separation between aircraft and between the aircraft and potential obstructions on the ground. In order to achieve this goal, the ATC organisation is divided into three categories. First, there is an Approach Control Service and, although the name of this service could give rise to confusion, this unit guides arriving-, as well as departing, flights. Second, there is an Aerodrome Control Service dealing with air traffic on the aerodrome. Last, the ATC organisation has an Area Control Service, controlling aircraft ‘en-route’ to the moment that they are handed over to an air traffic controller of an adjoining Area Control Service centre or, if the aircraft descends to lower airspace, to the Approach Control Service.
The second subgroup of the first pillar is Air Space Management (ASM), which, as reflected in its name, is tasked with the management of airspace. Airspace is a scarce resource and in order to satisfy as many airline users at the same time and as efficiently as possible, the ASM allocates airspace to those users and redesigns airspace by re-defining routes and flight levels. The last subgroup of the first pillar is Air Traffic Flow Management (ATFM). This unit concentrates on the orderly flow of air traffic, creating the best possible match between demand and supply. Whereas ASM and ATFM support the efficient utilisation of available airspace and airport capacity by minimising air traffic delays, the first subgroup ATS is really focussing on on-the-spot guidance and control of aircraft.
The second pillar CNS is focussing on both ground and satellite based aeronautical communication, navigation and surveillance systems. With respect to aeronautical communication, these are either fixed- (AFS) or mobile (AMS) services. The navigation systems (NAV) refer to ground based radio- or visual systems. Surveillance systems (SURV) contain both ground- as well as satellite based surveillance radar facilities. The third pillar MET is straightforward and refers to meteorological services, including meteorological forecasts, briefings or observations and any other meteorological data. Finally, the fourth pillar, Ancillary Aviation Services, contains several subgroups focusing on Search and Rescue (SAR) and concentrating on the delivery of aeronautical charts and information (AIS).
As a final remark to the pillar structure, it should be noted that satellite-based systems will play a fundamental role in the future provision of air navigation service. The second pillar, CNS, will consolidate those new systems of satellite technology. Due to the fact that satellite systems shall assist aircraft and air traffic controllers this will have an impact on the first pillar, ATM.76 The combination of the two pillars brought about a new term, CNS/ATM. This future air navigation system could in the long run perhaps even facilitate free flight. Aircraft operator would be able to define the most efficient routing of the flight and would no be longer restricted to pre-defined air traffic corridors that are aligned on the basis of ground- based air navigation service infrastructure.
76 For further information on satellite communication, see B.D.K. Henaku, ‘The ICAO CNS/ATM System: New King, New Law’, (1994) 29 Air Law 146.
Chapter 2 35
2.3.3 Rulemaking
The Chicago Convention recognises the exclusive sovereignty, including the (internal) rulemaking and enforcement competencies of its member states over the airspace over their territory.77 The credibility of the Chicago Convention lies in that, despite the recognition of such sovereignty, it has been able to bring uniformity in rules and regulations in the field of civil aviation throughout the world. The authorised bodies of ICAO are able to perform rulemaking tasks by adopting and amending so-called Standards and Recommended Practices that deal with, amongst other things, rules of the air and air traffic control practices.78 The rulemaking competency extends itself to other matters concerned with the safety, regularity and efficiency of air navigation, such as ICAO may from time to time consider appropriate.79 The adopted Standards and Recommended Practices are included with the Annexes to the Chicago Convention.80
Any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognised as necessary for the safety or regularity of international air navigation is considered a Standard to which states will have to conform.81 The majority of the Annexes also refer to a Council resolution of 1948, which invited states to use, as far as practicable, the precise language of Standards that are of a regulatory character in their national regulations.82 The Recommended Practices follow similar reasoning. The difference is that their application is recognised as desirable for the safety or regularity of international air navigation and to which states will merely have to endeavour to conform.83
Looking at the Chicago Convention, in terms of rules and regulations relating to the flight and manoeuvring of aircraft, states are requested to keep their own regulations uniform to the greatest possible extent with those established under the convention.84 They should as far as they may practicable establish particular custom and immigration procedures in accordance with practices established or recommended pursuant to the convention.85 Also, as far as states may find practicable, they shall provide particular air navigation facilities, adopt and put in operation appropriate systems of communication procedures, codes, markings and alike, as well as collaborate in securing publication of aeronautical maps and charts, in accordance with standards and practices recommended or established pursuant to the convention.86 In addition, states shall collaborate in securing the highest practicable degree of uniformity in regulations standards and procedures and alike in which such uniformity will facilitate and improve air navigation.87
This all seems to leave a relatively great amount of regulatory freedom with the contracting states. After all, if states are not able to adhere to the rules, regulations or procedures recommended under the convention, they are not in breach of their international obligations under that same convention. However, states do not have unlimited freedom when it comes to
77 See Ch. 2.2.2. 78 Art. 37(c) Chicago Convention. 79 Ibid. 80 Art. 54(l) Chicago Convention. 81 ICAO, Assembly Resolutions in Force as of 8 October 2004 (Doc 9848), A 35-14: Consolidated statement of continuing policies and associated practices related specifically to air navigation, at II-2. 82 Not all Annexes refer to this Council resolution such as Annexes 4, 5, 6, 7, 15 and 18. 83 See, ICAO, Assembly Resolutions in Force as of 8 October 2004 cited at note 81 supra. 84 Art. 12 Chicago Convention. For rules and regulations relating to the flight and manoeuvring over the high seas, see Ch. 4.2.2.1. 85 Art. 23 Chicago Convention. 86 Ibid., Art. 28. 87 Ibid., Art. 37.
36 The international legal framework deviating from Standards. Bearing in mind that Standards involve matters, the uniform application of which is recognised as necessary for the safety or regularity of international air navigation, there is a rationale for strict and unconditional notification if the state commences or continues with national practice that differs from the Standards issued.
If states find it impracticable to comply in all respects with Standards or to bring their regulations or practices in full accord with such Standards, or deem it necessary to adopt regulations or practices differing from those established by the Standards they are compelled to notify ICAO immediately of the differences between their own practice and that established by the Standards. In case of amendments to the Standards, if the state does not make the appropriate amendment to its own regulations or practices, it shall notify the Council within sixty days of the adoption of the amendment. In such cases, the Council shall make immediate notification to all other states of the difference, which exists between one or more of the features of the Standards and the corresponding national practice of the state.88
When states have not filed differences, the Standard must be regarded as binding upon that state.89 Failure by the state to comply with the notification obligation should be considered as a breach of treaty obligations. A disregard of the notification of deviating national practice could have serious consequences, possibly by eliminating the state concerned from any meaningful participation in international air navigation and air transport.90 This raises the question of what kind of enforcement competencies have been awarded to ICAO. This will be discussed in the following Chapter 2.3.4.
The Standards and Recommended Practices are concluded on a high-level and additional fine-tuning takes place by means of so-called Procedures for Air Navigation Services (PANS) and Regional Supplementary Procedures (SUPPS). The PANS specify in detail the actual procedures to be applied by air traffic services units when providing Air Traffic Services. The current edition is referred to as Procedures for Air Navigation Services – Air Traffic Management (PANS-ATM), this preceding the foregoing documents Procedures for Air Navigation Services – Air Traffic Control (PANS-ATC) and Procedures for Air Navigation Services – Rules of the Air and Air Traffic Services (PANS-RAC).91 Contrary to amendments in the document over times, the PANS-ATM is still a somewhat monstrous document.92 They encompass a detailed set of rules defining actual and practical procedures to be applied by air navigation services providers. This ranges from, amongst others, provisions and procedures on safety management, air traffic flow management, air traffic services provision and separation of aircraft. Although recognising that PANS do not have the same status as Standards and Recommended Practices, the PANS-ATM stipulate that states are required to list in their Aeronautical Information Publication significant differences between their procedures and related ICAO procedures.93
88 Ibid., Art. 38. 89 For additional information, see also L. Weber, ‘Convention on International Civil Aviation – 60 Years’, (2004) 53 ZLW 289, at 297. 90 M. Milde, ‘Problems of Safety Oversight: Enforcement of ICAO Standards’, in C.J. Cheng (ed.), The Use of Air and Outer Space Cooperation and Competition (1998), 251, at 254-256. 91 ICAO, Procedures for Air Navigation Services – Air Traffic Management (PANS-ATM), Doc 4444- ATM/501 (2001). 92 For a critical comment on the PANS-RAC (the predecessor of the PANS-ATM) see F.P. Schubert, ‘Air Traffic Control – A Time for Change’, (1993) 18 AASL-Part I 257. The PANS-RAC was drafted to enable air traffic controllers to identify at a glance the procedures to be applied in the modern ANS environment but became a monstrous document. 93 See PANS-ATM, supra note 91, at xii.
Chapter 2 37
Due to regional air navigation differences, the worldwide PANS-ATM is subject to further fine-tuning by way of the Regional Supplementary Procedures (SUPPS).94 SUPPS specify detailed procedural options of those provisions or promulgates a regional procedure of justifiable significance.95 Last but not least, ICAO issues regulations by way of policies, manuals and circulars. This is guidance material for states. Sometimes they get binding effect, especially when states enter into specific multilateral agreements that embrace such policies. Reference is made to the multilateral agreement relating to route charges where states delegated rule-making competencies to EUROCONTROL.96 On the basis of this multilateral agreement, the organisation can adopt so-called principles for establishing the cost-base for route facility charges and the calculation of the unit rates.97 The principles are based on the ICAO policy on charges for airports and air navigation services.98 Rulemaking in terms of Recommended Practices, PANS, SUPPS, policies, manuals and circulars are of a less binding nature and the unconditional duty to immediately notify ICAO of differences only applies to Standards.
2.3.4 Enforcement
Although the Annexes have been adopted and are amended from time to time, ICAO realised that the non-filing of differences to Standards by states did not mean that they fully implemented the Annexes in their national legal order. Taking into account the total membership of ICAO, only a few states participate in relevant meetings, fewer states send timely substantive comments on proposed amendments to Annexes and, lastly, only a very few states actually communicate whether they are in compliance with the Standards or file a difference.99
In the early 1990s, the Federal Aviation Authority (FAA) launched a safety assessment program. It found that some foreign countries were simply not meeting their international obligations under the ICAO framework.100 ICAO reacted by launching the ICAO Universal Safety Oversight Audit Programme. Although this program focused on only a few Annexes, ICAO gradually expanded the audit to all safety-related Annexes, including Annex 11, which
94 ICAO, Regional Supplementary Procedures, Doc 7030/4 (1987). The SUPPS encompasses different sections per region. See for example European region in ICAO Doc 7030/4-EUR, whereas African- Indian Ocean region is defined in ICAO Doc 7030/4-AFI. The SUPPS encompass, for example, Reduced Vertical Separation Minimum (RVSM) compliance procedures, phraseology on RVSM operations, how to submit flight plans as well as various specific procedures in defined designated airspace. 95 Ibid., p. v. 96 1981 Multilateral Agreement relating to Route Charges 1430 UNTS 123. 97 EUROCONTROL, Principles for establishing the cost-base for route facility charges and the calculation of unit rates (Doc No 04.60.01) of November 2004. This document supersedes the principles as defined in the earlier Doc No 99.60.01/1 of August 1999. 98 Ibid., Art. 1(1). The principles are, amongst others, based on ICAO’s Policies on Charges for Airports and Air Navigation Services (ICAO doc 9082). 99 For additional information, see J. Ducrest, ‘Legislative and Quasi-Legislative Functions of ICAO: Towards Improved Efficiency’, (1995) 20 AASL-Part I 343, at 355. See also, R.D. van Dam, ‘Recent Developments in Aviation Safety Oversight’, (1995) 20 AASL – Part I 307, at 309-312. See also, M. Milde, ‘Problems of Safety Oversight: Enforcement of ICAO Standards’, supra note 90 at 257-258. 100 The FAA concluded that some states were not meeting the standards and its respective air carriers were not allowed to fly to or from the United States. Others were allowed to continue operation, albeit under strict FAA inspection. For additional information, see M.B. Jennison, ‘The Chicago Convention and Safety After Fifty Years’, (1995) 20 AASL-Part I 283, 292-298. See also, G.N. Tompkins Jr, ‘Enforcement of Aviation Safety Standards’, (1995) 20 AASL-Part I 319, 322-328.
38 The international legal framework deals with Air Traffic Services.101 On completion of the safety audit, ICAO is able to determine whether states are in breach of their obligations under the Chicago Convention.
Meanwhile ICAO has changed its auditing procedures. In order to enhance safety, the organisation decided not to keep audit reports confidential, but to disseminate the full report to all contracting states. This revised procedure was aimed at boosting adherence by states to the safety regulations issued under the umbrella and at the same time increase transparency and the sharing of important safety information amongst the contracting states to the Chicago Convention.102
Provided states have refrained from filing differences to the Standards, this then brings the question whether any enforcement competencies have been delegated to ICAO to pursue claims against states for infringement of treaty obligations.103 If states find it impracticable to comply in all respects with Standards they shall give immediate notification to ICAO of the difference between their own practice and that established by the international Standards.104 From the face of it, this opt-out provision implies that there is no legal duty to comply with the Standards. However, the opt-out provision must not be abused by mere reference. States should derogate from Standards in good faith.105 The state may use the opt-out clause only in
101 ICAO, Assembly Resolutions in Force as of 8 October 2004 (Doc 9848), A 35-6: Transition to a Comprehensive Systems Approach for Audits in the ICAO Universal Safety Oversight Audit Programme (USOAP), at I-57. 102 Ibid., A 35-7: Unified Strategy to Resolve Safety-Related Deficiencies, at I-60. See also, ‘Assembly Highlights: At a pivotal time in the history of international civil aviation, delegates from around the world gathered in Montreal to chart a course for the future’, ICAO Journal (December) of 2004, at 9-10 and also the ‘ICAO’s newly adopted unified strategy will ensure optimum safety, Council President informs global summit’, ICAO Journal (January/February) of 2005, at 26. 103 ABEYRATNE has also examined the binding effect of the Annexes to the Chicago Convention. He indicated that Article 37 Chicago Convention [Each contracting state undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, ....and in all matter in which such uniformity will facilitate and improve air navigation] is a legal principle incorporated in a treaty that arguably becomes a principle of jus cogens. Obligations from jus cogens are considered to be applicable erga omnes and states owe a duty of care to the world at large to adhere to this provision. In other words, Art. 37 Chicago Convention should be regarded as a principle of customary international law and gives a right to all states, whether or not party to the Chicago Convention, to make claims in the event of violation. Erga omnes, if violated, give a rise to a general right of standing amongst all states party to those rules to make claims or a right of protection, provided that the rule contains a series of rights and obligations amongst the states subject thereto, but qualifying Article 37 Chicago as a peremptory norm of international law (jus cogens) is in the author’s view questionable. It only qualifies as an erga omnes rule towards the other contracting states under the Chicago Convention. In order to qualify as jus cogens the provision must be of a fundamentally norm-creating character, the treaty must have a wide- spread and representative participation and, thirdly, there must be opinio juris that is reflected in extensive state practice virtually uniform in the sense of the provision invoked. Ascertaining opinio juris not only depends on the enumeration of actual instances or practice, but also on the evaluation of circumstances surrounding the individual instances of practice and generality, consistency and constancy of state practice of individual states. The audits performed under the supervision of ICAO illustrate that not all states are complying at length with the Annexes, which therefore makes it highly questionable to ascertain jus cogens. For additional information see: R.I.R. Abeyratne, ‘The Legal Status of the Chicago Convention and its Annexes’, (1994) 19 Air Law 113; R.I.R. Abeyratne, ‘Some Recommendations for A New Legal and Regulatory Structure for the Management of the Offense of Unlawful Interference with Civil Aviation’, (1998) 25 Transportation Law Journal 115; R.I.R. Abeyratne, ‘Bird Strikes against Aircraft – Issues of Liability’, (2001) 29 Transportation Law Journal 63; R.I.R. Abeyratne, ‘Privatisation of Hong Kong International Airport – Some Legal and Economic Issues’, (2004) 12 Asia Pacific Law Review 43. 104 See Art. 38 Chicago Convention as discussed in Ch. 2.3.3. 105 See also, B.D.K. Henaku, The Law on Global Air Navigation by Satellite (1993), at 58-63.
Chapter 2 39 the event of impracticability with compliance or if the state deems it necessary to adopt regulations or practices differing in any particular respect from those established by the Standards. In the event of an amendment of a standard, the impracticability argument could be raised by the state if it finds it impracticable to bring its own regulations or practices into full accord with the Standard after its amendment. As also indicated in the previous Chapter the state is compelled to give immediate notification of the differences between national practices and the Standards.
The Council shall report to contracting states any infractions of the Chicago Convention, as well as any failure to carry out recommendations or determinations of the Council.106 The Council shall report to the Assembly any infractions of the Chicago Convention where a contracting state has failed to take appropriate action within a reasonable time after notice of the infraction.107 At the request of a contracting state, the Council may investigate any situation, which may appear to present avoidable obstacles to the development of international air navigation and issue such reports as it may appear to it desirable.108 All in all this is a lot of reporting and it does not evidence any appropriate enforcement competencies.
Enforcement competencies are delegated to the Council in the event there is a disagreement between two or more contracting states to the interpretation of the Chicago Convention or Annexes upon which, at the application of any state concerned, the disagreement shall be decided by the Council.109 Appeal to the decision of the Council is possible by means of arbitration or before the International Court of Justice.110 In the event the disagreement involves the operations of an international airline, the decision of the Council shall remain in effect unless reversed on appeal (unless the Council decides otherwise).111 For other matters, the decision of the Council shall, if appealed, be suspended until the appeal is decided. In the event a contracting state is found in default, the Assembly has the power to suspend its voting power in the Assembly and the Council.112 This is different for financial obligations. In the event that a contracting state has failed to discharge within a reasonable period its financial obligations the Assembly may suspend the voting powers of the state with immediate effect.113 Taking into account these enforcement competencies, but for the power to suspend voting powers in case a state has not met its financial obligation, there are no real tangible enforcement mechanisms in place under the Chicago Convention. The Council may only decide in a situation if a dispute is raised by one of the contracting states to another state, but neither the Assembly nor the Council have the power to take up action on their own.
There have been recommendations to enhance enforcement competencies by transforming ICAO into a supranational organisation where the supranational character would be twofold. First of all, there would be direct applicability of the rules issued under the Chicago Convention against the contracting states and individuals of those contracting states. Thus there being direct applicability of the rules without the need for further implementation. Second, there would be a procedure for the supervision of the fulfilment of obligations and a suitable enforcement mechanism. Not only the contracting states, but also the ICAO Council would be able to bring the matter, such as non-compliance, before court.114 Milde has argued that there is no need to look for new methods and institutional arrangements or amendments of the Chicago Convention. It is only a matter of management and political will to use the
106 Art. 54(j) Chicago Convention. 107 Ibid., Art. 54(k). 108 Ibid., Art. 55(e). 109 Ibid., Art. 84. See also, I.H. Ph. Diederiks-Verschoor, ‘Settlements of Disputes in Aviation and Space’, in C.J. Cheng (ed.), The Use of Air and Outer Space Cooperation and Competition (1998), 231. 110 Art. 84 Chicago Convention. 111 Ibid., Art. 86. 112 Ibid., Art. 88. 113 Ibid., Art. 62. 114 See J. Ducrest, supra note 99, at 361-362.
40 The international legal framework convention in the interest of aviation safety and it is up to the contracting states themselves to take convincing actions to maintain the convention’s continuing relevance and credibility.115
Whether at this moment the rules issued under the Chicago Convention and its Annexes can be enforced at national level depends on the national law of the state. Depending on the national law, a private entity could be able to make a direct claim on the basis of the provisions embodied under the Chicago Convention and Annexes thereto. Some states do not allow claims to be filed in their national court, unless the treaty has been incorporated in their national law.116 As a solution for individuals that wish to file a claim under the rules of international law Wassenbergh has suggested the privatisation of international air and space law. This would grant individuals a direct right from those rules of international law.117
According to the Constitution of the Kingdom of The Netherlands, provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents, shall become binding after they have been published.118 Provided the provision in the treaty is considered binding by virtue of the contents, the publication of the treaty or resolution of international institutions suffices for the direct effect and the incorporation into national law will not be required. Furthermore, in case national law conflicts with the aforementioned provisions, the latter shall prevail.
However, what if Annexes to the Chicago Convention are not published? Does this mean that individuals cannot invoke a Standard within the Dutch legal order? It had been argued that, despite the fact that formal publication requirements had not been met, Standards should have a direct effect and that a Dutch Court should be able to impose Standards in the Dutch legal order.119 This approach has meanwhile been confirmed by the District Court of Rotterdam in the Rotterdam Airport-case.120 The District Court argued that lack of publication does not
115 See M. Milde, supra note 90, at 271. 116 R.D. Margo, ‘Kicking and Screaming into the Twenty-First Century: A Practitioner’s Prescription for updating the Chicago Convention’, (1995) 20 AASL-Part I 49, at 51-52 and 54-55. For direct application of the Chicago Convention and its Annexes in the United States, L. Weber, supra note 89, at 310-311. See also C. O’Keefe, ‘Disabled Passengers and Disconcerting Rules’, (2005) 19 Air and Space Lawyer 1. 117 H.A. Wassenbergh, ‘The ‘Privatization’ of International Air and Space Law’, in C.J. Cheng (ed.) Regulatory Reform in International Air Transport: H.A. Wassenbergh’s Select Essays over a Period of Fifty Years 1950-2000 (2000), 1049. According to Wassenbergh international law no longer applies only between governments of sovereign states. Increasingly states have agreed and still agree on international matters of common interest to man, making them direct subjects of internationally-agreed legal rules. He refers to this body of rules as ‘inter-nation’ law directly involving the peoples, individuals and legal persons of the world. 118 Art. 93 Grondwet voor het Koninkrijk der Nederlanden [The Constitution of the Kingdom of The Netherlands], Staatsblad 2005, 52. 119 H. Meijers, Volkenrechtelijke aspecten van Antilliaanse onafhankelijkheid [Law of Nation Aspects of Antillian Independence] (1980), 356-357. In the event that domestic law does not offer a solution for a particular situation the Court should be able to use the ICAO-standard. 120 Rechtbank Rotterdam [District Court Rotterdam] 27 June 2000, rolnr. APV 98/2091-S1 (Landelijk Jurisprudentie Nummer: AA7335) (unpublished) (Vereniging Bewonersgroep Tegen Vliegtuigoverlast/ Dagelijks Bestuur van de Deelgemeente Hillegersberg-Schiebroek) (Community against Aircraft Nuisance v. Local Municipality Hillegersberg-Schiebroek). Rotterdam Airport notified the local municipality that a large number of trees surrounding the airport obstructed the flight-path of aircraft using its runway for take-off. This violated Annex 14, Para. 4.2.23 that provides dimensions and slopes of obstacle limitations for runways meant for take-off. The trees jeopardised the immediate aviation safety at the airport. After some deliberation the local municipality approved the removal of the trees, provided new trees were planted, but the so-called Community against Aircraft Nuisance contested this administrative decision and filed a procedure with the District Court in Rotterdam. The Court resolved that at the time of the decision by the local municipality Para. 4.2.23 of Annex 14 had not yet been published. The requirements of Art. 93 of the Constitution of the Kingdom of The
Chapter 2 41 prevent the binding effect of a Standard. Meanwhile the Annexes to the Chicago Convention have been published in accordance with the requirements of the constitution.121 When relying on the direct effect of a Standard, any such claim for direct effect remains subject to the question as to whether or not a particular provision by virtue of its contents is to be considered as binding on all persons.
In the view of the author, relying on national enforcement capabilities of rules issued in the context of the Chicago Convention is not a solution to remedy the lack of enforcement competencies of ICAO. The lack of supra-national enforcement prevents global uniformity of the rules promulgated under the umbrella of ICAO and the organisation should try and convince the contracting states that it is their self-interest to entrust the organisation with the task to enforce safety and security regulations.122 This would anchor ICAO’s position in contributing to world security, international co-operation and peace as is also envisaged in the preamble of the Chicago Convention. Amending the Chicago Convention by turning the organisation into a supranational organisation would require a two-third majority vote from all contracting states. The amended convention would only come into force in respect of those states that have ratified this amendment, provided the number of ratification’s of contracting state specified by the Assembly is met, which shall be at least two-third of the total number of contracting states.123 In May 2007 there were 190 contracting states to the Chicago Convention, which would imply that 127 states would have to be in favour of delegating a portion of their national competencies to an international organisation. In view of the author it is unlikely that such a large number of states would be willing to relinquish the exercise of their sovereign competencies as far as exercising enforcement of the Chicago Convention is concerned or that the Assembly uses the power embedded in the convention to expell any state that is currently a member of ICAO. Anticipating any delegation of enforcement competencies in the hands of ICAO bodies should therefore be considered as a very (over) ambitious undertaking and is not very realistic.
2.4 Concluding Remarks
In this Chapter the international legal framework for air navigation services under the Chicago Convention has been described. As has become apparent, the convention has been very succesful if measured in terms of number of ratifications. In 2007, there were no less then 190 contracting states to the Chicago Convention. In addition, the international organisation established pursuant to that convention (ICAO) has been very strong by establishing an institutional structure that by way of core- and regional institutions has not only safeguarded a global approach to air navigation services, but at the same time paid attention to regional air navigation needs and concerns which ultimately resulted in a truly uniform global framework of air navigation services.
Netherlands had therefore not been met. However, the Court stated that the Kingdom of The Netherlands as contracting party to the Chicago Convention is bound to Para. 4.2.23 of Annex 14. As there is no conflicting provision in the domestic law this means that administrative bodies of the government (i.e. the Municipality) when exercising powers should also obey to this provision of Annex 14 and execute their competencies in accordance herewith. In a different court-case involving trees around Rotterdam Airport, it was discussed whether the trees that had not yet grown as far as the limitation set forth by Para 4.2.23 of Annex 14 had to be removed. This was rejected in appeal by the Raad van State [Council of State] 6 July 2005, Administratiefrechtelijke Beslissingen [Administrative Decisions] 2005, 380. 121 Verdrag inzake de internationale burgerluchtvaart, met bijlagen [Convention on International Civil Aviation with Annexes], Chicago 7 december 1944, Tractatenblad 1999, 108. 122 See also, P.M.J. Mendes de Leon, ‘Aircraft Noise: The Prerequisite of Non-discrimination under the Rule of International Law’, in M. Benkö and W. Kröll (eds.), Air and Space Law in the 21st Century, Liber Amicorum Karl-Heinz Böckstiegel (2001), 140, at 149-151. 123 Art. 94 Chicago Convention.
42 The international legal framework
ICAO is able to issue a variety of rules in the field of air navigation services: Standards, Recommended Practices, Procedures for Air Navigation Services (PANS), Regional Supplementary Procedures (SUPPS) as well as policies, manuals and circulars. Notwithstanding the variety of regulatory instruments, only the Standards issued by ICAO have a binding effect on its member states, but such binding effect only exists up to the extent that the state finds it practicable to comply with the Standard. If the state finds it impracticable to comply with the Standard, the state may opt-out by filing the difference to ICAO. However, if a state does so, it undermines the limited regulatory competencies of the organisation.
Despite the credibility of the Chicago Convention that has unmistakeably brought uniformity in the field of air navigation services, the Convention has not been successful as far as implementing enforcement competencies of the international organisation are concerned. If states do not file differences the treaty does not provide for a direct effect of the Standards in the legal order of the member states. Although the organisation resolved that states are invited to use, as far as practicable, the precise language of Standards that are of a regulatory character in their national regulations, it remains up to the states to implement Standards in their national law. Whether or not individuals can rely on the mandatory Standard under the Chicago Convention that have or, without the filing of a difference, have not been implemented by states in their national law depends on the extent this is permitted under the national laws of that particular state. The Rotterdam Airport-case illustrates that the lack of national implementation does not per se prevent individuals from relying on a Standard.
From the viewpoint of enforcement competencies, the elemental flaw is that the organisation lacks suitable enforcement powers. If states do not meet their treaty obligations because of, for example, non-compliance with a Standard without at the same time filing a difference thereto, the international organisation relies on the individual states to trigger the dispute resolution mechanism under the convention. They could bring a disagreement with another state before the ICAO Council with the possibility of appeal through arbitration or the International Court of Justice.
Remedying the gaps in the areas of rulemaking- and enforcement competencies by turning ICAO into a supranational organisation with the capability of enacting binding rules and decisions directly applicable to states and their citizens as well as by imposing an enforcement mechanism enabling the organisation to pursue the adherence by states and individuals to those rules and decisions is highly unlikely. This would require an amendment of the Chicago Convention that would have to be endorsed by at least two-third of the total number of the contracting states, this being a total of 127 states, to vote in favour of transferring the exercise of those national competencies to ICAO. In the wake of ICAO’s self- assessment and the verification process on the implementation of Standards by way of its safety audit programs, ICAO finds itself overtaken, at least in Europe, by regional initiatives. Meanwhile, several of its member states have limited the exercise of their national competencies, including rulemaking- and enforcement competencies in the area of air navigation services, in favour of other international organisations. The next Chapter will consider in detail to what extent states have, or have not, limited the exercise of national competencies in the field of air navigation services to international bodies as the European Civil Aviation Conference (ECAC), the European Organisation for the Safety of Air Navigation (EUROCONTROL) and the European Community (including EASA).
43
CHAPTER 3 The European Legal Framework
3.1 Introduction
The previous Chapter described the global international legal framework governing the provision of air navigation services as embedded in the Chicago Convention and its Annexes. Beside picturing the institutional framework of ICAO with its core bodies and its regional bodies and explaining the global framework for the operation of air navigation services developed by international organisation, attention was paid to the limited rulemaking- and enforcement competencies of ICAO. But for Standards that can be issued by ICAO which, provided no differences are filed, have a direct effect on states, the contracting parties to the Chicago Convention retained their sovereign competencies in the rulemaking field. As far as enforcement competencies are concerned, the contracting states have not delegated to ICAO any competencies at all. The organisation lacks supra-national enforcement powers and cannot by itself enforce Standards. The organisation relies on the member states to trigger the dispute resolution mechanism of the Chicago Convention instead.
The purpose of this Chapter is to focus on European developments and to examine three European organisations that are active in the field of air navigation services. In order to understand the roles of these organisations, the first part of this Chapter will examine the institutional structure of each international organisation and explore whether the contracting states have delegated rulemaking- and enforcement competencies to the organisation. Firstly, attention will be paid to the achievements of the European Civil Aviation Conference (ECAC) in the field of air navigation services (3.2). Next, after a historical review of the developments that lead to the coming into existence of the European Organisation for the Safety of Air Navigation (EUROCONTROL), this Chapter will examine the Amended Convention and Revised Convention as well as the interim situation that is currently in place, the provisional application of the so-called Revised Convention (3.3). A close review is necessary due to the rulemaking- and enforcement competencies that the contracting states have delegated to EUROCONTROL. Finally, the role of the European Community will be taken into account, which will include an analysis of the Single European Sky regulations according to which the European Community has also been delegated rulemaking- and enforcement competencies in the field of air navigation services (3.4).
After the review of the institutional structure and the rulemaking- and enforcement competencies of ECAC, EUROCONTROL and the European Community it is time to consider the interrelationship and complications between, in particular, EUROCONTROL and the European Community that will be analysed and discussed in the second part of this Chapter (3.6). Both organisations have rulemaking- and enforcement competencies in the field of air navigation services, but it is not always easy to differentiate which international organisation has the exclusive competency. Moreover, the fact that the European Community has acceded to EUROCONTROL makes matters even more complex in terms of rulemaking- and enforcement competencies against states that are a member state of the European Community, but not a member state of EUROCONTROL (3.6.1). The subsequent paragraphs will then consider the reverse situation and examine to what extent the European Community recognises EUROCONTROL in its own legal order and how to differentiate between rulemaking competencies of EUROCONTROL and the European Aviation Safety Agency in terms of mandatory non-safety related and safety related rules issued under the umbrella of EUROCONTROL (3.6.2). A number of observations and suggestions will finalise this Chapter (3.7).
44 The European legal framework
Part 1 ECAC, EUROCONTROL and the European Community
3.2 ECAC
Already in 1951 Europe’s oldest international organisation, the Council of Europe, discussed proposals to achieve co-ordination of inter-European air transport. This resulted in a conference on co-ordination of air transport in Europe in 1954.124 During the aforementioned conference it was agreed that the European Civil Aviation Conference (ECAC) would be established. The inaugural session of ECAC was held in 1955.
ECAC has its own constitution and membership is open for all European states, including those states that are not a member of the European Community. Furthermore, according to the constitution of ECAC, the adherence to International Air Services Transit Agreement (IASTA), a multilateral agreement where contracting states exchange the rights to over-fly each other’s territories and to make stops in their territories for technical purposes, such as refuelling, on scheduled international air services, is one of the recommended criteria for membership in the organisation. Through this multilateral IASTA agreement states do not have to negotiate, on a bilateral basis, over-flight rights.125 The objective of ECAC is to promote the continued development of a safe, efficient and sustainable European air transport system. There is an interrelationship between ECAC and ICAO. ECAC shall work in close liaison with ICAO and shall be using the services of the latter’s secretariat. In principal only ICAO contracting states can be member states of ECAC. ECAC shall maintain a close relationship with ICAO in order to further the aims and objectives of the Chicago Convention.126
ECAC has played an important role for the development of a strategy for air traffic management in Europe. The transport ministers of the contracting states to ECAC scheduled no less then six Meetings on the Air Traffic System in Europe (MATSE) to discuss and take joint action on air traffic congestion problems. The first MATSE meeting took place in 1988 under which EUROCONTROL was tasked to develop, implement and operate a Central Flow Management Unit (CFMU) to ensure orderly and expeditious flow of air traffic through European airspace. This CFMU became operational in 1996. ECAC was also involved in the launching of other activities in the field of air navigation services such as design and implementation of a program for the harmonisation and integration of en-route air traffic management (EATCHIP) and development of a concerted systems approach to the airport/air traffic system interface (APATSI).
124 The Council of Europe not to be confused with the European Community that will be further discussed in Ch. 3.4. The Council of Europe is a different organisation with a different founding treaty: Statute of the Council of Europe, ETS No. 001 (1949). Even membership is different. For example the Russian Federation is member of the Council of Europe. The main aims of the Council of Europe include the protection of human rights and the promotion of democracy and the rule of law. The organisation has for example sponsored the European Convention on Human Rights. 125 ECAC, ECAC Constitution and Rules of Procedure, ECAC.CEAC Doc No. 20 (1996), at 19-20. For further information on the impact of state sovereignty on the over-flight of a state’s territory and the importance of the International Air Services Transit Agreement (ICAO doc 7500) and the International Air Transport Agreement as well as the relationship between ECAC membership and IASTA see P.P.C. Haanappel, The Law and Policy of Air Space and Outer Space: A Comparative Approach (2003), 19-21. According to the criteria and procedures used in considering applications for membership of ECAC attached to the aforementioned ECAC Constitution and Rules of Procedure (Art. 3(ii)), the states shall have regard to criteria (not necessarily to be met simultaneously or to the same extent), including the requirement that the applicant is a party to IASTA. 126 Ibid., The ECAC Constitution, Arts. 2 and 3.
Chapter 3 45
Until 1994 the MATSE-meetings had considered practical solutions and working arrangements for EUROCONTROL. From 1994 and onwards ECAC also focussed on enhancing the institutional organisation of EUROCONTROL and considered arrangements that would be best suited to safeguard ongoing implementation of en-route air traffic management strategies with a view to increase air traffic management capacity and reduce delays, but at the same time to maintain a high level of safety.127
ECAC adopted an institutional strategy in MATSE 5 emphasising the revision of EUROCONTROL’s institutional structure that, amongst others, included two components. Firstly the improvement of standard making in EUROCONTROL that would cover standards in the form of operating procedures, protocols and specifications to ensure consistent system operation in the field of air traffic management. Secondly, separate from the service provision, a multilateral development and harmonisation of a safety regulatory regime was to be created.128 This institutional strategy of ECAC was formalised through the implementation thereof in the Revised Convention of EUROCONTROL.129
There is majority voting in the decision-making bodies of ECAC.130 However, there is no binding effect of ECAC decisions. The functions of ECAC are consultative and its resolutions, recommendations or other conclusions shall be subject to the approval of governments.131
3.3 EUROCONTROL
3.3.1 The Amended Convention
In the 1950’s jet aircraft were introduced for commercial aviation and several European states realised that their air traffic management systems could not meet the changing demands of the airspace users. Firstly, contrary to the conventional aircraft that had been crossing the skies, jet aircraft operated in the upper airspace. Hardly any state had suitable air navigation equipment in place for air navigation service provision in this portion of airspace. Secondly, because of the increased air speed of jet aircraft the airspace of states with relative small territories was traversed in a very short time frame placing a heavy burden on national air navigation service providers, as they had to transfer the control over the aircraft to colleagues vested in neighbouring states at a much swifter pace. The ground navigation systems in place did not allow such efficient transfer. Multiplying this with the growth of air traffic, states realised that in the long run continuation of their air navigation operations on the same basis would ultimately jeopardise the safe, orderly and expeditious flow of air traffic.
Bearing in mind these operational problems, Belgium, Luxembourg, the Kingdom of the Netherlands, Germany, France and the United Kingdom ratified the International Convention relating to the Co-operation for the Safety of Air Navigation.132 Various states joined, taking the number of contracting parties to the EUROCONTROL Convention (1960) to twelve states.133 The preamble of the Convention explicitly recognised that the entry into service and general employment of turbine-engine transport aircraft gave rise to far-fetching changes in the organisation of air traffic control. The control of air traffic at high altitude should no
127 ECAC, ECAC Institutional Strategy for Air Traffic Management in Europe (1997), at 11. 128 Ibid., at 52-59. 129 The Revised Convention will be further discussed in Ch. 3.3.2. 130 See The ECAC Constitution, supra note 125, Art. 12. 131 Ibid., Art. 1(3). 132 1960 “EUROCONTROL” International Convention Relating to Co-operation for the Safety of Air Navigation (EUROCONTROL Convention (1960)), 523 UNTS 117. 133 A.A. Majid, ‘Legal Capacity of Eurocontrol to Ensure Smooth Aviation in Europe’, (1991) 16 Air Law 267, at 272.
46 The European legal framework longer be envisaged within the restricted framework of national frontiers and the solution was therefore the creation of an international organisation.134
According to the opening article of the EUROCONTROL Convention (1960) the contracting states agreed to strengthen co-operation in matters of air navigation and to provide for the common organisation of the air traffic services in the upper airspace and for this purpose the contracting states established the international organisation EUROCONTROL.135 EUROCONTROL took up the ambitious task and eventually developed and operated three “en- route” air traffic control centres located in Maastricht (The Netherlands), Shannon (Ireland) and Karlsruhe (Germany). Not only was the competency of operating the controlling services in the upper airspace delegated by the contracting states to the international organisation. At the same time there was also a further limitation of the national competencies of the states in favour of EUROCONTROL. In the performance of air traffic control EUROCONTROL would be able to apply regulations in force over the territories of the contracting states and the organisation’s instructions would be binding in the airspace over the contracting states. Also, reports of infringements of air navigation regulations by officials would have the same effect as those drawn up by national officers.136 In this respect EUROCONTROL replaced the national civil aviation authorities.137
This limitation on the exercise of national competencies by the states was reversed by an amendment on the founding treaty through the so-called Amended Convention.138 Upon its entry into force in 1986 the operational control as well as the exercise of other national competencies that had been delegated to EUROCONTROL immediately returned to the underlying states. The reason for repossessing the operational control was that states were not happy with the performance of the services by the organisation. The operations were expensive.139 Also, the automatic transfer of the exercise of national competencies under the EUROCONTROL Convention (1960) was considered undesirable.
Delegation of particular national competencies remained possible under the Amended Convention, but the delegation became subject to the request of one or more of the contracting states that would have to conclude a specific agreement with EUROCONTROL.140 Upon the entry into force of the Amended Convention the control centres located in Shannon (Ireland) and Karlsruhe (Germany) were transferred to the competent authorities in Ireland and Germany and their national air navigation service providers continued the en-route service provision from those locations. However, on the basis of a multilateral agreement between EUROCONTROL, Belgium, Luxembourg, the Kingdom of The Netherlands and Germany, the international organisation was able to continue its service provision from the control centre in Maastricht.141 The service provision
134 See the Preamble to the EUROCONTROL Convention (1960), supra note 132. 135 Ibid., Art. 1. 136 Ibid., Arts. 17-19. 137 M. Bartkowski, ‘Responsibility for Air Navigation (ATM) in Europe’, (1996) 21 AASL-Part I 45, at 53. 138 1981 Protocol Amending the “EUROCONTROL” International Convention Relating to Co- operation for the Safety of Air Navigation with Annexes 1, 2 and 3 (Amended Convention), 1430 UNTS 279. 139 A.A. Majid, ‘The New Face of EUROCONTROL – Scaling down of the Integration Dream’, (1988) Legal Issues of European Integration 87, at 93. 140 Art. 2(2) Amended Convention. On the basis of Art. 2(2)(b) Amended Convention, the contracting parties to the Amended Convention may entrust EUROCONTROL with the task of providing and operating, wholly or in part, air traffic services and facilities on behalf of such parties. 141 Overeenkomst inzake de terbeschikkingstelling en exploitatie van installaties en diensten voor het luchtverkeer door EUROCONTROL in het Luchtverkeersleidingcentrum Maastricht (met bijlagen) [Agreement Relating to the Provision and Operation of Air Traffic Services and Facilities by
Chapter 3 47 restricts itself to the provision of air navigation services in the upper airspace of the aforementioned states and, with respect to Germany, to only a particular portion of the upper airspace over the Germany.
The Amended Convention reversed automatic delegation of the exercise of particular national competencies. Yet at the same time it clearly identified the scope of the international organisation. The Amended Convention applies to en-route air navigation services and related approach and aerodrome services for air traffic in Flight Information Regions listed to the Convention in an annex thereto.142 Under the Amended Convention the focus of EUROCONTROL was no longer on the operation of services, but on increasing its role in the (medium and long-term) planning and co-ordination in a variety of fields of air navigation services. For this purpose the organisation was appointed with specific tasks, which amongst others encompassed paying attention to interested non-member states.143 The change in focus would bring the international organisation closer to conventional international organisations and would distance it somewhat from specialised organisations.144
In terms of the institutional structure of EUROCONTROL under the Amended Convention, the international organisation, in the execution of its functions under the Amended Convention, is assisted by two bodies.145 The Permanent Commission is responsible for formulating the organisation’s general policy. The Agency, as second main body, receives directives from the Permanent Commission and is responsible for the actual performance of tasks of the international organisation such as the formulation of policies and plans.146 The Agency was also responsible for the operation of the operational control centre facilities in Maastricht.147
The institutional structure and the rulemaking- and enforcement competencies that the contracting states have delegated to EUROCONTROL under the Amended Convention shall not be further discussed. This because of a resolution of the contracting states to the Amended Convention where they agreed to a transition phase according to which certain provisions of the so-called Revised Convention would already be provisionally applied, albeit without abandoning the application of the remaining provisions of the Amended Convention. This changed the institutional structure and had an impact on the national competencies that were delegated to the international organisation. The provisional application of the Revised Convention will be further discussed in the Chapter 3.3.3 below, but before considering this transition phase, the particulars of the Revised Convention will be considered.
EUROCONTROL at the Maastricht Area Control Centre (with Annexes)]. Concluded at Brussels on 25 November 1986, Tractatenblad 1987, 18 142 Art. 3(1) Amended Convention. 143 For an overview of the tasks of EUROCONTROL, see Art. 2(1) Amended Convention. 144 J. Moussé, ‘EUROCONTROL: The changes effected in the International Organisation by the Instruments signed on 12 February 1981’, (1982) 7 Air Law 22, at 27. 145 Art. 1(2) Amended Convention. 146 For the interrelationship of the institutional bodies under the Amended Convention, see Ch. 3.3.4. 147 For additional information on the organs of EUROCONTROL under the Amended Convention, see A.A. Majid, Legal Status of International Institutions: SITA, INMARSAT and EUROCONTROL Examined (1996), at 97-104.
48 The European legal framework
3.3.2 The Revised Convention
The Protocol Consolidating the EUROCONTROL International Convention Relating to Co- operation for the Safety of Air Navigation of 13 December 1960, as variously amended, is commonly referred to as the Revised Convention.148 Under the Revised Convention there is a major revision of the Amended Convention and should, at a certain point, replace the Amended Convention altogether. Rather than mere reference to the strengthening of co- operation and developing joint activities in the field of air navigation, there is explicit reference that such co-operation and joint activities should achieve harmonisation and integration with the aim of establishing a uniform European air traffic management system.149
Like the Amended Convention, the Revised Convention shall apply to en route air navigation services and related approach and aerodrome services for air traffic in Flight Information Regions defined in an annex to the convention.150 However, contrary to the previous conventions, EUROCONTROL has been delegated a wider scope of activities and rulemaking tasks. Under the Revised Convention, the international organisation is tasked, amongst others, to establish an independent performance review system addressing all aspects of air traffic management, including financial and economic aspects of the services, and to set targets.151 It is furthermore also tasked to establish and implement a mechanism for the multilateral development and harmonisation of safety regulation in the field of air traffic management, as well as to develop, adopt and keep under review common standards, specifications and practices for air traffic management systems and services.152 The aforementioned competencies of EUROCONTROL under the Revised Convention reflect the recommendations that were envisioned in the ECAC institutional strategy as earlier referred to in Chapter 3.2.
Also, the institutional structure of the international organisation is changed. Under the Amended Convention there were only two main bodies, but the Revised Convention introduces a three-layer structure.153 According to the Revised Convention there is a General Assembly that formulates and approves the general policy and a Council that is the central political body implementing the General Assembly’s decisions and supervising the organisation’s activities. Lastly, an Agency is granted increased administrative and managerial autonomy. The Agency performs tasks delegated to it in accordance with the provision of the Revised Convention, or assigned to it by the General Assembly or the Council.154
Another novelty introduced under the Revised Convention relates to voting. Bearing in mind (future) expansion of membership of the international organisation, the unanimous decision- making structure was repealed and most decisions can now take place by majority voting.155
148 Protocol Consolidating the EUROCONTROL International Convention relating to Co-operation for the safety of air navigation of 13 December 1960, as variously amended (Revised Convention) (Brussels, 27 June 1997). For the text of the Revised Convention, see EUROCONTROL, Eurocontrol Revised Convention (September 1997 Edition). 149 Ibid., Art. 1. 150 Ibid., Art. 3(1). 151 Ibid., Art. 2(1)(i). 152 Ibid., Art. 2(1)(r) and 2(1)(f). 153 Ibid., Art. 1(2). See also Figure 3.3.4. Next to these three institutions, the Revised Convention provides for the establishment of independent bodies such as the Performance Review Commission, the Safety Regulation Commission and Civil/Military Interface Committee. See Art. 7 Revised Convention. 154 See also R.D. van Dam, ‘Recent Developments at the European Organization for the Safety of Air Navigation (EUROCONTROL)’, (1997) 22 AASL-Part II 327, at 333. 155 See Revised Convention, supra note 148, Art. 8.
Chapter 3 49
Whereas the Amended Convention was valid for a period of twenty years from the date of entry into force, the Revised Convention is not limited in time but shall be for an indefinite period.156 Furthermore, the Convention allows accession to be open for regional economic integration organisations.157 The latter opened the door for accession to EUROCONTROL by the European Community.158 Unfortunately, ten years from the protocol embodying the Revised Convention, this Convention has still not yet entered into force.159
3.3.3 Provisional Application of the Revised Convention
The contracting states to the Amended Convention realised that much work had to be done as to ensure the establishment of a uniform European air traffic management system and therefore in the Final Act where the plenipotentiaries adopted the protocol with the Revised Convention, they adopted a resolution on the early implementation of certain provisions of the Revised Convention. The resolution urged all states to participate, to the fullest extent possible, in the realisation of the early implementation of certain provisions of the Revised Convention.160
By cleverly interpreting the Amended Convention, it was possible to get to a provisional application of certain provisions of the Revised Convention. According to the opening article of the Amended Convention, the contracting parties have agreed to concert any other measures necessary to ensure the safe and orderly flow of air traffic, the performance of any such other task delegated to EUROCONTROL.161 The Permanent Commission ruled that EUROCONTROL would undertake those tasks imposed on it under Article 2(1) Revised Convention (Decision 71).162 This resulted in the provisional application of the Revised Convention, an amendment of the institutional structure of EUROCONTROL and the delegation of rulemaking competencies to the organisation covering both non-safety related and safety related rules. The institutional structure, rule-making framework and enforcement competencies of EUROCONTROL under the Revised Convention (as provisionally applied) shall be discussed in the following paragraphs.
156 Ibid., Art. 38. 157 Ibid., Art. 40. 158 See Ch. 3.6.1. 159 For the member states of EUROCONTROL see note 282, infra. At 1 June 2007 Germany, Austria, Belgium, Spain, Ireland , Italy, Sweden and Turkey had not accepted nor approved the Revised Convention. 160 Final Act of the Diplomatic Conference on the Protocol Consolidating the EUROCONTROL International Convention relating to Co-operation for the safety of air navigation of 13 December 1960, as variously amended (Brussels, 27 June 1997), Resolution II (Resolution on early implementation of the Protocol). For the text of the Final Act, see EUROCONTROL, Eurocontrol Revised Convention (September 1997). 161 Arts. 1(1)(c) and 2(1)(j) Amended Convention. This required unanimous voting by the Permanent Commission under the Amended Convention. Provided that the Permanent Commission deems it necessary for the states to commit themselves to common action it can take a decision by unanimous vote of the contracting states ex Arts. 6(1) and 7(1) Amended Convention. 162 EUROCONTROL, Decision of the Permanent Commission (Decision No. 71) on early implementation of certain provisions in the revised Convention, in particular in respect of the role and duties of the Organisation (Brussels, 9 December 1997). The decision of the Permanent Commission erroneously refers to Article 1(c) Amended Convention, whereas this should refer to Article 1(1)(c) Amended Convention as Article 1(c) Amended Convention does not exist.
50 The European legal framework
3.3.4 Institutions
The provisional application of certain provisions of the Revised Convention has changed the institutional structure of EUROCONTROL. Next to the installation of the Permanent Commission, Provisional Council and Agency advisory bodies have been installed with the aim to oversee the transparency of the work performed by the core institutions. Within the context of this study the role of the Safety Regulation Commission and the Regulatory Committee require closer attention.163 This due to the fact that they have a say in the rule- making framework as embedded in the Revised Convention (as provisionally applied). For an overview of the changes in the institutional structure of EUROCONTROL see Figure 3.3.4. below.
Amended Convention Provisional Application Revised Convention Revised Convention
Permanent Commission Permanent Commission General Assembly
Safety Regulation Safety Regulation Commission Commission Provisional Council Council Regulatory Regulatory Committee Committee
Agency Agency Agency
Figure 3.3.4 Institutional Structure EUROCONTROL (with two advisory bodies)
For the sake of the transition phase during the provisional application of the Revised Convention the Permanent Commission established a Provisional Council. This body adopts and submits for the Permanent Commission’s approval all measures to be taken for the accomplishment of the tasks referred to in the Amended Convention or the tasks referred to in Decision 71 (i.e. the early implementation of tasks embedded in the Revised Convention).164 Upon the entry into force of the Revised Convention, the Provisional Council is replaced by the Council. The Agency has already been granted an autonomous status by the Permanent Commission and will keep the same role under the Revised Convention.165 Upon the entry into force of the Revised Convention the Permanent Commission will be renamed as the General Assembly.
This brings us to the role of the two advisory bodies also mentioned in Figure 3.3.4. In the same decision where the Permanent Commission installed the Provisional Council it also established a so-called Regulatory Committee and Safety Regulation Commission.
163 Other advisory bodies include, but are not limited to, the Performance Review Commission, the Audit Board, the Civil/Military Interface Standing Committee and the Enlarged Committee for Route Charges. 164 EUROCONTROL, Decision of the Permanent Commission (Decision No. 72) on early implementation of certain provisions in the revised Convention, in particular in respect on the establishment of a Provisional Council (Brussels, 9 December 1997). 165 EUROCONTROL, Decision of the Permanent Commission (Decision No. 73) approving modifications to Annex 1 to the amended Convention, relating to the statute of the agency (Brussels, 9 December 1997). There have been additional decisions approving modifications to the aforementioned statute of the Agency. See for the consolidated statute of the Agency in force since 1 January 1998, EUROCONTROL: Compendium of the Legal Instruments and reference documents relating to the early implementation of the Revised Convention during the Transitional Period, Revised Version (November 2000 Edition), Part III: Statute of the Agency. For the administrative and managerial autonomy of the Agency under the Revised Convention, see earlier Ch. 3.3.2.
Chapter 3 51
The Safety Regulation Commission (SRC) is involved in the exercise by EUROCONTROL of rulemaking competencies as far as this involves the development and uniform implementation of harmonised safety regulatory objectives and requirements for European air traffic management.166 More on the safety related rulemaking competencies and the role of the SRC in Chapter 3.3.5.2. The other advisory body, the Regulatory Committee (RC), has also been established pursuant to a decision by the Permanent Commission.167 The Regulatory Committee is involved in the exercise of rulemaking competencies of EUROCONTROL as far as it involves air traffic management regulations other than safety regulations and shall develop, adopt and keep under review common standards, specifications and practices for air traffic management systems and services.168 More on these non-safety related rules and the role of the Regulatory Committee in Chapter 3.3.5.1.
3.3.5 Rulemaking
As explained in the previous Chapter, based on the Provisional Application of the Revised Convention, the contracting states have delegated rulemaking competencies to EUROCONTROL in the field of air navigation services. Those rulemaking competencies are divided in, on the one hand, non-safety related rules and, on the other hand, safety-related rules (ESARR’s). Before explaining the difference between EUROCONTROL’s non-safety related rules and safety-related rules in the subsequent Chapters (3.3.5.1 and 3.3.5.2), it is of paramount importance to highlight that rules developed and agreed through the EUROCONTROL rulemaking mechanism, similar to ICAO’s Standards, Recommended Practices, PANS, SUPPS, policies, manuals and circulars explained in Chapter 2.3.3, also differentiate in terms of binding effect. Not all rules developed through the EUROCONTROL rulemaking mechanism have a direct binding effect on the organisation or its member states.
The first level of rules that are issued under the umbrella of EUROCONTROL are the so- called EUROCONTROL Rules. The EUROCONTROL Rules are mandatory and, upon adoption and approval, bind the institutions and the member states of EUROCONTROL.169 At the second level, there are non-binding provisions, which are the EUROCONTROL Specifications and EUROCONTROL Guidelines. Whereas the specifications include a section showing the assessment of the level of compliance with the associated regulatory material the guidelines merely provide information, explanation or may indicate best practice.170 This framework of, on the one hand, binding EUROCONTROL Rules and, on the other hand, non- binding EUROCONTROL Specifications and EUROCONTROL Guidelines also comes back with respect to the non-safety related rules (3.3.5.1) and, to a limited extent, comes back in safety related rules (3.3.5.2).
3.3.5.1 Non-Safety related rules
Starting with the non-safety rules, EUROCONTROL shall undertake the task to develop, adopt and keep under review common standards, specifications and practices for air traffic management systems and services.171 The Regulatory Committee (RC) has the task to advice the Permanent Commission on all matters related to the EUROCONTROL regulatory process, proposals for regulations and the EUROCONTROL Regulatory Work Program,
166 See the Decision of the Permanent Commission (Decision No. 71), supra note 162. 167 EUROCONTROL, Decision of the Permanent Commission (Decision No. 89) on the establishment of a Regulatory Committee (Brussels, 9 November 2001). 168 Art. 2(1)(f) Revised Convention. 169 EUROCONTROL, Regulatory Unit, Eurocontrol Regulatory and Advisory Framework (Regulatory Provisions) (November 2005) and the Eurocontrol Regulatory and Advisory Framework (Advisory Material) (November 2005). 170 Ibid. 171 Art. 2(1)(f) Revised Convention
52 The European legal framework including to recommend improvements to the regulatory process. The EUROCONTROL Regulatory Work Programme should ensure that the organisation regulates matters in line with regulatory goals and political directives.172
The consultation package that was issued within the context of the draft regulatory framework of EUROCONTROL for non-safety provided a breakdown of the regulatory levels for non- safety related rules.173 The only mandatory regulatory materials (EUROCONTROL Rules) issued under the umbrella of the non-safety related rulemaking mechanism of EUROCONTROL are the so-called EUROCONTROL Standards which are binding technical requirements for equipment, systems, data, performance, personnel or procedures, the uniform application of which is recognised as necessary for the implementation of safe and efficient systems for air traffic management.174 Non-mandatory rules as EUROCONTROL Practices, EUROCONTROL Specifications and EUROCONTROL Guidelines, but these will not be further considered in this study.175
In order to carry out its rule-making tasks, the RC is supported by the Regulatory Unit (RU). The RU manages the EUROCONTROL rulemaking process for non-safety related rules, which takes place through the so-called EUROCONTROL Notice of Proposed Rule-Making process (ENPRM) .176 As will be further explained in Chapter 3.6.2.1 there is an interrelationship between EUROCONTROL and the European Community as far as this concerns the development of non-safety related rules in the field of air navigation services as the parties rely to a certain extent on the EUROCONTROL Notice of Proposed Rule Making (ENPRM) regulatory process. According to the ENPRM rulemaking mechanism, EUROCONTROL is able to develop rules whilst at the same time ensuring widespread consultation of stakeholders. All interested parties (including the public) may comment on draft non-safety related rules issued by EUROCONTROL before they become binding on its member states (whether or not mandatory). The ENPRM regulatory process was approved by the EUROCONTROL Permanent Commission on 12 July 2001 and the regulatory process follows six phases.177 The final draft rule that is developed pursuant to the ENPRM procedure
172 EUROCONTROL, EUROCONTROL Regulatory Work Programme 2005 (Version 1.0), Annex A to PC/04/21/4. This regulatory work program also takes into account the mandates received by EUROCONTROL on the basis of the Single European Sky regulations. The hybrid-rulemaking framework between EUROCONTROL and the European Community for non-safety related rules will be further discussed in Ch. 3.6.2.1. 173 Consultation for the EUROCONTROL Regulatory Framework (FWK/02-001); EUROCONTROL, EUROCONTROL Regulatory Framework, Explanatory Material, Enclosure 1 (31 May 2002). 174 EUROCONTROL, Draft EUROCONTROL Regulatory Framework, Enclosure 2 (31 May 2002). 175 Ibid. 176 EUROCONTROL, Regulatory Committee Report 2002-2003: The Regulatory Committee and its Supporting Regulatory Unit, at 6-7. 177 For detailed information, see EUROCONTROL, EUROCONTROL Notice of Proposed Rule- Making (ENPRM) Regulatory Process, Annex 3 to PC 01/11/6. Also, EUROCONTROL, EUROCONTROL Notice of Proposed Rule-Making (ENPRM) Regulatory Process, Advisory Material, Annex 4 to PC 01/11/6. The first phase is the initiation phase where any person or organisation is able to make proposals for a new rule or change to an existing rule with a view to improve the safety and efficiency of the European air traffic management through the ENPRM process. This will result in an initial assessment of the regulatory proposal by a regulation manager that ultimately rejects the proposal, pursues non-regulatory solution or proceeds with the next phase, the drafting phase. In this second phase there is research and drafting of the proposed rule and, where necessary production of supporting consultative material. The process delivers the necessary resources and mechanisms to ensure that rules are researched and developed in the most efficient manner and with the involvement of appropriate expertise and other interested parties through informal consultation. The third phase is the consultation phase which expects significant response from a wide range of stakeholders and interested parties (including the general public). The fourth phase is the review of comments phase where all comments from the consultation phase are compiled and organised. Then the fifth phase is the
Chapter 3 53 is submitted to the decision-making bodies. Under the Revised Convention, it is the Council and General Assembly that adopt and approve rules.178 Their decisions are binding on the contracting parties to the Revised Convention.179 During the Provisional application of the Revised Convention, the transition phase, it is the Provisional Council that in concert with the Permanent Commission exercises such rule-making competencies.180 Because the voting structure of the Revised Convention is not provisionally applied, it is the unanimity voting under the Amended Convention that prevails during the transition phase.
Notwithstanding the binding effect of the non-safety related EUROCONTROL Rule (the EUROCONTROL Standard) on EUROCONTROL and its member states, the states are allowed, similar to the filing of differences to ICAO Standards, to op-out in the event overriding national considerations pertaining to national defence and security interests prevent it from acting on a decision adopted. This will be subject of further discussion in Chapter 3.3.6.
3.3.5.2 Safety related rules (ESARR’s)
Under Article 2(1)(r) Revised Convention EUROCONTROL shall undertake the task to establish and implement a mechanism for the multilateral development and harmonisation of safety regulation in the field of air traffic management. The Safety Regulation Commission (SRC) is dealing with the regulatory framework and establishes minimum safety levels by way of co-ordination and harmonisation of national safety regulatory rules and requirements in the field of air navigation. By doing so, the SRC safeguards the development and harmonisation of EUROCONTROL wide safety regulatory regime.
Within the context of safety-related rules, again the aforementioned levels of EUROCONTROL Rules, EUROCONTROL Specifications and EUROCONTROL Guidelines are distinguished for purpose of safety regulations. This highlighted in the SRC formal documentation framework table.181 Within the context of this study, attention will only be paid to the mandatory safety-related regulatory materials issued under the umbrella EUROCONTROL Rules, the so-called EUROCONTROL Safety Regulatory Requirement (ESARR). ESARR’s are obligatory safety regulatory requirements. They impose a high level of mandatory requirements that should ensure that there are harmonised safety regulations in the field of air traffic management throughout the airspace of the contracting states. In May 2007 no less then six ESARRs have been adopted, with each ESARR having a different due date for national implementation.182 Just like the mandatory non-safety related rules also for
point of adoption/approval and, provided the rule is adopted and approved, according to the sixth phase there is the publication of the EUROCONTROL Rule. 178 According to Arts. 7(1) and 7(2)(m) Revised Convention the Council may take decisions with regard to the contracting states in the tasks referred to in Article 2(1). Art. 2(1)(f) Revised Convention covers the task of developing, adopting and keeping under review common standards, specifications and practices for ATM systems and services. The Council takes such decisions in concert with the General Assembly as the latter will take decisions on the basis of Arts. 6(1) and 1(2)(a) Revised Convention. 179 Art. 8(4) Revised Convention. 180 This is also confirmed in Eurocontrol’s explanatory material to its ENPRM-framework. See EUROCONTROL Notice of Proposed Rule-Making (ENPRM), Regulatory Process (Annex 3 to PC 01/11/6 of July 2001), Para. 2.12.2. 181 See the overview of the safety related regulatory framework at the EUROCONTROL website: SRC Formal Documentation Framework Table. http://www.eurocontrol.int/src/gallery/content/public/documents/deliverables/hierarchy.pdf> (Visited 6 May 2007). 182 ESARR 1 - Safety Oversight in ATM (implemented by 5 November, 2007); ESARR 2 - Reporting and Assessment of Safety Occurrences in ATM (various phases with different implementation dates); ESARR 3 - Use of Safety Management Systems by ATM Service Providers (implemented by 13 July
54 The European legal framework the ESARR’s counts that they are binding. However, again states may decide to opt-out from particular rules developed within the ambit of EUROCONTROL.183
Similar to the non-safety related rules developed within EUROCONTROL, during the Provisional Application of the Revised Convention (the transition phase) it is the Provisional Council in concert with the Permanent Commission exercises the rulemaking competencies. Since the voting structure of the Revised Convention is not provisionally applied, unanimity voting prevails as the same is further defined in the Amended Convention.184
Interestingly, although the ESARRs find their basis in the EUROCONTROL legal regime, they are also recognised in the legal order of the European Community. Because of the underlying legal regime of the European Community, those ESARRs that are adopted and transposed in the legal order of the European Community would have a direct effect in the European Community, which would imply that EUROCONTROL member states as contracting states of the European Community would not be able to rely on the opt-out possibility as provided for in the Revised Convention.185 For the purpose of checking as to what extent contracting states comply with the ESARR’s EUROCONTROL has launched an audit program similar to ICAO’s Universal Safety Oversight Audit Programme.186 The program goes by the name EUROCONTROL ESARR Implementation Monitoring and Support (ESIMS), which focuses on the states’ overall safety oversight capabilities to assess the level of compliance at national level.
3.3.6 Enforcement
The EUROCONTROL Rules: EUROCONTROL Standards and ESARRs are binding on the contracting states to the Revised Convention (as provisionally applied). However, similar to the regulatory framework for ICAO Standards under the Chicago Convention, also the Revised Convention allows a state to opt-out.187 This opt-out is possible if overriding national considerations pertaining to national defence and security interests prevent it from acting on a decision adopted on the condition that the contracting party gives an explanation of the reasons for such deviation towards the General Assembly or the Council.188 Just like the opt- out for ICAO Standards, derogation from EUROCONTROL Rules should in view of the author also be done in good faith.189
Have states delegated enforcement competencies to EUROCONTROL in the event of (alleged) infringement of the mandatory rules? Contrary to ICAO, EUROCONTROL does not depend on its member states triggering the dispute mechanism under its treaty. Already under the Amended Convention EUROCONTROL is able to trigger the dispute mechanism
2003); ESARR 4 - Risk Assessment and Mitigation in ATM (implemented by 5 July 2004); ESARR 5 - ATM Services' Personnel (various phases with different implementation dates); and lastly ESARR 6 - Software in ATM systems (implemented by 6 November 2006). See also, EUROCONTROL, Safety Regulation Commission, Annual Safety Report (2006), at 12. 183 See further Para 3.3.6. 184 See for example the approval of the ESARR 1 entitled Safety Oversight in ATM and the approval by the Permanent Commission. EUROCONTROL, Decision of the Permanent Commission (Decision No. 103) approving the EUROCONTROL Safety Regulatory Requirement – ESARR 1 – entitled “Safety Oversight in ATM” (Brussels, 5 November 2004). 185 This will be further discussed in Ch. 3.6.2.3. 186 See ICAO Universal Safey Oversight Audit Programme in Ch. 2.3.4. 187 For derogation of ICAO standards, see Ch. 2.3.4. 188 Arts. 8(4) and 9 Revised Convention. 189 As discussed in Para 2.3.4, the opt-out provision must not be abused by mere reference, but states should derogate from mandatory safety- or non-safety rules in good-faith and should be able to explain what overriding national considerations pertaining to national defence and security interests prevent it from committing itself to that particular rule.
Chapter 3 55 itself as disputes between contracting states, or between the international organisation and contracting states, can be subject to arbitration.190
During the deliberations on the dispute mechanism under the Revised Convention three approaches were discussed. Firstly, the creation of a EUROCONTROL judicial body that would have competence and jurisdiction on disputes. Secondly, the extension of the jurisdiction of the European Court of Justice to EUROCONTROL and, lastly, improving the scope of arbitration already embedded under the Amended Convention. The parties expressed their preference for the latter option.191 Any dispute between two or more contracting states, or between one or more contracting states and the international organisation relating to the interpretation, application or performance of the Revised Convention, including its existence, validity or termination shall be referred to arbitration of the Permanent Court of Arbitration in The Hague.192 Express reference has been made to the performance by contracting states and the international organisation of tasks and responsibilities contained in the Revised Convention. This would open up the possibility for forms of regulatory enforcement towards inactive parties or those unwilling to implement or exercise regulatory obligations incurred at national level as a result of decisions taken by EUROCONTROL’s Council or General Assembly.193
Just like the ICAO standards, the mandatory (none) safety related rules created by EUROCONTROL have to be implemented in the national laws of a state. It depends on the national law of the states as to whether these mandatory rules have direct effect at national level. See the Rotterdam Airport-case for the direct effect of ICAO standards in the Kingdom of The Netherlands, which potentially can be applied mutatis mutandis to the mandatory rules issued under the umbrella of EUROCONTROL.194 This reasoning becomes less significant for those mandatory safety rules of EUROCONTROL that are transposed in the legal order of the European Community. Because of the legal order of the European Community, those rules would have a direct effect without the need for further national implementation. Yet, at the same time, the European Community also develops rules in the field of air navigation services. To what extent can it develop such rules without involving EUROCONTROL? After all, the contracting states to the European Community are independent subject of international law and as contracting parties to the Revised Convention (as provisionally applied) also to be bound to the rule making and enforcement competencies of EUROCONTROL. Furthermore, he European Community has meanwhile become a contracting party to the Revised Convention (as provisionally applied) and, as contracting party, cannot infringe its legal obligations under said convention. The following paragraph will outline the rulemaking- and enforcement competencies of the European Community in the field of air navigation services after which the interrelationship between EUROCONTROL and European Community will be discussed.
190 Art. 31 Amended Convention. 191 R.D. van Dam, ‘The Development of an Arbitration Policy in the Context of the Revised EUROCONTROL Convention’, in The International Bureau of the Permanent Court of Arbitration (eds.), Arbitration in Air, Space and Telecommunications Law: Enforcing Regulatory Measures (2002), 59 at 63. 192 Art. 34 Revised Convention. 193 See R. van Dam, supra note 191, at 65. 194 See Ch. 2.3.4.
56 The European legal framework
3.4 European Community
Beside ICAO and, for the European continent, ECAC and EUROCONTROL, there is another international organisation active in the field of European air navigation services. The European Community has also been delegated rulemaking- and enforcement competencies by its member states in the field of air navigation services. In order to understand the competencies of the European Community and possible conflicts or interrelationships with other international organisations and with EUROCONTROL in particular, this Chapter will firstly focus on the rulemaking competencies of the European Community, including the Single European Sky regulations that have been issued under the umbrella of the European Community (see Chapters 3.4.1 and 3.4.2). Next the enforcement competencies of the European Community in the field of air navigation services will be briefly discussed after which it is time to compare the European Community with EUROCONTROL in Chapter 3.6.
3.4.1 Rulemaking
The EEC Treaty of 1957 established the so-called European Economic Community.195 Next to this community there were the European Coal and Steel Community (ECSC) and the European Atomic Energy Community (EURATOM).196 The ECSC has meanwhile seized to exist and the European Economic Community had its name changed under the Maastricht Treaty to simply the European Community.197 EURATOM and the European Community are collectively referred to as the European Communities. Under the Maastricht Treaty, the European Union was created which embraced the aforementioned European Communities.
Collectively these European Communities constitute the first pillar on which the European Union is based. Next to this pillar two additional pillars were created under the Maastricht Treaty. The so-called Common Foreign and Security Policy and Police and Judicial Co- operation in Criminal Matters. These two pillars deal with foreign policy, security and defence, asylum and immigration policy, criminal- and judicial co-operation. For this study, the first pillar, or more particularly one of the European Communities hereof, namely the European Community, is of importance. The founding treaty of the European Community (the EEC Treaty) has been amended from time to time. This study will rely on the consolidated version hereof, the EC Treaty.198
Just like the international organisations previously discussed, the creation of the European Community went hand in hand with the delegation by states to the international organisation of the exercise of particular national competencies. As confirmed by the European Court of Justice, the EC Treaty is more than an agreement, which merely creates mutual obligations between the contracting states. It constitutes a new legal order of international law.199 The contracting states have created a community of unlimited duration with its own institutions, own legal capacity and capacity of representation on the international field and, more particularly, real powers stemming from the limitation of sovereignty or a transfer of powers from the states to the European Community. The contracting states to the European Community have limited their sovereign rights, albeit within limited fields, but have thus
195 1957 Treaty Establishing the European Economic Community (also referred to as EEC Treaty or Rome Treaty), 298 UNTS 3. 196 1951 Treaty Establishing the European Coal and Steel Community (ESCS Treat), 261 UNTS 140. 1957 Treaty Establishing the European Atomic Energy Community (Euratom Treaty), 298 UNTS 167. 197 1992 Treaty on the European Union (Maastricht Treaty), 1992 OJ C 191. 198 2002 Consolidated Version of the Treaty Establishing the European Community (EC Treaty), 2002 OJ C 325/3-159. 199 Case 26/62, N.V. Algemene Transport- en Expeditie Onderneming Van Gend & Loos v. Nederlandse Administratie der Belastingen, [1963] ECR 1, at 12 (Van Gend en Loos).
Chapter 3 57 created a body of law, which binds both their nationals and themselves.200 In other words, the contracting states to the European Community have limited the exercise of their national competencies in particular areas. This raises the question as to whether or not the European Community has exclusive competencies in the area of air navigation services. Because, if so, the European Community through its internal organs will be able to enact binding decisions in the field of air navigation services that become directly applicable to the contracting states and their citizens.
The European Community has a mechanism in place that can force the contracting states to obey decisions of the organisation even if these are adopted against the will of a part of the contracting states. Taking into account these powers attributed to it by the contracting states, the European Community can be considered the best example of a supranational organisation.201 As far as the exclusive competency of the European Community in the field of air navigation services, it should be noted that the international organisation has a rather wide legislative discretion to develop a common policy in the field of transport.202 If the Council by qualified majority so decides, appropriate provisions may be laid down for air transport.203 Meanwhile it has become clear that the general rules of the EC Treaty are also applicable to air transport such as competition rules and provisions on freedom of movement.204 The European Community is gradually expanding its competencies in the field of air transport, but this does not mean that, even when acting within the scope of the competencies delegated to it under the treaty, the European Community has unlimited freedom. For the Chicago Convention this was painfully illustrated by the so-called Hushkit- Affair. The European Community had to repeal a regulation in which it banned the use of so- called hushkitted aircraft in Europe. This regulation was in conflict with the obligations of the member states under the Chicago Convention.205
The manufacturing and installation of Hushkits was at that time a big American industry. Also, many of its air carriers were operating flights with Hushkitted aircraft. The result of a ban in Europe would have a major impact on the industry in the United States. This no-doubt triggered the approach of the United States to bring the matter before the ICAO Council. The United States questioned the compatibility of the European regulation with the Chicago Convention (including noise standards established pursuant to that convention). As the dispute was not resolved between the parties, the United States filed a complaint with the ICAO Council against the (at that stage) fifteen contracting states of the European Community (also contracting parties to the Chicago Convention). This because of the fact that the European Community itself was, and to date is, not a contracting party to the Chicago Convention. The dispute mechanism under the Chicago Convention was followed.
200 Case 6/64, Flaminio Costa v. Ente Nazionale Energia Elettrica, [1964] ECR 585, at 593 (Costa v. Enel). 201 See M.M. Martin Martinez, supra note 55, at 100. 202 Art. 71 EC Treaty. See also, A. Arnull, et al., European Union Law (2000), 153. 203 Art. 80(2) EC Treaty. 204 J. Balfour, European Community Air Law (1995), 9. 205 Commission Regulation (EC) No 991/2001 on the registration and operation within the Community of certain types of civil subsonic jet aeroplanes, 2001 OJ L 138/12-14 was replaced by Directive 2002/30/EC of the European Parliament and of the Council on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports, 2002 OJ L 85/40-46. For additional information on the hushkit-affair, see S.D. Murphy, ‘Admissibility of US-EU “Hushkits” Dispute before the ICAO’, (2001) 95 AJIL 410. See also, ICAO, Council – 161st Session (Sixth Meeting), Summary of Decision, Settlement of Differences: United States and 15 European States (2000) (C-DEC 161/6) of 21 November 2000. Also, Commission Proposes New Legislation to Fight Aircraft Noise’, European Press Release of 28 November 2001 (IP/01/1683). ICAO, Presentation by the President of the Council of ICAO Dr. Assad Kotaite of the Annual Reports of the Council for 2001, 2002 and 2003 of 30 September 2004, at 6.
58 The European legal framework
The ICAO Council rejected the European Communities’ claim for inadmissibility. In order to find a solution to the dispute at hand and with strong support of the United States, the ICAO Assembly adopted a resolution containing a so-called “balanced approach”. It established a process for states to use in managing noise around airports. This was a key factor in helping the ICAO Council to settle the dispute on the Hushkitted-aircraft. The European Community reversed its regulation.206 The Hushkit-Affair serves as an illustration that, although the European Community constitutes a new legal order of international law, the European Community upon exercise of regulatory competencies should respect the treaty obligations of its contracting states in the field of civil aviation. The member states of the European Community may perhaps no longer be the truly independent actor, but they are still independent subjects of international law and bound to international law and international obligations.207
3.4.2 The Single European Sky Regulations
By way of the Single European Sky Regulations, the European Community has expanded its competencies also to the field of air navigation services. However, even before this regulatory intervention, the European Community had already engaged in limited regulatory intervention in the 1980’s in order to combat the congestion of air traffic in the airspace of its member states.208
A major step in the field of air traffic management was taken in 1993 by way of Council Directive 93/65 that was issued to combat various technical and operational incompatibilities of ATM systems that hinder the transfer of controlled flights between air navigation service providers that located in different states.209 This Directive was amended from time to time and eventually replaced by a Commission Regulation under which a list of standards developed by EUROCONTROL were declared mandatory within the European Community.210 The aforementioned Directive and Regulations were repealed in October 2005.211
In 1995 the Council invited those contracting states of the EC Treaty that are not members of EUROCONTROL to join that body as soon as possible in order to ensure greater efficiency in its current and future activities. In 1999 this was recalled and at the same time the Council invited the Commission to submit to it a communication aimed at a wider approach to combat and reduce air traffic delays and congestion in European airspace.212 The Commission returned its communication in that same year which in the author’s view can be considered as the final kick-off for the development of the Single European Sky regulatory framework.213
206 Ibid. 207 P.M.J. Mendes de Leon, ‘The Dynamics of Sovereignty and Jurisdiction in International Aviation Law’, in G. Kreijen (ed.), State, Sovereignty, and International Governance (2001), 483, at 493-494. 208 See J. Balfour, supra note 204, at 136. 209 Council Directive 93/65/EEC on the definition and use of compatible technical specifications for the procurement of air-traffic- management equipment and systems, 1993 OJ L 187/52-56. 210 Commission Regulation (EC) No 980/2002 amending Regulation (EC) No 2082/2000 adopting EUROCONTROL standards, 2002 OJ L 150/38-43. Only those EUROCONTROL standards explicitly mentioned in the Commission Regulation are mandatory in the contracting states of the European Community. The last amendment on the Council Directive 93/65 EEC took place by Regulation (EC) No 1882/2003 of the European Parliament and the Council adopting to Council Decision 1999/468 EC the provisions which assist the Council in the exercise of its implementing powers, 2003 OJ L 284, at 37. 211 Art. 11 of Regulation (EC) No 552/2004 of the European Parliament and of the Council on the interoperability of the European Air Traffic Management Network (The Interoperability Regulation), 2004 OJ L96/26-32. 212 Council Resolution 1999/C 222/01 on the situation of air traffic delay in Europe, 1999 OJ C 222/1. 213 European Commission, Communication from the Commission to the Council and the European Parliament: The creation of the Single European sky (December 1999), COM (1999) 614 final/2.
Chapter 3 59
Whilst referring to the average air traffic delays and forecasts with worsening scenario’s, the Commission argued that its responsibility should not be limited to merely developing research projects to improve ATM which are then applied in fragmented airspace.214 According to the Commission, the congestion of airspace called for measures other than technical ones to prevent any further crises.215
According to the Commission the general underlying principles of the European Community policies allowed intervention by community institutions in order to bring the management of the airways in line with economical and political integration of the European Community. Europe cannot keep the frontiers in the sky that it managed to eliminate on the ground and must allow the freedom of movement of persons, goods and services beyond such frontiers.216 With endorsement of the Council, the Commission launched a High-Level Group in which it brought together all parties responsible for ATM in contracting states of the European Community. The High-Level Group reported its findings already in 2000.217 The main lines of approach for a Single European Sky as highlighted by the High-Level Group were subsequently incorporated in the action program of the Commission. They fell apart in four categories: firstly regulatory aspects, secondly institutional aspects, thirdly technical aspects and lastly human resources.218 By means of various communications the Commission presented (amended) proposals for regulations in the field of air navigation services.
The legislative process did not come about easily. Firstly, there were extensive and time- consuming discussions and a variety of amendments, from amongst others, European Parliament, with respect to the draft regulations. Next, the Gibraltar dispute between Great Britain and Spain caused an additional slow-down in the regulatory process.219 Furthermore, there was a giant ATC strike in June 2002 that served as protest against the draft regulations where the Air Traffic Controllers in France, Portugal, Italy, Greece and Hungary temporary abandoned their posts because of fear of job losses due to possible privatisation and because
214 Ibid., at 5. 215 Ibid., at 6. 216 Ibid., at 4. 217 European Commission, DG for Energy and Transport, Single European Sky: Report of the high- level group (November 2000). 218 European Commission, Communication from the Commission to the Council and the European Parliament: Action programme on the creation of the Single European Sky and Proposal for a Regulation of the European Parliament and of the Council laying down the framework for the creation of the Single European Sky (November 2001), COM (2001) 123 final/2, at 3. See also ICAO, Assembly-33rd Session, European Commission, Single European Sky, A33-WP/79 of 15 August 2001, at 2-3. Regulatory aspects: develop a strong regulatory function in the European Community, independent of the various interest groups concerned, capable of setting objectives allowing traffic growth and preserving or improving safety. The regulator must have powers over the airspace. The equipment, organisational arrangements and methods of payment of service providers will also be regulated. Institutional aspects: develop a system in which the European Community’s regulatory powers and the expertise in EUROCONTROL complement each other and encourage civil/military co-operation. It is desirable to extent the action to the other European countries, with the aid of their participation in EUROCONTROL and bearing in mind the prospect of enlarging the European Community. Technical aspects: together with the industry, users and service providers encourage introduction of new technologies, making safety an absolute priority and improve system and technical interoperability. Human resources: facilitate recruitment and greater mobility of air traffic controllers and develop training at European level. 219 The adoption of the draft text in 2001 was delayed by the Gibraltar dispute. Spain only wished to sign-up to the text of the Single European Sky provided that Gibraltar was excluded from its scope. See also, D. Dombey, UK and Spain send air traffic reform into nosedive, Financial Times, 8 March 2001.
60 The European legal framework of safety and security concerns upon the entry into force of the regulations.220 This was strongly criticised by the European Commission that argued that the purpose of the Single European Sky is not to boost competition or privatisation of air traffic control and neither would it compromise safety as there are such strong safety requirements envisaged under the regulatory framework.221
The Single European Sky Regulations, the legislative package that tries to pursue the restructuring of the airspace in the European Community, embodies four regulations that, together with implementing rules adopted pursuant to the rulemaking competencies reflected in the aforementioned regulations, establish the harmonised regulatory framework for the creation of the Single European Sky. The first regulation is of a general nature and is laying down the framework for the creation of the Single European Sky (the Framework Regulation).222 The Framework Regulation shall be further discussed in Chapter 3.4.2.1. The second regulation is more specific in that it primarily focuses on the provision of air navigation services (the Service Provision Regulation) and shall be further discussed in Chapter 3.4.2.2.223 The third regulation deals with the organisation and use of the airspace in the Single European Sky (the Airspace Regulation) and the last regulation focuses on the interoperability of the European Air Traffic Management network (the Interoperability Regulation). See further Chapters 3.4.2.3 and 3.4.2.4.224 These regulations will be need to complemented and supplemented by specific and detailed rules. This fine-tuning is envisioned under the Single European Sky regulation through so-called implementing rules.225
By way of a single sky work program the European Commission tries to keep track of the implementation of the Single European Sky ideas. For the year 2006 four priorities were identified. Next to the completion of the aforementioned regulatory framework, there is the certification of the air navigation services providers, the progress in the field of FABs and, last but not least, the definition phase and decisions preparing for the implementation of the Single European Sky ATM Research (SESAR) program.226 The SESAR program, formally known as SESAME, combines both on the ground and in the air technical and infrastructural implementation of the regulations.227
220 ‘Strike brings Europe flights to chaos’, CNN.com/World
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3.4.2.1 Framework Regulation
The Framework Regulation defines the objective of the Single European Sky.228 In short, the objective is to enhance safety standards and overall efficiency for general air traffic in Europe and to optimise capacity by meeting the demand of all airspace users and to minimise delays.229 The focus is on civil aircraft and state aircraft, including military, customs and policy aircraft, when these movements are carried out in accordance with ICAO procedures. Military operations and training are excluded.230
For the sake of simplicity the Framework Regulation lists all definitions and terminology used throughout the Single European Sky Regulations.231 However, in the author’s view some of these definitions require additional fine-tuning. Firstly, the definition of Air Navigation Services which according to the Framework Regulation encompasses air traffic services, communication navigation and surveillance services, meteorological services for air navigation, and aeronautical information services.232 As previously discussed in Chapter 2.3.2 there is no formal ICAO definition of Air Navigation Services, however, as illustrated in the framework of Air Navigation Services (Figure 2.3.4) the air navigation services covers four pillars ATM, CNS, MET and Ancillary Aviation Services.233 Taking into account the definition of Air Navigation Services under the Framework Regulation it appears that rather than referring to Air Traffic Management, which would reflect the ICAO structure, drafters of the Framework Regulation have chosen to refer to Air Traffic Services instead. By doing so, the Framework Regulation leaves the two subgroups Air Space Management (ASM) and Air Traffic Flow Management (ATFM) outside the scope of its application, which on its turn causes unnecessary complications. See for example the definition of Air Navigation Service Provider under the Framework Regulation that on its turn refers to the above-mentioned Framework Regulation definition of Air Navigation Services.234 This would again exclude providers of ASM and ATFM. This can be rectified by replacing in the definition of Air Navigation Services under the Framework Regulation, Air Traffic Services by Air Traffic Management. The definition Air Traffic Management is covered in the Framework Regulation and in line with the terminology used in the Chicago Convention.235
Another fine-tuning effort should be undertaken as far as the definition of Air Traffic Flow Management (ATFM) is concerned. It refers to the appropriate air traffic service provider.236 As that latter term is not further defined under the Framework Regulation in the author’s view, it would be more appropriate to refer to the definition of Air Navigation Service Provider instead.
In order to facilitate the implementation of the Single European Sky Regulations there are six main players involved.237 The first party is the European Commission that is able to draft and adopt particular implementing legislation. The second party is the so-called Single Sky Committee. This committee drafts the implementing rules and will consider other non-
228 See Framework Regulation, supra note 222. 229 Ibid., Art. 1(1). 230 Ibid., Arts 1(2) and 2(26). A general statement on military issues was adopted focussing on civil/military co-operation as far as ATM is concerned. See, The Statement by the Member States on Military Issues related to the Single European Sky, 2004 OJ L96/9. 231 Ibid., Art. 2. 232 Ibid., Art. 2(4). 233 See Ch. 2.3.2. 234 See Framework Regulation, supra note 222, Art. 2(5). 235 Ibid., Art. 2(10). 236 Ibid., Art. 2(9). 237 European Commission, Directorate-General for Energy and Transport: The Single European Sky, Implementing Political Commitments (2004), at 2.
62 The European legal framework legislative initiatives.238 The third player is EUROCONTROL. This international organisation plays an important role within the legislative process of implementing rules.239 Because of the complex interrelationship between the European Commission, its Single Sky Committee and EUROCONTROL, this will be subject of further discussion in Chapter 3.6 below. The fourth player is the Industry Consultation Body that has an advisory function and is made up of ANSPs, airlines, airports, equipment manufacturers and alike.240 The fifth player encompasses employer’s and employees’ representative organisations in the field of air navigation services and is not to be considered as a formal body, merely recognised as an important process providing a forum open for consultation and negotiation.241 Finally, the sixth player are the EC member states that by virtue of their national supervisory bodies and notified bodies have been allocated particular tasks.242
3.4.2.2 Service Provision Regulation
The Service Provision Regulation deals with the provision of air navigation services in the Single European Sky. The objective of the regulation is to establish conditions for the safe and efficient provision of air navigation services in the European Community.243 The Service Provision Regulation falls apart in three parts. The first part sets forth the role of the National Supervisory Authority and emphasises on common safety requirements where the safety requirements as the EUROCONTROL Safety Regulatory Requirements (ESARRs) as well as a common licensing of air traffic controller are mentioned.244
The second part of this regulation focuses on the institutional and organisational aspects of national air navigation service providers. Over-time states have created different corporate structures of their ANSP, which has resulted in various operating companies as state enterprises, corporatised or privatised entities. A harmonised certification system throughout the European Community with pre-defined Common Requirements should combat the different rules and organisational formats. States will be able to designate the air navigation service provider (ANSP) and be able to decide on the best corporate structure of thereof, but through intervention of the European Community those national ANSPs are at least subject to the same common requirements. They all have to abide by the same rules and therefore have a clear picture of each other’s rights and obligations.245 The community framework imposes at least the same obligations and opportunities to all air navigation service providers in the
238 Framework Regulation, see supra note 222, Art. 5. 239 Ibid., Art. 8. 240 Ibid., Art. 6. 241 Ibid., Art. 10. 242 Ibid., Art. 4. The EC member states shall nominate or establish a body or bodies as their national supervisory authority to assume particular tasks assigned to such authority under the Single European Sky Regulations. Furthermore, Art. 8 Interoperability Regulation requires the EC member states to establish so-called notified bodies. These bodies check the suitability of, for example, hardware or software and verify systems used by the ANSP. The notified body shall meet the criteria as further defined in Annex V of the Interoperability Regulation. 243 See Service Provision Regulation, supra note 223, Art. 1. 244 The role of the safety-related rules issued under the umbrella of EUROCONTROL (ESARR’s) and their effect in the legal order of the European Community will be further discussed in Chapter 3.6.2.3. With respect to common licensing of air traffic controllers, the European Commission has proposed a community license for air traffic controllers. Harmonising the patchwork of national licences and licensing criteria will enable controllers to work within the entire area of the Single European Sky. For this a mutual recognition of licences should be obligatory. Also all Member States should follow the same safety guidelines in the training system. For additional information, see Proposal for a Directive of the European Parliament and of the Council on a Community Air Traffic Controller Licence (12 July 2004) COM(2004) 473 (final) 2004/0146 (COD). Directive 2006/23/EC of the European Parliament and of the Council on a Community air traffic controller license, 2006 OJ L114/22-37. 245 See Action programme on the creation of the Single European Sky, COM (2001) 123 final/2, supra note 218, at 13.
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European Community.246 This allows the enforcement of overriding Community principles and facilitate the free movement of persons, goods and services. The Commission expects that this approach will breakdown the frontiers in the sky and between air navigation service providers.
Prior to the introduction of the Service Provision Regulation various states already reorganised their national air navigation service providers (first wave). The formalisation hereof will be further discussed in Chapters 5.2. and 5.3. The Service Provision Regulation brings about a second wave and forces the member states of the European Community to reconsider their national organisation and perhaps even to again re-organise the organisational format of their air navigation service providers. The Service Provision Regulation is supplemented by way of specific implementing rules, the so-called common requirements for the provision of air navigation services (henceforth also referred to as the Common Requirements).247 The extent that the Service Provision Regulation and Common Requirements affect the organisation and provision of existing air navigation service providers that were already subject to a first wave of restructuring and the impact of the second wave envisioned under the Service Provision Regulation, including the certification and designation requirements envisioned there under, will be further analysed in Chapter 5.4.
The third and last part of the Service Provision Regulation deals with route charges. A charging scheme for ANS is to be developed which will contribute to the achievement of greater transparency with respect to the determination, imposition and enforcement of charges levied to airspace users. This in accordance with the provisions of the Chicago Convention and EUROCONTROL’s charging system for en-route charges.248 Also at this point the Service Provision Regulation is supplemented by way of specific implementing rules, the so- called common charging scheme for air navigation services.249
3.4.2.3 Airspace Regulation
Whereas the Service Provision Regulation concentrates on the organisation of the air navigation service provider, the Airspace Regulation is concerned with the organisation and use of airspace in the Single European Sky. Airspace organisation should not be restricted to the territorial boundaries of a particular state. The objective of this regulation is to support the concept of more integrated operating airspace and to establish common procedures for design, planning and management.250 This could be achieved by means of a reconfiguration of the traditional airspace blocks. Blocks of airspace that are organised irrespective of the underlying territorial boundaries. The Airspace Regulation first of all discusses the airspace architecture. The European Community should aim to establish Functional Airspace Blocks (FABs) in the upper airspace.251 These blocks of airspace shall be aligned in accordance with the flow of air traffic based on operational requirements. The focus is on integrated management of airspace regardless of existing territorial boundaries. Furthermore, within these FABs the route and sector design, including operational requirements, is harmonised and managed on a European basis. This will be achieved by common principles that create uniformity in the design, planning and management of such airspace. The Airspace
246 See Service Provision Regulation, supra note 223, Arts. 6-11. 247 European Community, Commission Regulation (EC) No 2096/2005 of 20 December 2005 laying down common requirements for the provision of air navigation services, 2005 OJ L335/13-30. 248 See Service Provision Regulation, supra note 223, Arts. 14-16. 249 European Community, Commission Regulation (EC) No 1794/2006 of 6 December 2006 laying down a common charging scheme for air navigation services, 2006 OJ L341/3-16. 250 See Airspace Regulation, supra note 224, Art. 1(1). 251 Ibid., Art. 5.
64 The European legal framework
Regulation should enable fair and non-discriminatory allocation of airspace resources to all users.252
When reconfiguring upper airspace into FABs, the FAB shall, amongst others, enable optimum use of airspace, taking into account air traffic flows but also be justified by the overall added value. This including optimal use of technical and human resources on the basis of cost-benefit analyses. It is emphasised that creation of FAB may result in consolidation of service provision of the ANSPs.253 This is not the outright intention. The consolidation should result in lower operating costs for ANSPs and aircraft operators will have benefits such as more efficient route planning, reducing the distance flown and reduction of air traffic delays.254 The FAB shall only be established, provided there is a declaration of a state if the airspace in that block is wholly under its responsibility.255 Or, if the airspace in the FBA covers the airspace of two or more states, by means of a mutual agreement between all states that have responsibility for any part of the airspace included in the FAB.256 Eventually this harmonisation should result in a single European Upper Flight Information Region (EUIR) with a more integrated operating airspace and operation of air navigation services as a coherent and consistent homogenous block of airspace, rather than current division of airspace where each state has its own FIR in its own airspace.257 Meanwhile also opportunities for the application of a FAB in South East Europe have been considered along the lines of the framework envisioned under the Single European Sky regulations.258
3.4.2.4 Interoperability Regulation
The Interoperability Regulation deals with the interoperability of equipment, systems and procedures used within the European ATM network.259 It defines essential requirements for interoperability as well as community specifications, including standardisation. Because of harmonisation the systems will be able to understand each other, allow integration of various national systems and prevent development of systems based on (deviating) national requirements. The Interoperability Regulation has also been supplemented by implementing rules.260
3.4.3 Enforcement
The EC Treaty provides for principal mechanisms to pursue infringements. EC member states may bring an action against another member state. They shall first bring the matter before the Commission, but after the Commission has issued a so-called reasoned opinion and subject to follow-up by exchange of observations by the states, the EC member state may eventually bring the matter before the European Court of Justice.261 The state may on its turn be
252 See Report of the high-level group (November 2000), supra note 217. 253 EUROCONTROL, Single European Sky (SES) Regulations: EUROCONTROL Final Report on European Commission’s Mandate to Support the Establishment of Functional Airspace Blocks (May 2005), at 27. 254 Ibid., at 29-30. 255 See Airspace Regulation, supra note 224, Art. 5(4). 256 Ibid., Art. 5(4)-(6). 257 Ibid. Art. 3. 258 European Commission, Conclusions of the meeting on the South East Europe Functional Airspace Block Approach (Brussels, 28 February 2006). 259 See Interoperability Regulation, supra note 224, Arts.1 and 2(17) Framework Regulation. 260 European Community, Commission Regulation (EC) No 1033/2006 of 4 July 2006 laying down the requirements on procedures for flight plans in the pre-flight phase for the single European sky, 2006 OJ L 186/46-50. Also European Community, Commission Regulation (EC) No 1032/2006 of 6 July 2006 laying down requirements for automatic systems for the exchange of flight data for the purpose of notification, coordination and transfer of flights between air traffic control units, 2006 OJ L 186/27-45. 261 Art. 227 EC Treaty.
Chapter 3 65 challenged by individuals for harm suffered as a result of an infringement of community law.262 Furthermore, if the European Commission considers that the EC member state has failed to fulfil obligations under the EC Treaty it may also deliver a reasoned opinion after which, if the state does not comply with the opinion, the European Commission is entitled to bring the matter before the European Court of Justice.263
The Commission has sent out two reasoned opinions to Greece for alleged failure to respect the legislative framework under the Single European Sky regulations. According to this regulation EC member states are required to establish an independent national supervisory authority to assume the different tasks envisaged under said regulations. According to the Commission Greece failed to establish such an authority.264 Meanwhile, due to the lack of satisfactory replies, the European Commission has decided in December 2006 to take Greece to the European Court of Justice for failure to respect the Single European Sky regulations due to the lack of the establishment of a national supervisory authority.265
3.5 Preliminary Remarks
The member states of the European Community have virtually no freedom to engage in national rulemaking- and enforcement competencies in the field of air navigation services. This because they have delegated those national competencies in the field of air navigation services to no-less than three international organisations. Firstly, those states have delegated rulemaking- and enforcement competencies to ICAO. From a global level this international organisation has played an important role and has defined a global framework of air navigation services. However, in terms of rulemaking- and enforcement competencies this international organisation lacks effective enforcement powers. ICAO has virtually no powers to pursue cross-border provision of air navigation services. Even if ICAO would use its rulemaking competencies and issue Standards in order to enforce cross-border provision of air navigation services on its member states, the lack of suitable enforcement competencies would no doubt bring any such initiatives eventually to a standstill. At best, if states refrain from adhering to the Standard and do not implement such rule in its own legal order, depending on the national laws of states, the Standard could be challenged in the national legal order of states.
Secondly, the member states of the European Community have also delegated rulemaking- and enforcement competencies to EUROCONTROL. The relationship between EUROCONTROL and its contracting states is governed by the Revised Convention (as provisionally applied). On the basis of that treaty, EUROCONTROL is able to issue binding non-safety related rules, the so-called EUROCONTROL Standards that bind the international organisation and its contracting parties. Moreover, in terms of safety-related rules, EUROCONTROL is able to issue ESARRs that also bind the international organisation and its contracting parties. Similar to Standards issued under the umbrella of ICAO, the EUROCONTROL Standards and ESARR’s should be implemented by the contracting states in their own legal order. If states refrain from doing so, it again depends on their national law as to whether or not there is a direct effect. Contrary to ICAO, the Revised Convention (as provisionally applied) allows EUROCONTROL to exercise enforcement competencies.
262 There can be liability for loss and damage caused to individuals as a result of breach by a state of community law. This has been determined in the precedent-setting judgement – joined cases 46/93 and 48/93, Brasserie du Pêcheur v. Germany and R v. Secretary of State for Transport, ex p. Factortame Limited, [1996] ECR I-1029. 263 Art. 226 EC Treaty. 264 ‘European Commission sends reasoned opinion to Greece on Single European Sky legislation’, European Press Release of 15 December 2005 (IP/05/1609). 265 ‘Single European Sky: Commission takes Greece to the Court of Justice’, European Press Release of 12 December 2006 (IP/06/1779).
66 The European legal framework
Lastly, the member states have delegated rulemaking- and enforcement competencies in the field of air navigation services to the European Community. Although minor rulemaking initiatives had already been undertaken, serious rulemaking competencies of the European Community have meanwhile materialised through the Single European Sky regulations and the subsequent implementing rules in that respect. The enforcement efforts undertaken by the European Commission against Greece for its lack of meeting its obligations under the regulatory framework illustrates that the international organisation will not hesitate to pursue enforcement steps against its contracting parties. Moreover, on the basis of the legal framework of the European Community, individuals of the contracting states can also rely on the Single European Sky regulations and pursue legal steps without the need for implementation of such rules in its own legal order.
Although the facilitation of cross-border provision of air navigation services can be served by having an international organisation that breaks through the doctrine of airspace sovereignty of its member states, the previous paragraphs identify that by having three international organisations with more or less overlapping competencies in the field of air navigation services, this may have its side-effect on transparency in terms of which organisation bears at what particular level the rulemaking- and enforcement competency. As ICAO is only involved in the rulemaking process at a high-level and virtually has no enforcement competencies, the main bottleneck appears to be between EUROCONTROL and the European Community. The interrelationship between the two organisations will therefore be closely examined in the next Chapter.
Part 2 The interrelationship between EUROCONTROL and the European Community (including EASA)
3.6 European Community, EUROCONTROL and EASA
The contracting states to the Revised Convention (as provisionally applied) are independent subjects of international law and, on the basis of the limitation of the exercise of their national competencies as further defined in that convention, bound to the rule-making and enforcement competencies of EUROCONTROL. Yet, at the same time a majority of the member states of EUROCONTROL are also a contracting party of the European Community. As we have seen in Chapter 3.4 also the European Community exercises rule-making and enforcement competencies in the field of air navigation services. Although the member states of the European Community may perhaps no longer be the truly independent actors, they are still independent subjects of international law and bound to international law and international obligations such as those imposed on them by virtue of the Chicago Convention and the Revised Convention (as provisionally applied).266 A closer look on the interrelationship between the two international organisations EUROCONTROL and European Community is of importance.
Firstly, the interrelationship between EUROCONTROL and the European Community will be examined from the point of view of the Revised Convention (3.6.1). The European Community acceded to the Revised Convention (as provisionally applied), but on what terms has such accession taken place and what is the impact of such accession for those contracting states that are party to the European Community, but not party to the Amended Convention or Revised Convention (as provisionally applied)? Secondly, the interrelationship between EUROCONTROL and the European Community will be examined from the viewpoint of the European Community and its Single European Sky regulations. The European Community
266 For relationship European Community and the obligations under the Chicago Convention, see the Hushkit-Affair as discussed in Chapter 3.4.1.
Chapter 3 67 recognises the role of EUROCONTROL in its own legal order, but only to a certain extent (3.6.2).
3.6.1 The European Community in relation to the Revised Convention
The member states of EUROCONTROL agreed on the early implementation of certain provisions by EUROCOCONTROL under the Revised Convention. This was achieved by way of a Final Act in the year 1997.267 Those states, also member of the European Community, at the same time incorporated a statement in that Final Act to avoid infringement of their treaty obligations under the EC Treaty. Their signature to the Final Act would be without prejudice to the European Community’s exclusive competence on certain areas covered by the Revised Convention and to the European Community’s membership to EUROCONTROL for the purpose of exercising such exclusive competence.268 This statement is in conformity with previous communications by the European Commission that acknowledged that member states of the European Community could not transfer to EUROCONTROL powers that they previously transferred to the European Community.269
The Revised Convention enables regional economic integration organisations, such as the European Community, to join as a contracting party.270 The terms and conditions shall be agreed between the contracting states to the Revised Convention and the organisation of which one or more contracting states are members. Five years from the Final Act, the European Community joined EUROCONTROL on the basis of a so-called Accession Protocol. This Accession Protocol was signed by the European Community in October 2002.271 Accession of the European Community to the Revised Convention requires the instrument of accession to be deposited with the Belgian state, but to date the European Community has not deposited the instrument of accession with Belgium.272 Does this mean that the European Community is not bound to the instrument?
Notwithstanding the formal accession requirements of the European Community to deposit its instrument of accession with the Belgian state all contracting parties agreed in a statement that was incorporated in the aforementioned Final Act to provisionally apply certain provisions of the Revised Convention. This commitment was also endorsed by the European Community.273 In the view of the author, due to this express commitment of the European
267 See Final Act, supra note 160. 268 Ibid., The statement by the Kingdom of the Netherlands on behalf of the European Community Member States, members of EUROCONTROL. 269 See Action programme on the creation of the Single European Sky, COM (2001) 123 final/2, supra note 218, at 6. 270 Art. 40 Revised Convention. 271 Protocol on the Accession of the European Community to the Eurocontrol International Convention relating to Co-operation for the safety of air navigation of 13 December 1960, as variously amended and as consolidated by the Protocol of 27 June 1997 (Brussels, 8 October 2002). 272 Art. 40 Revised Convention. 273 Final Act of the Diplomatic Conference on the Protocol on the Accession of the European Community to the Eurocontrol International Convention relating to Co-operation for the safety of air navigation of 13 December 1960, as variously amended and as consolidated by the Protocol of 27 June 1997 (Brussels, 8 October 2002). The Final Act contains a number of Resolutions and Joint Declarations as well as the Accession Protocol itself. According to Resolution II (Resolution on early implementation of the Accession Protocol) all contracting states and the European Community are urged to develop, to the fullest extent possible, arrangements for the early implementation of certain provisions of the Accession Protocol. This Accession Protocol was endorsed by the European Community through a Council decision. See European Community, Council Decision concerning the conclusion by the European Community of the Protocol on the accession of the European Community to the European Organisation for the Safety of Air Navigation (Brussels, 27 April 2004). For additional information on the accession of the European Community to EUROCONTROL, see also J.J. Sauvage,
68 The European legal framework
Community, the international organisation is, according to the principles embodied in the Vienna Convention on the Law of Treates, bound to the early implementation provisions embodied in the resolution on the early implementation of the Accession Protocol.274
The Accession Protocol defines the terms and conditions as to what extent the European Community can exercise within EUROCONTROL particular competencies and, due to the explicit resolution on the provisional application of the Accession Protocol and despite the fact that the Revised Convention is not yet into force and the failure of the European Community of depositing its instrument of accession, the Revised Convention (as provisionally applied) is binding on the European Community. Let us consider some provisions of this Accession Protocol.
First of all, for the European Community the Revised Convention shall apply to en-route air navigation services and related approach and aerodrome services for air traffic, which are within the limits of the territorial applicability of the EC Treaty.275 Secondly, the European Community will not contribute to the budget of EUROCONTROL.276 Thirdly, but for participation in auditing bodies, the European Community shall be entitled to be represented and involved in the work of all bodies of EUROCONTROL in which any of the member states of the European Community are entitled to be represented, including the possibility to present its views and positions.277 Fourthly, for those matters where the European Community has exclusive competence and for the purpose of decisions involving rulemaking competencies of EUROCONTROL the European Community shall exercise the voting rights of the European Community member states in EUROCONTROL.278 When the Community votes, its member states shall not vote.279 Lastly, according to the Accession Protocol, the dispute mechanism of the Revised Convention shall apply to disputes between contracting parties (this now including the European Community) or between a contracting party (or parties) and EUROCONTROL. This as far as the interpretation, application or performance of the Accession Protocol, including its existence, validity or termination is concerned.280 Next to this Accession Protocol EUROCONTROL and the European Community concluded a memorandum of cooperation in 2003 to establish a framework of cooperation between the international organisations. The memorandum is not supposed to create any rights and obligations under international law but defines, amongst others, the priority areas and forms of co-operation.281
‘The Accession of the European Community to EUROCONTROL: New Stimulus for ATM’, (2002) (Winter) Skyway 6, at 7. 274 The entry into force of multilateral agreements usually requires a minimum number of ratifications and a considerable amount of time may pass between the adoption and the entry into force of the treaty-text. Under the Vienna Convention on the Law of Treaties, states have agreed that, provided the treaty contains a provisional application clause and they have signed the agreement, the treaty provisions may be provisionally applied before the entry into force of the treaty. If a treaty does not contain such clause the parties may of course undertake to apply it provisionally anyway. The express commitment by the European Community should in the author’s view be deemed its approval to the provisional application. For additional information on the provisional application of a treaty under the Vienna Convention on the Law of Treaties, T.O. Elias, The Modern Law of Treaties (1974), at 36-39; I. Sinclair, The Vienna Convention on the Law of Treaties (1984), at 44-47. See also, Council of Europe and British Institute of International and Comparative Law (eds.), Treaty Making – Expression of Consent by States to be Bound by a Treaty (2001), at 14-15. 275 See Accession Protocol, supra note 273, Art. 2. 276 Ibid., Art. 4. 277 Ibid. 278 Ibid., Art. 6. 279 Ibid. 280 Ibid., Art. 8. 281 Memorandum concerning a framework for cooperation between EUROCONTROL and the Commission of the European Communities (Brussels, 22 December 2003).
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When the European Community acceded to EUROCONTROL not all contracting states of the European Community were at the same time also a contracting party to the Revised Convention (as provisionally applied). At the time of writing of this study (June 2007) there is still an imbalance. The European Community has twenty-seven member states.282 EUROCONTROL has thirty-eight contracting states.283 Of these thirty-eight contracting states only twenty-five states are also member of the European Community.284 Two Baltic states, namely, Estonia and Latvia are member of the European Community, but have not individually ratified the Revised Convention (as provisionally applied). As indicated earlier in this paragraph, on the basis of the Accession Protocol, the Revised Convention shall apply to the en-route air navigation services and related approach and aerodrome services for air traffic which are within the limits to the territorial applicability of the treaty founding the European Community. The European Community as international organisation has by the Accession Protocol taken on itself to impose the treaty obligations under the Revised Convention (as provisionally applied) on the two Baltic states. What happens if Estonia and Latvia fail to comply? This could be considered as a breach of the obligations of the international organisation (European Community) under its Accession Protocol towards the other international organisation (EUROCONTROL) and its member states.
The European Community has under the Single European Sky regulations imposed obligations on its member states (including the Baltic states) in its own legal order. It has transferred parts of the obligations of the Revised Convention (as provisionally applied) into the Community law and the failure by the Baltic states to comply with the obligations under Community law could of course be sanctioned by the European Community in its own legal order through the enforcement competencies as granted to it by its founding treaty. See for example the enforcement competencies exercised by the European Commission against Greece as outlined in Chapter 3.4.3.
3.6.2 EUROCONTROL in relation to the Single European Sky Regulations
This Chapter focuses on the interrelationship between EUROCONTROL and the European Community from the viewpoint of the European Community. The European Community recognises the role of EUROCONTROL in its own legal order, but only up to a certain extent.
In the action program on the creation of the Single European Sky, the Commission recognised that the incorporation of rules developed by EUROCONTROL into European Community law would give such rules full legal effect without the need of further implementation.285 After all, even though EUROCONTROL may issue mandatory rules (whether or not safety or not-safety related), in order to have a binding effect within the member states, those rules have to be implemented in the national laws of its member states.286 Let us take a closer look
282 Member states of the European Community: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. 283 Member states of EUROCONTROL: Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. 284 Joint member of EUROCONTROL and the European Community: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. 285 See Action programme on the creation of the Single European Sky, COM (2001) 123 final/2, supra note 218, at 6. 286 See Ch. 3.3.6.
70 The European legal framework at the interrelationship of EUROCONTROL’s rulemaking competencies in the legal order of the European Community. For this analysis the previously discussed rulemaking structure of EUROCONTROL in terms of non-safety related rules (3.3.5.1) and safety related rules (3.3.5.2) is being followed.
3.6.2.1 Non-Safety related rules – A hybrid rulemaking framework (mandates)
Starting with the non-safety related rules. The European Community realised that the four regulations issued under the umbrella of the Single European Sky need to complemented and supplemented by specific and detailed rules. This fine-tuning is envisioned under the Single European Sky regulation by way of so-called implementing rules.287 The European Community considers EUROCONTROL as the body that has the appropriate expertise to support the European Community in its role as regulator for the European Community.288 For the development of implementing rules, the European Commission issues so-called mandates to EUROCONTROL, provided that the development of implementing rules fall with the remit of EUROCONTROL.289 The European Commission shall not involve EUROCONTROL for the development of implementing rules that fall outside the remit of EUROCONTROL.290
As long as the development of implementing rules falls within the remit of EUROCONTROL, the European Commission shall issue mandates. Hence, on the basis of the rule-making competencies under the Single European Sky regulations the European Commission thus instructs another international organisation (EUROCONTROL) by way of a mandate to develop (draft) rules. The Single Sky Committee is advising the European Commission.291 The final result is channelled back by EUROCONTROL to the Single Sky Committee in the form of a report that already includes a draft-implementing rule and the Single Sky Committee will make sure that the implementing rule is ultimately adopted by the European Commission. Various mandates for the drafting of implementing rules have been issued to EUROCONTROL.292
The interchange between the European Community and EUROCONTROL for the purpose of drafting non-safety related implementing rules has resulted in a somewhat hybrid rulemaking structure between the two international organisations. In order to be able to comply with the mandate and to finally issue the report to the Single Sky Committee, including in draft form the non-safety related implementing rule, EUROCONTROL relies on its the ENPRM- procedure which has been previously discussed in Chapter 3.3.5.1. The ENPRM-procedure is only used up to a certain extent.293 The outcome of the ENPRM-procedure will result in a
287 See Framework Regulation, supra note 222, Art. 8. See Chapter 3.4.2.2 for implementing rules supplementing the Service Provision Regulation (Common Requirements) and implementing rules regarding common charging scheme for air navigation services. 288 Ibid., Para. 15 of the Preamble. 289 Ibid., Art. 8(1) 290 Ibid., Art. 8(4). 291 Ibid., Art. 5(1). 292 Various mandates for draft implementing rules were granted to EUROCONTROL in various areas such as flexible use of airspace, airspace design, functional airspace blocks, charging scheme, various interoperability mandates, air traffic flow management, European Upper Flight Information Region (EUIR), a singe Aeronautical Information Publication for the EUIR and, last but not least a mandate to develop draft implementing rules for the examination and evaluation of air navigation performance (performance review). 293 Only certain mechanisms of the ENPRM regulatory process are used to support the development of draft implementing rules arising from mandates from the European Community given to EUROCONTROL. These include, notably, the drafting-, the consultation- and the Review of Comments phases. The Regulatory Unit of EUROCONTROL manages the Single European Sky mandates received from the European Commission on interoperability in ATM. It is responsible for the drafting of related technical regulatory material and runs notably the formal consultation processes. For
Chapter 3 71 draft-implementing rule that is channelled back from EUROCONTROL to the European Community’s Single Sky Committee. If the latter body also approves the draft rules these will be adopted and approved by the European Commission in which case the implementing rules have a binding effect in the legal order of the European Community. At the same time the draft rule under EUROCONTROL’s ENPRM-procedure can also be forwarded to the decision-making bodies of EUROCONTROL. Depending on the entry into force of the Revised Convention such rules will be adopted and approved either on the basis of unanimity (transition phase) or by means of majority voting in the legal order of EUROCONTROL.
This hybrid rulemaking structure could result in a situation where, at the instigation of the Single Sky Committee, the European Commission disapproves the implementing rule, but the EUROCONTROL decision-making bodies, despite the European Commission on the basis of the Accession Protocol (as provisionally applied) exercising the voting powers of its member states), approves/adopts the rule. The reverse situation could also arise. In this case there would be a serious complication. This complication can be circumvented on the basis of specific working arrangements between the two international organisations. For example, by aligning positions between the Single Sky Committee and EUROCONTROL in the ENPRM procedure and EUROCONTROL only releasing the draft-implementing rule to the Single Sky Committee, provided that the latter acknowledges that it will indeed preach adoption/approval of the rule towards the European Community. At the same time EUROCONTROL should have the comfort that its contracting states will not block approval/adoption either.
In order to align the rulemaking process, EUROCONTROL suggested the implementation of a joint EUROCONTROL and European Community regulatory framework. This regulatory framework would enable not only the European Commission, but also EUROCONTROL and EUROCONTROL’s member states to initiate regulatory initiatives. Also it would give EUROCONTROL a central drafting function.
The enactment would rely on two procedures. On the one hand the regulatory procedures within EUROCONROL and, for the benefit of the European Community, the latter’s regulatory process such as through Community directives or regulations. According to EUROCONTROL this framework would combine the strength and synergies of both international organisations and avoid unnecessary duplication.294 See Figure 3.6.2.1. below.
additional information, see:
72 The European legal framework
Joint EUROCONTROL and EC Regulatory Framework7 Initiative Drafting Enactment Implementation Application Oversight Enforcement
Member Users, EUROCONTROL Industry, etc. States ENPRM Member EUROCONTROL States ATS Council/GA Providers (includes all 29 Member D States R States) EUROCONTROL A Agency F T European EU Community Member ATM Social States European Indus- Partners Commission try
Joint Process 7 This chart is based on the entry into force of the revised Synchronisation Convention and EC Membership in EUROCONTROL. It addresses areas of regulation for which both EUROCONTROL and the EC hold competence.
Figure 3.6.2.1 Joint EUROCONTROL and EC Regulatory Framework
For the benefit of the pan-European role of EUROCONTROL, as further discussed in Chapter 3.6.2.5, the rules developed by EUROCONTROL should be in conformity with the relevant rules and regulations issued under the umbrella of the European Community. This has been organised by way of the hybrid rulemaking structure for non-safety related rules through the issuance of mandates by the European Community to EUROCONTROL. This rulemaking process is pictured in Figure 3.6.2.2 which takes into account the mandate and ENPRM procedure as earlier discussed in this Chapter.
Chapter 3 73
Figure 3.6.2.2 EUROCONTROL: Development and enactment of implementing rules
Figure 3.6.2.2 illustrates that on the basis of a mandate from the European Community, this will initiate EUROCONTROL’s rulemaking process. A procedure is followed where EUROCONTROL’s bodies and rulemaking process through the aforementioned ENPRM are consulted and relied upon. Similar to the joint EUROCONTROL and EC Regulatory Framework model (pictured in Figure 3.6.2.1), EUROCONTROL is again in the role of the drafting party. However, in this regulatory model attention is paid to the mandate envisioned under the Single European Sky regulations and the ENPRM structure in EUROCONTROL whereas the previous model also enable individual states and EUROCONTROL to initiate rulemaking. Albeit that the rulemaking process under EUROCONTROL remains available, the aforementioned model only focuses on rulemaking initiatives undertaken by the European Community. Finally, the subsequent outcome is forwarded to the European Community for further review and enactment through the latter’s rulemaking process. The optimum outcome would be that both the European Community and EUROCONTROL approve and adopt the same rules and that those rules enter into force on the same day.295
3.6.2.2 A Commentary on non-safety related rules issued under the European Community
The devil is in the detail as the European Community does not always concert EUROCONTROL for the development of non-safety related rules and specifically ruled out the involvement of EUROCONTROL at two occasions under the Single European Sky regulations. Firstly, on the basis of the Framework Regulation the European Community shall not involve (not mandate) EUROCONTROL for the development of implementing rules that fall outside the remit of EUROCONTROL. For the development of those implementing rules the Commission shall follow the comitology procedure and not the hybrid rulemaking
295 G. Stadler, ‘From a Single European Sky to the Single Pan-European Sky’, (2004) (Spring) Skyway 31, at 33.
74 The European legal framework framework.296 The question arises what should be considered as falling within and what is falling outside the remit of EUROCONTROL.297 Secondly, the European Community has ruled out the involvement of EUROCONTROL (and hence the hybrid rulemaking framework) for the establishment of Common Requirements for the provision of air navigation services.298 The Service Provision Regulation clearly prescribes that Common Requirements shall be established by way of the comitology procedure rather then by mandating EUROCONTROL.299
From the viewpoint of the European Community and its Single European Sky Regulations, the fact that its legal regime carves out the role of EUROCONTROL for implementing rules falling outside the remit of EUROCONTROL and as far as the development of common requirements is concerned, this is fine. After all, the European Community and its member states may define a body of law as they may deem fit for the particular purpose.
From the viewpoint of the Revised Convention (as provisionally applied) this is different. The European Community and, but for the two Baltic states, its member states are a party to the Revised Convention. The member states are bound to the provisions of the Revised Convention as further defined in the Final Act and, for the European Community, the latter is bound to the Revised Convention subject to the terms and conditions as defined in the Accession Protocol when the European Community acceded to the Revised Convention (as provisionally applied).300
In the view of the author, within the remit of EUROCONTROL as used under the umbrella of the Single European Sky Regulations, should be understood as falling within the domain of EUROCONTROL. In other words, the European Community when developing implementing
296 Arts. 8(4) and Art. 5(3) Framework Regulation. Art. 5(3) Framework Regulation refers to Articles 5 and 7 of Decision 1999/468 EC. This decision-making procedure involves the Regulatory Committee. See Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ L184/23-26, Volume 42, 17 July 1999). Within the context of institutional checks-and-balances in the European Union, parties did not wish to give unlimited legislative power to the Commission. Therefore the Council adopted the comitology procedure by which various committees were established controlling legislative proposals by the Commission, each committee having its own particular set of procedures and varying levels of control over the Commission. This Comitology Decision shall be revised in due course in the event a new system of delegation of implementing powers is enforced by means of revised treaties. The Comitology Decision distinguishes three types of committees: There is the Advisory Committee for non-sensitive political policy matters where the committee delivers its opinion to a draft measure presented by the Commission and the latter is merely obliged to take utmost account of the opinion. The Commission should let the committee know in how far it has taken the latter’s opinion into account. There is the Management Committee where, if measures are adopted by the Commission are not in conformity with the committee’s opinion, the Commission must communicate them to the Council that shall than take a decision. Lastly, there is the Regulatory Committee where the Commission can only adopt implementing measures, provided that it obtains the approval of the committee. In absence of such approval, or if the committee does not deliver an opinion, the Commission should submit a proposal to the Council for it to decide on the matter and inform the European Parliament. 297 R. van Dam, ‘The Single European Sky Framework Regulation’, (2004) (Spring) Skyway 16, at 18. 298 See Service Provision Regulation, supra note 223, Art. 6. In this Article is stipulated that the Common Requirements shall include the following. Technical and operational competence and suitability, systems and process for safety and quality management, reporting systems, quality of services, financial strength, liability and insurance cover, ownership and organisational structure (including the prevention of conflicts of interest), human resources (including adequate staffing plans) and, lastly, security. 299 Ibid. 300 See Ch. 3.6.1.
Chapter 3 75 rules within the context of the Single European Sky regulations should mandate EUROCONTROL as far as this concerns activities fall within the domain of the Revised Convention (as provisionally applied). Pursuant to the Revised Convention, EUROCONTROL has competencies as far as this concerns en-route air navigation services and related approach and aerodrome services.301
The contracting states to the Revised Convention stipulated in the Final Act that their signature would be without prejudice to the European Community’s exclusive competence on certain areas covered by the Revised Convention and to the European Community’s membership to EUROCONTROL. However, the European Community in its Accession Protocol did not make a carve out for the extent that the Revised Convention would be binding on it. Therefore, also with respect to the European Community, the Revised Convention shall apply as far as this concerns en-route air navigation services and related approach and aerodrome services for air traffic in the Flight Information Regions of its member states. It is therefore my opinion that on the basis of the Accession Protocol (as provisionally applied) the European Community cannot rule out EUROCONTROL in the event the European Community develops rules for the benefit of en-route air navigation services and related approach and aerodrome services. The European Community, from the viewpoint of the Revised Convention, would have to adhere to EUROCONTROL’s non- safety related rule-making procedures. The same also counts for the development of Common Requirements for those activities that then also fall within the scope of en-route air navigation services and related approach and aerodrome services for air traffic.
Due to the fact that the Service Provision Regulation requires national supervisory authorities to certify air navigation service providers and the Common Requirements, on which the authorities have to rely, were drafted from a high level EUROCONTROL came up with useful non-binding guidance material for national supervisory authorities and air navigation service providers. This material deals with the certification of air navigation services providers and presents a possible approach for national supervisory authorities to certify air navigation service providers against the Common Requirements.302 Many national implementing rules follow the principles that are embed in these guidance materials. For the organisation of air navigation service providers in the European Community, see further Chapter 5.4.
In sum, in the view of the author as far as rule making competencies for non-safety related rules are concerned that fall within the scope of en-route air navigation services and related approach and aerodrome services there is or should not be such thing supremacy of European Community law over EUROCONTROL law. The confusion at this point stems from the legal order developed by the European Community under its Single European Sky regulations. If the European Commission directly develops rules that fall within the scope of the Revised Convention (as provisionally applied) without involving EUROCONTROL this potentially triggers a breach of the European Commission’s obligations under the Accession Protocol. Although the European Community has so far failed to deposit the instrument of accession, it
301 See Ch. 3.3.2. 302 Because of the lack of the resources and expertise necessary to meet the Single European Sky regulations requirements in the area of certification, EUROCONTROL was asked by states and air navigation service providers to provide them with support. For this purpose, EUROCONTROL has issued three volumes of guidance materials related to the European Commission Regulation 2096/2005 laying down Common Requirements for the Provision of Air Navigation Services. Firstly, Guidance Material for Air Navigation Services Providers compliance with the Common Requirements (Volume I) on Air Traffic Services Provider and Communication, Navigation and Surveillance Services Provider) of 13 January 2006. Secondly, Guidance Material for Air Navigation Services Providers compliance with the Common Requirements (Volume II): Aeronautical Information Services Provider of 13 January 2006. Lastly, Guidance Material for Air Navigation Services Providers compliance with the Common Requirements (Volume III): Meteorological Service Provider of 13 January 2006.
76 The European legal framework has expressed its commitment to be bound and, according to the principles embodied in the Vienna Convention on the Law of Treaties, is therefore bound to the early implementation of the provisions embodied in the resolution on the early implementation of the Accession Protocol. The contracting states of EUROCONTROL, including the international organisation itself, could trigger the dispute mechanism under the Revised Convention. This dispute mechanism is explicitly recognised in the Accession Protocol. See earlier Chapter 3.6.1.
3.6.2.3 Safety related rules (ESARRs)
With respect to non-safety related issues, the European Community allows the regulations issued under the umbrella of the Single European Sky to be complemented and supplemented by specific and detailed rules, so-called implementing rules. This by way of mandating EUROCONTROL as has been further discussed in Chapter 3.6.2.1.
For safety-related rules, the European Community has the right to identify and adopt ESARRs, including subsequent amendments thereto, that then shall be made mandatory under Community law. This takes place on the basis of comitology.303 So contrary to the non-safety related implementing rules developed through mandates by the European Community under EUROCONTROL’s ENPRM-framework that relies on the European Community to mandate EUROCONTROL, the ESARRs developed by EUROCONTROL are in principle implemented in the European Community.
However, it is not common practise to transpose all ESARRs into Community law. On the basis of Community law, the European Community is able to exercise discretionary powers and has the capability to identify and adopt ESARRs into Community law. At the same time it can also refrain from doing so. If adopted, the European Community has to use its own rulemaking mechanism to make ESARRs binding within the European Community. The latter can be evidenced by the Community directives issued in the field of a Community air traffic control license that covers provisions of ESARR 5 (ATM Services’ Personnel).304 Another directive has been issued by the European Community in field of safety occurrences in ATM covering the provisions of ESARR 2 (Safety Measurement and Improvement Programme).305 See also the Common Requirements, issued as Regulation of the European Community, that, in its opening article, stipulate that it identifies and adopts certain mandatory provisions of particular ESARRs that are relevant for the certification of air navigation service providers.306
3.6.2.4 A Commentary on safety related rules: implementation issues and EASA
The European Community has indicated that implementation in its legal order is not always possible and that structural differences prevent the transposition of ESARRs into Community law.307 Yet at the same time, the European Community acknowledged that, for example with respect to the development of a Community air traffic controller licence (touching ESARR 5), despite provisions developed through ICAO and EUROCONTROL relating to training and licensing of air traffic controllers, it could do away with the fragmentation within the
303 See Service Provision Regulation, supra note 223, Art. 4. 304 Directive 2006/23/EC of the European Parliament and of the Council on a Community air traffic controller licence, 2006 OJ L114/22-37. 305 Directive 2003/42/EC of the European Parliament and of the Council on occurrence reporting in civil aviation, 2003 OJ L167/23-36. 306 The Article 1 of the Common Requirements (see supra footnote 247) identifies and adopts the following mandatory provisions relevant for air navigation service providers: ESARR 3 on the use of safety management systems by air traffic management, ESARR 4 on risk assessment and mitigation in ATM and, lastly, ESARR 5 on ATM services’ personnel, requirements for engineering and technical personnel undertaking safety related tasks. 307 P. Stastny, ‘ESARR Transposition into Community Law’, (2004) (Summer) Skyway 12.
Chapter 3 77
European Community due to the nature of the available rulemaking- and enforcement competencies.
As discussed in the previous Chapter, there is no outright transposition of the ESARR into Community law but incorporation through comitology. Looking at the directives that were discussed in that same Chapter, there are competencies delegated to the Single Sky Committee which avoids the need for further directives or the involvement of the European Parliament or Council if the Directive has to be amended. All in all, this has created a dual legal regime.
Due to the fact that ESARRs are not automatically binding within the European Community, any amendment of existing ESARRs requires an amendment of existing Community directives or regulations. In the event EUROCONTROL is revising its ESARRs, the European Community should, in order to avoid conflicting rules, instantly pick-up the pace and amend the applicable governing Community law. The European Community and the member states thereof are bound to follow-up on the amendment of the ESARRs. After all, the European Community, including its member states, are also a contracting party of EUROCONTROL. See earlier Chapter 3.6.2.2. The legal order of the European Community should keep track of those developments to avoid potential conflicting rules. In order to avoid such conflicts a clear working arrangement between EUROCONTROL and European Aviation Safety Agency (EASA) would be useful.
EASA became operational in September 2003 and is an agency of the European Community.308 It will assist the European Commission in preparing legislation on civil aviation safety and environmental compatibility.309 Because of the fact that EASA is embedded in the community framework, the regulations issued by the agency are directly applicable in the contracting states to the European Community. The role of EASA is that of a safety regulator. EASA takes the view that a safety regulator should not be involved in economic regulation or service provision and neither be involved in technological development and design activities.310 Under the umbrella of EASA’s founding regulation it has already provided safety rules in the field of airworthiness of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations. EASA works closely with countries outside the European Community and international organisations to promote and harmonise safety matters.
The role of EASA as safety regulator could also cover the area of air navigation services. However, EASA acknowledged at the same time that this does not imply the transfer of all activities from EUROCONTROL to EASA. The role of EASA is not to verify that air transport is efficient or that a new concept may allow more aircraft in the air. Its role is to ensure that any technological solution, concept, equipment, personnel or organisation
308 See Arts. 12 and 19 of the Regulation (EC) No 1592/2002 of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, 2002 OJ L 240/1-21. This regulation was amended for reasons of aligning budgetary matters, general public’s right of access to documents of European institutions and because of linkage with the Chicago Convention and amendment in one of the Annexes thereto in 2002. See Regulation (EC) No 1643/2003 of the European Parliament and of the Council amending Regulation No 1592/2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, 2003 OJ L 245/7-9 and Commission Regulation (EC) No 1701/2003 adapting Article 6 of Regulation (EC) No 1592/2002 of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, 2003 OJ L 243/5. 309 Ibid. 310 European Community, Conference on the Future of Aviation Regulation in Europe, Brussels 20 September 2006, Speech by P. Goudou, Executive Director of the European Aviation Safety Agency (EASA), at 3-4.
78 The European legal framework involved in civil aviation will be safe.311 Any regulatory role in the field of air navigation services, other safety related rulemaking competencies, could remain with EUROCONTROL.
The European Commission never made it a secret that safety regulatory aspects undertaken by EUROCONTROL should be taken over by EASA.312 According to the European Commission the mandate of EASA should be extended to safety regulation of air traffic control services in the Single European Sky.313 The ATM industry also voices that EASA should be in the lead as far as safety regulation in the field of air navigation is concerned.314 Also, EUROCONTROL realised that general rulemaking competencies had to be separated from safety related rulemaking competencies. This was exactly the reason why the international organisation established the so-called Safety Regulation Commission (SRC) separately from the Regulatory Committee.315 Within the context of its ESARRs, the SRC has been working on an approval for establishing a formal link between EUROCONTROL and EASA.316 However, is this the way forward in terms of safety related rule making in the area of air navigation services? In other words, should safety related rulemaking remain within the domain of EUROCONTROL, be delegated exclusively to EASA or should ultimately a new Agency be created that bears such rulemaking responsibility?317
Setting up a new Agency appears to be the less attractive option. This would require the set- up of a whole new organisation. It would be better to build upon the expertise embodied in the existing organisations. Moving into the direction of the EASA as the exclusive safety- regulator in the field of air navigation would be the most logic option. It offers a fully integrated safety regulation approach covering a variety of areas in the field of the aviation safety chain, including the possibility of future airport safety regulation, whereas such safety rulemaking in EUROCONTROL would be restricted to air navigation services only. Next to this fully integrated safety approach, EASA also has the benefit of the regulatory- and enforcement competencies under the umbrella of the European Community. The safety rules do not require national implementation, but have a direct effect.
Notwithstanding the benefit of delegating the safety rulemaking authority in the field of air navigation services from EUROCONROL to EASA, it is in the view of the author highly recommended to make sure that the rulemaking process provides for an active involvement of EUROCONTROL. This ensures the participation of the best stakeholders in the field of air navigation services and facilitates pan-European embracement of safety-rules implemented within the European Community. This should be achieved by developing a hybrid rulemaking
311 Ibid. 312 See Action programme on the creation of the Single European Sky, COM (2001) 123 final/2, supra note 218, at 7. 313 Ibid., at 9. 314 European Community, Conference on the Future of Aviation Regulation in Europe: From National Services to a European Market: Speech by D. Kaden, CEO DFS Deutsche Flugsicherung GmbH (Brussels 20 September 2006), at 3. 315 See Ch. 3.3.4. 316 See Annual Safety Report 2005, supra note 306, at 12. 317 In a study on the impact assessment of EASA a clear outline was provided laying down the number of proposed policy options. The main policy options are firstly, the “Do nothing option” where parties would continue with the current organisation of responsibility. The second option is to extent EASA competencies in rulemaking, certification, licensing and standardisation in the domain of airports and air navigation services. The third option is to extent EUROCONTROL mandates issued by the European Commission to the domains airports and air navigation services (including certification and inspection responsibilities). Lastly, the fourth option is to establish a new Agency responsible for airports and air navigation services. See for further information a study conducted by ECORYS in co- operation with Trademco, National Aerospace Laboratory NLR and Cloos Consulting on behalf of the European Commission: ECORYS, Impact Assessment on the extension of EASA competences to ANS, ATM and Airports (Final Report) of 15 September 2005.
Chapter 3 79 framework similar to ENPRM process for non-safety related rules where the development of safety rules would have to be initiated by EUROCONTROL and, following widespread consultation with various stakeholders, should result in a draft safety-rule.
For the sake of efficient and harmonised safety-rules in the field of air navigation this safety rule only becomes binding upon approval of the draft rule by the SRC and EASA in which event it the SRC forwards the safety rule for approval in accordance with the rulemaking competencies of the Revised Convention (as provisionally applied). Notwithstanding the pending endorsement by EUROCONTROL at the same time, by virtue of the endorsement by EASA, the safety rule becomes binding in the European Community.
3.6.2.5 EUROCONTROL and the Single Pan-European Sky
The European Community is working on the Single European Sky regulations and implementation thereof which implies that rules relating to air navigation services will be identical throughout the European Community. However, for those parts of Europe that are not a part of the European Community rules could remain loose and divergent. This could ultimately result in a patchwork of air navigation service provision between European Community and non-European Community member states. EUROCONTROL is the institution that could deal with the convergence of rules and regulations in the field of air navigation services with respect to pan-European developments.
At the time of writing this study, the European Community covers twenty-seven states whereas EUROCONTROL has thirty-eight member states of which twenty-five are also member states of the European Community. See earlier Chapter 3.6.1. On the basis of the Framework Regulation, more specifically Art. 7 Framework Regulation, the European Community shall aim at and support the extension of the Single European Sky to countries that are not members of the European Community by concluding agreements with neighbouring third countries or within the context of EUROCONTROL. In terms of agreements with third countries, the European Community has concluded agreements with Switzerland as well as with Norway, Liechtenstein and Iceland (European Economic Area) pursuant to which the acquis communautaire, as far as air navigation services is concerned, shall become applicable.
With respect to the contracting states of EUROCONTROL that are not a party to the European Community or have not concluded separate agreements with the European Community, the rulemaking- and enforcement competencies of EUROCONTROL could safeguard the harmonisation and co-ordination of rules and regulations developed in the European Community and those developed within EUROCONTROL for pan-European means. In this respect EUROCONTROL plays an intermediate role and facilitates the development of a Single Pan-European Sky.318
The High-Level working group, focussing on the European Community viewpoint on air navigation services, stressed that there is an important role for EUROCONTROL in terms of pan-European functions and ATM network design. Through European Community participation in EUROCONTROL, EUROCONTROL could be the platform that enables the adoption of performance improved ambitions of the European Community at the pan- European level.319
318 See G. Stadler, supra note 295, at 33. 319 European Community, High Level Group: Report of the High Level Group for the Future European Aviation Regulatory Framework: European Aviation, A Framework for Driving Performance Improvement (July 2007), at 25.
80 The European legal framework
3.7 Concluding remarks
Due to the fact that states have delegated the exercise of national competencies in the field of air navigation services, the regulation of air navigation services in Europe is no longer within the exclusive domain of the state. As discussed in the previous Chapter, ICAO, from a global level, is exercising rulemaking competencies but relies on the individual states for purposes of national implementation. This Chapter pointed out three European bodies that also impose a legal framework for the provision of air navigation services.
The question was raised to what extent the three bodies ECAC, EUROCONTROL and the European Community had been awarded rulemaking- and enforcement competencies by their member states. In order to understand the role of each of these organisations, the first part of this study dealt with their institutional structure, as well as the enforcement- and rulemaking competencies.
ECAC has continuously been looking for those arrangements best suited to safeguard ongoing implementation of measures that would increase airspace capacity, reduce air traffic management delays by at the same timing maintaining high levels of safety in European airspace and has played an important role as far the development of EUROCONTROL was concerned. However, ECAC is not an international organisation with rulemaking- or enforcement competencies. The functions of this body are consultative and the resolutions, recommendations or other conclusions remain subject to the approval and implementation by states.320 This is different for EUROCONTROL and the European Community where the respective member states, to certain extent, limited the exercise of national competencies as far as air navigation services are concerned.
With respect to EUROCONTROL, this international organisation has been delegated rulemaking competencies on the basis of the Revised Convention (as provisionally applied). The mandatory non-safety related rules, the so-called EUROCONTROL Standards, are, if approved/adopted pursuant to the regulatory procedures under the convention, mandatory on the states. For safety related rules, those rules designated as ESARR are mandatory. Yet, similar to the Chicago Convention, the member states of EUROCONTROL may opt-out from the mandatory application of those rules provided that they give an explanation of the reasons for their deviation towards the General Assembly or the Council. In terms of enforcement, the treaty provides for an enforcement mechanism by way of arbitration that cannot only be triggered by the states but also by the international organisation itself. This opens the possibility for forms of regulatory enforcement by EUROCONTROL against inactive members or those unwilling to implement or exercise regulatory obligations as a result of decisions taken by EUROCONTROL’s decision-making bodies.321
Like ICAO, EUROCONTROL has also unmistakeably brought uniformity in the field of air navigation services. However, when recapping the rulemaking- and enforcement competencies of EUROCONTROL, the member states of the international organisation have, similar to ICAO as earlier discussed in Chapter 2.4., limited the extent to which national competencies can be exercised by EUROCONTROL in the field of air navigation services. Both ICAO and EUROCONTROL are able to issue binding rules and regulations. However, they are not all adhered to by the contracting states and, subject to the procedures as defined in the underlying conventions, both allow states to deviate from mandatory rules by filing differences (opt-out). The opt-out regime should not be understood as the unlimited freedom of the contracting states to chose the regulations they wish to apply or not.
320 See Ch. 3.2. 321 See Ch. 3.3.6.
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In principle, mandatory rules issued under the umbrella of ICAO and EUROCONTROL are binding on the contracting states, except in circumstances of good-faith deviation. For ICAO this means that, as discussed in Chapter 2.3.4, there is impracticability with compliance or if the state deems it necessary to adopt regulations or practices differing in any particular respect from those established by the Standard, provided that the state gives immediate notification. For EUROCONTROL, as discussed in Chapter 3.3.6, this means that there are overriding national considerations pertaining to national defence and security interests which prevent the state from acting on a decision, provided that the state gives an explanation of the reasons for such deviation towards the General Assembly or the Council.
Both ICAO and EUROCONTROL, through the holes in their rulemaking- and enforcement competencies, evidence that international organisations only possess international personality up to the extent that the contracting states allow. See earlier Chapter 2.2.2 on the restriction by states when delegating the exercise of national competencies to an international organisation. Similar to ICAO, amending the founding treaty of EUROCONTROL and turning this international organisation into a supranational organisation is highly unlikely meaning that, notwithstanding the international organisations ICAO and EUROCONTROL that have paved the way for a harmonised approach for air navigation services, the jurisdiction of a state in its airspace with jurisfaction, the power to legislate and interpret legislation, and jurisaction, the power to enforce said legislation and carry out laws, judgements and sentences, prevails.
In the wake of ICAO’s and EUROCONTROL’s self-assessment and the verification process on the implementation of Standards and mandatory rules issued in EUROCONTROL context by way of its safety audit programs, ICAO and EUROCONTROL, as far as Europe is concerned, find itself overtaken by the European Community. The European Community has a mechanism in place that can force the contracting states to obey decisions of the organisation even if these are adopted against the will of a part of the contracting states. Taking into account these powers attributed to it by the contracting states, the European Community can be considered the best example of a supranational organisation.
The European Community has from 1993 and onwards has gradually expanded its rulemaking competencies in the field of air navigation services. Bearing in mind the average air traffic delays and forecasts with worsening scenario’s the European Community finally issued the so-called Single European Sky regulations to combat the fragmented organisation of airspace. The European Community should not keep the frontiers in the sky that it managed to eliminate on the ground and, in the field of air navigation services, there should also be a freedom of movement of persons, goods and services beyond such frontiers. The Single European Sky regulations comprise of a package of four regulations, to be supplemented by way of so-called implementing rules, which contrary to ICAO Standards or EUROCONTROL Rules have a direct effect and do not require national implementation. Due to the fact that the European Community has independent organs and is capable of enacting binding decisions that become directly applicable on its member states and citizens and the European Community furthermore has a mechanism in place that can force the contracting states and citizens to obey the decisions even if they are adopted against their will, the European Community, as the best example of a supranational organisation, has by far the best rulemaking- and enforcement competencies to pursue a legal framework of air navigation services.322 The reasoned opinions and subsequent decision to take Greece to the European Court of Justice for the failure to respect the Single European Sky regulations serves as an example of the enforcement competencies that can be exercised by the European Community.323
322 See Ch. 3.4.1. and 3.4.2. 323 Ch. 3.4.3.
82 The European legal framework
All in all, within the European Community there are rulemaking competencies in the field air navigation services at no less than four different levels. The first level is with ICAO that is able to exercise rulemaking competencies by issuing binding Standards. The next level is with EUROCONTROL that is able to issue binding EUROCONTROL Rules or ESARRs on its member states. The third level is with the European Community. The last level at which rulemaking competencies can be exercised is at the national level. Within this context one should think of the implementation of ICAO Standards, EUROCONTROL Rules or ESARRs into the national legal order of a state. Contrary to the European Community those rules are binding on the member states, but require subsequent national implementation. Taking into account the widespread initiatives from ICAO, EUROCONTROL and the European Community in the field of air navigation services it is hard to think of an area that is not yet covered by the rulemaking competencies of the aforementioned institutions. This implies that regulatory initiatives (if any) of a state may shelter because of the fact that they delegated the exercise of its rulemaking competencies to those international organisations.
Although the international organisations are able to break-through the doctrine of airspace sovereignty of their member states by exercising exclusive rulemaking competencies, the fact that member states of the European Community are confronted with no less than three international organisations could pose a threat to the establishment of transparent lines of responsibility. Between the three international organisations, the role of ICAO and its global rulemaking competencies is recognised and it is therefore mainly the interrelationship between EUROCONTROL and the European Community that could give rise to confusion. The second part of this Chapter dealt with the interrelationship between EUROCONTROL and the European Community. Although the European Community became a contracting party to the Revised Convention and a member of EUROCONTROL (3.6.1), it only partially recognises the rulemaking competencies of EUROCONTROL in its own legal order (3.6.2).
The partial recognition of the rulemaking competencies of EUROCONTROL can be illustrated by, first of all, the development of non-safety related rules in the European Community. The European Commission issues mandates to EUROCONTROL for the development of implementing rules that shall then be applied in the legal order of the European Community. These non-safety related rules shall be developed on the basis a hybrid rulemaking framework between the two institutions (3.6.2.1). However, according to the legal order of the European Community, the rulemaking competencies of EUROCONTROL are only recognised as far as it considers these rules to fall within the remit of EUROCONTROL. Pursuant to the legal order of the European Community the European Commission does not have to involve the international organisation for the development of rules that fall outside the remit of EUROCONTROL. Secondly, due to the fact that the Single European Sky regulations simply do not recognise a regulatory role for EUROCONTROL for the development of so-called Common Requirements but refer to comitology instead, the Single European Sky regulations permit the European Commission to rule out involvement of EUROCONTROL altogether.
What is confusing is the fact the European Community by virtue of the Accession Protocol has become a contracting party to the Revised Convention (as provisionally applied). As a contracting party the international organisation has to recognise the role granted to EUROCONTROL under that convention as far as this concerns en-route air navigation services and related approach and aerodrome services for air traffic in the Flight Information Region of its member states. Hence, in so far rulemaking competencies for non-safety rules fall within that scope, there is in the view of the author no such thing as supremacy of European Community law above EUROCONTROL law.
This study therefore recommends that for non-safety related rules all matters concerning en- route air navigation services and related approach and aerodrome services for air traffic in the Flight Information Region triggered by the European Community are channelled through the
Chapter 3 83 hybrid rulemaking structure that is already in place between the EUROCONTROL and the European Community. The European Community should deem any such matters relating thereto to fall within the remit of EUROCONTROL. Furthermore, also the Common Requirements that are related to en-route air navigation services and related approach and aerodrome services for air traffic should also be developed through the hybrid rulemaking structure between the institutions rather than the comitology procedure in the legal order of the European Community. The European Community would in view of the author otherwise act contra legem to its treaty obligations under the Revised Convention.324
The partial recognition of the rulemaking competencies of EUROCONTROL can secondly be illustrated from the point of view of safety related rules. For safety related rules there is no hybrid rulemaking structure in place. According to the Single European Sky regulations, the European Commission can identify and adopt those ESARRs developed by EUROCONTROL that shall be applicable in the legal order of the European Community. Not all ESARRs have been incorporated in the European Community.325 Furthermore, the implementation of ESARRs in the Community legal order requires further implementation through the regulatory process, such as directives or regulations, that is applicable in the European Community. This dual legal regime could possibly result in conflicting rules. After all, if EUROCONTROL amends the ESARR, this requires instant response from the European Community that, on its turn, should also update the ESARR as incorporated in its own legal order.
Despite the structuring of a separate Safety Regulatory Commission in EUROCONTROL separate from the non-safety related rulemaking bodies, the future of air navigation in Europe is not served by having an exclusive safety rulemaking body in the field of air navigation services tied into a single international organisation (EUROCONTROL) whereas at the same, time under the umbrella of another international organisation, an agency (EASA) is issuing safety related regulations covering a variety of air transport related services (including airports) that would be better equipped for the job by way of overall integrated safety regulations in the aviation safety chain.326
Notwithstanding the fact that EASA would be best suited for the job of safety regulation in the field of air navigation services, this study recommends that the rulemaking process for safety related rules provides for an active role of EUROCONTROL for purposes of involving the best stakeholders in the field of air navigation services and, through EUROCONTROL involvement, safeguarding pan-European embracement of safety standards that are issued the European Community. In order to balance the role of EUROCONTROL and EASA in the field of safety-related rulemaking competencies, the development of safety rules would have to be initiated by EUROCONTROL that, subject to widespread consultation with various stakeholders and EASA in the EUROCONTROL legal order results in a draft safety-rule. This draft rule then only becoming binding upon approval hereof by the SRC and EASA in which event the SRC forwards the safety rule for approval pursuant to EUROCONTROL’s regulatory framework and, at the same time, by virtue of the endorsement by EASA, the safety rule becomes at the same time binding in the European Community.
324 Ch. 3.6.2.2. 325 Ch. 3.6.2.3. 326 For additional information on EASA, see Ch. 3.6.2.4.
85
CHAPTER 4 Cross-Border Provision of Air Navigation Services
4.1 Introduction
In the previous Chapters of this study, an outline has been given of the international- and European legal framework governing the provision of air navigation services, including rulemaking and enforcement competencies as well as interrelationships of various international organisations. As a consequence of being a contracting party to such international- or European institution, states are bound to international obligations embodied in the international- or European regulatory framework when providing air navigation services in the airspace over their territory.
This Chapter is dedicated to the developments concerning cross-border provision of air navigation services. Predominantly in the European Community states already rely on provision of air navigation services in (portions of) their airspace by air navigation service providers that have their principal place of operation outside the territory of such state. See also the mid-air collision near Überlingen (Lake Constance) as set forth in Chapter 1.2 as a grim example where the Swiss based air navigation service provider was performing air navigation services in the airspace over southern Germany. Also the Single European Sky regulations are also pushing for cross-border provision of air navigation services on a wider scale through the establishment of FABs that envisage that there are ultimately blocks of controlled airspace that are defined irrespective of the underlying national state boundaries.327 Within such FABs the provision of air navigation services should no longer be exclusively in the domain of air navigation service providers that are based within the territory of that state, but it should be possible to have air navigation service providers that have their principal place of operation in the territory of another state to offer such services.
The research question of this Chapter is how such cross-border provision of air navigation services can be codified satisfactorily whilst at the same time establishing transparent lines of state responsibility. How to relieve the state that allows the provision of air navigation services by a foreign air navigation service provider in its airspace from any claims under international law? How to safeguard that state from claims that such state failed to meet international obligations under the international- or European legal framework in its airspace?
In order to address this question and in order to avoid linguistic confusions, firstly the concept of cross-border provision of air navigation services by way of cross-border arrangements is separated from extra-territorial provision of air navigation services over the high seas or in portions of airspace of undetermined sovereignty and from provision of air navigation services by autonomous entities (4.2). Secondly, attention is paid to the concept of state responsibility as far as the provision of air navigation services is concerned. At the same time attention is paid to state responsibility and state liability (4.3). After a review of the arrangements that were in place during the mid-air collision near Überlingen (Lake Constance) a comparative overview will be given to a number of bilateral- and multilateral cross-border arrangements dealing with cross-border provision of air navigation services where particular attention is paid to the governmental level at which the arrangement is concluded and the extent the arrangement deals with the concept of state responsibility (4.4).
327 See Ch. 3.4.2.
86 Cross-border provision of air navigation services
On the basis of a synthesis of the discussed bilateral- and multilateral arrangements, this Chapter will explore where in case of cross-border provision of air navigation services states can indeed delegate state responsibility to another entity. This will be explored in the Chapter dealing with the concept of the responsibility of the supervising authority (4.5). The Chapter will finally explore whether such paradigm shift can be granted a multilateral effect towards the contracting parties to the Chicago Convention at large by using the Regional Air Navigation Plan (RANP) as a multilateral vehicle (4.6). On the basis of the analysis and conclusions a number of observations and suggestions will finalise this Chapter (4.7).
4.2 Cross-Border and Extra-Territorial provision of Air Navigation Services
4.2.1 Cross-Border Provision of Air Navigation Services
In order to facilitate a smooth flow and transfer of high-speed air traffic that is crossing the airspace from one state to the other, states have delegated the actual provision of air navigation services in (portions of) their airspace to air navigation service providers that have been issued an operating certificate and are subject to regulatory- and enforcement competencies of another state. By way of such delegation, the delegating state limits the exercise of national competencies as far as the provision of air navigation services is concerned. This delegation is generally formalised by way of bilateral- or multilateral arrangements.328
The delegation of the provision of Air Traffic Services is recognised in the regulatory framework of the Chicago Convention where by mutual agreement a state may delegate to another state, a group of states, or international organisation the responsibility for establishing and providing air traffic services in Flight Information Regions, control areas or control zones extending over the territories of the former.329 The providing state(s) is commonly referred to as providing state albeit that the actual service provision may not be in the hands of its public servants but in the hands of an international organisation or a privatised entity that has its principal place of operation in the territory of that state and which has been awarded an operating certificate by that state and for that purpose is subject to its jurisfaction and jurisaction. Nothing prevents states from, next to the limitation of the exercise of national competencies as far as the provision of air navigation services is concerned, to also delegate exclusive regulatory- and enforcement competencies to an international organisation or the providing state.330
For the purpose of this study, in the event there is a delegation of responsibility for establishing and providing Air Navigation Services in the airspace of a delegating state to a providing state, this type of service provision shall be deemed to constitute cross-border provision of air navigation services. Formal arrangements concluded between states or between state and international organisations that embrace cross-border provision of air navigation services, including possible delegation of regulatory- or enforcement competencies, shall be referred to as cross-border arrangements. The cross-border arrangements that have been concluded so far take many forms and will be subject of closer studying in Chapter 4.4. However, before dealing with those arrangements, what makes cross-
328 There is a variety of bilateral- and multilateral arrangements and these will be analysed in Ch. 4.4. 329 See Annex 11, supra note 75, Para. 2.1.1. See also the explanatory note thereto which stipulates that if one state delegates to another state the responsibility for the provision of air traffic services over its territory, it does so without derogation of its national sovereignty. 330 Under the EUROCONTROL Convention (1960) the member states limited the exercise of particular national competencies enabling EUROCONTROL to exercise competencies in their airspace that would normally be exercised by the national civil authorities of those states. See Ch. 3.3.1. For additional information on principal place of operation of air navigation service providers, see Ch. 5.4.2.
Chapter 4 87 border provision of air navigation services so different from extra-territorial provision of air navigation services? Attention will be paid to the extra-territorial provision of air navigation services over the high seas and in portions of airspace of undetermined sovereignty (4.2.2) Also, what makes the cross-border provision of air navigation services so different from the provision of air navigation services by an autonomous entity? In the latter case, the autonomous entities The Netherlands Antilles, Aruba, Hong Kong and Macao shall serve as examples (4.2.3).
4.2.2 Extra-Territorial Provision of Air Navigation Services
4.2.2.1 High Seas: Joint Financing, ADIZ and CADIZ
In the airspace over the Atlantic Ocean (the so-called ICAO North-Atlantic Region), several states are offering air navigation services for the purpose of the safe, orderly and expeditious flow of the tremendous amount of air traffic over the high seas that are connecting the continents on each side of the Atlantic. The air navigation service providers are located in the United Kingdom, Ireland, Portugal (Azores), Iceland, Denmark (Greenland and Faroe Islands), Canada and the United States of America.331
It was considered unreasonable to hold Iceland and Denmark financially responsible for the provision of air navigation services for flights crossing the Atlantic merely because of their geographical nature. The ICAO Council took up action by concluding financing arrangements in favour of Iceland and Denmark for, amongst others, the provision of air traffic services and meteorology.332 Iceland and Denmark are tasked to operate and maintain the services without interruption, in an efficient manner, and with the greatest degree of economy consistent therewith.333 Both states shall each bear five percent of the operating costs.334 The remaining financial responsibility for the service provision is assumed by a group of other contracting states that is party to the joint financing agreements. A part of the operating costs is recouped by means of user charges.335 Within this context, the ICAO Council is assisted by its Committee on Joint Support of Air Navigation Services that examines the financial and technical aspects of the service provision.
The Chicago Convention recognises that a state may impose national rules and regulations in the airspace over the territory of the state as well as territorial water adjacent thereto.336 However, the aforementioned seven states are providing air navigation services in airspace beyond their territory. What legal regime is applicable in the airspace over such area? In order to understand the legal that is governing the airspace over the high seas, the United Nations Convention on the Law of the Sea that codified customary- and new principles of international
331 J.C. Bugnet, ‘Joint financing arrangements contribute to operational safety and efficiency’, (2003) 58 ICAO Journal 20. ICAO, Guidance and Information Material Concerning Air Navigation in the North Atlantic Region, January 2002 (7th ed.), NAT DOC 001, Part 1. 332 Improvement of air navigation facilities, financing of air navigation services as well as provision and maintenance of air navigation facilities by the Council are defined in the Chicago Convention under Arts. 69, 70 and 71 Chicago Convention. 1982 Agreement on the Joint Financing of Certain Air Navigation Services in Greenland (1956) as amended by the Montreal Protocol of 1982, (Doc 9585-JS/681). 1982 Agreement on the Joint Financing of Certain Air Navigation Services in Iceland (1956) as amended by the Montreal Protocol of 1982, (Doc 9586-JS/682). 333 Ibid., Art. III. 334 Ibid., Art. II. 335 ICAO, Conference on the Economics of Airports and Air Navigation Services, Montreal 19-28 June 2000, ICAO Secretariat, The ICAO Joint Financing Arrangements, ANSConf-WP/7 of 23 December 1999. 336 See Ch. 2.2.2.
88 Cross-border provision of air navigation services law with respect to the exercise of national competencies should be taken into account.337 The sovereignty of a coastal state extends beyond its land territory and internal waters to an adjacent belt of sea, described as the territorial sea, including the airspace over such area.338 The breadth of the territorial sea shall not exceed twelve nautical miles.339 Within this area, the state continues to exercise full-fledged national competencies.
This is different with respect to the exclusive economic zone which is the area adjacent to the territorial sea and extends itself to maximum two-hundred nautical miles from the baselines from which the breadth of the territorial sea is measured.340 Contrary to the territorial sea, the coastal state may only exercise particular national competencies in the exclusive economic zone.341 This excludes rulemaking competencies of the states in the field of air navigation services as there is full freedom of the airspace over the exclusive economic zone.342 States cannot exercise national competencies in the airspace over the exclusive economic zone similar to the restriction in the airspace over the high seas.343 This does not mean that the states that are providing air navigation services over the high seas or the exclusive economic zone are left without the ability to impose a legal regime. Because of the Chicago Convention where, according to an ICAO Standard, a state having accepted the responsibility to provide air traffic services in portions of airspace over the high seas or in airspace of undetermined sovereignty shall arrange for the services to be established and provided in accordance with the provisions of the Annex 11 to the Chicago Convention.344 From the face of it, this Standard appears to have the same binding effect like the binding effect of the Rules of the Air that are laid down in Annex 2 for which is stipulated that over the high seas, the rules in force shall be those established under the Chicago Convention. These Rules of the Air apply over the high seas without exception.345
Contrary to the Rules of the Air, the ICAO Council decided against making the rules of Annex 11 mandatory over the high seas as this would discourage states from providing air navigation services over the high seas altogether. After all, within the airspace over national territory and territorial waters states and provided the correct procedures of the Chicago Convention are adhered to, states may deviate from the rules. If the rules would have been declared mandatory for the high seas, this would imply that states would not be able to deviate and would have to apply two different sets of rules where one would be applicable in the airspace over national territory and territorial waters and the other would be applicable in the airspace over the high seas.346 This means that the state providing air navigation services in the airspace over the high seas may impose those rules and regulations in a manner
337 1982 United Nations Convention on the Law of the Sea, 21 ILM 1261. 338 Ibid., Art. 2. 339 Ibid., Arts. 3-5. 340 Ibid., Arts. 55 and 57. 341 Ibid., Art. 56. See also, S.N. Nandan and S. Rosenne (eds.), United Nations Convention on the Law of the Sea 1982, A Commentary (1993), Vol. 2, at 541. Furthermore, also E.D. Brown, The International Law of the Sea Volume I Introductory Manual (1994), at 220 and 234. 342 Art. 58 Convention on the Law of the Sea 343 Ibid., Arts. 86-89. See also S.N. Nandan and S. Rosenne (eds.), United Nations Convention on the Law of the Sea 1982, A Commentary (1995), Vol. 3, at 81-82. 344 See Annex 11, supra note 75, Para. 2.1.2. 345 Art. 12 Chicago Convention. The reference to the rules should be understood as referring to the rules relating to the flight and manoeuvring of aircraft as embedded in Annex 2 to the Chicago Convention: ICAO, International Standards, Rules of the Air, Annex 2 to the Convention on International Civil Aviation 9th ed. (1990). See also J. Carroz, ‘International Legislation on Air Navigation over the High Seas’, (1959) 26 JALC 158, at 162-163. Also T. Buergenthal, Law-Making in the International Civil Aviation Organization (1969), 80-85. 346 See Annex 11, supra note 75, at Para. 2.1.2. and the supplementary note 2 thereto and also Carroz, supra note 345 at 170-171; Buergenthal, supra note 345, at 83-84 and J. Erler, Rechtsfragen der ICAO (1967), 142-145.
Chapter 4 89 consistent with those that are applicable in the airspace over that state’s territory and territorial waters.
According to the ICAO Secretariat, for the purpose of the Chicago Convention as well as the Annexes thereto and other air law instruments, the exclusive economic zone shall be deemed to have the same legal status as the high seas. Reference to the high seas shall be deemed to encompass the exclusive economic zone.347 This means that the application of those rules and regulations over the high seas applies mutatis mutandis for air navigation services provided in the exclusive economic zone. The portions of airspace over the high seas or portions of airspace of undetermined sovereignty where air traffic services are offered shall be defined in the Regional Air Navigation Plan.348
With respect to the provision of air navigation services in the airspace over the high seas and exclusive economic zone counts that the rules and regulations, as far as they concern air navigation services, may be applied in that airspace in a manner consistent with that adopted for airspace over the providing state’s territory and territorial waters. In case aircraft carrying the nationality mark of a contracting state to the Chicago Convention violate the applicable rules and procedures, each contracting state to the Chicago Convention shall insure the prosecution of the persons violating the regulations applicable.349 Depending on the national law of the state, that is providing the air navigation services over the high seas or exclusive economic zone a victim of an act or omissions of the air navigation services may pursue a claim for damages. For an illustration of case law in the United States of America, see Blumenthal v. United States of America where the plaintiff was awarded damages from the US government for the wrongful death of plaintiff’s decedent in an accident over the high seas.350
347 According to Milde, for greater certainty it would be desirable for states to reach a consensus within the framework of ICAO and to issue an interpretative determination that, for the purposes of the Chicago Convention, its Annexes and other international air law instruments, the EEZ should be deemed to have the same legal status as the high seas. M. Milde, ‘United Nations Convention on the Law of the Sea – Possible Implications for International Air Law’, (1983) 8 AASL 167, at 200. The ICAO Secretariat has meanwhile provided the statement. For additional information on the views of ICAO on the status of the exclusive economic zone, see: P.M.J. Mendes de Leon and E.J. Molenaar, ‘Still a Mile too Far? International Law Implications of the Location of an Airport in the Sea’, (2001) 14 LJIL 233, 239 and 242-244. 348 See Annex 11, supra note 75, Para. 2.1.2. and note 1 thereto. 349 Art. 12 Chicago Convention. 350 Blumenthal v. United States of America, (1960) 189 F.Supp. 439. A civilian died after bailing out of a military aircraft over the international waters between Korea and Japan. The government had been negligent in its provision of air navigation services. Although the control tower had received the proper location details of the aircraft, it made a mistake as to the identity and location of the aircraft when radioing the details to the rescue centre. This error caused a substantial delay in the rescue mission which was considered a factor in causing the decedent’s death. Under the so-called Death On the High Seas Act (DOHSA), there is a right of action for death caused by the wrongful act, negligent or default occurring on the high seas. In D’Aleman v. Pan American World Airways, (1958) 259 F.2d. 493 the court held that the DOHSA is not restricted to ships only, but extends to other methods of travel as well. The law would be static if a passenger on a ship was protected by the DOHSA, but another passenger three thousand feet above in an aircraft was not. The DOHSA only provides for a legal regime restricted to private parties and therefore did not allow claims against the United States government for negligent provision of Air Traffic Services. Claims for damages against the United States government should be filed under the so-called Federal Tort Claims Act (FTCA) which allows, to a certain extent, immunity in favour of the government. In Blumenthal v. United States of America the government was negligent in its efforts to rescue deceased, in radioing incorrect information to rescue control and in neglect of rescue control to promptly check back to obtain correct rescue information. The Court held that, in the same manner as a private person is liable under the DOHSA, the United States government is held likewise liable under the FTCA. In Richards v. United States of America, (1962) 369 U.S. 1. the Supreme Court confirmed that the FTCA is designed primarily to remove the sovereign immunity of the United States from suits
90 Cross-border provision of air navigation services
Albeit not connected with the provision of extra-territorial air navigation services as such, the so-called Air Defence Identification Zones of the United States of America and Canada are worthwhile mentioning as, to certain extent, they are also related to extra-territorial air navigation services. The Air Defence Zones are extra-territorial zones over the high seas that are subject to air navigation service screening and serve as a national defense boundary for air traffic. Any aircraft that wishes to fly in or out the boundary must comply with particular reporting requirements. Aircraft flying into these zones without authorisation are considered to be a threat to the security of the countries. The Canadian zone is called the Canadian Air Defence Identification Zone (CADIZ) and the zone established by the United States of America is called the Air Defence Identification Zone (ADIZ).351 In order to ensure sufficient time for counter measures in cases of military attacks into the territory of those states, both states require aircraft entering Canadian or US airspace to comply with identification- and location requirements.352 There are reports that states like Australia, Indonesia, Japan and France also have standing Air Defence Identification Zones where civil aircraft are required to identify themselves before entering the national airspace of those states.
The legality of ADIZ and CADIZ rests much more on comity and tolerance by other states then on strict law.353 After all, the United States of America and Canada extent their national rules and reporting obligations towards a portion of airspace that fall outside their territorial jurisdiction. In case of infringement of the reporting obligations in the airspace over the high seas or exclusive economic zone, the states cannot take enforcement measures. This is different if foreign aircraft actually enter Canadian or US territorial airspace after violating the CADIZ or ADIZ rules in which event the states could take action towards the foreign aircraft for failing to comply with conditions of entry.354
in tort and, although there are specific exceptions mentioned in the act, to render the government liable in tort as a private individual would be under like circumstances. By drawing a parallel with the DOHSA, the FTCA would make the US government liable for the negligence of its public agency (FAA) that as air traffic controller in the performance of its duties, to the same extent as a private person, would be liable to the claimant in accordance with the law where the act or omission occurred. This raises the interesting question as to where the negligent act(s) of the FAA occurs if the Air Traffic Services are provided within the territory of the United States. What state law is applicable if the air traffic control centre in New York issues instructions to an aircraft in the airspace of New Jersey which results in a crash in Pennsylvania, each state having its own laws? Information received from discussion with G.N. Tompkins Jr., Of Counsel at Wilson, Elser, Moskowitz, Edelman & Dicker LLP. See also S.K. Hamalian, ‘Liability of the United States Government in Cases of Air Traffic Controller Negligence’, (1986) 11 AASL 55, at 60. Also C.F. Krause and K.C. Krause, 2 Aviation Tort and Regulatory Law, (2005) Part IV, Government Liability - Chapter 15: United States, at Paras. 15.1, 15.16 and 15.18.; and J.L. Rigelhaupt Jr, ‘Liability of United States for Negligence of Air Traffic Controller’, 46 American Law Reports ALR Federal 24. 351 The Canadian Air Defence Identification Zone (CADIZ) established in 1951 by means of a Candian NOTAM. The American Air Defence Identification Zone (ADIZ) was enacted by means of a Presidential Executive Order in the 1950’s. For additional information on the establishment of the ADIZ, see Code of Federal Regulations, Title 14, Aeronautics and Space, Chapter I, Subchapter F: Air Traffic and General Operation Rules, Part 99: Security Control of Air Traffic (1963). Part 99.3 defines ADIZ: The ADIZ means an area of airspace over land or water in which the ready identification, location, and control of civil aircraft is required in the interest of national security. For CADIZ, see Order Respecting Security Control of Air Traffic Air Navigation Order, Series V, No. 14 (1961). 352 K. Hailbronner, ‘Freedom of the Air and the Convention on the Law of the Sea’, (1983) 77 AJIL 490, at 515-519. Also N. Grief, Public International Law in the Airspace of the High Seas (1994), 146- 147. 353 B. Cheng, ‘The Right to Fly’, (1957) 42 Problems of Public and Private International Law 99, at 102. 354 W. Heere, ‘Problems of Jurisdiction in Air and Outer Space’, (1999) 24 Air Law 70, at 76-77.
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4.2.2.2 Undetermined sovereignty: Antarctica
Contrary to the North Polar Region, Antarctica is not an area of floating sea-ice and has underlying landmass. In certain places, particularly in the mountainous regions, landmass is actually exposed to the surface.355 By 1945 seven nations, the United Kingdom, New Zealand, Australia, France, Norway, Chile and Argentina made claims to territory on the Antarctic continent. Also, Norway filed a claim. The United States and the Soviet Union refrained from making any territorial claim, but refused to recognise the validity of claims of the other states whilst expressly reserving the right to make such claim themselves. Their basis of claim related to the continent as a whole.356 The international scientific co-operation in 1957 brought about wide-scale knowledge over the Antarctic continent.357 It made states realise that some legal arrangement was necessary ensuring a stable basis for continued scientific activities and international co-operation on the continent.358 This resulted in the Antarctic Treaty.359
The novelty of the treaty lies in the fact that during its continuance it puts existing sovereignty claims into a state of suspense.360 Nothing in the treaty shall be interpreted as a renunciation of previously asserted rights of or claims to territorial sovereignty in Antarctica, or a renunciation or diminution of any basis of claim to territorial sovereignty in Antarctica which a contracting state may have as a result of its activities or those of its nationals in Antarctica.361 Also, nothing in the treaty shall be interpreted as prejudicing the position of any contracting state as regards its recognition or non-recognition of any other states right of or claim or basis of claim to territorial sovereignty in Antarctica.362 Just to make sure that no rights arise whilst the treaty is in force, the treaty even provides that no acts or activities taking place whilst the treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty or create any rights of sovereignty.363
Taking into account the aforementioned, the airspace over Antarctica qualifies as airspace of undetermined sovereignty. In the event states wish to provide air navigation services in such airspace such portion of airspace of undetermined sovereignty where air traffic services will be provided shall be determined on the basis of a regional air navigation agreement that, on its turn, is embedded in the Regional Air Navigation Plan. Similar to the provision of air navigation services over the high seas or in the airspace over the exclusive economic zone discussed in the previous Chapter, states may impose rules and regulations in a manner consistent with those that are applicable in the airspace over that state’s territory and territorial waters. 364
The provision of air navigation services in the airspace over Antarctica has been undertaken by the United States of America. Under the Antarctic Program of the United States, the so- called Naval Support Force Antarctica provided for Air Traffic Services over the Antarctic
355 S.A. Watts, International Law and the Antarctic Treaty System (1992), 112-113. 356 J.I. Charney, The New Nationalism and the Use of Common Spaces (1982), 168-169. 357 A. van der Essen, ‘The Origin of the Antarctic System’, in F. Francioni and T. Scovazzi (eds.), International Law for Antarctica (1996), 17 at 18-19. 358 Ibid. 359 1959 Antarctic Treaty, 402 UNTS 71. 360 R. Jennings and A. Watts (eds.), Oppenheim’s International Law (1992), Volume I (Part 2 to 4), at 694-695. 361 Art. IV(1)(a) and(b) Antarctic Treaty. 362 Ibid., Art. IV(1)(c). 363 Ibid., Art IV(2). 364 See Annex 11, supra note 75, Para. 2.1.2. and the note 1 and note 2 thereto.
92 Cross-border provision of air navigation services continent.365 On 28 November 1979 air navigation services were provided to a DC-10 of Air New Zealand that was heading to Antarctica with 237 passengers and 20 crew for a sightseeing tour. The pilots had been provided with faulty co-ordinates by the airline and had subsequently filed these faulty co-ordinates in the aircraft board computer. The pilots changed the flight path of the aircraft about 45 kilometres east of the actual path that they should have taken. Whilst approaching what the pilots thought was the location McMurdo Sound they performed a low-flying sweep and did not realise that they were actually heading towards a 3794 metres high active volcano called Mount Erebus. The white of the ice blended with the white of the rising mountain and therefore there was probably no contrast that would indicate to the pilots the sloping up of the land. The aircraft flew straight into the mountain killing all passengers and crew.366
Again it depends on the national law of the state providing the air navigation services as to whether or not damages are awarded for negligent provision of services. In Beattie et al v. United States of America the plaintiffs claimed damages from the United States of America.367 Firstly because of alleged negligence of the United States Navy Air Traffic Controllers at McMurdo Naval Air Station in Antarctica and secondly for the negligence in the selection, training and supervision of the navy personnel at McMurdo base by officials of the Department of Defense. The claim was based on wrongful death under the Federal Tort Claims Act (FTCA) and the court first of all had to resolve whether or not Antarctica was to be recognised a foreign country or not. This had nothing to do with an alleged territorial claim of the United States to Antarctica, but was raised in order to establish as to whether Antarctica would qualify as a foreign country under the national law of the United States. The FTCA waives sovereign immunity from the US government for particular cases but bars claims if these arise in a foreign country.
The Court of Appeals upheld the District Court’s finding that the events had not occurred in a foreign country upon which the claim could proceed.368 Subsequently the case was referred back to the District Court for trial that ruled that the air traffic controllers had not been negligent in causing or contributing to the crash of the aircraft.369 The reasoning on foreign
365 J. Inglis, ‘Mac Center, nerve center’, The Antarctic Sun, 5 December 1999: According to Inglis Antarctica still relied on the flight controllers from the McMurdo station in 1999 which at that time was controlling three thousand square miles of airspace. Even flights from Africa and New Zealand routinely crossed Antarctica at that time on great circle routes.
Chapter 4 93 country under the FTCA has meanwhile been reversed by the Court of Appeals in the case Smith v. United States of America.370 Because of this court ruling it is doubtful whether plaintiffs may continue to file complaints against the United States of America for negligent Air Traffic Service by the FAA in portions of airspace over undermined sovereignty such as Antarctica. This is different for negligent provision of air navigation services over the high seas where claims under the FTCA are likely to succeed.371
4.2.3 Autonomy
Cross-border provision of air navigation services should be differentiated from air navigation service providers that are offering air navigation services in autonomous entities. Certain states have limited the exercise of national competencies by attributing powers, including the provision of air navigation services, to autonomous entities. The term autonomous entity should not be confused with the term autonomous authority that is commonly used in the field of air navigation services. With respect to the latter, the term autonomous authority is used for air navigation service providers that are independent entities which are established for the purpose of operating and managing one or more air navigation services and empowered to manage and use the revenues it generates to cover its costs. This will be further discussed in Chapter 5.2 where attention will be paid to corporatised and privatised air navigation service providers.
The term autonomous entity is referring to a particular region which has the right to be different and left alone from the governing state.372 The powers of the autonomous entity usually include legislation, administration and adjudication to those matters, which fall under the responsibility of the entity.373 By means of autonomy the autonomous group is able to protect individual rights and to preserve, develop and strengthen its particular identity against the rest of the population of the sovereign state.374 The founding document between the autonomous entity and the governing state will specify the extent of the autonomous powers. Former colonies or dependencies have sometimes been granted autonomous competencies for internal affairs, but mostly there are restricted competencies with respect to external affairs.375
The granting of autonomy to a territorial unit does not result in abandonment of sovereignty by the (parent) state. There is merely a delegation of the exercise of particular national competencies by the (parent) state. See the decision by the Permanent Court of International Justice in Lighthouses in Create and Samos of 1937.376 The question raised with the Court
370 Smith v. United States of America, (1993) 507 US 197, 122 L.Ed.2d 548. The husband of Mrs Smith was killed in Antarctica whilst working for a private firm under contract to a federal agency. The claim was barred by the FTCA because of the foreign country exception. The Court of Appeals ruled that the ordinary meaning of foreign country included Antarctica. See also J.A. Beckman, ‘Citizens without a Forum: The Lack of an Appropriate and Consistent Remedy for United States Citizens Injured or Killed as the Result of Activity above the Territorial Air Space’, (1999) 22 Boston College International and Comparative Law Review 249. 371 See Ch. 4.2.2.1. 372 H. Hannum, Autonomy, Sovereignty, and Self-Determination (1990), 4. 373 D. Raič, Statehood and the Law of Self-Determination (2002), 281-282. 374 Ibid., at 282. 375 D.W. Greig, International Law (1976), at 93-94. Greig when discussing the definition of “state” draws a parallel with the internal powers of a federal state and the position of such government in relation to the overall federal government governing all various parts of the entire federation. However great the internal authority, governments of the individual members of a union, as in the case of the states of the United States of America, do not operate on the international plane, partly because they have no constitutional power to do so, but also partly because they are not considered by foreign states as representing entities with international personality. A federal state could be considered as a full- fledged state with statehood if the other states recognise such federal states as such. 376 Lighthouses in Crete and Samos (France v. Greece), PCIJ Series A/B, no 71 (1937), at 94.
94 Cross-border provision of air navigation services was whether concession contracts concluded between a French firm and the Ottoman Government (Turkey) were duly entered into and operative as against the Greek government in so far as it concerns lighthouses situated on the territories of Crete and Samos. Due to the wide autonomy of Crete and Samos the Sultan of the Ottoman Empire had to accept important restrictions on the exercise of his rights of sovereignty in those territories. However, at the time of conclusion of the contract in dispute Crete and Samos still formed part of the Ottoman Empire and that sovereignty had not ceased to belong to him.377
The granting of an autonomous status to a territorial unit does not disturb the unity of the (parent) state.378 The extent of the powers being delegated to the autonomous entity should be clearly indicated in legal documentation. This has been illustrated by the case Interpretation of the Statute of the Memel Territory (1932).379 After occupation by Lithuania, the British, French, Italians and Japanese on the one hand and Lithuania on the other hand concluded a convention in which the four allied powers transferred the sovereignty over the Memel territory to Lithuania. Whilst Lithuania would enjoy full sovereignty over the territory, the underlying convention allowed the people of Memel to manage local affairs.
Memel became an autonomous entity enjoying legislative, judicial, administrative and financial autonomy within the limits described by the convention.380 Upon examining the facts, the court argued that the extent and exercise of autonomous competencies presuppose the existence of clear legal rules. The underlying convention stated that those affairs that were not within the competencies of the local authorities of the Memel Territory would remain within the exclusive jurisdiction of the competent organisations of Lithuania.381 The intention of the parties was to ensure to the transferred territory enjoyed a wide measure of legislative, judicial, administrative and financial decentralisation, but which should not disturb the unity of the state of Lithuania. Memel’s autonomy only existed within the limits fixed by the convention and, in the absence to the contrary in the convention, the rights ensuing from the sovereignty of Lithuania would prevail382.
As indicated earlier, the autonomous entity can have exclusive competencies in the field of legislation, judicial as well as administrative areas. This can also encompass powers in the field of the air navigation services. Depending on the extent of autonomous powers that have been delegated to the autonomous entity the aircraft operating through its airspace would have to adhere to its local rules and regulation. For purpose of explaining the impact of air navigation service provision by autonomous entities, this study has selected arbitrary as example the provision of air navigation services in The Netherlands Antilles and Aruba (4.2.3.1) and in Hong Kong and Macao (4.2.3.2). In the event of infringement, the autonomous entity requires the assistance of the (parent) state to take enforcement steps under the Chicago Convention. As also recognised under the Chicago Convention, the contracting states of that convention undertake to insure the prosecution of all persons violating the regulations applicable.383
377 Ibid., at 103. 378 See R. Jennings and A. Watts, supra note 54, at 275-276. 379 Interpretation of the Statute of the Memel Territory (United Kingdom, France, Italy, Japan v. Lithuania), PCIJ Series A/B, No 49 (1932), at 294. 380 Ibid., at 299-300 and 313. 381 Ibid., at 313. 382 Ibid., at 314. 383 Art. 12. Chicago Convention.
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4.2.3.1 The Netherlands Antilles and Aruba
In the early days of the 17th century, the territories as the East Indies, Surinam and the Netherlands Antilles were regarded as forming part of The Netherlands. According to the Constitution of the Kingdom of The Netherlands of 1948 the territory of the Kingdom comprised the territory of the Netherlands in Europe (hereinafter referred to as “The Netherlands”), Indonesia, Surinam and the Netherlands Antilles.384 The Kingdom of The Netherlands as a whole is to be considered a sovereign state that is acting as a subject of international law.385 In 2007 the Kingdom of The Netherlands is constituted of the three autonomous entities The Netherlands, The Netherlands Antilles and, because of its separation from The Netherlands Antilles, Aruba. The Netherlands Antilles cover the territories Bonaire, Curaçao, Saba, Sint Eustatius and the Dutch part of Sint Maarten. The interrelationship of the state and each of the autonomous entities is defined in the Charter of the Kingdom of The Netherlands.386
Each autonomous entity shall serve its own interest and domestic affairs independent from any of the entities, provided that particular affairs enumerated in the Charter, so-called Kingdom Affairs like matters dealing with defence and the conclusion of treaties or other agreements, remain within the exclusive competence of the Kingdom of The Netherlands.387 The autonomous entities often enter into discussion, negotiations and conclude treaties with foreign states. This sometimes causes confusion. See the conclusion by the Kingdom of The Netherlands of three Open Skies agreements with the United States of America.388
The Kingdom of the Netherlands as parent state is the official actor and internationally responsible for the acts or omissions of its autonomous entities. Within the maritime sector, the fishing vessel Eternal has been the cause of international turmoil. The fishing vessel was flying the flag of The Netherlands Antilles and was caught by the French authorities in 1999 because of illegal fishing activities. In 2002 the same vessel was caught by the Australian
384 M. Igarashi, Associated Statehood in International Law (2002), at 34-35. 385 H.F. van Panhuys, ‘The International Aspects of the Reconstruction of the Kingdom of The Netherlands in 1954’, (1958) 5 NILR 1, at 20. 386 Statuut voor het Koninkrijk der Nederlanden [Charter of the Kingdom of the Netherlands], Staatsblad 1998, 579. On 11 October 2006 it was decided that the territories Bonaire, Saba and Sint Eustatius shall no longer form part of the autonomous entity The Netherlands Antilles, but become part of the autonomous entity The Netherlands and, similar to the already existing municipalities with the latter entity, become subject to a majority of the laws imposed by it. On 3 November 2006, it was agreed that each of the two remaining territories of The Netherlands Antilles, this being Curaçao and Sint Maarten, would become autonomous entities just like Aruba. Upon completion, the Kingdom of the Netherlands would comprise the following autonomous entities: The Netherlands, Aruba, Curaçao and Sint Maarten. 387 Ibid., Art. 3. For treaty making competencies in The Kingdom of The Netherlands, see J.G. Brouwer, Treaty Law and Practice in The Netherlands (2002). 388 J.R.C. Huijg, ‘An Analyses of the Air Transport Regime between the Metropolitan Country and the Overseas Countries of The Kingdom of The Netherlands’, (1996) 21 AASL-Part I 181, at 195. See also, P.M.J. Mendes de Leon, ‘The Dynamics of Sovereignty and Jurisdiction in International Aviation Law’, supra note 207, at 490. The Kingdom of The Netherlands concluded three Open Skies agreements with the USA. Firstly, in 1992 the Kingdom of The Netherlands concluded a treaty for the entire kingdom. Furthermore, in 1997 it concluded Open Skies agreements with the USA for the purpose of regulating services with the USA and Aruba and, lastly, also concluded a similar agreement for transport between the USA and the Netherlands Antilles. This web of treaties gave rise to confusion when a US carrier wanted to operate a route Puerto Rico-Aruba-Bonaire with the right to carry traffic between Aruba and Bonaire. This was rejected by The Netherlands Antilles on the basis of cabotage. This both on the basis of the 1992 agreement (concluded for the Kingdom of the Netherlands excluding intra-Kingdom carriage) and the 1997 agreements.
96 Cross-border provision of air navigation services navy for the exactly the same reason.389 The management and conservation of marine fisheries lies within the exclusive competence of The Netherlands Antilles.390 However, as the illegal-fishing activities infringes particular principles of international law, this could result in the fact that the parent state, The Kingdom of The Netherlands, as subject of international law, is held responsible by third states for the acts or omissions of its autonomous entity. The Ministry of Foreign Affairs contacted the relevant authorities in The Netherlands Antilles to enquire about measures that would be taken in relation to the Eternal and to prevent similar incidents in the future.391
Similar complications have arising in the field of aviation. Reference is made to the ICAO audit in the year 2000 that revealed that, amongst others, The Netherlands Antilles had no system or procedure for listing and notification to ICAO of differences between the national provisions and those issued under the framework of the Chicago Convention as is required under that convention.392 Already in 1994 the Netherlands Antilles was held by the United States’ Federal Aviation Authorities not to be in compliance with international safety oversight standards. A second example in the field of aviation relates to the recordation of aircraft on the Aruba aircraft register in the year 1995. The national authority of Aruba had contracted out the recordation of aircraft to a commercial company based in Miami and at the same time Aruba eased the recordation of aircraft by imposing less stringent conditions and requirements.393 It would allow the registration of particular aircraft and would thereby go against prevailing international policy.394
Lastly, also in the field of air navigation services there have been problems with the autonomous entities of the Kingdom of The Netherlands. The US Federal Aviation Administration (FAA) had been providing technical assistance to the Netherlands Antilles and Aruba for a period over then years on the basis of a memorandum of understanding. The FAA checkt, amongst others, efficiency and effectiveness of radar systems and organisational structure of airports in The Netherlands Antilles. The FAA abruptly decided to halt its service provision and requested a treaty dealing with the aviation activities it undertook in The Netherlands Antilles. The Kingdom of the Netherlands had to provide a guarantee that the FAA was to be held free and harmless from any liabilities.395
The fishing- and aviation examples illustrate that the Kingdom of The Netherlands is not always the independent actor, but as parent state is the independent subject of international law and bears the ultimate responsibility to the other subjects of international law for the acts or omissions of (or occurring within) its autonomous entities. The Charter of the Kingdom of The Netherlands provides for a remedy if the Netherlands Antilles or Aruba continue to refrain from adhering to the international regulations to which the state itself is a party.396 The Kingdom of the Netherlands is empowered to take all necessary measures if the autonomous
389 A. Groot, ‘Mazen in het net’ [A hole in the net], Algemeen Dagblad, 22 November 2003, at R3. 390 E.J. Molenaar, ‘Netherlands Antilles and Aruba: Marine Fisheries in the Netherlands Antilles and Aruba in the context of International Law’, (2003) 18 The International Journal of Marine and Coastal Law 127, at 133. 391 Ibid., at 134-135. 392 ICAO, Universal Safety Oversight Audit Programme: Audit Summary Report of the Civil Aviation Authorities of The Netherlands and The Netherlands Antilles of 2000, Para. 3.1.3. 393 M.A.M. Schenk, ‘Registratiebeleid van luchtvaartuigen met een case-study van het Arubaanse beleid’ [Registration of aircraft with a case-study on the policy of Aruba], thesis from the International Institute of Air- and Space Law, University of Leiden of June 1998 (unpublished), at 58. 394 Ibid., at 60. The brochures being issued indicated that Aruba would register so-called chapter 2 aircraft. This would contravene the prevailing policy in The Netherlands as well as the policy of the Federal Aviation Authorities of the United States and Joint Aviation Authorities. 395 ‘US wants treaty for FAA airport controls’, The Daily Herald, 27 October 2003.
Chapter 4 97 entities act inconsistent with the applicable rules of international law. This intervention in the domestic affairs of the autonomous entity should be regarded as the ultimum remedium.397
4.2.3.2 Hong Kong and Macao
Following the opium war the Hong Kong area was gradually occupied by the British that concluded a lease agreement with the Peoples Republic of China (China). Although doubtful whether the entire area became part of British territory or whether or not there had merely been a delegation of the exercise of sovereign competencies in favour of the British, the United Kingdom and China came to an understanding upon reviewing their relationship towards Hong Kong. By means of the Joint Declaration of 1984 the Chinese government would resume the exercise of sovereign rights over Hong Kong which had its effect on 1 July 1997.398
The so-called Basic Law of Hong Kong formalises the relationship between China and Hong Kong.399 According to the Basic Law of Hong Kong, despite the region being an inalienable part of China, it is authorised to exercise a high degree of autonomy and enjoys executive, legislative and independent judicial capabilities.400 Issues on foreign affairs relating to Hong Kong are generally channelled to the Chinese government, albeit that Hong Kong upon using the name “Hong Kong China” can maintain and develop relations, conclude and implement agreements with foreign states and regions and international organisations, unless this involving air services agreements.401 Contrary to the Charter of the Kingdom of The
397 W.H. van Helsdingen, Het Statuut voor het Koninkrijk der Nederlanden (1957), 516. Action by the competent authorities of The Kingdom of The Netherlands can only take place if there is no prospect that the authorities of the autonomous entity shall remedy the differences. There should be a status quo between the Kingdom authorities and those of the autonomous authority. The commentary by Van Helsdingen dates back from the time that Suriname was still part governed by the Charter of the Kingdom of The Netherlands, but due to the fact that the wording of the current Charter (without reference to Suriname) reflects the same language, it is the author’s opinion that the underlying commentary still prevails. 398 P.M.J. Mendes de Leon, Cabotage in Air Transport Regulation (1992), 83-86. See also M.K. Chan and D.J. Clark, The Hong Kong Basic Law, Blueprint for “Stability and Prosperity” under Chinese Sovereignty? (1991). 1984 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, 23 ILM 1366 (1984). The wording of the Joint Declaration seems to imply that despite foreign occupation by the British, the territory had always been subject to the sovereignty of China. 398 1990 Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, (1990) 29 ILM 1511. 399 1990 Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, (1990) 29 ILM 1511. 400 Ibid., Arts. 1 and 2. According to Art. 2. the National People’s Congress authorises the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law of Hong Kong. 401 Ibid., Art. 13: The Central People’s Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region. The Central People’s Government authorises the Hong Kong Special Administrative Region to conduct relevant external affairs on its own in accordance with this Law. According to Art. 151: The Hong Kong Special Administrative Region may on its own, using the name “Hong Kong, China” maintain and develop relations and conclude and implement agreements with foreign states and regions and relevant international organisations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, tourism, cultural, and sports. Art. 132: All air services agreements providing air services between other parts of the People’s Republic of China and other states and regions with stops at the Hong Kong Special Administrative Region and air services between the Hong Kong Special Administrative Region and other states and regions with stops at other parts of the People’s Republic of China shall be concluded by the Central People’s Government. Representatives of the Government of Hong Kong Special Administrative Region may, as members of the delegations of the Government of the People's
98 Cross-border provision of air navigation services
Netherlands the Basic Law of Hong Kong explicitly delegates to the autonomous entity the provision of air traffic services in the Hong Kong FIR. The autonomous entity is responsible for its own matters of routine business and technical management of civil aviation, including the provision of air traffic services.402 Similar to the Kingdom of The Netherlands, China, as independent subject of international law, is international responsible to other subjects of international law for the acts or omissions of its autonomous entity and should therefore make sure that the autonomous entity complies with the regulatory framework imposed by the Chicago Convention.
Next to Hong Kong, also Macao, a former Portuguese area located on the Southeast coast of China became an autonomous entity. By way of a joint declaration China resumed the exercise of sovereignty over the territory.403 This was followed by the launching of the Basic Laws of Macao.404 China recognises a high degree of autonomy and executive, legislative and independent judicial powers, including that of final adjudication of Macao.405 The Government of the Macao Special Administrative Region may only with the authorisation of China formulate various systems for the civil aviation management.406 There is no explicit mentioning of provision of air traffic services, or discharging of other responsibilities under the regional air navigation procedures of ICAO as is the case with Hong Kong.
4.2.4 Preliminary Remarks
The extra-territorial provision of air navigation services or the provision of air navigation services by autonomous entities are different from the cross-border provision of air navigation services. As discussed in Chapter 4.2.2 in case of extra-territorial provision of air navigation services over the high seas, the exclusive economic zone or in portions of airspace of undetermined sovereignty (Antarctica), the rules and regulations as far as they concern air navigation services, may be applied in a manner consistent with those adopted for the airspace over the providing state’s territory and territorial waters. Chapter 4.2.3 illustrated that autonomous entities, like The Netherlands Antilles, Aruba and Hong Kong, may have been delegated national competencies from the parent state as far as air navigation services are concerned. They may be able to provide air navigation services and issue their own rules and regulations as far as their autonomous territories are concerned albeit that the parent state bears the ultimate responsibility if the autonomous entity refrains from complying with the international rules and regulations (like ICAO Standards) against the other subjects of international law.
In case of cross-border provision of air navigation services, contrary to extra-territorial provision of air navigation services, the Chicago Convention recognises the airspace sovereignty of the state in whose airspace the air navigation services are being provided. The air navigation service provider may, as such, not impose its own rules and regulations in the
Republic of China, participate in air service consultations conducted by the Central People’s Government with foreign governments concerning arrangements for such services referred to in the first paragraph of this Article. 402 Ibid., Art. 130: The Hong Kong Special Administrative Region shall be responsible on its own for matters of routine business and technical management of civil aviation, including the management of airports, the provision of air traffic services within the flight information region of the Hong Kong Special Administrative Region, and the discharge of other responsibilities allocated to it under the regional air navigation procedures of the International Civil Aviation Organization. 403 Joint declaration of the Government of the People's Republic of China and The Government of the Republic of Portugal on the question of Macao
Chapter 4 99 airspace of another state, unless this is otherwise agreed between the two states involved. Before discussing the extent in which states have concluded bilateral- and multilateral arrangements facilitating cross-border provision of air navigation services, the next Chapter will focus on state responsibility and state liability. After all, as evidenced by the provision of air navigation services by autonomous entities, the failure of meeting particular international rules and regulations could trigger responsibility of the (parent) state. To what extent could such failure trigger state responsibility and (if any) state liability?
4.3 Responsibility and Liability
4.3.1 Responsibility
To what extent should the question of state responsibility play a role as far as the delegation of air navigation service provision is concerned? Should states take this into consideration when entering into bilateral- or multilateral arrangements?
In order to ascertain whether there is state responsibility, the pre-question that should be answered is what constitutes state responsibility in the first place? For the purpose of this study, when referring to state responsibility, the concept of state responsibility this is based on the work undertaken by the International Law Commission and its articles on state responsibility for international wrongful acts.407
The articles on state responsibility for internationally wrongful acts are to a large extent based on customary international law. Although they have not been finalised, they are even in their draft form cited by several parties and judges at the International Court of Justice.408 According to these articles every internationally wrongful act of a state entails the international responsibility of that state.
There is an internationally wrongful act of a state when, firstly there is conduct consisting of an action or omission that, secondly, is attributable to the state under international law and, thirdly constitutes a breach of an international obligation of the state.409 For there to be state responsibility, this does not require damage. Finding that a state’s conduct is contrary to an international obligation and is attributable to the state suffices to determine state responsibility.410 However, the state committing an internationally wrongful act is liable for reparation. Every breach of an international obligation carries with it a duty to repair the harm caused. This duty to provide reparation is an international obligation resulting from the commission of an internationally wrongful act and should be considered as a new and
407 The topic of state responsibility has been on the agenda of the International Law Commission since 1949. This resulted in a final draft text that was submitted to the General Assembly of the United Nations. For the text of the Articles and commentaries on the articles on state responsibility, see: United Nations, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10). See also United Nations, General Assembly, Resolution Adopted by the General Assembly: Responsibility of States for Internationally Wrongful Acts (A/Res/56/83) of 12 December 2001. The Annex to the Resolution contains the draft articles on Responsibility of States for Internationally Wrongful Acts. 408 D. Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’, (2002) 96 AJIL 833, at 834. Also D.D. Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’, (2002) 96 AJIL 857 at 872. According to Caron the articles represent (at best) a restatement of the customary international law of the secondary principles of state responsibility. For additional information on the finalisation of the draft articles by the International Law Commission, see also J. Crawford, J. Peel and S. Ollson, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading’, (2001) 12 EJIL 963. 409 See the Annex to the Resolution with the draft articles, supra note 408, Arts. 1-2. 410 C. Dominicé, ‘The International Responsibility of States for Breach of Multilateral Obligations’, (1999) 10 EJIL 353, at 359-360.
100 Cross-border provision of air navigation services separate obligation, independent from the primary obligation the breach of which constituted the internationally wrongful act in the first place.411
The first legal consequence of international responsibility is of course that the wrongdoing state is obliged to cease the illegal conduct. In terms of reparation, this can take place in the form of restitutio in integrum (restitution in kind), which means undoing the wrongdoing by restoring the pre-existing situation to re-establish the situation that existed before the illegal act was committed.412 Perhaps it is materially impossible to re-establish the situation before the illegal act was committed, in which event the injured state may have to rely on another measure, satisfaction. Satisfaction may be granted as an alternative to, or concurrently with the last form of reparation that will be discussed shortly, compensation. Through satisfaction, like by way of an official apology, there is reparation for moral, immaterial or non-pecuniary damage caused by a state. Lastly, and perhaps even together with claiming satisfaction, the injured state may claim compensation for the damage suffered by the state.413
When applying these articles to the provision of air navigation services, the question is therefore whether air navigation service provision can trigger an internationally wrongful act of a state in which event there would be international responsibility of that state. Bearing in mind the breakdown as discussed earlier in this paragraph, the first question to be answered is whether or not the conduct consists of an action or omission. In this particular case that would require an act or omission by the air navigation service provider.
In the view of the author each aviation incident or accident is generally surrounded by various circumstances and could involve contributory negligence from both the air navigation service provider and the pilot-in-command. Contributory negligence was also considered by the District Court in the mid-air collision near Überlingen (Lake Constance) where, despite the instructions from the air traffic controller, the pilots of the Tupolev had been receiving instructions from their TCAS systems. Firstly, the District Court did not find a clear instruction in flight manuals, nor in ICO, EUROCONTROL or JAA documents or in national law that TCAS instructions should be adhered to by the pilots instead of complying with the air traffic controller instructions.414 Furthermore, the District Court dismissed the argument that the pilots should have reported the conflicting TCAS instructions to the air traffic controller because of the fact that this conflict could only be brought to the attention of the air traffic controller only at a time when it was probably too late anyway.415 Thirdly, any lack of simulator training by the crew of the Tupolev was dismissed because the problem of conflicting instructions would have remained the same.416 Lastly, the pilots followed the instruction of the air traffic controller to bring the aircraft rapidly into a descend and therefore cannot be blamed for descending to below the flight-level as instructed by the air traffic controller.417 The court came to the conclusion that there was no contributory negligence from
411 R. Wolfrum, ‘Reparation for Internationally Wrongful Acts’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Volume IV (2000), at 177. This was dealt with in the Chorzów Factory case. Chorzów Factory case, (Germany v. Poland), PCIJ, Series A, No. 17 (1928), at 29. According to the court it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. Reparation is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. 412 P. Malanczuk, Akehurst’s Modern Introduction to International Law (1997), 270-271. See also, F.G. von der Dunk, ‘Liability versus Responsibility in Space Law: Misconception or Misconstruction’, in American Institute of Aeronautics and Astronautics (ed.), Proceedings of the Thirty-Fourth Colloquium on the Law of Outer Space (1992), 363, at 364. 413 E.H. Riedel, ‘Reparation for Internationally Wrongful Acts’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Volume IV (2000), at 320. 414 See Bashkirian Airlines v. Bundesrepublik Deutschland (2006), supra note 25, at 36-39. 415 Ibid., at 41-42. 416 Ibid., at 42. 417 Ibid. at 42-43.
Chapter 4 101 the pilots of the Tupolev and therefore, the mid-air collision near Überlingen has arising from the omission of the air navigation service provider. Therefore, the first question as to whether or not the conduct consists of an action or omission can be affirmed.
For answering the second question as to whether or not the conduct is attributable to the state under international law and the third question whether this constitutes a breach of an international obligation of the state attention should be paid to Article 28 Chicago. According to this provision and as far as it concerns the provision of air navigation services, each contracting state undertakes to provide in its territory, so far as it may find practicable, air navigation facilities for the benefit of facilitating international air navigation. These air navigation services shall be provided in accordance with the Standards and Recommended Practices from time to time pursuant to the Chicago Convention. According to Article 28 Chicago there is an overall responsibility for firstly the provision of air navigation services and secondly for the provision of those services in accordance with the Standards and Recommended Practices.
As far as the second question for state responsibility is concerned, that is whether or not the conduct is attributable to the state under international law, this covers in the view of the author the operational aspect of the air navigation service provider, the provision of air navigation services as embedded in Article 28 Chicago. There is attributability in case air navigation services are provided within the governmental structure by civil servants. After all, the state can only perform air navigation services through its civil servants and the state’s responsibility encompasses the acts through its servants and agents performed in their official capacity.418 Hence, in the event air navigation services are provided by civil servants the act or omission of the air traffic controller shall be deemed attributable to the state. However, if those air navigation services are no longer provided through civil servants, but the state allows air navigation services to be provided through privatised entities, are the acts or omission of such provider still attributable to the state?
Controversy could arise when states allow the provision of air navigation services to be taken care of by providers that are outside the governmental structure, such as those air navigation service providers that have been corporatised or privatised. These latter providers are predominantly limited liability companies which are independent from the state.419 If the state allows such company to provide air navigation services in its airspace are the acts or omissions of the air traffic controllers of such limited liability companies still attributable to the state similar to acts or omissions from its civil servants? In space law there is an assumption of direct responsibility even for non-governmental space activities on the basis of the Outer Space Treaty.420 Contracting states bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such national activities are carried on by governmental or by non-governmental entities, and have to ensure that national activities are carried out in conformity with the provision of the Outer Space Treaty.421 Such activities, even when carried out by private entities, are to be treated as if they were activities of the state itself, which, as a result, accepts the legal consequences of such an assumption of responsibility.422 Even if these activities are performed outside the state’s
418 B. Cheng, Studies in International Space Law (1997), 604. 419 The corporatisation and privatisation of national air navigation services providers is further discussed in Ch. 5.2. 420 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (Outer Space Treaty), 610 UNTS 206. 421 Ibid., Art VI. 422 See B. Cheng, supra note 418, 606.
102 Cross-border provision of air navigation services territory.423 This provision is highly innovative in international law due to the fact that non- governmental activities are treated as if they were activities of the state itself.
However, the provision embedded in the space law conventions, the assumption of responsibility even for non-governmental provision of air navigation services, does not exist in the Chicago Convention. ICAO has been reviewing the restructuring developments that were taking place in the field of air navigation services and came to the conclusion that for reasons of significant economies and increased efficiency, air navigation services are operated by entities or bodies established outside the government structure. The air navigation services are no longer automatically operated by national civil aviation administrations.424 However, regardless of the organisational form under which air navigation services are provided, ICAO argued that according to Article 28 Chicago it is the state that is ultimately responsible for the provision and operation of those air navigation facilities and services.425 So notwithstanding the organisational format, the underlying state in whose airspace these air navigation services are being provided is ultimately responsible for the conduct of the air navigation service provider that is involved with the service provision, whether or not through its agents or through an entity outside its governmental structure.
In the view of the author, the attributability element that should be met for there to be state responsibility does not only cater for the provision of air navigation services by the state itself. It also covers suitable regulatory oversight and auditing of the privatised air navigation service provider, the failure thereof triggering the aforementioned attributability. In the event air navigation services are provided outside the governmental structure by a privatised entity, the state should retain regulatory oversight and verify the compliance by the air navigation service provider of pre-defined (and regulated) governmental parameters, rules and regulations, that on their turn are imposed on the state through the rulemaking competencies of ICAO, EUROCONTROL or the European Community. In the event of an act or omission of this privatised air navigation service provider it turns out that the state has failed to keep the appropriate regulatory oversight or has failed to verify the compliance of the air navigation service provider to rules and regulations imposed by the state, this could trigger the ultimate state responsibility. At the same time, if the state has met its obligations and has not failed to perform audits or regulatory oversight, the act or omission of the air navigation service provider should not trigger state responsibility.
Leaving the first aspect attributability that thus in the view of the author captures both the provision of air navigation services by the state or, in the view of the author, the failure of keeping regulatory oversight or perform audits and moving onward to the second aspect of the provision of air navigation services, which requires states to maintain services provided in their territory to be provided in accordance with the regulatory regime of the Chicago Convention. This regulatory aspect imposed on the states is of importance for the third
423 Ibid., at 607-608 and 617-618. It is submitted that national activities encompass firstly the state’s own activities, wherever conducted. Secondly activities by whomsoever conducted within the state’s territory, or by persons on board ships, aircraft or spacecraft of its nationality or registration when they are outside the territorial jurisdiction of any state as well as those activities of its nationals, physical or corporate outside the territorial jurisdiction of any other state. Thirdly, activities by or on board craft of its nationality or registration or by its nationals, wherever they are, if it is reasonably practicable for it to bring them back to within its effective jurisdiction. 424 ICAO, World Wide CNS/ATM Systems Implementation Conference, Rio de Janeiro 11-15 May 1998, ICAO Secretariat, National organizational and international co-operative issues, WW/IMP- WP/4 of 4 February 1998, Paras. 1.1 – 1.2. Air navigation services are no longer offered per se through governmental bodies but through corporatised and privatised entities that are further discussed in Ch. 5.2. 425 Ibid., Ch. 1.2. The state is responsible, regardless of the form of delegation. See also, F.P. Schubert, ‘An International Convention on GNSS Liability: When Does Desirable Become Necessary?’, (1999) 24 AASL 245, at 255.
Chapter 4 103 element that should be affirmed in order to constitute state responsibility. Is there a breach of an international obligation of the state?
According to Article 28 Chicago even in the case of the delegation of the provision of air navigation services, the state remains responsible for setting and maintaining the standards of the services provided as the air navigation services should be provided in accordance with the Standards and Recommended Practices.426 According to the Standard embedded in Annex 11, the objectives of the air traffic services shall be to prevent collisions between aircraft, prevent collisions between aircraft on the manoeuvring area and obstructions on that area, expedite and maintain an orderly flow of air traffic, provide advice and information useful for the safe and efficient conduct of flights and, lastly, notify appropriate organisations regarding aircraft in need of search and rescue aid and assist such organisations as required.427 Is this Standard an international obligation, the breach hereof resulting in international responsibility of the state in whose territory the act or omission occurred? As earlier discussed in this study, states are allowed to derogate from Standards in good faith.428 However, in the author’s opinion the aforementioned Standard with, in short, its objective being the prevention of collisions between aircraft, between aircraft and obstacles on the ground and to expedite and maintain an orderly flow of air traffic is as a fundamental international objective for which it would be very hard to understand why the contracting states would be able to derogate here from. In the event states allocate airspace in which it offers air traffic services through civil servants, corporatised- or privatised entities, it should not be possible for such states to derogate from this objective.
Going back to the element of responsibility, can the provision of air navigation services trigger a breach of an international obligation? In order to address this question, let us assume that there is a mid-air collision between two aircraft and a near-miss, a near collision between two aircraft. The fact that according to Article 28 Chicago each contracting state should undertake, as far as practicable, provide air navigation services pursuant to the Standards and Recommended Practices pursuant to the Chicago Convention is not a strong evidence for state responsibility as far as near-miss or mid-air collisions are concerned. After all, whether or not a mid-air collision or near-miss occurs, the state has been providing the air navigation services and met its obligations under the aforementioned provision. However, the provision also says that the air navigation services should be provided in accordance with the Standards and Recommended Practices. According to the Standard in Annex 11, the objective of air traffic services is to prevent, in short, collisions between aircraft, between aircraft and obstacles on the ground as well as to expedite and maintain an orderly flow of air traffic that the non-compliance with this provision triggers state responsibility. If there is a mid-air collision between two aircraft, the aforementioned Standard has clearly not been met. The same applies to a near-miss, a near collision, between two aircraft. In that case the Standard relating to safeguarding and maintaining an orderly flow of air traffic has not been met either. Therefore, in the author’s view, the failure to meet the objective in the airspace of the state in whose territory the air traffic services are being provided qualify as a breach of an international obligation of the state.
The foregoing analysis focussed on the possibility that the state provided air traffic services either through its public law administration, or through corporatised or privatised entities in its own airspace. However, states may also engage in cross-border provision of air navigation services and either delegate the provision of air navigation services in their airspace to the authority (air navigation service provider) of another state or delegate the exercise of this national competency to an international organisation. Would any such delegation change the
426 See Art. 28 Chicago Convention. See also F.P. Schubert, ‘An International Convention on GNSS Liability: When Does Desirable Become Necessary?’, supra note 425, at 256. 427 Annex 11, supra note 75, Para 2.2. 428 See Ch. 2.3.4.
104 Cross-border provision of air navigation services outcome of the aforementioned analysis? In other words, would it relieve the delegating state from any state responsibility?
The Standard and explanatory note thereto refer to the delegation of responsibility as a state may delegate to another state the responsibility for establishing and providing air traffic services in flight information regions, control areas or control zones extending over the territories of the former.429 The explanatory note to the Standard says firstly, that upon delegating the responsibility for the provision of air traffic services over its territory, the state does so without derogation of its national sovereignty. Secondly, the explanatory note confusingly continues by saying that the providing state’s responsibility is limited to technical and operational considerations and does not extend beyond those pertaining to the safety and expedition of aircraft using that airspace.430 Does this imply that the providing state, rather than the delegating state, automatically bears state responsibility when failing short in offering the technical and operational support as far as the safety and expedition of aircraft is concerned? In the view of the author, not only is the legal standing of the explanatory note highly questionable, it should not be considered as an automatic delegation of state responsibility from the delegating state to the providing state. Similar to the delegation of air navigation services to corporatised or privatised bodies established for that particular purpose other than national civil aviation administrations the underlying state continues to bear state responsibility for breaching international obligations in its airspace. After all, in case of a near miss or mid air collision arising from an act or omission of the air navigation service provider in the airspace of the delegating state, the delegating state simply did not meet the objectives of air traffic services in its airspace. However, this does not mean that states are prohibited from re-arranging state responsibility amongst themselves by way of bilateral- or multilateral agreements. This re-arrangement of state responsibility will be further analysed later in this study.431
4.3.2 Liability
There are terminological doubts on the distinction between the terms responsibility and liability. Liability has been considered as the result of the violation of a general duty (“responsibility”) for which reparation of the resulting damages is due. In this case the term liability is merely a substitute for responsibility.432 It has been argued that the provisions on state liability should not be used as illustration that there is indeed a difference between the two terms. It is more likely that the term responsibility was simply avoided since it would run the risk of being associated with “ordinary” responsibility, whereas the aim was to cover situations of “strict” responsibility and the circumstance under which such strict responsibility arises is defined in these particular treaties.433
In this study there is reference to state liability if there is a breach of legal norms that causes damage to another such as in the case of a mid-air collision. A situation of near-miss, basically a near collision, will not trigger as state liability as defined in this study. This due to the fact that, in principle, the near-miss does not cause any physical damage to aircraft as collision has, albeit sometimes at a very critical moment, been avoided. The aircraft never hit each other and no physical damage occurred. Of course this could be different in the events pilots, whilst undertaking evasive action to avoid the potential mid-air collision, by their flight
429 See Annex 11, supra note 75, Para 2.1.1. 430 Ibid., explanatory note to Para 2.1.1. 431 See Ch. 4.5. 432 N.L.J.T. Horbach, Liability versus Responsibility under International Law, Defending Strict State Responsibility for Transboundary Damage (1996), 77. B.E. Young, ‘Responsibility and Liability for Unlawful Interference in International Civil Aviation’, 28 Air Law Supplement (February 2003), at 10-11. 433 Ibid.
Chapter 4 105 manoeuvres cause passengers on board to be injured. However, this will not further be discussed in this study.
As discussed in Chapter 4.3.1, in the event of international responsibility there is an explicit obligation to make integral reparation to that other person for the damage caused.434 There are a few conventions acknowledging state liability with respect to some specific risk creating activities in the area of international maritime- and nuclear law.435 See furthermore the Outer Space Treaty and its supplementary the Liability Convention where state liability is explicitly acknowledged.436 Contrary to the aforementioned Outer Space Treaty or Liability Convention there is no explicit reference to liability, let alone state liability, in the Chicago Convention, the Annex 11 thereto, the Revised Convention (as provisionally applied) or the Single European Sky regulations.437 There has been a draft convention dealing with the liability of air traffic control agencies.438 However, this convention does not deal with state liability but with the unification of national rules where the convention aimed at unifying national liability regimes in contracting states as far as liability of air traffic control agencies is concerned, including questions towards the extent, exemptions from, as well as the sharing of liability in proportions of the gravity of the fault of parties in case of contributory negligence. The draft convention will be further discussed in Chapter 5.5.2.
The very fact that there is international responsibility or, if there is damage, international state liability, triggers the obligation of reparation through restitution in integrum, satisfaction or compensation of damage. After all, a breach of an international engagement involves an obligation to make reparation. See earlier Chapter 4.3.1. However, in case of cross-border provision of air navigation services and for the benefit of the delegating state (the injured state) that allows the air navigation service provider of another state to provide air navigation services, the delegating state will want to make sure that in case of a mid-air or near-miss in its airspace, that state as injured state is able to claim damages from the providing state and is not running the risk of merely getting satisfaction by way of official apology. Several states have in their cross-border arrangements explicitly acknowledged that the injured state will be compensated for damage suffered in its airspace. This is dealt with in the underlying bilateral- or multilateral agreements. There shall be pecuniary reparation by one state to the other state in the event damages are caused by the negligent provision of air navigation services.439 The
434 See B. Cheng, supra note 418, at 612. 435 T. Gehring and M. Jachtenfuchs, ‘Liability for Transboundary Environmental Damage, Towards a General Liability Regime’,(1993) 4 EJIL 92, 97. 436 See Outer Space Treaty, supra note 420, Art. VII: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the moon and other celestial bodies. See also 1972 Convention on the international liability for damage caused by space objects (Liability Convention) 961 UNTS 187. According to Art. II Liability Convention: A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight. 437 In the Single European Sky regulations there is reference to liability, but this does not involve state liability. See the Service Provision Regulation, supra note 223, Art. 6 where the provision dealing with Common Requirements refers to liability. However, this involves liability of the air navigation service provider and not state liability. See also the Interoperability Regulation, supra note 211, Annex V. This involves the liability of the notified bodies and the obligation to take out insurance for this body unless the liability of the body is assumed by the state in accordance with national law, or if the state itself is directly responsible for the inspections. Again this involves liability of the body but not state liability. 438 Preliminary Draft on the International Convention on the Liability of Air Traffic Control Agencies, submitted by the Republic of Argentina to the 25th Session of the ICAO Legal Committee (Montreal 12-27, 1983) as published in Air Law (1983), at 539-561. 439 For additional information, see for example Ch. 4.4.1.2 on the bilateral agreement between Germany and The Netherlands for cross-border provision of air navigation services involving Weeze
106 Cross-border provision of air navigation services various inter-state liability arrangements as defined in bilateral- or multilateral arrangements and compensation of damage suffered due to cross-border provision of air navigation services will be further analysed in Chapter 4.4.1 and 4.4.2 below.
The kind of recourse arrangement surrounding cross-border provision of air navigation services in the bilateral- or multilateral agreements should not restrict themselves to issues of damage as in state liability for damage arising out of a mid-air collision but should also cater for situations of state responsibility such as in cases of a near-miss. After all, if the delegating state is confronted with a near-miss in its airspace this could trigger reparation, potentially in the form of restitution in integrum, compensation or satisfaction. In terms of damage, there is no physical damage suffered in case of a near-miss. However, the nature of the breach of the duty may make it dependent as to whether or not damage can indeed be quantified and awarded by an international tribunal.440 The current legal framework would channel a claim for state responsibility to the delegating state. Also in circumstances where the state in whose airspace the cross-border air navigation services are being provided (delegating state) such state should be able to seek recourse on the providing state. In Chapter 4.5 the question arises whether or not the state can delegate its state responsibility (or if there is damage, its state liability) to another subject of international law, the so-called supervising authority, altogether which would prevent the delegating state from bearing state responsibility (or state liability) in the first place.
In the case concerning the mid-air collision near Überlingen (Lake Constance) the District Court also touched upon the matter of state liability. The District Court argued that no bilateral treaty had been concluded between Switzerland and Germany, the Letter of Agreement was considered to be no instrument under international law, nor had there been a delegation of the exercise of German national competencies (provision of air navigation services) to Switzerland on the basis of international customary law. Furthermore, the court held that this particular case dealt with the liability claim from a private party, Bashkirian Airlines, and argued that even if the German state would have met the formal requirements for transferring the exercise of national competencies to Switzerland and thereby would have transferred or limited its liability such arrangement would not have had any effect against Bashkirian Airlines. This would only have been different if Germany had made specific national laws by which it channelled the liability arrangement that was made on the interstate level to the level of the private individual.441
This case serves as an illustration that an internationally wrongful act of a state does not automatically trigger an obligation for the state to repair damages suffered by private individuals. There is no obligation for states to repair damages suffered by individuals arising out of the state’s internationally wrongful act under the Chicago Convention and Annexes thereto. Any duty to repair damages suffered by private parties can only derive from the applicable national legislation. Subject to the national laws of a state, a private entity is able to make a direct claim on the basis of provision embodied in a treaty. The Rotterdam Airport case illustrates that under the national laws of The Netherlands a private individual is able to claim damages for an internationally wrongful act. See Chapter 2.3.4 for further discussion on
airport where there is a right of recourse in favour for the Dutch state to seek reimbursement for damages suffered. Also Ch. 4.4.1.3 on the EUROCONTROL Model Agreement on the Delegation of Air Traffic Services where the delegating state may bring an action against the providing state to recover compensation or costs paid or incurred as a result of loss or damage caused by the negligence of the providing state. See also Ch. 5.5.3 on inter-state liability in the event of cross-border provision of air navigation services. 440 I. Brownlie, Principles of Public International Law (2003), 446-447. 441 See Bashkirian Airlines v. Bundesrepublik Deutschland (case number 4 O 234/05 H), supra note 25, at 48-55 and 57-58.
Chapter 4 107 the common misconception that private individuals are able to generate rights and duties from the Chicago Convention.
4.4 Cross-Border Arrangements
The contracting states to the Chicago Convention may provide air navigation services within their territory through administrative bodies or through corporatised- or privatised entities. They may however allow other states or international organisations to provide air traffic services in their territory, such cross-border provision formalised by way of cross-border arrangements.442
Within Europe, states have entered into a variety of cross-border arrangements that all have in common the fundamental principle that flights in a particular block of airspace can only be under the control of one air navigation service provider at any given time.443 However, as those arrangements are concluded at different governmental levels or are sometimes concluded between two air navigation service providers without the states being aware, they do not qualify as bilateral- or multilateral agreements, but, at best, qualify as bilateral- or as a multilateral cross-border arrangements. The fact that states have not always resorted to pure bilateral- or multilateral agreements stems from the fact that the arrangements were concluded at an operational level which worked remarkably well from a technical point of view without the state sometimes being aware of such arrangement. The air navigation service providers did not deem it necessary to conclude bilateral agreements in this respect. The parties believed that the cross-border arrangements were only remotely related to legal matters.444
In the mid-air collision near Überlingen (Lake Constance), the German District court also had to examine the cross-border arrangements that were concluded. Although German y and Switzerland had been working on a treaty on the cross-border provision of air navigation services this treaty was not in effect at the date of the accident. The court had to consider whether the bilateral arrangement, the Letter of Agreement, could be considered as an instrument under international law under which there could have been a delegation of the exercise of national competencies to the other state. The court came to the conclusion that the Letter of Agreement should not be considered as a valid instrument under international law and therefore that there had not been a transfer from a national competency and therefore that the German state had to indemnify Bashkirian Airlines from third-party damage claims. For further information on this case, see Chapter 1.2.
This Chapter will examine several cross-border arrangements where firstly the bilateral arrangements and secondly the multilateral arrangements shall be taken into account. The main attention will be on which governmental level the arrangement was concluded and as to whether or not clear lines of state responsibility are embodied in the cross-border arrangement.
In exceptional cases there is no clarity as to the underlying arrangement at all, such as in the case of civil air navigation services by French military troops in relation to Sarajevo airport (Bosnia and Herzegovina). During the war, Sarajevo’s airport and air traffic control was managed by the French Air Detachment (DETAIR). At commencement of its operations, the French troops were tasked to unload aircraft at the airport and to control and protect the
442 For the concept of cross-border provision and cross-border arrangements, see Ch. 4.2.1. 443 The underlying principle that a controlled flight can only under the control of a single air traffic control unit at any given time is embedded in the Chicago Convention, see Annex 11, supra note 75, Para. 3.5. 444 F.P. Schubert, ‘The Financing of Cross Border Air Traffic Services – A Legal Perspective’, (2003) 28 AASL 121, at 128-129.
108 Cross-border provision of air navigation services runway from shellfire and snipers.445 When civilian airlines re-started their operations into Sarajevo in 1996, DETAIR had a dual task controlling both civilian aircraft coming in and out Bosnia and Herzegovina as well as managing military transports and fighter jets patrolling the airspace at the same time.446
In December 2002 a civilian aircraft of Crossair skidded of the runway when landing in snowy conditions at Sarajevo airport.447 Fortunately, due to wintry conditions, the soil had frozen and neither the aircraft, nor any of its passengers suffered damages. Although the responsibility of the pilot’s responsibility of descending and landing on a snowy airfield was taken into consideration, also the role of the air navigation service provider DETAIR was touched upon.448 When the accident occurred the constitution of Bosnia and Herzegovina had already been endorsed and according to that constitution air traffic control is the responsibility of the institutions of Bosnia and Herzegovina. Also Bosnia and Herzegovina has acceded and become a contracting party to the Chicago Convention.449 Therefore, in the event that there is no transparent line of responsibility dealt with in an underlying bilateral agreement between the French authorities and Bosnia and Herzegovina, this would mean that any questions towards state responsibility would have to be channelled to the latter state.
4.4.1 Bilateral Arrangements
4.4.1.1 Letters of Agreement
The first bilateral arrangements to be considered are so-called Letters of Agreement (LoA) that play a very important role in the context of cross-border provision of air navigation services. The purpose of the LoA is defined in the ICAO Standards.
The responsibility of control over arriving or departing aircraft is transferred from the unit providing control service to another when the aircraft is at a prescribed point or level as specified in the LoA.450 Also, responsibility for control of an aircraft shall not be transferred from one unit to another, without the consent of the accepting control unit and the applicable co-ordination procedures, including transfer of control points, shall be specified the LoA.451 With great accuracy, the LoA stipulates at which co-ordinate the control is handed over to a controller vested in another state. Extensive details on the scope of the LoA are set forth in the Procedures for Air Navigation Services (PANS).452 The LoA covers (when relevant) the area where there is delegation of responsibility for the provision of air traffic services as well as the points or levels or times for the transfer of control to another air navigation service provider.453 The LoA does not qualify as a bilateral agreement, but is an agreement signed at the level of air navigation service provider or at the level of the director of civil aviation authority.
445 H. Vale, ‘Air Tower Control – training begins’, SFOR Informer (16 February 2000). 446 B. Ménard, ‘DETAIR Sarajevo’, SFOR Informer (19 September 2001). A. Gouy, ‘End of an era for DETAIR’, SFOR Informer (9 January 2003). 447 P. Fernández Vicente, ‘Accident at Sarajevo Airport’, SFOR Informer (17 January 2002). 448 Ibid. 449 The Constitution of Bosnia and Herzegovina was defined in Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina. The entire agreement with Annexes is also referred to as the Dayton Peace Agreement, negotiated in Dayton, Ohio, November 1-21, 1995 and signed in Paris on December 14, 1995. See Art. III (Responsibilities of and relations between the institutions of Bosnia and Herzegovina and the entities). 450 See Annex 11, supra note 75, Para. 3.6.1.3. 451 Ibid., Para. 3.6.2.5. 452 The role of PANS in the regulatory framework of ICAO have been discussed in Ch. 2.3.3. For LoA information, see PANS-ATM Doc 4444-ATM/051 (2001), at Para. 10.4. 453 Ibid., Para. 10.4.1.
Chapter 4 109
According to the Dutch Civil Aviation Act it is the Minister of Transport and the Minister of Defence who have the right to appoint a body of a neighbouring state to provide services in the Amsterdam FIR, or allow the Dutch air navigation service provider to provide services in the portion of airspace of an adjoining state.454 In order to combat air traffic congestion the Ministers appointed the London Air Traffic Control Centre to provide air traffic services in the Amsterdam FIR thereby enabling the British air navigation service provider to issue instructions and re-route aircraft in a particular portion of Dutch airspace.455 These arrangements between the Dutch- and British air navigation service provider have been formalised in a LoA. Another decision by the Ministers was made with respect to air navigation service provision by the Danish air navigation service provider to provide services in a portion of airspace of the Amsterdam FIR.456 The Danish air navigation service provider had the best radar coverage over the area and would also enable a more efficient (shorter) routing for aircraft. Again, arrangements between the service providers were formalised by way of a LoA.
Interestingly, according to the Dutch civil aviation act the Ministers are able to appoint a body of a neighbouring state to provide air navigation services. Taking into account the corporate restructuring of air navigation service providers, such as the restructuring of the British air navigation service provider and the LoA concluded between the Dutch- and British entities, this also appears to cover the situation where the providing state has delegated the provision of air navigation services to a non-governmental entity.457 Other than an acknowledgement in the LoA that there is a transfer of the responsibility for the control of an aircraft, the parties have not taken into account the establishment of transparent lines of state responsibility for international wrongful acts deriving from the act or omission of the air navigation service provider.
4.4.1.2 Bilateral Agreement
Secondly, states concluded bilateral agreements for the purpose of cross-border provision of air navigation services. Back in 1963 the United States of America and Canada formalised a structure similar to the LoA on the basis of a bilateral agreement that was formalised by way of an exchange of notes between the USA and Canada.458 On the basis set forth in the notes the states agreed on measures to insure the orderly, efficient and safe control of aircraft operating in the airspace near the common boundary of the United States of America and Canada. The competent authorities charged with the responsibility for air traffic control in the two countries were authorised to conclude further arrangements at lower governmental level if they agree that the orderly, efficient and safe control of air traffic makes it desirable that there is exercise of air traffic control by one country in specified segments of airspace above the territory of the other country. The delegation of the provision of air navigation services is subject to the condition that the delegation of the provision of air traffic control is within fifty nautical miles of the common boundary of the two states.459 Also, any air traffic control provided in such segments should be provided in accordance with the air traffic regulations of
454 Arts. 5.14(1)(b) and 5.14.(2) of the Wet Luchtvaart [Dutch Civil Aviation Act] of 26 January 2005, Stb. 2005, 41. 455 Besluit van Ministers van Verkeer en Waterstaat en Defensie [Decree of the Ministry of Transport, Public Works and Water Management and Ministry of Defence] of 19 April 1994, Staatscourant 1999, 235. 456 Besluit van Minister van Verkeer en Waterstaat en de Staatssecretaris van Defensie [Degree by Ministry of Transport, Public Works and Water Management and State secretary of Defence] of 21 December 1998, Staatscourant 1998, 249. 457 For more information on the corporate restructuring of air navigation service providers, see Ch. 5.2 and 5.3. 458 1964 Exchange of Notes Constituting an Agreement Between The United States of America and Canada Relating To Air Traffic Control, 494 UNTS 21. 459 Ibid.
110 Cross-border provision of air navigation services the country over which the aircraft are operating and, furthermore, in accordance with the national laws and regulations of the state of which that segment is a part.460
The Netherlands and Germany have also entered into a bilateral agreement for the benefit of the German air navigation service provider that is providing air navigation services in a portion of the airspace over the territory of The Netherlands.461 Pending the formal approval in the Dutch parliament this bilateral agreement was already provisionally applied from 1 May 2003 whereas the treaty formally entered into effect as from 1 October 2006.462
The former military airport Laarbruch located in Germany that is currently operating under the name Weeze-airport is used for civil purposes. The airport is located near the Dutch border and Amsterdam FIR and because of this unique location all flights arriving at, or departing from the airport would be subject to intensive collaboration between the German and Dutch air traffic controllers which was regarded an operational nightmare. Therefore the Netherlands allows German air traffic controllers to provide air navigation services to those aircraft in a portion of airspace over Dutch territory.463 In other words, Germany has been delegated by the Netherlands the national competency to designate the authority responsible for providing air navigation service in that portion of Dutch airspace.464
460 The agreement between the United States of America and Canada has been revised in favour of lighter arrangements where, contrary to an intergovernmental agreement, the government of the United States of America, for the benefit of the FAA, has entered into a delegation instrument with the Canadian air navigation service provider NavCanada. See also F.P. Schubert, ‘The liability of Air Navigation Services in the Single European Sky’, (2003) 28 AASL 57, at 74. 461 Verdrag tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland inzake de uitoefening van de luchverkeersleiding door de Bondsrepubliek Duitsland boven Nederlands grondgebied alsmede de gevolgen van het burgergebruik van luchthaven Niederrhein op het grondgebied van het Koninkrijk der Nederlanden [Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany on the provision of air traffic control by the Federal Republic of Germany over Dutch territory and the consequences for civil usage of the airport Niederrhein on the territory of the Kingdom of the Netherlands] of 29 April 2003, Tractatenblad 2003, 85. The treaty was approved in the Dutch government at 30 June 2005 in the Wet van 30 Juni 2005 tot goedkeuring van het op 29 April 2003 te Berlijn totstandgekomen Verdrag tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland inzake de uitoefening van de Luchtverkeersleiding door de Bondsrepubliek Duitsland boven Nederlands grondgebied alsmede de gevolgen van burgergebruik van de luchthaven Niederrhein op het grondgebied van het Koninkrijk der Nederlanden [Law of 30 June 2005 on the approval of the treaty concluded in Berlin on 29 April 2003 between The Kingdom of The Netherlands and Germany on the exercise of air navigation services by Germany over Dutch territory and the consequences of civil usage of the airport Niederrhein on the territory of the Kingdom of The Netherlands] of 30 June 2005 , Staatsblad 2005, 421. The treaty entered into effect on 1 October 2006, see Verdrag tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland inzake de uitoefening van de luchverkeersleiding door de Bondsrepubliek Duitsland boven Nederlands grondgebied alsmede de gevolgen van het burgergebruik van luchthaven Niederrhein op het grondgebied van het Koninkrijk der Nederlanden [Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany on the provision of air traffic control by the Federal Republic of Germany over Dutch territory and the consequences for civil usage of the airport Niederrhein on the territory of the Kingdom of the Netherlands] of 29 April 2003, Tractatenblad 2007, 7 at Para. G. 462 Besluit van Ministers van Verkeer en Waterstaat en Defensie [Decree by Ministry of Transport, Public Works and Water Management and Ministry of Defence] of 28 April 2003, Staatscourant 2003, 82, at 2. 463 Besluit van Ministers van Verkeer en Waterstaat en Defensie [Degree by Ministry of Transport, Public Works and Water Management and Ministry of Defence] of 28 April 2003, Staatscourant 2003, 82, at 12. See also J.E. de Boer, ‘Goedkeuring Verdrag inzake de uitoefening van de Luchtverkeersleiding door Duitsland boven Nederlands grondgebied en gevolgen burgergebruik luchthaven Niederrhein’ [Approval Treaty on the provision of air traffic control by the Germany over Dutch territory and the consequences for civil usage of the airport Niederrhein], 2004 (May) Tijdschrift Vervoer & Recht 120. 464 See Treaty between the Kingdom of The Netherlands and Germany, supra note 461, Art. 1(2).
Chapter 4 111
Similar to the bilateral agreement between the United States of America and Canada also the cross-border agreement between the Netherlands and Germany says that at a lower governmental level, the parties shall define specific operational details in a LoA.465 Furthermore, the German provider shall, again similar to the USA and Canadian agreement, apply those rules and regulations in place over the territory of The Netherlands.466 Hence, the German air navigation service providers should provide rules and regulations imposed by the Dutch authorities. In addition hereto, the bilateral agreement between Germany and The Netherlands contain more details as it also deals with aircraft-accident investigation for accidents occurring in the portion of airspace.467 Also there is also a section dealing with environmental issues and limitation of flight operations where flights may generally only depart or approach the airport from 6.00 in the morning up to 23.00 in the evening. For purposes of noise pollution, the treaty provides noise zoning.468 The states shall establish a joint air navigation board to discuss the ongoing air navigation service operations and other aspects in this respect.469 In case of disputes the states will refer to arbitration.470
Contrary to the bilateral agreement between the USA and Canada, the bilateral treaty established a right of recourse for the Dutch state if damage is caused by air traffic to persons or goods at the territory of The Netherlands. The Dutch state shall indemnify damages in accordance with the applicable liability provisions for air navigation service providers under Dutch law and no claims can be filed against the German state or its designated ANSP.471 There is exclusive jurisdiction of the competent court in The Netherlands.472 However, Germany shall indemnify The Netherlands for any costs and damages suffered by The Netherlands.473 Notwithstanding such formal organisation of liability in case of damage and recourse provisions in favour of the delegating state, Germany and The Netherlands may of course decide to join forces as also happened in the context of the mid-air collision near Überlingen. Skyguide, the Swiss Confederation and Germany jointly established a compensation fund as to compensate the relatives of those persons that died in the plane crash. Claims connected with the loss of the aircraft involved and other claims arising from the accident were to be dealt with by means of the compensation fund.474
In terms of transparent lines of responsibility, as far as it concerns claims for damages arising to persons or goods in the territory of The Netherlands, no claim can be lodged against the German state or the air navigation service provider that was designated by the German authorities, but only against the Dutch state which is, on its turn, indemnified by Germany. As explained in Chapter 4.3.1 the breach of an international obligation does not per se have to be triggered by way of damage arising from an act or omission. If the Dutch state is challenged by another contracting party of the Chicago Convention for the failure to meet the objectives of air traffic services without there per se being damages, for example in the event of the failure to expedite and maintain an orderly flow of air traffic, the Dutch state cannot rely on the bilateral agreement with Germany for indemnification.
Similar bilateral agreements had been concluded by Switzerland for the benefit of the Swiss air navigation service provider Skyguide. Skyguide has for historic reasons been providing air
465 Ibid., Art 1(3). 466 Ibid., Art. 1(1). 467 Ibid., Art. 5. 468 Ibid., Arts. 6 and 7. 469 Ibid., Arts. 9 and 10. 470 Ibid., Art. 11. 471 Ibid., Arts. 3(1) and 3(3). 472 Ibid., Art. 3(8). 473 Ibid., Art. 3(2). 474 Skyguide media relations, ‘Foundation laid for Ueberlingen compensation fund: financial support pledged by Germany and Switzerland’ of 27 June 2003.
112 Cross-border provision of air navigation services traffic services beyond Swiss airspace and in 2004 was providing a total of 43 per cent of the entire services in the airspace of neighbouring states covering the airspace over Italy, France, Germany and Austria. The delegation of the provision of Air Traffic Services in France has been formalised in a bilateral treaty between Switzerland and France.475
For the benefit of cross-border provision of air navigation services in German airspace, the Swiss have been negotiating a bilateral agreement as well. This agreement would allow Switzerland to provide cross-border services in the airspace of Southern Germany through a Swiss appointed air navigation service provider.476 The air navigation services would be provided in accordance with the national law of the underlying state.477 Again, only in the event of damage to persons or goods in Germany, the bilateral agreement would allow for a right of recourse by Germany from Switzerland.478 Although the agreement was signed October 2001 the uproar on the accessibility of the airport of Zurich caused the instrument not to be ratified by either government.479 The District Court in its ruling on the mid-air collision near Überlingen (Lake Constance) argued that the delegation of the exercise of national competencies should have taken place pursuant to a bilateral agreement. The LoA was not an instrument under international law through which such delegation could take place. See for further information Chapter 1.2.
4.4.1.3 Eurocontrol Model Agreement on the Delegation of Air Traffic Services
In the 1990’s the EUROCONTROL working group argued that a common format of LoA’s could facilitate the implementation of common cross-border procedures which would enhance the common interpretation and application of these procedures. A common format, cross-
475 Bericht des Bundesrates, Bericht über die Luftfahrtpolitik der Schweiz 2004 [Report on the Swiss Aviation policy] (2004), at 70. D. Reynaud, ‘Delegation rhymes with co-operation’, 2004 (March) Skymag Magazine of the Swiss Air Navigation Service 12, at 13. For information on the feasibility study by the Swiss and French authorities on the establishment of a functional airspace block, see European Community and UK Department for Transport, Conference on the Functional Airspace Blocks, Crawley/Gatwick (UK) 12 January 2006, DSNA and Skyguide: French-Swiss FAB-FCH initiative. 476 Vertrag Zwischen der Schweizerischen Eidgenossenschaft und der Bundesrepublik Deutschland über die Durchführung der Flugverkehrskontrolle durch die Schweizerische Eidgenossenschaft über deutschem Hoheitsgebiet und über Auswirkungen des Betriebes des Flughafens Zürich auf das Hoheitsgebiet der Bundesrepublik Deutschland [Treaty between Switzerland and Germany on the execution of ATC by the Swiss over German territory and on defining the exploitation of Zurich airport on German territory] of 18 October 2001. See also, ‘Flugsicherungabkommen Schweiz – Frankreich genehmigt’ [‘Approval of Air Traffic Control arrangement Switzerland – France’], Press Release by Bundesamt für Zivilluftfahrt of 15 June 2001. 477 Ibid., Treaty on execution of ATC, Art. 1(1) 478 Ibid., Art. 3. 479Depending from which side one considers the matter, the agreement either protects German nationals from noise hindrance or hampers transit rights of the airlines departing from the Swiss airport due to the fact that the agreement restricts the departure- and approach time intervals of the Swiss airport. See J. Bentzien, ‘Der deutsch-schweizerische Vertrag über die Durchführung der schweizerischen Flugverkehrskontrolle im süddeutschen Luftraum und über Auswirkungen des Zürcher Flughafenbetriebes auf deutsches Hoheitsgebiet’ [The German-Swiss Treaty on the exercise by the Swiss Air Traffic Control in southern German airspace and the impact of the activities of the Zurich Airport on German territory], (2002) 51 ZLW 493, at 510. For a differing opinion, see K.H. Böckstiegel and J. Reifarth, ‘Die luftaufsicht im südwestdeutschen Raum’, (1983) 32 ZLW 183, at 204. Contrary to the first author, the latter argue that a right of innocent passage might be applicable with respect to non-stop transit flights over the territory of the applicable state. The airline Swiss International Air Lines has launched legal proceedings in Germany claiming that the German law is invalid. See Swiss International Air Lines AG v. Bundesrepublik Deutschland, [2005] BverwG 4 C 6.04. The case before the Court of First Instance is registered under the reference Case C-70/04. Skyguide reported that unilateral German regulations resulted in radical capacity reductions at Zurich Airport in: Skyguide, Annual Report (2003), at 8 and 17.
Chapter 4 113 border inter-centre Letter of Agreement was construed as a model for describing air traffic services co-ordination procedures to be used between the units of ECAC member states.480 This model LoA was accompanied with a bilateral agreement, the so-called model agreement on the delegation of air traffic services.481
Similar to the bilateral agreement concluded between the United States of America and Canada and the bilateral agreement between The Netherlands and Germany the model agreement allows lower level authorities to conclude LoA’s that define the portion of airspace concerned and specify the rules and procedures to be applied. The LoA to follow the structure of the previously mentioned common format LoA developed by EUROCONTROL.482
Contrary to the previous bilateral agreements, according to the EUROCONTROL model agreement, the rules and procedures pertaining to the provision of air traffic services in the providing state shall apply even in case of cross-border provision in the airspace over the delegating state.483 The explanatory note indicates that as a principle of sovereignty the rules and procedures of the delegating state apply in its territory, but it is actual practice to apply the rules and procedures of the providing state and such application is also in the interest of efficiency and safety.484 This was not allowed under the agreement between the United States of America and Canada and is not recognised under the bilateral agreement between The Netherlands and Germany either. See earlier Chapter 4.4.2.1. In both cases the service provider shall apply the rules in accordance with the laws of the underlying state.
The providing state shall recover damages caused by its negligence, that of its agents or any other person acting on its behalf. Claims against the providing state, its agents or any other person acting on its behalf shall be made subject to the national laws and in the competent courts of the providing state. Furthermore, even the delegating state may bring an action against the providing state to recover compensation or costs paid or incurred as a result of loss or damage caused by the negligence of the providing state, its agents or any other person acting on its behalf. Also these claims should be brought in the courts and subject to the national laws of the providing state.485
Similar to the comment raised on the bilateral agreements discussed in Chapter 4.4.2.1 there is therefore only a clear line of inter-state responsibility embedded in the bilateral agreement as long as the provision of air navigation services results in damage. There is no recourse in favour of the delegating state in case it is challenged by another state for international wrongful acts which have not resulted in damage like a mid-air collision. However, in the event of a near-miss, this potentially triggers an internationally wrongful act which is liable for reparation. See earlier Chapter 4.3.2 on reparation through restitution in integrum, compensation or satisfaction despite the fact that the near-miss did not result in physical damage as such. Only if the air navigation service provision results in damage, a claim can be lodged by the delegating state with the providing state. Lastly, just like the bilateral agreement between The Netherlands and Germany, also the EUROCONTROL delegation model has provisions dealing with the investigation of accidents and embodies a dispute resolution mechanism.486
480 EUROCONTROL, The Common Format, Cross-Border, Inter-Centre Letter of Agreement, (June 2001), at p. vi. 481 Ibid., Annex A: Model Agreement on the Delegation of Air Traffic Services. 482 Ibid., EUROCONTROL Model Agreement on the Delegation of Air Traffic Services, Art. 2(3)-(5). 483 Ibid., Art. 3. 484 Ibid., in the explanatory note to Art. 3. 485 Ibid. Art. 5. 486 Ibid., Arts. 10 and 11.
114 Cross-border provision of air navigation services
4.4.2 Multilateral Arrangements
4.4.2.1 Maastricht UACC
Whilst ratifying the Eurocontrol Convention (1960) states delegated the exercise of particular national competencies in the field of air navigation services in the upper airspace to EUROCONTROL. This was reversed under the Amended Convention at which time the three air traffic control centres located in Maastricht, Shannon and Karlsruhe returned to the competent authorities where the centres were located.487 The Benelux countries and Germany ensured the continuation of ATS-provision from Maastricht UACC in their upper airspace by concluding the multilateral agreement with EUROCONTROL.488
The international organisation facilitates and exploits installations and services for en-route air traffic from Maastricht.489 The states retain the power and obligations as far as legislation, rulemaking, organisation of the airspace and relations with international organisations, airspace users and other third parties are concerned.490 In accordance with the provisions of the Amended Convention EUROCONTROL provides and operate air traffic services on behalf of the contracting states and applies the regulations in force in the territories and in the airspace of the underlying contracting parties.491
According to the underlying agreement EUROCONTROL shall indemnify each contracting party to the agreement for damages arising from the services offered by EUROCONTROL through the Maastricht UACC. In the event the contracting state has made services available to EUROCONTROL for the performance of the latter’s services, EUROCONTROL has a right of recourse on such state to the extent to which such damage is attributable to said state.492 Furthermore, the underlying agreement recognises the general principle embedded in the Amended Convention for non-contractual liability of EUROCONTROL which covers third-party liability arising from the service provision at Maastricht UACC, the organisation shall repair damages caused by the negligence of its organs, or of its servants in the scope of their employment in so-far as that damage can be attributed to them.493
In terms of clear lines of state responsibility, the underlying state again only has a right of recourse on EUROCONTROL if damage was sustained as a result of the provision of air navigation services. Again there is no recourse in favour of the delegating state in case it is challenged by another state for international wrongful acts arising from the provision of air navigation services by EUROCONTROL which have not resulted in damage. However, in the event of a near-miss, this potentially triggers an internationally wrongful act which is liable for reparation. See earlier Chapter 4.3.2 on reparation through restitution in integrum, compensation or satisfaction despite the fact that the near-miss did not result in physical damage as such. Only if the air navigation service provision results in damage, a claim can be lodged by the delegating state. For disputes, the parties will resort to the dispute resolution mechanism under the Amended Convention.494
487 See Ch. 3.3.1. 488 See the Agreement on the facilitation and exploitation of installations and services for air traffic by EUROCONTROL in the Maastricht air traffic control centre of 25 November 1986, supra note 141. 489 Ibid., Art. 1(1). 490 Ibid., Art. 1(2). 491 Arts. 2(2)(b) and 15 Amended Convention. 492 See the Agreement on the facilitation and exploitation of installations and services for air traffic by EUROCONTROL in the Maastricht air traffic control centre of 25 November 1986, supra note 141, Art. 11(2). 493 Ibid., Arts. 11(3) and Art. 25(2) Amended Convention. 494 Ibid., Art. 13.
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4.4.2.2 CEATS
A similar organisation as Maastricht UACC has been considered for the upper airspace over Austria, Bosnia and Herzegovina, Croatia, Czech Republic, Hungary, Northern Italy, Slovakia and Slovenia. Again the EUROCONTROL organisation is requested to provide and operate ATS and facilities on behalf of the contracting states on the basis of a multilateral agreement.495
The Czech Republic, Slovakia and Hungary were the first states to ratify the multilateral agreement, this being followed by Austria and lastly Bosnia and Herzegovina in 2004.496 Because of the fifth ratification, the Central European Air Traffic Services Upper Area Control Centre (CEATS) was formally established and follow up could be given to the ad hoc resolution by the minister of transport of CEATS states of 2001, stating that initial operations should commence in 2007, full operations to be no later then the end of 2010.497 The CEATS should be providing services in the airspace of the participating countries from an operational control centre in Vienna (Vienna UACC).
The multilateral agreement for CEATS is a copy of the agreement that was entered into for Maastricht UACC, albeit that it is already referring to the Revised Convention and not to the Amended Convention. Similar to the Maastricht UACC, the Vienna UACC shall provide air traffic services in the upper airspace of the participating states thereby, amongst others, enhancing the routing of aircraft.498 Again each state retains, with regard to the airspace over its territory its competencies and obligations in respect of aeronautical regulations, rule making, airspace organisation and relations with international organisations, such as ICAO, and with airspace users and other third parties.499 Just like Maastricht UACC, the Vienna UACC shall provide and operate ATS on behalf of the contracting states and apply the regulations in force in the territories and in the airspace of the underlying states.500
Despite the parallel between the foundation of CEATS and Maastricht UACC, the two deviate in terms of institutional organisation and control. In case of Maastricht UACC EUROCONTROL is performing its tasks through its Agency whereas CEATS will be performing its tasks through a limited liability company. On the basis of the provisional application of the Revised Convention EUROCONTROL is allowed to create undertakings governed by specific articles of association governed by the national law of a contracting state.501 Given that CEATS is to be operated from Vienna UACC, it was held that a limited liability company would be established in accordance with the national corporate laws of Austria. The contracting states to CEATS have agreed to support the CEATS GmbH as the institutional model.502 The contracting states and EUROCONTROL shall be the shareholders of the company CEATS GmbH where EUROCONTROL retains the majority of the shares.
495 Agreement Relating to the Provision and Operation of Air Traffic Services and Facilities by Eurocontrol at the Central European Air Traffic Services (CEATS) Upper Area Control Centre. Concluded at Brussels on 27 June 1997. 496 ‘Central European Air Traffic Services (CEATS) Agreement to enter into force in August’, Press Release by EUROCONTROL of 15 July 2004. 497 EUROCONTROL, Resolution of the Ad hoc Meeting of the CEATS Ministers of Transport of 22 June 2001 (Budapest), at 2. 498 See Agreement Relating to the Provision and Operation of Air Traffic Services and Facilities by Eurocontrol at CEATS, supra note 495, Art. 1(1). 499 Ibid., Art. 1(2). 500 Arts. 2(2)(b) and 18 Revised Convention. 501 Art. 2(5) Revised Convention. For provision application of the Revised Convention, see Ch. 3.3.3. 502 Y. Fischer and N. Gautier, ‘CEATS, A regional ATM solution’, (2005) (Autumn) Skyway 14, at 17.
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Again EUROCONTROL indemnifies each state party to the agreement against any claim for damages arising from the services offered through CEATS. In the event states make services available to EUROCONTROL, EUROCONTROL has the right to seek recourse to the extent the damages are attributable to that state.503 Similar to the general principle under the Amended Convention, EUROCONTROL shall repair damages for third-party liability as far as these damages are caused by the negligence of its organs, or of its servants in the scope of their employment, in so far that these damages can be attributed to them.504 In terms of transparent lines of state responsibility the states are liable for damages arising from or in connection with the services by CEATS where the organisation, just like Maastricht UACC, will reimburse the state for such damages in second instance but there is no provision dealing with the breach of international obligations by CEATS that does not result in damage.
For any disputes, the parties shall resolve these by using the dispute resolution mechanism under the Revised Convention.505 Up to such time that the Revised Convention enters into force specific transitional provisions are applicable.506 The launch of the Single European Sky and FAB idea has triggered the national air navigation service providers of the CEATS states to try to establish one or more FABs coming under the CEATS agreement
4.4.2.3 NUAC
The third multilateral initiative is the establishment of the so-called Nordic Upper Area Control centre (NUAC) that has been undertaken Sweden, Denmark, Norway and Finland in 2002 when exploring the possibilities of establishing a common organisation for the provision of air navigation services in their upper airspace.507 NUAC would commence operations in the upper airspace of Sweden from November 2005 and for upper Danish airspace by February 2006 and the NUAC operating facilities would be provided from a new air traffic control centre in Sweden (Malmö). By the end of 2005 the NUAC initiative changed course and limited itself to the upper- and lower airspace of Denmark and Sweden with the option to include also other parts of Nordic airspace.508 The first step with the upper airspace of Denmark and Sweden should have been completed by July 2007.509 However, due to the implementation of the Single European Sky regulations this has not yet come about.
In studies undertaken with respect to NUAC and in a report issued in 2002, the parties explored the prospects of air navigation services provision in their upper airspace by means of a new organisation and various institutional models were considered.510 Firstly setting up an international organisation, secondly using delegation or outsourcing to an existing international organisation or to a state and thirdly setting up a limited liability company for the purpose of running the operations.511 The establishment of an international organisation as
503 See Agreement Relating to the Provision and Operation of Air Traffic Services and Facilities by EUROCONTROL at the Maastricht Area Control Centre, supra note 495, Arts. 11(1)-(2). 504 Ibid. Arts. 11(3) and 28(2) Revised Convention. 505 Ibid., Art. 13. 506 Ibid., Art. 16 and Annex IV. 507 M. Dambaek, ‘Cross-Border Cooperation – The Nordic Experience’, 2004 (July) CANSO NEWS 8, at 10. 508 Focus, ‘The Main Existing Regional Developments’, (2005) (Autumn) Skyway 6, at 7. 509 Luftfartverket and Naviar, NUAC Programme: Why, How & When. European Community and UK Department for Transport, Conference on the Functional Airspace Blocks, Crawley/Gatwick (UK) 12 January 2006, Luftfartverket and Naviar, NUAC Programme: Why, How & When. 510 Nordic Upper Area Control Centre Project (Nordic UAC): NUAC Project Phase 1 Report, published by the NUAC Project Group (Version 01.01 of December 2002), at 3 and 31-35. 511 Ibid., but see also extensively the Annex 3 thereto: NUAC Project Phase 1 Report, Appendix 3, Institutional and Organisational issues (Version 01.00 of 2002), at 3 and attachment 2 thereto: Attachment 2, Type of Organisational Entity, at 45-48.
Chapter 4 117 an operating organisation by way of a constituting treaty was considered time consuming, cumbersome and inefficient. Furthermore, the organisational model would run, amongst others, against the idea of separating operation from the regulatory and controlling functions.512 Combining an international organisation with a limited company as service provider would remedy the latter concern. The international organisation would then be able to regulate and control. However, again a treaty would have to be concluded among the participating states.513
The second possible solution was to delegate or outsource the operation and service provision to EUROCONTROL or to a state. The contracting states to the Nordic UACC insisted of having a joint operation rather then outsourcing the provision of air navigation services to a third party. Also delegation of service provision from one of the contracting states to the Nordic UACC or a third country or -company independent from the contracting states or any of their providers was dismissed.514
Finally, the best institutional structure was held to be the establishment of a limited liability company. This would give flexibility to the organisation and allow the possibility of entering into (future) joint ventures with the (existing) service providers of the participating states.515 NUAC would co-exist next to the current national air navigation service providers and there would be the establishment of a limited liability company under the laws of Sweden.516 The company should be established in Sweden and be subject to the national laws (including public control) of Sweden. Also Swedish law would regulate all aspects of the ongoing business, including corporate matters such as the memorandum of association, but also the working conditions of the staff. To the extent permitted by the corporate laws of Sweden, the shareholder agreement between the applicable shareholder and the entity would then set the limits in which the company operates. Transfer could be done on the basis of individual, commercial based contracts between the appropriate national authorities and the limited liability company. The contract would describe how the parties are supposed to perform, including definition of the services to be provided, the airspace concerned, prize, termination, liability and so on.517
Meanwhile, the parties to the NUAC program have launched another report in 2007 discussing the feasibility of a joint enterprise for carrying out air navigation services. This report is restricted to Danish and Swedish airspace.518 The parties considered a merger scenario where the air navigation service providers would merge into one organisation with the responsibility of carrying out air navigation services. Secondly, a collaboration scenario between the current air navigation service providers would act as co-owners of the providing entity that is carrying out the responsibility of providing air navigation services, but where Naviair remains responsible for providing air navigation services in a particular portion of airspace. Lastly, the parties considered an alliance as a light form of collaboration (i.e. possibility of one en-route charging zone) where the two entities establish an alliance company for the carrying out of certain support functions but where the current air navigation service providers remain in business.519
512 Ibid, Appendix 3, at 45-46. 513 Ibid., at 46-47. 514 Ibid., at 47-48. 515 Ibid., at 7. 516 See Nordic Upper Area Control Centre Project (Nordic UAC): NUAC Project Phase 1 Report, supra note 510, at 3. 517 Ibid., at 34. 518 NUAC Programme, Definition Phase Final Report: The Feasibility of a Joint enterprise for the carrying out of Air Navigation Services in Danish and Swedish Airspace, published by LVF and Naviair (Version 01.00 of 21 February 2007). 519 Ibid., at 5.
118 Cross-border provision of air navigation services
The parties came to the conclusion that based on financial- and non-financial benefits the merger scenario gives the best risk return relationship. Also bearing in mind the Single European Sky regulations as well as the Danish and Swedish current transport policies, the merger scenario would be the best choice.520
4.4.2.4 The draft Eurocontrol Model State Level FAB Agreement
Another European multilateral arrangement worthwhile mentioning is the draft Eurocontrol Model State Level FAB Agreement.521 This draft multilateral agreement has been developed by EUROCONTROL for the purpose of assistance the contracting states of the European Community to establish Functional Airspace Blocks (FABs) as required under the Single European Sky regulations.522 In principal it is drafted as a bilateral agreement between two states. According to the model agreement, the contracting states shall reconfigure and delineate the (portion) of airspace that is governed by the FAB, establish a FAB Committee for continued management of the airspace block and determine which air navigation services will be provided in the airspace block.523 Also certification, designation and charging mechanisms as also envisioned under the Service Provision Regulation are taken into account.524
Interestingly, contrary to the previous model agreements, damage claims are not channelled to the state, but to the air navigation service provider. The air navigation service provider is liable for damages caused and any such claim shall be made in the court of the state in whose territory the damage occurred and subject to the law of that state. Furthermore, the contracting state in whose territory the damage occurred may bring an action against the air navigation service provider to recover any compensation or costs paid or incurred as a result of loss or damage caused by the negligence of the air navigation service provider.525
520 NUAC Programme, Definition Phase Final Report: The Feasibility of a Joint enterprise for the carrying out of Air Navigation Services in Danish and Swedish Airspace, Executive Summary published by LVF and Naviair (Version 01.00 of 21 February 2007), at 3. 521 The EUROCONTROL Model State Level FAB Agreement (version 0.9) is still in draft form and developed by the same EUROCONTROL Legal Task Force that developed the EUROCONTROL Model Agreement on the Delegation of Air Traffic Services that was discussed in Ch. 4.4.1.3. 522 For additional information on the Functional Airspace Blocks, see Ch. 3.4.2. 523 See, the Draft EUROCONTROL Model State Level FAB Agreement (version 0.9), supra note 521, Arts. 5-7. 524 Ibid., Arts. 10-12. 525 Ibid., Article 14: According to the Liability provision of the draft model FAB Agreement: 14(1) The air navigation services provider(s) providing services within the Functional Airspace Block under the provisions of this agreement shall be liable for the damages caused by its/their negligence or that of its/their agents, or of any other person otherwise acting for the implementation of this agreement. No direct claim shall be brought against the air navigation services provider(s)' agents, or any other person otherwise acting for the implementation of this agreement when fulfilling their duties. 14(2) Claims against the air navigation service provider(s) pursuant to paragraph 1 shall be made in the courts of the Contracting State in whose territory the damage occurred and subject to the law of that Contracting State. 14(3) The Contracting State in whose territory the damage occurred may bring an action against the air navigation services provider(s) to recover any compensation or costs paid or incurred as a result of loss or damage caused by the negligence of the air navigation services provider(s) or that of its/their agents or any other person acting on its/their behalf, while acting for the implementation of this agreement. The action shall be brought in the Courts and subject to the law of the Contracting State in whose territory the damage occurred. 14(4) Where through acts or omissions the National Supervisory Authority(ies) contribute to the damage, the air navigation service provider(s) may bring an action to recover compensation or cost paid or incurred pursuant to paragraph 1 proportionate to the National Authority(ies)' contribution to the damage. The action shall be brought in the Courts and subject to the law of the Contracting State
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In terms of transparent lines of state responsibility, the agreement, at first glance, similar to the previously discussed bilateral agreements, only seems to safeguard recourse for the benefit of the delegating state in the event of damage and does not remedy international wrongful acts of delegating states that occurs in its airspace without there being damage. However, when reading the section on designation of service providers, the draft text of the agreement indicates that it would also have to cover supervisory responsibilities of states in respect of their on-going responsibilities under Article 28 Chicago and regulatory requirements of EUROCONTROL, including ESARRs insofar not transposed into EC law, and how these are to be managed in the context of cross-border service provision. Hence, the draft text, albeit in brackets and there not being specific proposed text, does consider the issue of transparent lines of state responsibility.526 Therefore, in view of the author this reference to responsibility implies that not only attention will be paid to a right of recourse in case the provision of air navigation services results in a damage claim, but also a right of recourse for states in the event the provision of air navigation services has resulted in an international wrongful acts that, as such, have not resulted in a direct damages as such.
For the benefit of wide-scale cross-border provision the providing state should pick-up the responsibility of the delegating state as far as the provision of air navigation services triggers an international wrongful act in the airspace of the delegating state, this whether or not the international wrongful act has resulted in damages. This concept will be subject of further studying in the next Chapter 4.5 that deals with the concept of the responsibility of the Supervising Authority.
4.4.2.5 COCESNA and ASECNA
Similar to the reasons behind establishing EUROCONTROL, the use of jet propelled aircraft, the growth in the industry driven by a rise in demand for air transportation services and technological advancement also prompted a number of states in Central America to search for ways and means to meet their safety oversight obligations in the field of air navigation services.527 This lead to the establishment of the Corporación Centroamericana de Servicios de Navegación (COCESNA), or in other words, the Central American Corporation for Air Navigation Services. The initiative was undertaken by Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua and formalised on the basis of a multilateral agreement that was signed on February 1960.528 Belice was the sixth state to join COCESNA in 1996.
that nominated or established the National Supervisory Authority(ies) in compliance with article 4 of the SES Framework Regulation. 526 Ibid. According to the proposed text on the Designation of the Service Provider(s) (Article 10) this entire Article is still under discussion. The following remark, between brackets, was placed in Article 10(10): [This Agreement would also have to cover supervisory responsibilities of the States in respect of their on-going international obligations apart from SES, in particular their responsibilities under Article 28 of the Chicago Convention, and regulatory requirements of EUROCONTROL, including ESARRs insofar as not transposed into EC law, and how these are to be managed in the context of cross-border service provision and regulation under this FAB. In particular, the States shall agree on mechanisms to ensure the mutual provision of appropriate assurances on safety required to discharge their obligations]. 527 ICAO, Directors General of Civil Aviation Conference on a Global Strategy for Aviation Safety, Montreal 22-22 March 2006, COCESNA, Achieving safety oversight compliance through economies of scale in central American countries, DGCA/06-IP/11 of 6 March 2006, Paras. 1.1. and 2.1. 528 Convenio Constitutivo de la Corporación Centroamericana de Servicios de Navigación Aérea [The Agreement to Constitute the Central American Corporation for Air Navigation Services] (COCENSA Convention) signed on 26 February 1960 (unpublished)
120 Cross-border provision of air navigation services
COCESNA is the organisation responsible for the provision of air navigation services in Central America and, according to the constituent treaty, has the exclusive right to provide air traffic services in the territories of the contracting states.529 However, similar to Maastricht UACC (4.4.2.1), the corporation shall, in the control of air traffic, apply the regulations in effect in the territories of the contracting parties and shall also respect their national laws and regulations as well as the international agreements related to the access, overflight and security of the territories of those contracting parties.530
Contrary to the indemnification obligation in the multilateral agreement for the Maastricht UACC, the COCESNA Convention does not contain an indemnity from the organisation in favour of its contracting states for damages arising from services offered by the corporation. There is only a provision according to which the corporation should be protect itself from risks resulting from civil responsibilities with third parties and from damage to installations necessary for its operation. This by way of obtaining adequate insurance from appropriate insurance companies.531 Therefore, the constitutive treaty lacks not only transparent lines of state responsibility, but does also not protect states in terms of seeking indemnification in the event the provision of air navigation services has caused damages. Lastly, in terms of dispute resolution, disputes shall be resolved by an arbitrate tribunal.532 There could be more co- ordination by the governments in the field of air navigation services in Central-America, but because COCESNA’s leadership rotates between countries every two years, the international organisation has been considered as not such a highly unifying body.533
For the same reasons that lead to the creation of COCENSA, a group of states decided to set up an international organisation dealing with air navigation services in Africa. The Agence pour la Sécurité de la Navigation Aérienne en Afrique et à Madagascar (ASECNA), or in other words, the Agency for the Safety of Air Navigation in Africa and Madagascar was created on the basis of a multilateral agreement that was signed on 12 December 1959 (as amended in 1974) and has currently the following member states: Benin, Burkina Faso, Cameroon, Central African Republic, Comores, Congo, Côte D’Ivoire, France, Gabon, Guinea-Bissau, Equatorial Guinea, Madagascar, Mali, Mauritania, Niger, Senegal, Chad and Togo.534
The international organisation is active in the area of air navigation services and the provision of air navigation facilities, but has also been reported exploring and facilitating numerous
529 See COCESNA Convention, supra note 528, Art. 2(1). 530 Ibid., Arts. 9 and 13. 531 Ibid., Art. 5. 532 Ibid., Art. 25. According to the dispute resolution mechanism each party to the treaty shall establish and maintain during the course of the treaty a list of three magistrates of its own Supreme Court of Justice. In case of a dispute the secretary general of the corporation shall, for each dispute, draw lots from a complete list of candidates for choosing the respective arbitrators of different nationalities to the tribunal. 533 E.R. Kreis, ‘A Comparative Analysis of the Aviation Network within the European Community and the ad-hoc Network Between the United States and Central America’, (1997) 24 Transportation Law Journal 303, at 323-324. 534 Convention relative à la création de l’Agence pour la Sécurité de la Navigation Aérienne en Afrique et à Madagascar [The Convention on the creation of the Agency for the Safety of Air Navigation in Africa and Madagascar] (ASECNA Convention) signed on 25 October 1974. The convention is unpublished and not available to the general public. A copy of the convention can be obtained from T. Tekou, L’agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar (ASECNA), (unpublished), thesis of 1982 submitted to the Institute of Air and Space Law of McGill University, Montreal. For additional information on ASECNA, see also
Chapter 4 121 other activities such as fleet financing and management under leasing and sale agreements.535 For purposes of financing the services and facilities provided to aviation by ASECNA and recognizing that aircraft operated by or on behalf of the United States of America use those services, as well as for purposes of the need for arrangements which take account of the special status of state aircraft, the United States of America promised to pay to ASECNA an annual sum for route assistance and facilities made available by ASECNA to those aircraft in lieu of fees for each flight. The annual payment not to exceed the amount charged any other user for similar services.536 The state parties to the ASECNA Convention have not dealt with matters as transparent lines of inter-state responsibility or with the possibility to seek recourse in case of damage arising from the provision of air navigation services.
4.5 The concept of the responsibility of the Supervising Authority
In the previous Chapter, attention has been paid to the various forms of bilateral- and multilateral arrangements that have been concluded for the benefit of cross-border provision of air navigation services. Beside the fact that such arrangements have been concluded at various governmental levels and therefore not always qualify as bilateral- or multilateral agreements, the common denominator is that they do not as such provide for transparent lines of state responsibility. Only in particular circumstances there is a remedy for a delegating state enabling it to seek recourse for damage suffered arising out of the provision of air navigation services. Such damage to be claimed from the providing state, the international organisation, or in the case of the draft EUROCONTROL Model State Level FAB Agreement, the air navigation service provider.537 The mid-air collision near Überlingen shows the need for transparent agreements between states pursuant to which they delegate the exercise of air navigation services.538
A near-miss could trigger an internationally wrongful act which is liable for reparation. See earlier Chapter 4.3.1 on reparation through restitution in integrum, compensation or satisfaction despite the fact that the near-miss did not result in physical damage as such. So even if nobody suffers any damage at all, which is possible in the case of state responsibility that requires an act or omission, attributable to the state under international law which constitutes a breach of an international obligation of the state without the need for there to be damages, the states should safeguard transparent lines of responsibility. But for the Draft EUROCONTROL Model state Level FAB Agreement (4.4.2.4), this has not been considered in the bilateral- or multilateral agreements that were discussed so far.
On the basis of an example (figure 4.5 below), this Chapter will consider whether or not states are able to delegate their state responsibility in the first place. It appears that state responsibility is always tied to the airspace of the state in whose airspace the air navigation services are being provided, but, for the benefit of wide-scale cross-border provision of air navigation services, this Chapter tries to answer as to whether or not state responsibility can be delegated a supervising authority of the air navigation service provider. After all, as discussed in Chapter 4.3.1 state responsibility is triggered either if there an act or omission of the air navigation service provider that is operated by civil servants or, in case of privatised
535 R.I.R. Abeyratne, ‘The Future of African Civil Aviation’, (1998) 3 Journal of Air Transportation World Wide 30, at 33. 536 Multilateral Agreement between the United States of America and ASECNA (with exchange of letters), signed on 22 June 1967 in Paris, 699 UNTS 4. 537 For Bilateral Agreements, see The Netherlands and Germany for cross-border provision of air navigation services for the benefit of the German airport Weeze (Ch. 4.4.1.2) and the EUROCONTROL Model Agreement on the Delegation of Air Traffic Services (Ch. 4.4.1.3). For Multilateral Agreements, see Maastricht UACC (Ch. 4.4.2.1), CEATS (Ch. 4.4.2.2) and the Draft EUROCONTROL Model State Level FAB Agreement (Ch. 4.4.2.4). 538 See the mid-air collision near Überlingen (Lake Constance) in Ch. 1.2.
122 Cross-border provision of air navigation services entities, the state has failed to properly impose the correct regulatory rules and procedures or has failed to properly supervise or audit the air navigation service provider.539
What combination of state responsibility is possible if the state that is supervising the air navigation service provider is a state other than the state in whose airspace the air navigation services are being provided? In order to answer this question a parallel will be drawn with the transfer of certain functions and duties in case of the lease, charter or interchange of aircraft as recognised under the Chicago Convention which enable the state where the aircraft is registered to be relieved from responsibility.
As pictured in Figure 4.5, states A, B and C have delegated the provision of air navigation services in a portion of their airspace to the air navigation service provider that has its principal place of operation in the territory of state D.
State A State B
State C State D
Figure 4.5 Cross-border air navigation service provision
State D is commonly referred to as providing state albeit that the actual service provision may not be in the hands of its public servants but in the hands of a privatised entity that has its principal place of operation in the territory of state D and which has been awarded an operating certificate by state D. The term principal place of operation is also used under the Single European Sky regulations. See further Chapter 5.4.2.
The national authorities of state D monitor performance and compliance by the air navigation service provider with the conditions attached to the operating license and that provider remains subject to the jurisfaction and jurisaction of state D. The authorities of state A, B and C have rulemaking competencies as far as this concerns the provision of air navigation services in the airspace over their territory. For the sake of safety and efficiency it would of course be preferable that all states impose the same rules and procedures to be applied by the air navigation service providers. The latter authorities lack enforcement powers since the air navigation service provider has its principal place of operation in state D. If the air navigation service provider fails to comply with the regulatory framework in their airspace, the delegating states, but for revoking the authorisation to provide services in their airspace altogether, rely on the national authorities of state D for the exercise of enforcement competencies.
Article 28 Chicago places on each contracting state to the Chicago Convention the responsibility of providing air navigation services in its territory and, next to this operational burden, also places on each state a regulatory burden, the responsibility of a state to provide
539 For a review of all elements that are required to trigger state responsibility for air navigation services, see Ch. 4.3.1.
Chapter 4 123 air navigation services in its airspace in accordance with the Standards and Recommended Practices. Once air navigation services are being provided in the state’s airspace, the conduct of the air navigation service provider is in principle attributable to the state, whether or not services are being provided through its civil servants or through another autonomous entity. The failure of meeting the objectives of air traffic services, whether or not because of operational failure or because of not meeting the regulatory obligations imposed on it, potentially gives rise to a breach of an international obligation and could trigger state responsibility of the delegating states.540 Due to the fact that states A, B and C have no direct control over the air navigation service provider that has his principal place of operation in another state, such states would have a preference to be relieved from any potential internationally wrongful acts as far as cross-border provision of air navigation services is concerned. In short, they would like to be relieved for any failure of the air navigation service provider whether or not for operations or regulatory oversight imposed under the Chicago Convention.
Relieving states from state responsibility as far as cross-border provision of air navigation services is concerned requires a paradigm shift where rather than clinging on to the territory (airspace) as the point of departure for state responsibility, no longer the territory but the air navigation service provider is starting point. State responsibility is no longer channelled to the state in whose territory the air navigation services are being provided, but to the state (or body of states) that act as supervising authority of the air navigation provider.541 In order to examine as to whether or not it is feasible to pursue such delegation of state responsibility in case of cross-border provision of air navigation services under the Chicago Convention, a side-step is made involving the transfer or functions and duties between the state of registry and the state of the operator of an aircraft that is involved in lease, charter or interchange arrangements.
On the basis of a protocol relating to an amendment of the Chicago Convention the contracting parties added a provision dealing with the transfer of certain functions and duties from the state of registry to the state of the operator of an aircraft in the case of lease, charter or interchange or any similar arrangement with respect to such aircraft.542 In the event that the state of registry and the state of the operator of the aircraft enter into a transfer agreement, the state of registry shall be relieved of responsibility in respect of all or part of its functions and duties concerning the aircraft as far as this concerns, firstly the compliance by the aircraft with the rules of the air that are imposed by other states in portions of airspace over their territory (Article 12 Chicago), secondly, the responsibility for the issuance of an aircraft radio license (Article 30 Chicago), next the certification of the aircraft’s airworthiness (Article 31 Chicago) and lastly the licensing of pilots and other members of the operating crew on board that aircraft (Article 32(a) Chicago). The State of registry shall be relieved of responsibility in respect of the functions and duties transferred.543
540 For an explanation of the responsibility of states for the failure to meet the appropriate regulatory oversight and auditing, see Ch. 4.3.1. 541 Ch. 4.6. will examine as how to give any such possible re-arrangement of state responsibility third- party effect. 542 ICAO, Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 83bis) of 6 October 1980 (doc 9318) that entered into force on October 1, 1998. 543 Art. 83bis Chicago Convention (Transfer of certain functions and duties): (a) Notwithstanding the provisions of Articles 12, 30, 31 and 32 (a), when an aircraft registered in a contracting State is operated pursuant to an agreement for the lease, charter or interchange of the aircraft or any similar arrangement by an operator who has his principal place of business or, if he has no such place of business, his permanent residence in another contracting State, the State of registry may, by agreement with such other State, transfer to it all or part of its functions and duties as State of registry in respect of that aircraft under Articles 12, 30, 31 and 32(a). The State of registry shall be relieved of responsibility in respect of the functions and duties transferred.
124 Cross-border provision of air navigation services
Basically, the functions and duties incumbent on the state of registry move to the state of the operator. The other contracting states to the Chicago Convention that have ratified Article 83bis Chicago are bound to recognise the state of the operator as substituting for the state of registry. The state of registry is relieved of its responsibility for carrying out the functions and duties transferred and it is the state of the operator that is internationally responsible and liable for them and shall have to implement the functions and duties in accordance with its on laws and regulations.544 The states are bound to recognise the state of the operator as substituting for the state of registry within the limits established by the underlying agreement between the state of registry and the state of the operator. The state of the operator should meet the functions and duties, including oversight and control of the aforementioned tasks, by also following the Standards and Recommended Practices to which the state of the operator has committed itself to (including filing of differences) under the applicable Annexes to the Chicago Convention.545 Certificates of airworthiness and certificates of competency and licenses issued by the state of the operator for an aircraft registered in the state of registry shall be rendered valid by the contracting parties to the Chicago Convention.546
The transfer of supervisory functions and duties normally attached to the state of registry to the state of the operator should render international air navigation safer since the state having the closest ties with the operator concerned, the state of the operator, will have the necessary supervisory authority to carry out effective safety oversight of the aircraft and its crew in accordance with the requirements of the relevant Annexes to the Convention.547 Can this
(b) The transfer shall not have effect in respect of other contracting States before either the agreement between States in which it is embodied has been registered with the Council and made public pursuant to Article 83 or the existence and scope of the agreement have been directly communicated to the authorities of the other contracting State or States concerned by a State party to the agreement. (c) The provisions of paragraphs (a) and (b) above shall also be applicable to cases covered by Article 77. 544 ICAO, Guidance on the Implementation of Article 83bis of the Convention on International Civil Aviation (Cir 295/LE/2) of February 2003, at 5-6. 545 For purposes of rules of the air ex Art. 12 Chicago Convention: Where aircraft bear the nationality mark of the state of registry, it is the state of the operator that shall ensure the enforcement of the compliance with the applicable rules and regulations relating to flight and manoeuvre of aircraft this means compliance with Annex 2, Rules of the Air. See Annex 2, Rules of the Air supra note 345. For purposes personnel licensing ex Art. 32(a) Chicago Convention which stipulates that where pilots and other members of the operating crew shall be provided with certificates issued or rendered valid by the state in which the aircraft is registered, this means compliance with ICAO, International Standards and Recommended Practices, Personnel Licensing, Annex 1 to the Convention on International Civil Aviation 9th ed. (2001). For purposes of radio equipment and certification of airworthiness ex Arts. 30 and 31 Chicago Convention this means compliance with ICAO, International Standards and Recommended Practices, Airworthiness of Aircraft, Annex 8 to the Convention on International Civil Aviation 9th ed. (2001). 546 According to Art. 33 Chicago Convention there is only recognition by the contracting states to the Chicago Convention of certificates of airworthiness and certificates of competency and licenses issued by the state in which the aircraft is registered. Due to Art. 83bis Chicago Convention, this requires a new reading and the states will be obliged to recognise the certificates and licenses issued by the state of the operator for that aircraft in addition to those issued by the state of registry. See Guidance on the Implementation of Article 83bis of the Convention on International Civil Aviation, supra note 544, at 6. 547 Ibid., Circular: Guidance on the Implementation of Article 83bis of the Convention on International Civil Aviation, at 6. A study by the ICAO Secretariat on the safety and security aspects of economic liberalisation acknowledges that on the basis of Art. 83bis Chicago Convention states may enter into separate agreements to transfer all or part of certain safety oversight responsibilities under the Chicago Convention. Depending on the extent of transfer of all or parts of functions and duties the state of registry may continue to bear particular state responsibilities next to the state of the operator. See also Ch. 2.2.3.1 of the ICAO Secretariat Study on the safety and security aspects of economic regulation
Chapter 4 125 principle, relieving the state of registry of state responsibility in respect of functions and duties transferred, also be applied mutatis mutandis for cross-border provision of air navigation services? In other words, is it possible to relieve the delegating state of responsibility in respect of air navigation services if the functions and duties connected therewith are transferred to an air navigation service provider that has its principal place of operation in the territory of a state other then the delegating state and that is under supervision of the competent authorities of that other state?
According to the Chicago Convention, each state undertakes, so far as it may find practicable, to provide air navigation services in its territory pursuant to the Standards and Recommended Practices established pursuant to the convention. The failure to meet the objective of air traffic services like in a mid-air collision or a near-miss, a breach of the objective to prevent collisions and to expedite and maintain an orderly flow of air traffic, could trigger state responsibility or state liability.548 Next to this international obligation there is of course also the public function as embedded in the constitution of states according to which the air navigation service provider is performing air navigation services as a public function for the purpose of protecting various groups of people in its territory from all types of inherent risks associated with air traffic that is crossing the airspace over its territory, including for reasons of national security such as air defence.549
Assuming that the constitution of states allows the provision of air navigation services through an entity that is based outside the territory of the state, is it possible to delegate state responsibility or state liability in case of cross-border provision of air navigation services?
Air navigation services need not to be provided through governmental bodies, but can also be provided by privatised entities or through air navigation service providers that have their principal place from which they operate (principal place of operation) outside its territory.550 This brings us to the second requirement of the Chicago Convention which says that air navigation services should be provided in accordance with the Standards and Recommended Practices. See earlier Chapter 4.3.1. Is it possible that states delegate this responsibility to another state? Hence being relieved from the failure to meet the obligations under the Chicago Convention such as to secure regulatory oversight and perform audits on the air navigation service provider and transfer that responsibility to somebody else? In other words, in the event of a mid-air collision or near-miss of aircraft that are subjected to cross-border air navigation services, is it possible to relieve the delegating state from responsibility in respect of the functions and duties transferred as far as this kind of air navigation service is concerned? For this purpose a parallel is sought with the transfer of functions and duties in the case of lease, charter or interchange or similar arrangements of aircraft.
The Chicago Convention does not prescribe that states should operate or have operated aircraft from its territory, whereas it does prescribe that they should, as far as practicable, provide airports and air navigation services in their territory. Once aircraft are registered in its aircraft register, the convention imposes the obligation to issue certificates of airworthiness, license personnel on board that aircraft, license radio equipment as well as to adopt measures to insure that such aircraft comply with rules of the air. In other words, just like for air navigation services also for aircraft operations counts that, once the state decides to provide or have provided air navigation services in its airspace, or in this case registers aircraft in its
enclosed as Attachment A to the ICAO State Letter (EC 2/93, AN 11/41-05/83) of August 12, 2005 on Safety and security aspects of economic liberalization and relevant State responsibilities. 548 See further Ch. 4.3. 549 F.P. Schubert, ‘The Creation of a Single European Sky: The shrinking concept of sovereignty’, (2000) 25 AASL 239, at 248-249. 550 For examples of cross-border provision in bilateral- and multilateral setting, see Ch. 4.4. The term principal place of operation is also used in the Single European Sky regulations, see further Ch. 5.4.2.
126 Cross-border provision of air navigation services register, that state should adhere to particular treaty obligations. For the purpose of establishing transparent lines of responsibility when aircraft are operated pursuant to an agreement for lease, charter or interchange by an operator who has his principal place of operation in another state, the state of registry may transfer all or part of its functions and duties as far as this concerns rules of the air (Art. 12 Chicago Convention), personnel licensing (Art. 32(a) Chicago Convention), radio equipment (Art. 30 Chicago Convention) and certification of airworthiness (Art. 31 Chicago Convention) to the other state.
In the view of the author, the state in whose airspace the air navigation services are ultimately provided by an air navigation service provider that has its principal place of operation outside the state’s territory faces a similar situation as with the lease, charter or interchange of aircraft. The state having the closest ties with the air navigation service provider has, just like the aircraft operator, the necessary supervisory authority, including jurisaction and jurisfaction, to carry out effective safety oversight of the provider’s operations and its staffing.551 The delegating state, or in the event of lease, charter or interchange of aircraft the state of registry, has no such effective rulemaking- and enforcement competencies.
No matter where the leased, chartered or interchanged aircraft as registered in the state of registry is operating its services for those matters as specifically defined in Article 83bis Chicago Convention and in case of an internationally wrongful act, and subject to the injured state being a contracting party to Article 83bis Chicago Convention, state responsibility is channelled to the state where the operator has his principal place of business or, if he has no such place of business, his permanent residence. The difference between the transfer of certain duties and functions in respect of lease, charter and interchange of aircraft and the responsibility concept envisioned for cross-border provision of air navigation services is firstly, that for cross-border provision of air navigation services it is not the state of registry but the delegating state that allows cross-border provision in its airspace that should be relieved of responsibility. Secondly, contrary to the lease, charter and interchange of aircraft, the concept of transfer of certain functions and duties in the field of air navigation services as pictured in this study is much broader. Rather than referring to particular articles in the Chicago Convention, the concept for cross-border provision air navigation services envisions a transfer of the responsibility for air navigation services in a much broader sense where the delegating state is relieved from meeting the objective to prevent collisions and to expedite and maintain an orderly flow of air traffic. Thirdly, contrary to registered aircraft that traverse the airspace of a variety of states, the air navigation service provider is only providing air navigation services in the airspace of a limited number of delegating states.
For the purpose of exploring as to whether or not in case of cross-border provision of air navigation services the delegating state can relieve itself from duties and functions normally attached to the provision of air navigation services, this study presupposes the reliance on the following concepts and definitions. The air navigation service provider with its principal place of operation in state D is providing air navigation services in portions of the airspace of state A, B and C as set forth in Figure 4.5. States A, B and C are delegating states that have limited the exercise of a particular national competencies, this being the provision of air navigation services.
The air navigation service provider is subject to authorisation and supervision (through certification) by an independent subject of international law that is bound to the provision of the Chicago Convention. The independent subject of international law is a single state, an international organisation, or a group of states acting in concert and each jointly and severally referred to as supervising state. Furthermore, there is a body nominated or established by the supervising state, the so-called supervising authority, which issues the operating certificate to the air navigation service provider. Lastly, the air navigation service provider has his principal
551 For jurisaction and jurisfaction, see Ch. 2.2.2.
Chapter 4 127 place of operation in the territory of the state, in one of the states, or in the territory where the international organisation exercises rulemaking- and enforcement competencies.
Similar to aircraft that are based outside the territory of the state of registry, delegating states will find it difficult to comply with validation of air traffic controllers that are stationed outside its territory making proper surveillance of the operating crew very difficult. The delegating state has rulemaking- and enforcement competencies within the airspace of its territory. The delegating state could impose particular requirements such as dealing with the licensing of air traffic controllers or maintenance obligations, but in terms of supervision and enforcement heavily relies on the supervising state and its supervising authority in order for them to pursue any infringements by the air navigation service provider of rules and regulations. The delegating state cannot actively supervise the air navigation service provider that has its principal place of operation in the territory of another state, other than perhaps by revoking the authorisation to provide air navigation services in its airspace altogether.
In case of a collision or failure to expedite and maintain an orderly flow of air traffic (near- miss), the airspace over the territory where the act or omission occurred should be irrelevant to answer any question of state responsibility. The air navigation service provider in charge and the supervising state should be leading. The delegating state has transferred to the supervising state the functions and duties as far as this concerns the prevention of collisions between aircraft, collisions between aircraft and obstacles on the ground and to expedite and maintain an orderly flow of air traffic. The supervising state should therefore also bear state responsibility in case of the failure to meet the objectives and the delegating state should be relieved from such responsibility.
In the event of a failure to meet the objectives for air traffic services under the Chicago Convention, the state (or body of states) that designated the supervising authority that ultimately granted the operating certificate to the air navigation service provider bears the state responsibility. This study will hereafter refer to this as the concept of the responsibility of the supervising authority.
Bearing in mind Figure 4.5., the prevention of collisions between aircraft, between aircraft and obstacles on the ground and objective to expedite and maintain and orderly flow of air traffic, including compliance with the applicable rules and procedures that are applicable in that airspace rests with state D. It is state D that on the basis of its rulemaking and enforcement competencies is able to take appropriate rulemaking and procedural steps against the air navigation service provider.
Within any given airspace block several air navigation service providers can be active. Such providers offer different kinds of air navigation services in (parts of) airspace of various delegating states. For the sake of clear lines of state responsibility the contracting states should make sure that there is clarity as to which air navigation service provider is providing what kind of air navigation services in a particular portion of airspace and, more important, which state qualifies as supervising authority over such air navigation service provider.
The provision of air navigation services remains subject to the laws and regulations of the state in whose airspace such services are being provided. This whether or not cross-border services are being provided by an ANSP that is based outside the territory of the delegating state. For the sake of safety and efficiency it would be useful if the delegating state and the supervising authority harmonise their procedures, planning and rules and regulations in that airspace. The delegating state could of course also decide that in case of cross-border service provision in its airspace the ANSP may apply those procedures, planning and rules and regulations issued by the supervising authority. In an attempt to identify the legal issues connected with the transfer of functions and duties from the delegating state to the supervising authority and for the sake of establishing clear lines of state responsibility in case
128 Cross-border provision of air navigation services of cross-border provision of air navigation services the author proposes a draft model agreement for the delegation of air navigation service provision which is enclosed to this study as Appendix I.
The model agreement should either be concluded on a bilateral- or multilateral basis where contracting states delegate the provision of air navigation services in a predefined airspace block to a particular air navigation service provider. The airspace block covers (portions of) airspace over the territory of the delegating state(s), including airspace over the high seas or airspace of undetermined sovereignty when the delegating state has committed that air navigation services shall be provided. For third-party effect of such agreement, see Chapter 4.6.
According to the model agreement, the delegating state(s) or any body established by such state(s) as designating authority shall be entitled to designate air navigation service providers to provide services in its airspace, provided that such air navigation service provider has been granted an operating permit through certification by the supervising authority. The designating authority shall issue rules and procedures that are to be adhered to in the airspace over its territory, or those portions of airspace where it has committed that air navigation services are provided. However, preferably the rules and procedures of the supervising authority are to be applied in that portion of airspace.
The supervising authority is the supervising state or a body nominated or established by one or more supervising states that issues the operating certificate to the air navigation service provider. On the basis of the model agreement, the delegating state transfers to the supervising state the responsibility for meeting the objectives of air traffic services, including the prevention of collisions between aircraft, between aircraft and obstacles on the ground as well as to expedite and maintain an orderly flow of air traffic and the delegating state is relieved from responsibility in respect of those functions and duties, in lieu of the supervising state, unless the delegating state has issued rules and procedures that differ from those of the supervising state which have contributed to the failure to meet the objectives. Rather then clinging on to the territory (airspace) as the point of departure for state responsibility, there is a paradigm shift where no longer territory but the air navigation service provider, or more specific the supervising authority that has issued the operating certificate, plays a role. The air navigation service provider shall have its principal place of operation in the territory of the supervising state(s) that have appointed the supervising authority for the sake of the supervising authority being able to exercise the necessary rulemaking- and enforcement competencies.
The responsibility of the delegating state is not on, but rather the responsibility of the supervising state. Because of such transparent lines of state responsibility this would at the same time channel any claims for internationally wrongful acts of states, whether or not such wrongful act resulted in damages, to the supervising state(s) that appointed the supervising authority. Only if the delegating state persists in issuing rules and regulations for air navigation services in the airspace over its territory or in portions of airspace where it has committed itself to provide air navigation services and those rules and regulations differ from those issued by the supervising authority and have contributed to the failure to meet the objectives, the delegating state continues to bear state responsibility for failure of meeting the objectives of air navigation services.
Contrary to the transfer of functions and duties in respect of aircraft that are involved in lease, charter or interchange that has been recognised under Article 83bis Chicago and is binding towards those contracting states to the Chicago Convention that have ratified this provision, there is no such transfer provision in the treaty as far as this concerns functions and duties in respect of cross-border provision of air navigation services. Therefore the concept of the responsibility of the supervising authority, whether or not embedded in a model agreement,
Chapter 4 129 would only count as far as this has been agreed upon between the contracting parties in their cross-border arrangements, such as the model agreement as set forth in Appendix I to this study. The next Chapter explores as to whether or not there is a multilateral vehicle that covers the paradigm shift of the responsibility of the supervising authority without the need of amending the Chicago Convention or to enter into a multilateral treaty.
4.6 Towards a Multilateral Vehicle for Cross-Border Arrangements
The previous Chapter discussed the concept of the responsibility of the supervising authority as a resolution for the establishment of clear lines of state responsibility which should be formalised by way of a model delegation agreement that is attached to this study as (Appendix I. This then raises the question how such delegation arrangement could be awarded wide-scale effect?
After all, notwithstanding any bilateral- or multilateral arrangement concluded so far, such arrangements are only binding the contracting states that are a party thereto. Taking into account the burdensome process of the drafting and ratification of conventions in general, the introduction of a draft treaty that exclusively deals with multilateral cross-border provision should not be considered as a feasible solution. However, is it not possible to give wide-scale effect to cross-border arrangements, including the concept of responsibility of the supervising authority, by using the framework of an existing multilateral agreement is already extensively dealing with the way air navigation services ought to be provided, the Chicago Convention?
4.6.1 Amending the Chicago Convention
The first option for launching the concept of responsibility of the supervising authority on a wide-scale would be the introduction of a provision similar to Article 83bis Chicago in the Chicago Convention that acknowledges the transfer of certain functions and duties for cross- border provision of air navigation services. The delegating state shall be relieved of responsibility as far as this concerns meeting the objectives or air traffic services, provided that, similar to Article 83bis Chicago, any such transfer of functions and duties is then also effected by an explicit bilateral- or, if there are more then two contracting states, a multilateral agreement. The model agreement (Appendix I) as referred to in Chapter 4.5 could be used.
Amending the Chicago Convention in the author’s opinion will be a rather long and burdensome process. Also, similar to the transfer of functions and duties for the lease, charter or interchange of aircraft, only those states that have ratified Article 83bis Chicago are bound to it which frustrates wide-scale cross-border provision of air navigation services to all contracting states to the Chicago Convention. For those states that do not ratify the provision delegating states would remain responsible.
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4.6.2 The Regional Air Navigation Plan (RANP)
Another possibility to facilitate the delegation of the provision of air navigation services under the umbrella of the Chicago Convention is the Regional Air Navigation Plan (RANP). Can this RANP serve as a multilateral cross-border arrangement binding all contracting states to the Chicago Convention? For the positioning of the RANP in the institutional framework of ICAO, see Chapter 2.3.1.2.
In 1946, the ICAO’s Air Traffic Control Committee endeavoured to make recommendations for the European-Mediterranean region. This in order to simplify and remove overlapping FIR boundaries as well as to remove gaps between proposed boundaries.552 The map presented by the committee in 1946 is pictured in Figure 4.6.2.1 below.
Figure 4.6.2.1 ICAO Flight Safety Regions and Control Areas (1946)
This was followed-up by a recommendation of the first International Conference on European and Mediterranean Route Service Organisation. The boundaries had to be simplified wherever
552 European-Mediterranean Region of PICAO, Final Report of the A.T.C. Committee, Paris Conference (April-May 1946) (Doc. P.228, ATC P.38) of 14 May 1946, Para. 5.4.4. The proposed boundaries are given in the map to the report (Doc. P.223, ATC P.36) of 13 May 1946.
Chapter 4 131 possible. It was not possible to achieve this simplification in the time available at the conference.553
The FIR delineation was again taken into consideration in the third conference (in the year 1952). This conference being referred to as the European-Mediterranean Regional Air Navigation Meeting.554 States were recommended to delineate their FIR by meeting pre- defined boundaries.555 At the same time, the FIR delineation relating to the airspace over The Netherlands was discussed. Firstly, representatives of The Netherlands, Belgium and Germany considered the inclusion of a party of the airspace above the south of The Netherlands (the Dutch province Limburg) into the German FIR. This was rejected and parties agreed that issues connected with flights crossing this portion of the Amsterdam FIR had to be resolved on the basis of procedural arrangements. Secondly, there were alterations made to the FIR boundaries between The Netherlands, Germany and Denmark. These were found desirable as to ensure that the controlling activities in the portions of airways were consistent with the maintenance of sovereignty of the territory of the states concerned.556 In the author’s opinion both the rejection of the inclusion of a portion of Dutch airspace into the German FIR and the re-alignment efforts by The Netherlands, Germany and Denmark should be understood from the context of proclamation of airspace sovereignty.
In 1958 ICAO recommended that in the event air traffic routes were traversing FIR’s for short distances, states should realign their FIR boundaries or make suitable arrangements for the facilitation of control of traffic along such routes.557 But for the airspace of Luxembourg that has always been governed by the Belgium FIR there has never been wide-scale FIR realignment in Europe. The map enclosed with the meeting of 1958 (see Figure 4.6.2.2) illustrated that there was a single Flight Information Region in the upper airspace of Belgium, Luxembourg, The Netherlands and Germany. However, the states hastened to rectify this in their meeting of 1966 and explained that it was not proposed to specify such Flight Information Region in the Regional Air Navigation Plan.558
553 Provisional International Civil Aviation Organization International Conference on European and Mediterranean Route Service Organization, Final Report of the Conference, Paris (April-May 1946) (Doc P.232, GEN P.38) of 25 May 1946, at 9. 554 International Civil Aviation Organization Third European-Mediterranean Regional Air Navigation Meeting, Rules of the Air and Air Traffic Services Committee, Paris (February-March 1952) (RAC-3) in which it is recommended that states establish FIR’s delimited laterally and designated as indicated on the chart enclosed therewith. 555 Ibid. 556 Ibid., at RAC-12. 557 International Civil Aviation Organization Report of the Fourth European-Mediterranean Regional Air Navigation Meeting (Doc 7870, EUM IV), Geneva (January-February 1958), at 372. 558 ICAO, Report of the Fifth European-Mediterranean Regional Air Navigation Meeting (Doc 8588, EUM V), Geneva 1-26 February 1966, Agenda Item 9: Flight Information Service, at Para. 9.1.5.
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Figure 4.6.2.2 ICAO UIR (1958)
Chapter 4 133
Although Figure 4.6.2.3 has been drafted for the purpose of RVSM airspace, it also pictures the FIR boundaries in 2002 across the European continent. Just like the previous Figures 4.6.2.2 and 4.6.2.3, it shows that the airspace over Luxembourg has always been part of the Belgian FIR. Furthermore, the Figure also shows that the FIR boundaries follow the territorial boundaries of the underlying states.
Figure 4.6.2.3 EU RVSM Airspace (2002)
The African Indian Ocean region also comprises various FIR’s, among which the Roberts FIR. The Roberts FIR was established in 1975 by Guinea, Liberia and Sierra Leone, which decided to manage their airspace jointly.559 The FIR was named after Roberts International Airport, hosting the headquarters at its creation. The headquarters was transferred to Freetown in June 1990 because of the war in Liberia and has been based in Conakry since June 1997 as a result of the war in Sierra Leone. The Roberts FIR has been heavily criticised by the international community failing to ensure a safe orderly flow of air traffic.560 That said, just like the FIR over Belgium and Luxembourg, the Robert FIR illustrates that a FIR does not necessarily have to follow the national territorial boundaries.
559 ICAO, Report of the Seventh Africa-Indian Ocean Regional Air Navigation Meeting, (Doc 9702, AFI/7), Abuja 12-23 May 1997, Agenda Item 5: Air Traffic Management, at Para 5.3.1. 560 M. Akram, Report of the Panel of Experts appointed pursuant to paragraph 4 of Security Counsel Resolution 1458 (2003) concerning Liberia, UN Doc. S/2003/498 (2003), at 32.
134 Cross-border provision of air navigation services
Leaving this African side step, European FIR delineation is embedded in the ICAO system of Regional Air Navigation (RAN) meetings. The FIR’s are reflected in the Regional Air Navigation Plan (RANP).561
Within the context of continuing policies and associated practices, the ICAO Assembly reaffirmed the importance of delineation of FIRs.562 The FIR boundaries should be established on the basis of technical and operational considerations with the aim of ensuring safety, and optimising efficiency and economy for both ANSP’s and users of the services. FIR airspace should not be segmented for reasons other then technical, operational, safety and efficiency considerations.563 Contracting states are recommended to seek the most efficient and economic delineation of FIRs. The optimum location of points for transfer of responsibility and the most efficient co-ordination procedures in co-operation with other states concerned and the ICAO organisation. When updating its policies on air navigation, the Assembly even replaced boundaries by limits thereby avoiding the use of a term that is customarily associated with the sovereignty of a state.564
4.6.3 Positioning the RANP in international law
In the Chapter dealing with the institutional structure of ICAO (2.3.1) attention was paid to the regional air navigation regions as well as the positioning of the Regional Air Navigation Meeting and the outcome of regional deliberations ultimately resulting in a Regional Air Navigation Plan (RANP). For the sake of harmonised regional planning, the regional structure has been laid down in the so-called directives to Regional Air Navigation Meetings and Rules of Procedure for their Conduct. Back in 1946, the RAN meeting was regarded a technical and advisory gathering convened for the purpose of making an initial examination of problems and procedures related to the provision and operation of air navigation facilities and services necessary for international air transport within a region specified.565
The ICAO Assembly resolved that there should be a high order of priority to foster and assist in the implementation of RANPs.566 There should be a more (pro-)active involvement of ICAO when it comes to the implementation and/or problem solving between states as regards the RANP.567 The Regional Offices of ICAO should assist, advice and encourage the contracting states to the Chicago Convention to implement those parts of the RANP with which they are concerned.568 Furthermore, the ICAO Assembly has considered the RANP as
561 ICAO, European Regional Air Navigation Plan, Volume I, Basic ANP (Doc 7754) of 2001, at p. 0- 1. In 1997, the ICAO Council decided that the Air Navigation Plans should be published in two volumes, a Basic ANP and a facilities and services implementation document (FASID). Whereas the first is the basic air navigation plan containing planning criteria, implementation guidelines and stable plan elements, the latter sets forth in general the facilities, services and procedures required for international air navigation in the specified area as required by ICAO. 562 ICAO, Assembly, Thirty-fifth session, Plenary Action Sheet No. 3, adopting resolution 22/1 as presented in A-35-WP/330 of 6 October 2004, amending a part of the appendices enclosed in A 33-14, amongst others Appendixes K-N dealing with regional air navigation meetings and regional plans. Although reference is made to “ATS airspaces”, this includes FIR’s and control areas and control zones. This study does not separate FIR’s from control areas and control zones. When using the term FIR, FIR shall be deemed to encompass the aforementioned zones. 563 Ibid., Appendix N. See also ICAO, Technical Commission, Delimitation of Air Traffic Services Airspace (A35-WP/109) of 25 August 2004. 564 ICAO, Technical Commission, Agenda Item 22 and Agenda Item 23 (A35 – WP/8) of 8 july 2004, Appendix N. 565 Provisional International Civil Aviation Organization Interim Council, Fourth Session – Minutes of the Second Meeting (Doc 1524 C/137) of 12 April 1946, at 8. 566 ICAO, Assembly Resolutions in Force (as of 5 October 2001) (Doc 9790), A 22-19: Assistance and advice in the implementation of Regional Plans. 567 Ibid., Paras. 1(b), (c) and (d). 568 Ibid., Para. 1(f).
Chapter 4 135 an important instrument in the determination of facilities and services that the contracting states are expected to provide pursuant to Article 28 Chicago.569
At the same time the Assembly required contracting states to examine with other states in the region whether the implementation of the particular RANP could be facilitated through bilateral- or multilateral agreements.570 In a separate resolution the ICAO Assembly ruled on the delimitation of ATS airspace. It confirmed that the limits of ATS airspace should be established on the basis of technical and operational considerations with the aim of ensuring safety, and optimising efficiency and economy for ANSP’s and users of the services. If any ATS airspace needs to extend over the territories of two or more states, or parts thereof, agreement thereon should be negotiated between states concerned.571 Does this mean that the RANP itself has no legal standing and states cannot rely on the RANP as a multilateral vehicle but have to resort to bilateral- or multilateral arrangements in order to establish clear lines of state responsibility? Let us go back to the functioning of the Regional Air Navigation Meeting and its outcome, the Regional Air Navigation Plan (RANP), as well as recent developments to see whether or not the RANP can serve as a multilateral vehicle binding the contracting states to the Chicago Convention.572
The objective of the Regional Air Navigation Meeting is to prepare, amend, or supplement the Regional Air Navigation Plan or plans for facilities, services and procedures.573 The participation in the meeting is open to those states whose territory or dependency are located partially or wholly within the geographical area considered by the Regional Air Navigation Meeting. Also certain states located outside the geographical area of the meeting may participate provided it concerns states whose aircraft operators operate, or expect to operate into the area, or it concerns states that provide facilities and services affecting the area. Any state not meeting these criteria as well as non-contracting states, international organisations and other bodies may be invited by the Council to participate in the Regional Air Navigation Meeting, but their representatives shall only have an observer status.574 The purpose of the Regional Air Navigation Plan is to set forth the recommendations on the facilities and services needed and the regional procedures to be applied. The recommendations shall be such that when followed by the states concerned, they will, in conjunction with the provisions of word-wide applicability being implemented by the states, lead to an integrated international civil air navigation system for the region concerned, which should be adequate for at least approximately the next five years.575
There is a procedure for the amendment of Regional Air Navigation Plans.576 The Secretary General circulates a proposal to all providing- and using states of the particular region, as well as to user states outside the region and international organisations which may be invited to attend suitable ICAO meetings and which may be concerned with the proposals. The Secretary General determines whether the proposal is forwarded for additional review to the Air Navigation Commission that on its turn may decide whether additional action should be taken on this matter. If no objections are raised against the proposal, the Secretary General
569 See ICAO, Assembly adopting resolution 22/1, supra note 562, Appendix L (preamble) and Appendix M (preamble) 570 See ICAO, Assembly Resolutions in Force, A 22-19: Assistance and advice in the implementation of Regional Plans, supra note 566, Para. (1)(b). 571 See ICAO, Assembly adopting resolution 22/1, supra note 562, Appendix N. 572 For discussion of the institutional structure of ICAO, the positioning of the RANP within the ICAO structure and division of the world in ICAO Air Navigation Regions, see earlier Ch. 2.3.1.2. 573 ICAO, Directives to Regional Air Navigation Meetings and Rules of Procedure for their Conduct, (Doc 8144-AN/874/6) of 1991, at 1. 574 Ibid., at 2-3. 575 Ibid., at 1. 576 Ibid., at 4-6. See also the ICAO, European Region Air Navigation Plan, Procedure for the amendment of approved Basic Air Navigation Plans, Volume I, Basic ANP (Doc 7754) of 2001, at 0-4.
136 Cross-border provision of air navigation services shall submit the proposal to the President of the ICAO Council who is authorised to approve the amendment on behalf of the Council.577
The Regional Air Navigation Meeting should endeavour to reach unanimous agreement on all of its recommendations. In particular if there is objection by a state or states to recommendations for facilities or services in their territories the meeting should attempt to find a solution acceptable to the states concerned. However, if such solution cannot be found, the objections should not prevent the meeting from maintaining a recommendation if a majority of the members agree that it is essential to the regional plan.578
In a somewhat ambiguous formulation the Directives to the Regional Air Navigation Meetings and Rules of Procedure for their Conduct stipulate that the Regional Air Navigation Meeting should, with regard to the Chicago Convention, bear in mind the undertakings established by Article 28 Chicago and the action which the Council may take under Article 69 CHIGACO to make recommendations to remedy an inadequate situation relating to facilities and services.579 According to Schwenk the Regional Air Navigation Plan (RANP) stipulates the facilities and services, hence “what” is required by international air transport in a particular region. The Annexes to the Chicago Convention define the globally applied standards and recommended practices, or the “how” to be followed when implementing the facilities and services required by the regional plan.580 According to ICAO, the purpose of the regional plan is to set forth in detail the facilities, services and procedures to be provided by the states pursuant to Article 28 Chicago to accommodate the needs of international civil aviation within a region.581 Each state should determine the practicability of providing facilities or services.582
The Directives to the Regional Air Navigation Meetings and Rules of Procedures for their Conduct appear to imply that the recommendations in the RANP have the status of a Council recommendation ex Article 69 Chicago. This at least the view of Buergenthal and Sheffy.583 Milde has indicated that most states believe, or are made to believe, that a RANP has binding force. He continues that there is no constitutional basis in the Chicago Convention that defines the legal status of the Regional Air Navigation Conferences and their planning authority. It would be highly desirable to create a clear legal foundation for this field by updating the Chicago Convention in this respect.584
577 Ibid. 578 See Directives to Regional Air Navigation Meetings and Rules of Procedure for their Conduct, supra note 573, at 5-6. 579 Ibid., at 5. 580 W. Schwenk and R. Schwenk, Aspects of International Co-operation in Air Traffic Management (1998), 25. 581 ICAO, 48th ICAO Familiarization Course (13 to 28 July 2006): Regional Affairs Office, Regional Air Navigation Meetings (Lecture No. 3), FAM/RAO/3 2006 , at 1. 582 See Directives to Regional Air Navigation Meetings and Rules of Procedure for their Conduct, supra note 573, at 5. 583 T. Buergenthal, Law-Making in the International Civil Aviation Organization (1969), 117-118. M. Sheffy, ‘The Air Navigation Commission of the International civil Aviation Organization, Part I, A Study of its Functions and Powers and an Outline of Its Main Fields of Activity’, (1958) 25 JALC 281, at 320-321. 584 M. Milde, ‘Chicago Convention at Sixty – Stagnation or Renaissance’, (2004) (unpublished), at 12- 13.
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The binding character of the RANP was also raised before the International Court of Justice in a case concerning an aerial incident of 3 July 1988 pursued by the Islamic Republic of Iran (Iran) against the United States where the United States shot down a civil aircraft, Flight 655 of Iran Air, in Iranian airspace over the Islamic Republic’s territorial waters in the Persian Gulf.585
The ICAO Council, deeply deploring the tragic incident and expressing profound sympathy and condolences to Iran and the bereaved families, refrained from explicitly condemning the United States of America.586 On the basis of the dispute resolution mechanism of the Chicago Convention, Iran appealed to the decision of the Council to the Permanent Court of International Justice and requested the court to declare, amongst others, that the United States of America violated provisions of the Chicago Convention and Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 1971. For this study it is of relevance that Iran argued that the United States of America, amongst others, violated the recommendation 2.6/1 of the Third Middle East Regional Air Navigation (MID RAN) Meeting of ICAO.
From 1987 US naval vessels escorted convoys through the Persian Gulf to keep open oil transportation routes during the hostilities between Iran and Iraq. At various occasions Iranian fighter aircraft were reported closely to US warships. The warships frequently entered into combat with armed speedboats. The warship USS Vincennes was dispatched to an area to investigate a report of speedboats preparing to attack merchant ship and was attacked by small boats. In the midst of this combat situation a commercial flight (Flight 655) scheduled for to Dubai took of from an Iranian airport and headed directly to the Vincennes. The flight- crew did not respond to radio messages issued by the crew on board the Vincennes. The US commander did not realise that it involved a civil flight and believed that there was a co- ordinated sea and air attack involving speedboats and an Iranian fighter aircraft. Finally, the Vincennes launched anti-aircraft missiles that hit the civil aircraft killing all 290 people on board.
The United States of America had issued a Notice To Airmen (NOTAM) stating that aircraft operating in the Gulf region were requested to maintain a listening watch on specified radio frequencies. These frequencies would be used by the US military towards unidentified aircraft whose intentions were unclear or who were approaching US warships. Failure to respond to requests for identification and indication of intentions could place the aircraft at risk by defensive measures.587 According to the United States of America, the issuance of the NOTAM was a necessary and proper measure as the extraordinary situation by the ongoing hostilities in the Gulf area called for the widest possible dissemination of information about possible hazards to civil aviation.588 Iran argued that the recommendation as defined in the Third Middle East Regional Air Navigation Meeting (MID RAN) of 1984 had to be taken into
585 Case concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Application Instituting Proceedings submitted by the Islamic Republic of Iran, ICJ Pleadings Volume 1 (771), at 4. 586 ICAO, Decision Taken by ICAO Council on IR 655 Tragedy, (ICAO News Release PIO 4/89), Montreal 17 March 1989. The Council also requested states to ratify Art. 3bis Chicago Convention. This provision requests states to refrain from using resorting to the use of weapons against civil aircraft was not yet wide spread ratified. 587 ICAO, ‘Resolution and Report Concerning the Destruction of Iran Air Airbus on July 3 1988’, (1989) 28 ILM 896, at 910. 588 ICAO, Council - Hundred and Twenty-sixth Session, Minutes of the Eighteenth Meeting (C-MIN 126/18) of 13 March 1989, at 150. See also A.F. Lowenfeld, ‘Looking Back and Looking Ahead’, (1989) 83 AJIL 336.
138 Cross-border provision of air navigation services consideration.589 The recommendation provided for a series of detailed and explicit co- ordination measures to be taken by the states party to the MID RAN to ensure that civil aircraft could navigate safely in the region, unmolested by military activities. According to Iran, these measures had been widely implemented by the coastal states of the Persian Gulf and, prior to US interference, that is prior to the NOTAM and the destruction of the aircraft, there was a pre-existing regulatory regime governing the territorial and high seas airspace for the whole Middle East, including the Persian Gulf.590 Any state entering this area and proposing to conduct military activities which might impinge upon civil aviation was under a duty to seek out the lawful authorities in order that the latter authorities could affect proper civil-military co-ordination within their own FIR to ensure the safety of civil aviation.591
The United States of America argued, amongst others, that it had complied with international principles. In order to disseminate information to civil aircraft about defensive precautions by the US it had first of all issued a so-called special notice to all controlling authorities in the applicable FIR’s. The authorities exercising ATS authority were encouraged to incorporate particular information in their NOTAM’s as regarding the defensive precautions.592 According to the USA, Iran had objected to this special notice, sending messages to all states in the region denouncing the special notice as illegal. The US felt compelled to publish the NOTAM which was distributed through official civil- and military channels and US embassies in the area rather then again circulating the special notice. Realising that it would have been more appropriate for Iran to disseminate the information, under the circumstances, the United States of America argued that the NOTAM was a reasonable, appropriate and necessary step taken by the United States as Iran refused to comply with its responsibility to warn the civil aviation public of the potential danger in overflying US naval vessels in the Gulf.593
Because of ex gratia payments by the USA to Iran, the parties withdrew the case and the International Court of Justice did not make a court ruling on the binding effect of the recommendations embedded in the Regional Air Navigation Plan and as to whether or not the detailed and explicit co-ordination measures embedded in the Regional Air Navigation Plan had a binding effect against contracting parties to the Chicago Convention, even against those states that are located outside the particular region.594
The Chicago Convention recognises that each state has complete and exclusive sovereignty over the airspace over its territory, including its territorial waters. Due to the fact that the US authorities ultimately imposed a reporting obligation within the airspace of Iran by way of a
589 For additional information on the Iranian position before the International Court of Justice, see: D.K. Linnan, ‘Iran Air Flight 655 and Beyond: Free Passage, Mistaken Self-Defense, and State Responsibility’, (1991) 16 Yale Journal of International Law 245, at 259; S. Sucharitkul, ‘Procedure for the Protection of Civil Aircraft in Flight’, (1994) 16 Loyola of Los Angeles International and Comparative Law Journal 513; G. Guillaume, ‘Les suites internationales de l’incident aérien américano-iranien du 3 juillet 1988’, (1989) 169 Revue Française de Droit Aérien et Spatial 351, at 357. 590 Case Concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Memorial of The Islamic Republic of Iran of 24 July 1990, ICJ Pleadings Volume 2 (772), at 183-184. 591 Ibid. 592 Case Concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Preliminary Objections Submitted by the United States of America, ICJ Pleadings Volume 2 (772), at 263-265. 593 Ibid., at 265-267. 594 Case Concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order of 22 February 1996, ICJ Rep. 1996, at 9-11. By a joint letter the parties notified the court that they agreed to discontinue the case because they had entered into an agreement in full and final settlement of the dispute.
Chapter 4 139
NOTAM, the first question to be answered by the court is whether the USA was compelled to comply with the regulatory framework in place in Iran. If the RANP would have to be considered as Council recommendation ex Article 69 Chicago, does this then imply that it would have been possible for the United States of America to escape the binding effect of the recommendation by relying on the carve-out under that same article?595 After all, no contracting state shall be guilty of an infraction of the Chicago Convention if it fails to carry out recommendations.596 In view of the author the MID RAN recommendation provided for detailed and explicit co-ordination measures to be taken by the states party to the MID RAN to ensure that civil aircraft could navigate safely in the region, unmolested by military activities. The USA has not as such failed to carry out the recommendation, but has imposed a reporting obligation that goes against the scope of the recommendation altogether and, in the view of the author, is therefore unable to rely on the carve-out as referred to above.
The Legal Committee of ICAO has also studied the legal status of the RANP when it was asked to provide legal views on the implications of building an airport on an artificial island outside the territorial sea of a coastal state within its Exclusive Economic Zone (EEZ). As mentioned in Chapter 4.2.2.1 coastal states have national competencies on economical activities in the EEZ such as an exclusive right to make use of facilities within the EEZ for its economic benefit. They cannot exercise sovereign competencies in the airspace over the EEZ.
The Legal Committee recognised that coastal states do not have sovereignty or jurisdiction over the airspace above the airport located on the artificial island, and over the airspace in the approach and take-off corridors around such airport. The Committee argued that the coastal state must negotiate the exclusive use of these portion of the airspace with other states in the framework of the Regional Air Navigation Plan.597 It is only in such case that the coastal state is able to negotiate air traffic rights with respect to the airport at the artificial island. The value of a traffic right given by a coastal state with respect to artificial islands can be similar to that of a normal traffic right, provided that the exclusive use of the airspace above and around the airport can be successfully negotiated with other states to that RANP. The amendment of the relevant RANP, if successfully negotiate, would create an exclusive rights of control of the airspace concerned for the purpose of the airport. To the extent permitted by the other states it creates limited jurisdiction for the coastal state depending on the terms and duration embedded in the RANP.598
Furthermore, the European Air Navigation Planning Group (EANPG) considered the legal status of the Regional Air Navigation Plan.599 Questions were raised by European regional organisations about the purpose and role of this document. A memorandum was prepared recalling the scope, objectives and status of the RANP, including its multilateral effect.600 To keep order in the development activities of states, such activities should be conducted in accordance with an internationally agreed air navigation plan. This to ensure that facilities and services provided are those effectively required by the international air navigation and fit into the global air navigation system.601 According to the EANPG, the status of the RANP is
595 See Buergenthal and M. Sheffy supra note 583 that argue that the RANP has the status of a Council recommendation ex Article 69 Chicago Convention. 596 Article 69 Chicago Convention. 597 ICAO, Legal Committee - Thirty-first Session, United Nations Convention on the Law of the Sea- Implications, if any, for the application of the Chicago Convention, its Annexes and other International Air Law Instruments (LC/31-WP/4-4) of 23 June 2000, at 4. 598 Ibid. 599 For the positioning and role of the Planning and Implementation Group (PIRG) within the framework of the ICAO institutions, see Ch. 2.3.1.2. 600 ICAO, European Air Navigation Planning Group, Thirty-eight meeting, Objectives and Status of the ICAO Regional Air Navigation Plans (EANPG/38-WP/10) of 1 October 1996, Appendix A: ICAO Memorandum on Objectives and Status of Regional Air Navigation Plans. 601 Ibid., Para 2.6.
140 Cross-border provision of air navigation services that of an authoritative internationally agreed and Council approved reference document. This corresponds to a contract between states covered by the plan regarding air navigation facilities to be provided and approved by the Council under the provisions of the Chicago Convention, acting on behalf of all ICAO states, including states not covered by the plan.602
Furthermore, in addition to the analysis by the ICAO Legal Committee and the EANPG, the multilateral effect of the RANP is also recognised in a Standard as far as this concerns the extra-territorial service provision over the high seas or in airspace of undetermined sovereignty. Those portions of airspace over the high seas or in airspace of undetermined sovereignty where air traffic services will be provided shall be determined on the basis of regional air navigation agreements.603 Next to the role of the RANP for the provision of air traffic services over the high seas, it has also been used by Belgium and Luxembourg to picture that as far as the airspace over Luxembourg is concerned, the air navigation services for en-route air traffic are being provided under the umbrella of the Belgian authorities.604
Lastly, the binding effect of the Regional Air Navigation Agreement is recognised in the context of the Single European Sky Regulations. The Framework Regulation shall not prevent the application of measures by contracting states of the European Community to the extent to which these are needed to safeguard essential security or defence policy interests. Such measures are in particular those which are imperative for the surveillance of airspace under their responsibility in accordance with ICAO Regional Air Navigation agreements.605 For charging principles, the costs to be taken into account shall be those assessed in relation to the facilities and services provided for and implemented under the Regional Air Navigation Plan, European Region.606 Also, the Functional Airspace Blocks shall comply with conditions stemming from the regional agreements concluded within ICAO and respect regional agreements in existence on the date of entry into force of the Airspace Regulation, in particular those involving European third countries.607
4.6.4 The RANP as a multilateral vehicle
Can the RANP serve as a multilateral vehicle for launching the concept of the responsibility of the supervising authority as discussed in Chapter 4.5? Is it possible to use the RANP for the delegation of state responsibility as far as this involves the objectives of air traffic services being the prevention of collisions between aircraft, between aircraft and obstacles on the ground and to expedite and maintain an orderly flow of air traffic?
So far the ICAO Assembly has considered the RANP as an important instrument in the determination of facilities and services that the contracting states are expected to provide in the provision of air navigation services. However, at the same time the Assembly required contracting states to examine with other states in the region whether the implementation of the particular RANP could be facilitated through bilateral- or multilateral agreements. Taking into consideration the opinion of the author’s Buergenthal and Sheffy the Regional Air Navigation Plan constitutes a Council recommendation in the sense of Article 69 Chicago. This would then at the same time imply that, on the basis of that same article, states are not
602 Ibid, Para 2.9. At an earlier stage, the RANP was already considered an important legal base document, see ICAO, European Air Navigation Planning Group, The EANPG Programme Coordinating Group, Second meeting, Legal Basis and Machinery of Planning in The Air Navigation Field – Europe (EANPG COG/2 – WP/6) of 12 march 1996, Para 1.3. 603 See Annex 11, supra note 75, Para. 2.1.2. 604 See Para 4.6.2. where the Figures enclosed in that Chapter illustrate that already upon the circulation of the first map picturing the FIR boundaries, the airspace over Luxembourg is a part of the Belgian FIR 605 See Framework Regulation, supra note 222, Art. 13. 606 See Service Provision Regulation, supra note 223, Art. 15(2)(b). 607 See Airspace Regulation, supra note 224, Arts. 5(2)(f) and(g).
Chapter 4 141 guilty of an infraction of the Chicago Convention if they fail to carry out the recommendations. As pointed out by Milde there is no constitutional basis in the Chicago Convention that the Regional Air Navigation Plan has a binding effect.
On the other hand, the fact that the RANP is dealing with air navigation services and the fact that ICAO’s Legal Committee has suggested to incorporate negotiation of air traffic rights in the RANP implies that the document has binding effect and qualifies as a multilateral vehicle even binding the contracting states to the Chicago Convention that are not part of, but located outside the Regional Air Navigation Region. Furthermore, according to the EANPG the status of the RANP is that of an authoritative internationally agreed and Council approved reference document. This corresponding to a contract between states covered by the plan regarding air navigation facilities to be provided and approved by the Council under the provisions of the Chicago Convention, acting on behalf of all ICAO states, including states not covered by the plan which makes it hard to believe that the plan would have no binding force and would not be able to qualify as multilateral vehicle.
In the author’s view there should be a paradigm shift that acknowledges that the RANP has a binding effect which can be used to establish clear lines of state responsibility for the purpose of cross-border provision of air navigations services. The RANP should recognise the concept of the responsibility of the supervising authority, provided that the states involved enter into an underlying model agreement (see Appendix I) that is filed with the ICAO Regional Office. Because of such recognition in the RANP, the concept of the responsibility of the supervising authority has a binding effect against all contracting parties to the Chicago Convention albeit that only the Contracting States (supervising state and delegating state) are a party to the model agreement. Such filing of the model agreement makes it visible to third-states whether or not there is delegation of the responsibility towards a supervising authority in case of (cross-border) provision of air navigation services. In the event that the states have concluded such agreement at lower governmental level for the cross-border provision of air navigation services, the concept of the responsibility of the supervising authority would have a binding effect against other contracting states to the Chicago Convention.
Those states that fail or reject the conclusion of such underlying agreement pursuant to the model Agreement in Annex I but allow the cross-border provision of air navigation services by an air navigation service provider in their airspace continue to bear state responsibility and, in case of damages, have no clear recourse regime in place that enables them to recover damages suffered or compensation paid. Looking at such deviation from the states involved from the perspective of Article 69 Chicago this would imply that those states are not guilty of an infraction of the Chicago Convention for the failure to carry out the recommendation. Yet at the same time, the airspace of those states is leading as far as this concerns responsibility for the failure to meet the objectives under the Chicago Convention. From the viewpoint of third-states outside the region, they cannot rely on the non-binding effect of the RANP by referring to Article 69 Chicago. The paradigm shift imposed under the RANP only applies as far as the airspace in the air navigation region is concerned. Third states are not located in the air navigation region and can therefore not rely on the recommendation, but are bound to the outcome thereof as far as this concerns establishing clear lines of state responsibility for cross-border provision of air navigation services.
142 Cross-border provision of air navigation services
4.7 Concluding Remarks
For the benefit of launching wide-scale cross-border provision of air navigation services, this Chapter has dealt with the question how to organise and codify such cross-border provision in such a way whilst at the same time establishing transparent lines of state responsibility? As also evidenced by the tragic mid-air collision near Überlingen (Lake Constance), the failure of a transparent legal regime causes all kinds of legal complications. The District Court came to the conclusion that the transfer of the exercise of national competencies in the field of air navigation services requires a proper bilateral agreement between Germany and Switzerland. The Letter of Agreement did not qualify as an effective instrument to formalise the same. Consequently, albeit that the air navigation service provider had its principal place of operation in Switzerland, the fact that the accident occurred in German airspace made that the plaintiff, Bashkirian Airlines, could file damages with the German government on the basis of German national law. Germany could not redirect the plaintiff to the Swiss government or to the Swiss air navigation service provider.608
Albeit that the aforementioned court-case involved a damage claim awarded to a private party, in the case of cross-border provision of air navigation services states should also consider claims under international law filed by other entities possessing international legal personality like states or international organisations.609 This Chapter has considered the provision of cross-border air navigation services from the angle of public international law.
In Chapter 4.2 an explanation was given as to what constitutes cross-border provision of air navigation services. This in order to differentiate this kind of air navigation services provision from extra-territorial provision of air navigation services over the high seas and portions of undetermined sovereignty and the provision of air navigation services through autonomous entities. The cross-border provision of air navigation services is the situation where by mutual agreement a state delegates to another state, group of states, or international organisation the responsibility for establishing and providing air navigation services in the airspace over the territory of the former.
Subsequently, Chapter 4.3. considered as how to deal with questions of state responsibility and state liability in the field of air navigation services. Starting with state responsibility, an analysis was given hereof by applying the articles on state responsibility for international wrongful acts as developed under the umbrella of the International Law Commission. According to these articles every internationally wrongful act of a state entails the international responsibility of the state. There is an internationally wrongful act when, firstly, conduct consisting of an action or omission is, secondly, attributable to the state under international law and, thirdly, constitutes a breach of an international obligation of the state. Taking into account these requirements for there to be an internationally wrongful act, hence triggering state responsibility, this therefore does not depend on there being physical damage.610
For there to be state responsibility, the first question is one of factual matter and focuses on the question as to whether or not the conduct of the air navigation service provider consists of an action or omission. Due to the fact that each incident or accident is generally surrounded
608 For additional information, see Ch. 1.2. 609 At first only states were recognized as possessing international rights and duties and being able to maintain rights by bringing claims against other entities possessing international legal personality. The most serious and important inroad into this traditional concept of state sovereignty is by the creation of international organisations due to the fact that states have delegated to those organisations the exercise of particular national competencies. See further Ch. 2.2.2. 610 See Ch. 4.3.1.
Chapter 4 143 by various circumstances, there may be circumstances where it is difficult to pinpoint a clear act or omission of the air navigation service provider. Although every accident or incident is generally surrounded with various circumstances which potentially can trigger contributory negligence of the air navigation service provider and the pilot-in-command, this study has relied on the mid-air collision near Überlingen (Lake Constance) where the District Court held that the pilots could not be blamed for descending pursuant to the instructions of the air traffic controller, albeit that they had conflicting TCAS warnings.611 There had been a clear omission from the side of the air navigation service provider.
Secondly, for there to be state responsibility the conduct should be attributable to the state under international law which interrelates with the operational aspect of the provision of air navigation services. In the event a contracting states to the Chicago Convention undertakes the operational aspect of providing air navigation services, whether or not through its governmental structure by civil servants or through other organisational forms outside the government structure, the conduct of the air navigation service provider will be attributable to the state. In the view of the author, the attributability element that should be met for there to be state responsibility does not only cater for the provision of air navigation services by the state itself. It also covers suitable regulatory oversight and auditing of the privatised air navigation service provider, the failure thereof triggering the aforementioned attributability. In the event air navigation services are provided outside the governmental structure by a privatised entity, the state should retain regulatory oversight and verify the compliance by the air navigation service provider of pre-defined (and regulated) governmental parameters, rules and regulations, that on their turn are imposed on the state through the rulemaking competencies of ICAO, EUROCONTROL or the European Community. In the event of an act or omission of this privatised air navigation service provider it turns out that the state has failed to keep the appropriate regulatory oversight or has failed to verify the compliance of the air navigation service provider to rules and regulations imposed by the state, this could trigger the ultimate state responsibility. At the same time, if the state has met its obligations and has not failed to perform audits or regulatory oversight, the act or omission of the air navigation service provider should not trigger state responsibility.
Thirdly, leaving the aspect attributability that thus in the view of the author captures both the provision of air navigation services by the state or, in the view of the author, the failure of keeping regulatory oversight or perform audits, there should be a breach of an international obligation of the state. According to Article 28 Chicago even in the case of the delegation of the provision of air navigation services, the state remains responsible for setting and maintaining the standards of the services provided as the air navigation services should be provided in accordance with the Standards and Recommended Practices.
According to the Standard embedded in Annex 11, the objectives of the air traffic services shall be to prevent collisions between aircraft, prevent collisions between aircraft on the manoeuvring area and obstructions on that area, expedite and maintain an orderly flow of air traffic, provide advice and information useful for the safe and efficient conduct of flights and, lastly, notify appropriate organisations regarding aircraft in need of search and rescue aid and assist such organisations as required. As earlier discussed in this study, states are allowed to derogate from Standards in good faith. However, in the author’s opinion the aforementioned Standard with, in short, its objective being the prevention of collisions between aircraft, between aircraft and obstacles on the ground and to expedite and maintain an orderly flow of air traffic is as a fundamental international objective for which it would be very hard to understand why the contracting states would be able to derogate here from. In the event states allocate airspace in which it offers air traffic services through civil servants, corporatised- or privatised entities, it should not be possible for such states to derogate from this objective. Therefore, the failure to meet the objective, such as in case of a mid-air collision or near miss
611 See Ch. 4.3.1.
144 Cross-border provision of air navigation services in the airspace of the state in whose territory the air traffic services are being provided would therefore qualify as a breach of an international obligation of the state.
The majority of bilateral- and multilateral arrangements that have been concluded for the provision of cross-border air navigation services grant the delegating state a right of recourse on the providing state for damage caused by air traffic to persons or goods in the territory of the delegating state. According to the arrangements, the latter state shall remedy damages whilst having a right of recourse on the providing state for costs and damages suffered. Except for the draft model delegation FAB agreement developed by EUROCONTROL (4.4.2.4) the bilateral- and multilateral cross-border arrangements start reasoning from the state in whose airspace the accident occurred and provide the delegating state only with a claw-back provision in case of damages, but not for the failure of breaching international obligations (without damages). There is no concept of state responsibility recognised in the arrangements and there is no direct chain of responsibility to the providing state in such cases. In the event of a near-miss, this potentially triggers an internationally wrongful act which is liable for reparation. Such reparation to take place through restitution in integrum, compensation or satisfaction despite the fact that the near-miss did not result in physical damage as such. Only if the air navigation service provision results in damage, a claim can be lodged by the delegating state with the providing state.612
In case of cross-border provision of air navigation services the delegating states have no direct control over the air navigation service provider and would have a preference to be relieved from any potential internationally wrongful acts as far as failure of meeting the objectives for air traffic services for such cross-border provision of air navigation services altogether. In short, they would like to be relieved for any failure of the air navigation service provider, that has his principal place of operation in another state and is subject to the regulatory and enforcement competencies of such other state, to prevent collisions between aircraft, between aircraft and obstacles on the ground and to expedite and maintain an orderly flow of air traffic. After all, the delegating state is not providing the air navigation services through civil servants and, moreover, due the fact that the air navigation service provider is based in another state, it lacks rulemaking competencies to exercise regulatory oversight and auditing competencies and lacks enforcement competencies to enforce predefined rules and regulations.
Relieving such delegating states from internationally wrongful acts as far as cross-border provision of air navigation services is concerned requires a paradigm shift where rather than clinging on to the territory (airspace) as the point of departure for state responsibility, no longer territory but the air navigation service provider is starting point. State responsibility is no longer channelled to the state in whose territory the air navigation services are being provided, but to the state (or body of states) or international organisation that act as supervising authority of the air navigation provider. A parallel can be drawing with the transfer of certain functions and duties from the state of registry to the state of the operator of aircraft in case of lease, charter or interchange or any similar arrangement where the state of registry is relieved from responsibility in respect of those functions and duties in respect of the aircraft. This concept should also be applied for the benefit of delegating states in case of cross-border provision of air navigation services.
In the event the air navigation service provider that is performing cross-border air navigation services has his principal place of operation in another state and has been granted an operating certificate by the supervising authority of such state, that supervising state, whether or not acting through the latter’s supervising authority, is exercising rulemaking and enforcement competencies over the air navigation service provider and is able to pursue compliance by the air navigation service provider with the objectives set for air navigation services. In such case
612 See Ch. 4.3.2.
Chapter 4 145 the delegating state continues to provide, through a third party, air navigation services in its territory but should be relieved from meeting the Standards and Recommended Practices under the Chicago Convention, such as meeting the objectives for air traffic services. The supervising authority should bear state responsibility full stop.613
Notwithstanding the delegation of state responsibility to another state, group of states or international organisation, how can such re-arrangement of state responsibility have third- party effect? After all, the aforementioned re-arrangement only binds the contracting states to the model agreement but does not bind those states that are not a party to this agreement. Chapter 4.6 therefore continued to analyse what multilateral vehicle is available to pursue the concept of the responsibility of the supervising authority. The concept of the responsibility of the supervising authority should be embedded in the Regional Air Navigation Plan (RANP) which would in the view of the author give the concept a multilateral effect to all the member states of ICAO. The RANP should embrace the concept of the responsibility of the supervising authority in case of cross-border provision of air navigation services and leave the technical details to be formalised by states pursuant to a pre-formatted model agreement (Appendix I to this study).
In case of cross-border provision where states fail to notify the ICAO Regional Office of such agreement or reject the conclusion of such underlying agreement altogether there is no delegation of the responsibility of the supervising authority. In such event the delegating state, even in the event of cross-border provision of air navigation services, would bear state responsibility. Filing the lower-level agreements with the ICAO Regional Office makes it visible to third states as to whether or not delegation of state responsibility took place.614
For the purpose of establishing transparent lines of state responsibility as far as cross-border provision of air navigation services under the Single European Sky regulations is concerned, the European Community should endorse the concept of the responsibility of the supervising authority in its own legal order by way of its regulatory competency. Pending the formalisation and third party effect of this concept in the RANP, the concept would at least have a binding effect and establish clear lines of state responsibility as against the member states of the European Community for cross-border provision of air navigation services.
613 See Ch. 4.5. 614 See Ch. 4.6.4.
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CHAPTER 5 Organisation of air navigation service providers in Europe
5.1 Introduction
After a description of cross-border provision of air navigation services and the related questions on the establishment of transparent lines of state responsibility, the next logical step is to focus on matters of liability for damage suffered with respect to the provision of (cross- border) air navigation services. The introductory Chapter to this study opened with the example of the mid-air collision near Überlingen (Chapter 1.2.), where the District Court as competent forum held that the matter had to be decided on the basis of German law and that the German state should indemnify the plaintiff (Bashkirian Airlines) from third party liability claims. The question arises what specific legal regime can be implemented by states for the benefit of cross-border provision of air navigation services that prevents the delegating state, like Germany, from being liable for damages in the first place? How to establishes transparent lines of liability for damages arising out of the provision of cross-border air navigation services for the benefit of the delegating states, third parties on the ground as well as aircraft operators?
In order to address these questions, it is necessary to pay attention to the national restructuring of air navigation service providers. Where air navigation service providers used to perform their services within the government structure and, in the event of damages resulting from their operations, were subject to the legal regime of state liability, air navigation service providers have been reorganised into corporatised- and privatised entities that are, according to their national laws, subject to specific liability regimes. After an overview of the reasons behind this restructuring and a description of the terms corporatisation and privatisation (5.2) it is time for a comparative overview of a number of national air navigation service providers and the way they are organised. A choice has been made for a comparative overview of the air navigation service providers in Luxembourg, Belgium, the Netherlands, Germany, Austria, Switzerland, Ireland and the United Kingdom (5.3). This range of countries have been selected due to the fact that their legislation was accessible for the author without causing substantial language problems, but is otherwise admittedly arbitrary. When reviewing the organisation of the air navigation service providers, attention shall be paid to the formal status of the entity (or entities) that is or are providing the services in the airspace of the state and the regulatory framework governing the entity with particular attention to the availability of performance indicators and a liability regime.
The reorganisation of air navigation service provision that is discussed in Chapter 5.3 should be considered as the first wave of restructuring. The Single European Sky regulations as set forth in Chapter 3.4.2 trigger a second wave of restructuring. Due to those Single European Sky regulations states have to revisit the way their air navigation service providers are being structured with an open-eye to facilitate cross-border provision by allowing air navigation service providers of third parties to provide air navigation services in their airspace. Chapter 5.4 shall pay attention to the (cross-border) requirements that are imposed on states under the Single European Sky regulation and the impact of those regulations on the formal status of the entity or entities that provide air navigation services in the airspace of a state, including the accompanying regulatory framework in terms of performance indicators and liability provisions.
After the analysis of the national organisation and (future) organisation of air navigation service providers in the European Community, the remainder of the Chapter focuses on a
148 Organisation of air navigation service providers in Europe suitable liability framework for cross-border provision of air navigation services. Bearing in mind the existing national liability regimes and inter-state liability arrangements that are in place, a number of suggestions will be made in order to pursue transparent lines of liability for cross-border provision of air navigation services for the benefit of the inter-state level as well as for the benefit of third parties on the ground and aircraft operators (5.5).
5.2 Corporatisation and Privatisation
The liberalisation in the air navigation service provision was preceded by the liberalisation of airline activities. A majority of the world’s airlines have meanwhile been privatised.615 Particularly within the European Community, airlines are able to operate their services subject to relaxed ownership and control requirements throughout the European Community. See further Chapter 5.4.1.
The provision of air navigation services has traditionally been provided by public agencies where staffing and operational costs were assumed by the state and subject to administration regulation.616 The provision of air navigation services was restricted to the portion of airspace of the state where they were domiciled, except for international organisations (like EUROCONTROL Maastricht, COCESNA and ASECNA) that were offering cross-border provision of air navigation services.
Under the Single European Sky Regulations, air navigation service providers operate under a more liberalised regime and are allowed to have their principal place of operation in territory of the European Community and not necessary in the state in whose airspace they provide air navigation services. Also, according to the regulation issued under the umbrella of the Single European Sky, air navigation service providers are allowed to provide cross-border air navigation services. In the view of the author, liberalisation in the field of air navigation services refers to the relaxation of government restrictions but is not the same as corporatisation and privatisation developments. Of course, the relaxation of requirements does not involve the relaxation of safety requirements.
The first reason for shifting the responsibility for the operation and provision of air navigation services to a provider outside the governmental structure lies in the increasing financial strains that many governments face. The growth of air traffic demands an increase in financial resources, for example by way of investment in new technology, whereby, despite the increase of air traffic, high levels of air navigation safety are maintained. The air navigation service provider that is outside the governmental structure would be better equipped to borrow money in capital markets, rather than the government having to rely on taxpayer.617 Secondly, by structuring the provider outside the governmental structure, the air navigation service provider would be more transparent and efficient in terms of cost allocation and more capable of reducing operational cost. This would also count for labour costs and staffing levels that under a traditional governmental structure are not affected by market forces. Thirdly, air navigation services should no longer be operated through bureaucratic organisations that are not able to make urgent decisions with respect to, for example, updating technological equipment, neither should they be challenged with administrative budget
615 P.P.C. Haanappel, ‘The Transformation of Sovereignty in the Air’, (1995) 20 Air Law 311, at 312. 616 F.P. Schubert, ‘The Corporatization of Air Traffic Control: Drifting between Private and Public law’, (1997) 22 AASL – Part II 223, at 224. 617 United States Government Accountability Office, Testimony Before the Subcommittee on Aviation, House Committee on Transportation and Infrastructure: Air Traffic Control, Preliminary Observations on Commercialized Air Navigation Service Providers of April 20, 2005 (GAO-05-542T).
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discussions and approval mechanisms that are incompatible for meeting the particular air navigation requirements.618
In terms of the organisational format under which air navigation services can be provided, ICAO refrained from recommending the one organisational format over the other, but advised states to consider establishing autonomous authorities that operate air navigation services where this in the best interest of providers and users.619 The term autonomous authority stands for an independent entity established for the purpose of operating and managing one or more air navigation services. This entity being empowered to manage and use the revenues it generates to cover its costs.620 The autonomous authority could be a private enterprise or a mixture or private and public and the International Air Transport Association (IATA) has given a useful outline with respect to the degree of commercialisation of the air navigation service provider in terms of the form of organisation as well as the degree of commercial factors as ownership, employment status, legal form of the entity, taxation and management focus.621 See figure 5.2.1 and 5.2.2 below.
For the sake of clarity, the term autonomous authority should not be confused with the term autonomous entity. The term autonomous authority is used for air navigation service providers that are independent entities established for the purpose of operating and managing one or more air navigation services and empowered to manage and use the revenues it generates to cover its costs. Whereas autonomous entities are autonomous territories that are independent from the (parent) state that, on the basis of the founding document between the autonomous entity and the state, have the right to also provide air navigation services in the portion of airspace over their autonomous territory. See Chapter 4.2.3.
Figure 5.2.1 – Organisation ANS Organisations Degree of Commercialisation
State Authority (CAA) 0% Autonomous State Entity State-owned Corporation (Crown Corporation) Concession/Lease (all or part of the facilities) Partial Privatisation (e.g. non-aeronautical) Not-for-profit (stakeholder owned) Corporation Fully Privatised Company (publicly traded shares) 100%
618 See F.P. Schubert, supra note 616, at 226-227. See also, P.S. Dempsey, R. Janda, and Y. Nyampong, ‘The McGill Report on Governance of Commercialized Air Navigation Services’, (2006) 31 AASL 213, at 219-220. 619 ICAO, World Wide CNS/ATM Systems Implementation Conference, Rio de Janeiro 11-15 May 1998, ICAO Secretariat, National organizational and international co-operative issues, WW/IMP- WP/4 of 4 February 1998, at para 1.2. 620 ICAO, ICAO Policies on charges for Airports and Air Navigation Services (Doc 9082/6) of 2001, Appendix 3 – Glossary of Terms, at 27. 621 IATA, Conference on the Economics of Airports and Air Navigation Services, Montreal 19-28 June 2000, Airport and Navigation Services Commercialization, ANSConf-WP/26 of 16 December 1999, Appendix A, A-2, Part II – Definition.
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Figure 5.2.2 - Commercialisation
Degree of Commercialisation
0% 100% Commercialisation factors: Ownership: 100% State 100% Public Shares Capital Financing Options: All options Employee Status: Civil Servants Corporate Legal Status: Government Private Taxation: Low As private company Management focus Profits/ Share Value
ICAO has distinguished three basic or core forms of organisation for providing air navigation services at the national level. Firstly, through a government department that is subject to government accounting and treasury rules and where the staff remains civil servant subject to the traditional governmental payment and labour conditions. Secondly, through an autonomous public sector organisation that is separate from the government, but where the government is the owner of the organisation and responsible for setting the objectives and tasks, including performance monitoring. Although there may still be subsidies by the government the organisation to a certain extent relies on self-financing where charges for its services and revenues are used for funding operating expenses and investments. The organisation may be subject to normal taxation regime and, lastly, the staff may not necessarily be civil servants. Lastly, the service provision can be taken care of by way of an organisational format that is based on private sector organisation where the government has a minority share and the organisation is owned through (majority) private interest, there are no subsidies by the government and staff falls outside the governmental structure.622
The provision of air navigation services through organisations that fall either entirely or partially outside the governmental structure are generally captured by the terms commercialisation, corporatisation and privatisation. The term commercialisation refers to the approach that business principles are applied or special emphasis is placed on developing commercial practices and activities.623 Contrary to corporatisation and privatisation, commercialisation does not relate to the incorporation or ownership of the company but only focuses on the management of facilities and services. By virtue of its focus on the approach to management rather than the foundation of the company it can encompass both corporatised- and privatised entities, but for the purpose of this study this definition shall not be further used. The term corporatisation means the creation of a legal entity outside the government for managing air navigation services, whether or not through a specific statute or under company law and where the ownership of the corporation, or at least the majority ownership, remains with the government.624 Lastly, privatisation means the full or majority ownership by private entities. Management contracts, lease or minority participation do not qualify as privatisation, but rather as private participation or private ownership because in such cases the ownership remains with the government.625
622 ICAO, World-wide CNS/ATM Systems Implementation Conference, Rio de Janeiro 11-15 May 1998, ICAO Secretariat, Organizational Forms of Air Navigation Services at the National Level, WW/IMP-WP/16. 623 ICAO, Privatization in the Provision of Airports and Air Navigation Services (Cir 284-AT/120) of 2002, at 4. 624 Ibid. 625 Ibid., at 3.
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Despite the several ownership and management options for the provision of air navigation services, ICAO recognises that there is no “best option” for global application and states should choose the options best suited to meet its own objectives after careful consideration and planning.626 There is a widespread feeling that outright privatisation of air navigation service providers makes little sense in an industry where existing international and national regulations prevent air navigation service providers from making financial profit. It is believed that private investors will be hard to attract without the prospect of a financial reward and, even if air navigation service providers were allowed to generate a profit, the long term investments that characterise the industry make a quick return on investments unrealistic which may in itself be a stumbling block to attract investors in the first place.627
Next to the restructuring of the organisational side of air navigation service providers, either to keep them within or (partially) outside the governmental structure, there was also attention for separating the regulator from the operator, or in other words, a separation of the regulator and the provider of air navigation services. This for the benefit of transparent decision- making and to ensure that there is no conflict of interest. After all, operational activities in the field of air navigation services are fundamentally different from the regulatory activities associated therewith.628 When detaching the organisation from the transitional governmental structure, the regulatory control remains with administrative bodies, whereas the actual service provision (including equipment) is transferred to the applicable corporatised- or privatised entity. The air navigation service provider that at the same time is also its own regulator could potentially be reluctant to admit its own shortcomings which could result in a cover-up operation. The regulatory function is intended to protect various groups of people from all types of risks and therefore remains typically performed by the state itself.629
Next to regulatory tasks in the field of safety, also oversight in the field of the quality of services and pricing are on the regulatory agenda. In 2005, the total en-route and terminal costs for air navigation services, of which the bulk hereof relates to air traffic management costs, amounted to EURO 7,430 million. Hence, the focus on performance and economic oversight is not entirely without reason.630 There are substantial differences in the unit costs of air navigation service providers that on their turn are reflected in the en-route air navigation charges that are to be paid by the airline users. These differences can to a certain extent be explained because of the differentiation in economic conditions (such as cost of living) and, or operational complexity due to the geographical location and corresponding traffic flow bringing about more costly air navigation service operations.631
EUROCONTROL has been measuring the en-route cost-effectiveness performance of air navigation service providers at state level by using the en-route unit cost per kilometre as a key performance indicator. The analysis by EUROCONTROL in its report for calendar year 2004 indicated that there had been an en-route unit costs increase in 18 out of 29 states
626 ICAO, First Meeting of Directors of Civil Aviation of the Caribbean Region (CAR/DCA/1), Grand Cayman 8-11 October 2002, ICAO Secretariat, Guidance on Changing the Ownership and Management Structure of Airports and Air Navigation Services, CAR DCA/1 WP/20, at 14. 627 F.P. Schubert, ‘The Single European Sky, Controversial Aspects of Cross-Border Service Provision’, (2003) 28 Air Law 32, at 44-45. 628 See F.P. Schubert, ‘The Creation of a Single European Sky: The shrinking concept of sovereignty’, supra note 549, at 248. 629 Ibid., at 249. 630 EUROCONTROL, Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2006 by the Performance Review Commission (May 2007), at 69. 631 EUROCONTROL, Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2004 by the Performance Review Commission (April 2005), Para 7.3.2.
152 Organisation of air navigation service providers in Europe between 2001 and 2003 where en-route costs where increasing faster than air traffic.632 Upon taking a closer look, some providers had indeed managed to reduce their en-route unit cost up to 17 per cent whereas others had increased their en-route unit costs by more than 15 per cent.633 However, in its report for calendar year 2006 EUROCONTROL concluded that the overall cost-effectiveness had been improving since 2003 where a break in the unit cost trend is clearly visible.634 At the same time it pointed out that despite a decrease in overall unit costs, cost increases in Spain, due to its relative weight, cancelled out performance improvements in fifteen smaller states.635 Also the report indicated that the decrease of en- route unit costs is often the result of genuine performance improvements due to tighter cost management and greater cost-effectiveness awareness albeit that some states like Italy and Switzerland had implemented ad-hoc transitional measures such as explicit subsidies and the use of special reserves to stabilise or decrease chargeable cost-base and hence the en-route unit cost/rate. Although these measures contributed to the reduction of cost-base charge to the airspace users, they were not considered to be genuine performance improvements and if those states refrain from tighter cost-control during the transitional period, the unit costs/charges would be likely to increase in future periods.636
Taking into account the overall corporate structures of the air navigation service providers and albeit that there has been an improvement in the cost-effectiveness and pricing levels, the outcome of the charging regime there has so-far not yet a clear interrelationship between the corporate structure that should realise cost-efficiency and, hence, a lower level of en-route charges. The restructuring has been predominantly driven by cost-considerations in terms of “not on my budget please” and due to the lack of clear performance indicators and economic regulation as well as the fact that air navigation service providers find themselves in a natural monopoly, some air navigation service providers have therefore been able to increase their air navigation charges.637
632 The en-route cost-effectiveness key-performance indicator is obtained by dividing the total real en- route costs by the number of kilometres charged. See EUROCONTROL, Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2004, supra note 631, Para. 7.2.1. and Paras. 7.3.2-7.3.3. 633 Ibid., Para 7.7. 634 See EUROCONTROL, Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2006, supra note 630, at 85. 635 Ibid., at 74. 636 Ibid., at 71. 637 In various presentations by Roderick van Dam (Head of EUROCONTROL’s Legal Service) he has in relation to the restructuring of national air navigation services referred to this process as the “Frankenstein-effect” where the genius inventor created a monster that turned itself against its master. Due to the fact that the air navigation service provider is being placed outside the traditional governmental structure there are less possibilities for the government to interfere in the daily operations. Also, even without clear commitments from the government under its administrative arrangements with the air navigation service provider the latter could ask for more money from the government as it could claim that without governmental funding it would go bankrupt. For further information, see ICAO, Worldwide Symposium on Air Navigation: Flying through congested Skies, Montreal 27-29 September 2006, R. van Dam, When Things go Wrong in ATM (ATM Legal Issues). See also ICAO, Seminar on CNS/ATM Institutional Aspects, Tegucigalpa 30 September – 4 October 2002, R. van Dam, Legal and Institutional Aspects of ATM in Europe. Also EUROCONTROL, SES FAB Workshop, Brussels 6 March 2007, R. van Dam, EUROCONTROL Legal Issues. According to SCHUBERT the governments have transformed air navigation service providers into private companies, but at the same time measures have been undertaken to make sure that they could not behave as such. The states have tried to retain some form of governmental oversight. The corporatisation in itself is not a magic formula that, once applied, drastically improves the performance of national air traffic control systems. Corporatisation should not be pursued as an end in itself, but as a tool that, amongst several others, can improve the organisation of air traffic services as a more efficient, customer-oriented and cost-conscious by applying commercial practices. This requires at the same time a cultural change as some form of spirit that underlies the restructuring process. See F.P.
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The users of the air navigation services have limited means to escape poor performance of air navigation services or the en-route charging regimes due to the fact that re-routing aircraft is not always a suitable alternative. Airspace users may of course decide to use a longer route to avail of lower route charges, but due to the geographical airspace structure in Europe as well as the origin and destination of aircraft, there are limited opportunities for airlines to circumvent airspace with relatively high air navigation charges.638 States should aim to optimise and rationalise their national air navigation service provision. By making better use of existing labour and asset resources, they should reach significant gains in terms of productivity and support costs as far as their air navigation service providers are concerned. Determining the above shortcoming in legal terms, this situation could be qualified as market failure. Because of the exclusive operations by the air navigation service provider in a particular portion of airspace there is not a market that generates sufficient market forces. This calls for regulatory intervention.639 Regulation on pricing and production can be imposed as a substitute for competition to natural monopolies. The conditions could for example encompass economic regulation by enforcing a gradual reduction in the amount of charges levied. It may also allow for a rival supplier to enter the market, and to leave again, which threat of competition could in itself be a sufficient burden on the air navigation service provider to prevent excessive behaviour.640
The airline industry has pointed out that it supports the process of air navigation services operating more efficiently along commercial lines, but that the process has often resulted in increases in the cost base for charges and thus higher use charges where independent economic regulatory oversight is an essential element for this process.641 ICAO recommends that states when considering the reorganisation of their traditional air navigation service provider ultimately take the responsibility for the safety and security, but also given the monopolistic nature of air navigation services, the economic oversight of their operations such as by way of economic regulation.642 The recommendations for an independent mechanism for economic regulation for air navigation services have been incorporated in an ICAO policy on charges for airports and air navigation services.643 Furthermore, member states of EUROCONTROL have agreed on a common policy for the establishment and calculation of charges levied on aircraft operators of en-route air navigation facilities and services by way of a multilateral agreement.644
Meanwhile under the umbrella of the Single European Sky Regulations, implementing rules have been developed dealing with a common charging regime for air navigation services in the European Community. This charging regime regulates the costs that are eligible for
Schubert, The Corporatization of Air Traffic Control: Drifting Between Private and Public Law supra note 616, at 240-241. 638 See EUROCONTROL, Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2004 by the Performance Review Commission (April 2005), supra note 631, at Para. 6.3.15. 639 A. Ogus, Regulation, Legal Forms and Economic Theory (1994), pp. 29-30. 640 Ibid. pp. 32-33. 641 ICAO, 33rd Session of the Assembly, Montreal 25 September – 5 October 2001, IATA, Privatization and Regulation of Airports and Air Navigation Services, A33-WP/87. 642 ICAO Secretariat, ‘ICAO’s updated policies on user charges address a new commercial environment’, 2005 (March/April) ICAO Journal 16, at 17. 643 ICAO, ICAO’s Policies on Charges for Airports and Air Navigation Services (Doc. 9082/6). 644 For the interrelationship between the ICAO policy and the EUROCONTROL multilateral agreement relating to Route Charges, see supra note 96. See also, F. Schubert, ‘The Financing of Cross-Border Air Traffic Services – A Legal Perspective’, (2003) 28 AASL 121. Also R.I.R. Abeyratne, ‘Marginal Cost Pricing of Airports and Air Navigation Services’, (2001) 26 Air Law 74.
154 Organisation of air navigation service providers in Europe charging and how airspace users will be charged for air navigation services.645 The elements of this regulation will apply as of 1 January 2007 and contains mandatory rules which, in the view of the European Community and EUROCONTROL will improve transparency and compatibility of air navigation services costs in the coming reporting year.646 This study shall not further discuss the principles of market failure, natural monopoly or economic regulation and will continue by examining the organisation of air navigation service providers under the national law of various states.
5.3 The organisation of air navigation service providers under national law
Before embarking on a conceptual model of transparent lines of liability for the provision of (cross-border) air navigation services, this requires an analysis of the organisation currently in place for air navigation services under several national laws (first wave) and under the legal order of the European Community (second wave). This Chapter (5.3) will pay attention to the organisation of the provider of air navigation services under national law, whether or not this is a state agency, corporatised or privatised entity or international body, and the available regulatory framework with a particular attention to the availability of performance indicators and as to whether or not there is a clear liability framework. The air navigation service providers of the following states will be discussed: Luxembourg (5.3.1), Belgium (5.3.2), The Netherlands (5.3.3), Germany (5.3.4), Austria (5.3.5), Switzerland (5.3.6), Ireland (5.3.7) and the United Kingdom (5.4.8). The overview of the national organisation of the air navigation service providers in these countries has also been pictured in Figure 5.3.1 below. The next Chapter (5.4.) will concentrate on the second wave, the structuring, including performance indicators and liability framework, envisioned under the legal order of the European Community.
645 See the Commission Regulation (EC) No 1794/2006 of 6 December 2006 laying down a common charging scheme for air navigation services, supra note 249. 646 See EUROCONTROL’s Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2006, supra note 630, at 75.
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Figure 5.3.1 Overview of air navigation service providers under national law
Air Navigation Service ENTITY REGULATORY Transparent Provider (ANSP) liability provision
Luxembourg L’Administration de State agency National law NO l’Aéroport de Luxembourg Belgocontrol Corporatised National law NO Maastricht UACC International Multilateral Agreement YES organisation
Belgium Belgocontrol Corporatised National Law NO [Management Contract]
Maastricht UACC International Multilateral Agreement YES organisation
Netherlands Luchtverkeersleiding Corporatised National law NO Nederland (LVNL) Maastricht UACC International Multilateral Agreement YES organisation
Germany Deutsche Flugsicherung Corporatised National Law YES, Fault-based (DFS) [Frame Agreement] liability of the state and with recourse on DFS (fault-based) on the basis of the Frame Agreement Maastricht UACC International Multilateral Agreement YES Organisation
Austria Austro Control Corporatised National Law YES, Fault-based liability of the state and with right of recourse on Austro Control (fault-based) [CEATS] International Multilateral Agreement YES organisation
Switzerland Skyguide Corporatised National Law YES, Strict- liability of Skyguide
Ireland Irish Aviation Authority Corporatised National Law YES, even for damages arising out of the exercise of air navigation services before the vesting day of the company
United NATS [En-Route] Privatised National Law YES, Fault-based Kingdom [License & Exemption] liability of NATS
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5.3.1 Luxembourg
In Luxembourg there are no less than three organisations providing air navigation services where each air navigation service provider is offering services at a different altitude. The Administration de L’Aéroport (Luxembourg Airport Administration) is providing Aerodrome- and Approach and Departure Control Service up to roughly 4500 meters. From there the Belgian company Belgocontrol takes over that provides area control services up to 8000 meters. From around 8000 meters and beyond area control services are provided by EUROCONTROL’s Maastricht UACC.647 Despite the substantial provision of cross-border services by the Belgian air navigation service provider Belgocontrol in the airspace of Luxembourg, Belgium and Luxembourg have not concluded a treaty dealing with the cross- border provision of air navigation services. The lack of such legal foundation has a historical background. According to the FIR delineation going back to the year 1946, Belgium has been providing air navigation services in Luxembourg airspace ever since.648
There is no clear liability framework in the national laws of Luxembourg nor are there clear- cut performance indicators imposed on the Luxembourg Airport Administration. Due to the fact that the entity is a governmental agency any claims for liability would subject to state liability claims under the national laws of Luxembourg. Because of the lack of a bilateral agreement between Belgium and Luxembourg there is no clear liability framework between Belgium and Luxembourg for any damages arising from the cross-border provision of air navigation services by Belgocontrol in the airspace of Luxembourg either. The provision of air navigation services by EUROCONTROL’s Maastricht UACC is subject to an agreement between Luxembourg and the international organisation which provides for a clear-cut liability provision in favour of the state. The organisation shall indemnify the state for damage arising or resulting from the service provision through Maastricht UACC.649
5.3.2 Belgium
Belgium has appointed Belgocontrol as the national air navigation service provider. Belgocontrol has been construed in 1998 as an autonomous public enterprise. It is 100 per cent governmental owned and therefore qualifies as a corporatised body.650 The relationship between Belgocontrol and the state is governed by a management contract. This contract sets forth the rights, obligations and responsibilities of Belgocontrol. The original contract was entered into for a five years term.651 As it would expire whilst parties were working on a
647 Règlement Grand-Ducal du 7 Juin 2000 relatif à l’Organisation et aux Procédures d’Utilisation de l’Espace Aérien Luxembourgeois of 7 June 2000 [Regulation on the organisation and procedures for utilisation of the airspace of Luxembourg]. 648 See Ch. 4.6.2. with the overview of the FIR boundaries within European airspace of 1946. 649 See Ch. 4.4.2.1 dealing with Maastricht UACC. 650 Wet betreffende de hervorming van sommige economische overheidsbedrijven of 21 March 1991 [Law on the reorganisation of certain economical public companies] and the Bijlage bij het Koninklijk besluit tot goedkeuring van het beheerscontract tussen de Staat en de Regie der Luchtwegen of 25 August 1998 [Annex to the Royal decision approving the management contract between the State and the airway authorities] as amended by the Koninklijk besluit tot goedkeuring van de eerste wijziging van het beheerscontract tussen de Staat en Belgocontrol [Royal decision approving the first amendment on the management contract between the State and Belgocontrol] of 4 March 2001. For additional information, see also G. Viselé, ‘Belgocontrol, the Belgian Air Traffic Service Provider’, (2002) 26 Eurocontrol Magazine Skyways, at 28. 651 Art. 25 of the Bijlage bij het Koninklijk besluit tot goedkeuring van het beheerscontract tussen de Staat en de Regie der Luchtwegen of 25 August 1998 [Annex to the Royal decision approving the management agreement between the State and the airway authorities] as amended by the Koninklijk besluit tot goedkeuring van de eerste wijziging van het beheerscontract tussen de Staat en Belgocontrol
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revision, the parties agreed to prolong the contract until such time a new contract would be in place.652 The management contract has meanwhile been amended and prolonged in 2005 for another five-year term, provided that on an annual basis amendments can be made because of developments in the context of the creation of a common European airspace.653 This annual amendment provision has been incorporated to meet future rules and regulations issued under the umbrella of the Single European Sky.654
The contract encompasses a number of performance indicators. Belgocontrol shall safeguard the regular capacity at Brussels International airport (Zaventem) of at least 74 co-ordinated flight-movements per hour and shall continuously improve the quality, availability and maintenance of its systems. The performance is measured by calculating the delays of flights, mist-approaches and taxi-time at the airport.655 Furthermore, the contract provides for a financial chapter with a pricing methodology.656 The unit costs of Belgocontrol should at least not grow faster than that of the surrounding reference countries The Netherlands, Germany, France, The United Kingdom and Switzerland.657 The management contract even contains a provision obliging Belgocontrol to enter into a service level agreement with the Brussels airport authorities to enlarge capacity, punctuality as well as the information exchange of their respect service provision.
In the event of a breach by Belgocontrol of its obligations under the management agreement that is not cured the breach within a reasonable timeframe, the state can impose a penalty. The penalty is levied per default but capped to a maximum amount.658 In the event damages arise any claims for liability should be brought against Belgocontrol on the basis of national liability laws but contrary to Germany, Austria or Switzerland that will be discussed in the following paragraphs, there is no clear indemnification obligation by Belgocontrol incorporated in the national laws of Belgium.
The provision of air navigation services by EUROCONTROL’s Maastricht UACC is subject to an agreement between Belgium and the international organisation which provides for a clear-cut liability provision in favour of the state. The organisation shall indemnify the state for damage arising or resulting from the service provision through Maastricht UACC.659
5.3.3 The Netherlands
In December 1998 when low visibility and low cloud-base made visual control on the runway from the control tower impossible, a Boeing 767 of Delta Airlines was granted permission to depart from Schiphol airport. At the same time that the Delta Airlines flight was granted permission to take off, an aircraft of KLM Royal Dutch Airlines (KLM) was being towed over the runway. Only when the Delta Aircraft reported that it had aborted the take-off and
[Royal decision approving the first amendment on the management contract between the State and Belgocontrol] of 4 March 2001. 652 Mededeling Verstrijking van het beheerscontract tussen de Staat en Belgocontrol of 15 October 2003 [Notification on the Expiration of the management contract between the State and Belgocontrol]. 653 Bijlage bij het Koninklijk besluit tot goedkeuring van het tweede beheerscontract tussen de Staat en Belgocontrol of 21 Januari 2005, Art. 40 [Annex to the Royal decision to the approval of the second management agreement between the State and Belgocontrol]. 654 Ibid., Preamble. 655 Ibid., Arts. 19-21 and 22-23. 656 Ibid. Arts. 25-34. 657 Ibid. Art. 34(2). 658 Ibid., Art. 39. 659 See Ch. 4.4.2.1 dealing with Maastricht UACC.
158 Organisation of air navigation service providers in Europe they had a “KLM” in front, the tower controller realised what had happened.660 The availability of an explicit liability provision for damages will be further explored in this Chapter. It is should be pointed out that this case caused uproar with respect to the way the public prosecutor dealt with internal safety reports of the Dutch air navigation service provider.661
In 1993 the Dutch civil aviation administration delegated the provision of air navigation services to the Luchtverkeersleiding Nederland (LVNL), also commonly known as Air Traffic Control The Netherlands. Contrary to the restructuring in other countries where separate entities are established outside the government and the government holds the share capital, the LVNL, despite having legal personality and corporate status, is still within the governmental structure. This concept of the establishment of an independent corporate entity (zelfstandig bestuursorgaan) is also used in The Netherlands for other cases as a means for distancing public tasks from the applicable ministry. The organisation shall operate, as far as practicable, in accordance with general private industry practices.662 Emphasis is placed on developing air navigation service provision from a commercial perspective and applying business principles in its operations. The option of full privatisation was considered at the time of restructuring, but the public nature of the service provision and familiarity with the establishment of independent administrative bodies caused the government to opt for commercialisation instead.663 Taking into account the current changes in the ATS industry and the synergies accomplished in the airline industry by mergers and close co-operations, the LVNL is looking at possible cross border co-operations with organisations in neighbouring countries.664
The primary task of the LVNL is the provision of aerodrome- and approach and departure controlling services as well as provision of area control service up to a certain flight-level above which EUROCONTROL’s Maastricht UACC steps in.665 See Figure 5.3.3 below.666
660 Raad voor de Transport Veiligheid [Dutch Transport Safety Board], Final Report 98-85/S-14 on the probable cause of the serious incident with Delta Airlines Boeing 767 on 10 December 1998 at Amsterdam Airport Schiphol of January 2001, at 20-21 and 31-32. 661 The internal safety reports were handed over the police on which the public prosecutor relied in his criminal proceedings against the air traffic controllers for breaching the Dutch Civil Aviation Act. The air traffic controllers were fined Euro 500 but not imprisoned. For additional information and discussion whether the public prosecutor should be allowed to use internal safety audits for a criminal proceeding, see R.M. Schnitker, ‘Rechter acht eindrapporten LVNL en RvTV in strafproces toelaatbaar’, (2001) 8 Tijdschrift Luchtrecht 2. The “Tijdschrift Luchtrecht” has continued under the name Journaal Luchtrecht; also H. Geut and R.M. Schnitker, ‘“Vogelvrij?”, verslag van een symposium’, (2002) 6 Journaal Luchtrecht 138. For criminal investigations, see also the mid-air collision near Überlingen (Lake Constance) in Chapter 1.2. where eight air traffic controllers have been brought to trial by the state prosecutor on charges of manslaughter and negligence. 662 Arts. 5.22 and 5.35 Wet Luchtvaart [Dutch Civil Aviation Act]. 663 CANSO, Corporatisation Report - LVNL (2002), at 1. 664 LVNL, Annual Report 2003, Chapter 2, Report of the Executive Board, at 24-25. 665 Arts. 5.13 and 5.14 Wet Luchtvaart [Dutch Civil Aviation Act] 666 This figure is copied from a study of the Algemene Rekenkamer [The Netherlands Court of Audit]. See Toezicht op Luchtverkeersleiding Nederland [Supervision of Air Traffic Control The Netherlands] of 7 October 2004, Kamerstukken II 2004/05, 29825, nrs 1-2. in nr.2 Rapport [Report], at 12.
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Figure 5.3.3 The provision of air navigation services by LVNL
The Minster of Transport has ministerial responsibility (ministeriële verantwoordelijkheid) for the operations of LVNL. In the event the Minister is of the opinion that the LVNL is not performing properly, he may intervene as he deems appropriate.667 The Netherlands Court of Audit (algemene rekenkamer) has surveying powers over independent administrative bodies such as the LVNL and performs audits to improve the regularity, efficiency, effectiveness and integrity with which the state and its associated bodies operate.668 In October 2004, the Court of Audit issued a report with respect to the general supervision over LVNL and recommended the Minister to improve the supervisory powers over LVNL in order to meet his responsibility.669
The independent status and business-like practice has given the entity certain independence with respect to budgeting. As mentioned earlier, LVNL should operate, as far as practicable, in accordance with general private industry practices. However, real performance indicators have not been defined by the state. The Court of Audit raised the point that the Ministry of Transport had promised to issue performance indicators already in 1998 dealing with service performance, safety procedures, environmental norms, price and performance, optimal availability of airspace and technical systems but in 2004 the Court of Audit concluded that performance indicators had still not been drafted. The Court of Audit came to the conclusion that the lack hereof makes it impossible to compare the operations by LVNL with international criteria or targets.670 As supervision had not been well organised, the Court of Audit concluded that the authorities could not perform a substantial and integral survey over
667 Art. 5.45 Wet Luchtvaart [Dutch Civil Aviation Act] 668 For additional information on the Algemene Rekenkamer [The Netherlands Court of Audit], see
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LVNL activities.671 When the Netherlands Court of Audit revisited the outcome of its findings of 2004 and explored as to what had happened with recommendations that it had issued to the Minister, it concluded that the situation had improved and that the Minister is better equipped to supervise the functioning and operations of the LVNL. At the same time the court held that, albeit that financial oversight on cost per handled flight had been launched, additional performance indicators should be developed.672
There is no clear indemnification provision for damages caused by the LVNL in the course of the performance of air navigation services and such cases should be tried on the general national law dealing with state liability. Claims for damages had there been a collision of the Delta Airlines and KLM aircraft would have to be filed against the Dutch state pursuant to the provisions state liability. The fact that the LVNL, despite its corporate status, is still tied into the governmental system probably clarifies the lack of such liability regime.
The provision of air navigation services by EUROCONTROL’s Maastricht UACC is subject to an agreement between the Netherlands and the international organisation which provides for a clear-cut liability provision in favour of the state. The organisation shall indemnify the state for damage arising or resulting from the service provision through Maastricht UACC.673
5.3.4 Germany
In May 2004 there was a narrow escape at the German international airport of Munich. This airport is controlled by the national air navigation service provider Deutsche Flugsicherung (DFS). A relatively small propeller aircraft of the Italian airline Air Dolomiti was waiting for a clearance by the air traffic controller to get on the runway for take off. Whilst holding position alongside the runway, the controller instructed the propeller aircraft to line up behind the next landing aircraft. As the flight-crew noted an Airbus A321 passing by they proceeded with their line-up. This Airbus was not a landing aircraft but was just taking off. The landing aircraft was in fact a Boeing 737 of KLM Royal Dutch Airlines (KLM) that was approaching the runway. Because of the visibility from the cockpit the KLM aircraft only spotted the Italian aircraft upon touchdown just three- to four hundred meters away. By braking, maximum power reverse and turning hard right they managed to circle around the aircraft of Air Dolomiti avoiding a catastrophe.674
Following an amendment of the German Civil Aviation act, the German state was able to delegate air navigation service tasks to a limited liability company on the condition that the share capital was held by the state.675 DFS has been appointed as the national provider.676 Established in 1992 and commencing operations in 1993 the company is providing en-route, approach- and departure controlling services predominantly in German airspace. An additional regulation on air navigation services companies sets forward how air navigation services should be provided in German airspace.677
671 Ibid., at 48. 672 Toezicht op Luchtverkeersleiding Nederland. [Supervision of Air Traffic Control The Netherlands] of 29 March 2007, Kamerstuk 2006-2007, 29825, nr. 6: Terugblik 2007 [Report: Looking back on 2007], at 12. 673 See Ch. 4.4.2.1 dealing with Maastricht UACC. 674 Bundesstelle für Flugunfalluntersuchung [German Federal Bureau of Aircraft Accident Investigation], Bulletin Unfälle und Schwere Störungen beim Betrieb ziviler Luftfahrzeuge 2004 (May), at 1 and 11-14. 675 § 31(b)(1) and §27(c) Luftverkehrsgesetz [German Civil Aviation Act] of 1999, as amended. 676 Verordnung Zur Beauftragung Eines Flugsicherungsunternehmens [Regulation on the appointment of an air navigation services company] of 1992 as amended. 677 Verordnung über die Betriebsdienste der Flugsicherung [Regulation on the provision of air safety services] of 1992 as amended.
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In order to meet future flexibility, the German government has considered in 2004 to divest its share capital, merely retaining 25,1 per cent of the share capital in DFS. By this share sale, revenues would be generated allowing the company to invest in its infrastructure. This would enable it to meet the market demands and accompanying investments. This with an eye towards the revision of air navigation services expected under the Single European Sky (3.4.2). A broad consortium, that includes the German flag carrier Lufthansa, is expected to be formed with a view to acquire the 74,9 per cent of the privatised air navigation service provider.678 The German President wielded his veto power barring the privatisation in 2006 as in the President’s opinion the privatisation would go against the German constitution.679 Because of the Single European Sky regulations the issue of privatisation is again on the political agenda which may result eventually result in an amendment of the German constitution and privatisation of DFS.680
In terms of performance, it is worthwhile to note that the state and DFS have concluded contracts, so-called Frame Agreements (rahmenvereinbarungen). In these agreements they define performance indicators such as on the calculation of charges or the assistance by DFS to the German state to safeguard German interests with respect to rules and regulations drafted within the context of ICAO, ECAC and EUROCONTROL. The contents of the agreements are confidential.
In Germany the provision of air navigation services is viewed as a federal national task and liability claims for damages caused by the air navigation service provider in German airspace, such as by the private corporatisation DFS, must be addressed exclusively against the state and cannot be filed against DFS or its agents.681 The liability of the state is triggered for damages that come about either vorsätzlich or fahrlässig, which means that the German liability framework for air navigation services is based on the concept of fault based liability that covers liability for damages arising from intentional act or negligence of the air navigation service provider in violation of the statutory duty.682 Due to the fact that there had not been a valid transfer from the provision of air navigation services to the Swiss authorities, the District Court in its ruling on the mid-air collision near Überlingen (Lake Constance)
678 ‘Die Bundesregierung will die Deutsche Flugsicherung privatisieren’, Frankfurter Allgemeine, 20 December 2004. See also Deutsche Lufthansa AG, Annual Report 2005, at 55. 679 S. Hobe, K. Irmen and C. Plingen, ‘Privatization of German and Other European Air Navigation Service Providers and the Single European Sky Regulations’, (2007) 32 Air Law 168, at 176-177. According to the German constitution, aviation administration is a public task to the federal public authority. Albeit that the constitution allows for the provision of air navigation services by a legal person under private law that is under governmental control, the influence of the German state should at all times be safeguarded. The fact that the entire capital of the air naviation service provider could be subject to privatisation, which would make that the state loses influence under German company law, made the Federal President decide that the privatisation was not in accordance with the constitution. See also ‘Bundespräsident: Kontrolle der Flugsicherung nicht auf Dauer gewährleistet’, Heute im Bundestag of 13 November 2006
162 Organisation of air navigation service providers in Europe came to the conclusion on the basis of the German national law the German state was liable for damages.683 The Frame Agreement concluded between the German state and DFS confirms the exclusive fault-based liability of the state, but allows the state to seek recourse on DFS or its agents for any intentional act or negligence in the provision of its services.684
Finally, EUROCONTROL Maastricht’s UACC is performing air navigation services in a portion of German airspace subject to an agreement between Germany and the international organisation which provides for a clear-cut liability provision in favour of the state. The organisation shall indemnify the state for damage arising or resulting from the service provision through Maastricht UACC.685
5.3.5 Austria
The service provider Austro Control has been appointed in 1994 as the provider for airport-, approach and en route controlling services in Austria. It is a limited liability company of which the Austrian government holds all shares. Divestment of shares is allowed, provided that this is to airport operators and the government retains the majority of the shares.686 The air navigation service provider covers all of Austrian airspace, except for a small sector over Innsbruck for which control responsibility was transferred to the neighbouring German provider DFS.687 A bilateral agreement was concluded between Austria and Germany on the airport of Salzburg in 1974 which merely dealt with obstacle clearance on German territory as the airport is so close to the German border.688
With respect to the performance standards the Austrian law provides for general guidelines, but these are not so specific. Similar to the LVNL in The Netherlands, also the Austrian air navigation service provider should be run as a commercial enterprise and as (cost)-efficient as possible. With respect to charging regime, the company should take into account the international developments and notify the Ministry of Transport on an annual basis.689
Similar to Germany, the Austrian model channels liability claims for damages to the Austrian state.690 The state may on its turn seek recourse on the basis of its national law on the Austrian
683 For additional information on the mid-air collision near Überlingen (Lake Constance), see Ch. 1.2. 684 F.P. Schubert, ‘Responsibility and liability of privatised infrastructure providers’, in P.M.J. Mendes de Leon (ed.), Proceedings of the PoA Seminar: Institutional and Liability Aspects of Air Traffic Management and Environmental Protection organised by the International Institute of Air- and Space Law and Europäische Rechtsakademie in 2000 (unpublished), at 8 – footnote 19. See also F.P. Schubert, ‘The Liability of Air Navigation Services in the Single European Sky’, supra note 460, at 66 685 See Ch. 4.4.2.1 dealing with Maastricht UACC. 686 §1(3) Bundesgesetz über die Austro Control Gesellschaft GmbH, Änderung des Luftfahrtgesetzes und des Bundesgesetzes über den zwischenstaatlichen Luftverkehr of 1993 [Act on Austro Control GmbH, changes in the aviation law and federal law on the intercontinental air transport]. 687 CANSO, Corporatisation Report: Austro Control GmbH (2002). 688 W. Schwenk, ‘Problems of Airports in the vicinity of Foreign States’, (1978) 3 AASL 225. 689 § 9(1) Bundesgesetz über die Austro Control Gesellschaft mit beschränkter Haftung, mit dem das Luftfahrtgesetz und das Bundesgesetz über den zwischenstaatlichen Luftverkehr geändert wurde [Federal law over Austro Control GmbH, changes in the aviation law and federal state law on the intercontinental air transport] of 1993. 690 Ibid., at § 10 (Haftung): (1) Für die von Dienstnehmern der Austro Control GmbH in Wahrnehmung des in § 2 Abs. 1 und 3 dieses Bundesgesetzes übertragenen Aufgabenbereiches in Vollziehung der Gesetze wem immer zugefügte Schäden haftet der Bund nach den Bestimmungen des Amtshaftungsgesetzes, BGBl. Nr. 20/1949. Der Dienstnehmer haftet dem Geschädigten nicht. (2) Hat der Bund dem Geschädigten gemäß Abs. 1 den Schaden ersetzt, kann er von den Dienstnehmern der Austro Control GmbH Rückersatz nach den Bestimmungen des Amtshaftungsgesetzes, BGBl. Nr. 20/1949, begehren.
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air navigation service provider which, just like Germany, also recognises the concept of fault based liability. Provided that the state has indemnified the injured person, it is entitled to claim reimbursement from Austro Control for damages that come about either vorsätzlich or grobfahrlässig, which means damage caused either with intent or due to its gross negligence.691
In due course Austro Control shall be accompanied by CEATS, a limited liability company run by EUROCONTROL with operations to be performed from Vienna for the benefit of the central European air navigation area. Just like for Maastricht UACC the organisation will remedy any damages arising from the provision of air navigation services through CEATS.692
5.3.6 Switzerland
Just as DFS and Austro Control, also the Swiss authorities created a corporatised enterprise, this under the name Skyguide Swiss Civil and Military Air Navigation Services (“Skyguide”). Skyguide has been appointed by national law.693 The state retains 99,85 per cent of the shares in the company, leaving the remaining shares in the hands of Swiss airports, -aircraft operators and aviation related organisations and staff associations.694 Just like Austria and The Netherlands there are no specific pre-defined performance indicators. The government and Skyguide define strategic goals on the safe, cost-efficient operations and there is an outline on the charging regime of Skyguide.695
Skyguide is subject to the Federal Law on the Liability of the Confederation and its Agents. Contrary to the legal regimes governing DFS and Austro Control, Swiss laws channel liability directly to Skyguide.696 Only in the event Skyguide is unable to meet the financial amounts
(3) Unbeschadet des Abs. 2 hat die Austro Control GmbH dem Bund jene Leistungen, welche dieser in Erfüllung seiner Verpflichtung gemäß Abs. 1 erbracht hat, in vollem Umfang zu ersetzen. (4) Soweit die Gesellschaft gemäß Abs. 3 Leistungen an den Bund erbracht hat, geht der Anspruch des Bundes gegen die Dienstnehmer der Gesellschaft auf Rückersatz gemäß Abs. 2 auf die Gesellschaft über. 691 § 3(1) Amtshaftungsgesetz [Liability of Public Bodies’ Act] of 18 December 1948, as amended: Hat der Rechtsträger dem Geschädigten auf Grund dieses Bundesgesetzes den Schaden ersetzt, so kann er von den Personen, die als seine Organe gehandelt und die Rechtsverletzung vorsätzlich oder grobfahrlässig verübt oder verursacht haben, Rückersatz begehren. 692 See Ch. 4.4.2.2. 693 Art. 40 Bundesgesetz über die Luftfarht (Luftfahrtgesetz) [Federal Aviation Act] of 1948, as amended. Also Art. 2 Verordnung über den Flugsicherungsdienst [Federal ordinance on air navigation services] of 1995, as amended. 694 CANSO, Corporatisation Report: Skyguide (2002), at 2. 695 Arts. 6 and 9 Verordnung über den Flugsicherungsdienst of 1995, as amended [Federal ordinance on air navigation services]. 696 Arts. 1(f) and 19 Bundesgesetz über die Verantwortlichtkeit des Bundes sowie seiner Behördemitglieder und Beamten (Verantwortlichkeitsgesetz) [Federal Law on the Liability of the Confederation and its Agents] of 1958 as amended. Art. 19: (1) Fügt ein Organ oder ein Angestellter einer mit öffentlichrechtlichen Aufgaben des Bundes betrauten und ausserhalb der ordentlichen Bundesverwaltung stehenden Organisation in Ausübung der mit diesen Aufgaben verbundenen Tätigkeit Dritten oder dem Bund widerrechtlich Schaden zu, so sind folgende Bestimmungen anwendbar: Für den einem Dritten zugefügten Schaden haftet dem Geschädigten die Organisation nach den Artikeln 3–6. Soweit die Organisation die geschuldete Entschädigung nicht zu leisten vermag, haftet der Bund dem Geschädigten für den ungedeckten Betrag. Der Rückgriff des Bundes und der Organisation gegenüber dem fehlbaren Organ oder Angestellten richtet sich nach den Artikeln 7 und 9. Für den dem Bund zugefügten Schaden haften primär die fehlbaren Organe oder Angestellten und subsidiär die Organisation. Artikel 8 und 9 sind anwendbar.
164 Organisation of air navigation service providers in Europe the state steps in to remedy any remaining amounts.697 The liability regime in Switzerland is based on strict-liability regardless of any fault.698 Provided that Skyguide or the Swiss state has compensated the damages, the Swiss laws then continues by imposing a fault-based liability regime for the sake of recourse in the event damages are caused either vorsätzlich or grobfahrlässig, which means a right of recourse for damages that arise from an intentional act or gross negligence of the agent.
5.3.7 Ireland
Within Ireland, the provision of air navigation services is in the hands of the Irish Aviation Authority. This self-financing commercial company qualifies as corporatised body as it is 100 per cent state owned. Just like the other corporatised bodies, the Irish Aviation Authority is designated as the air navigation service provider by means of national law. It is tasked to provide, operate and manage or arrange for the provision of air navigation services in Ireland.699 The air navigation service provider has a general duty to conduct its business in a cost-effective and efficient manner.700 The company may attend international meetings and negotiate agreements with international organisations, albeit with the prior consent of the competent ministry.701 Specific performance indicators are not defined.
The Irish Aviation Authority Act explicitly channels all claims for loss, injury or damage arising out of the exercise of air navigation services before the vesting day of the limited liability company (which had not yet been satisfied or disposed of from such vesting day) to the company rather than the state or state authorities.702
5.3.8 United Kingdom
The British government created a private enterprise undertaking air navigation services, the National Air Traffic Services (“NATS”). The government has chosen for a public private partnership model where the state has 49 percent of shares in NATS Holdings. Because of minority government participation the entity qualifies as a privatised entity.703 With respect to the remaining 51 percent share capital, 5 percent used to be in the hands of a NATS employee trust leaving the remaining 46 per cent of the shares in the hands of an airline group but the shareholding changed after the terrorist attacks of September 11th, 2001 in the United States.
After the terrorist attacks there was an enormous downturn in civil air traffic. Tremendous loads of aircraft were parked in the dessert and airline operators, because of reduced demands for aircraft sets, substantially reduced their flight operations. The decline in aircraft movements not only reduced the workload for the air navigation service providers, but also reduced the flow of income as less route charges were collected and hence less revenue was generated. The decrease in operating revenue made it difficult to finance daily operations, let alone to set aside money for future investments. At a certain point NATS was seeking up to GBP 30 million for rescue financing and could not rely on all of its shareholders for rescue funding. The airlines as airline shareholder group were so seriously financially affected by the downturn in aviation that they refused to put more money in the table. The financial rescue
697 Ibid. 698 F.P. Schubert, ‘Responsibility and liability of privatised infrastructure providers’, supra note 684, at 7. 699 Sections 11 and 14(1)(c) Irish Aviation Authority Act of 1993. 700 Section 16 Irish Aviation Authority Act of 1993. 701 Sections 62 and 63 Irish Aviation Authority Act of 1993. 702 Section 79 and 81 Irish Aviation Authority Act of 1993. 703 For additional information, see N.A. van Antwerpen, ‘The Single European Sky (Part 2)’, (2002) 27 Air Law 90, at 123.
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rested on the shoulders of only one shareholder, the British government.704 Alongside an investment of GBP 65 million by the British government the British airport operator British Airport Authority provided a similar investment. In return for this funding the airline group released 4 percent of the share capital in NATS Holdings to the British Airport Authority and their shareholding was reduced from 46 to 42 percent.705
NATS Holdings is the parent company of NATS Ltd, that on its turn has two subsidiaries NATS En-Route Ltd (hereinafter “NERL”) and NATS Services Ltd (hereinafter “NSL”).706 The latter’s principal activities are the provision of airport air traffic services at British airports. Within the United Kingdom there is competition for provision of air traffic control services at airports. Local services such as Approach Control- and Aerodrome Control Service are provided either directly by the airports, or the airports have concluded a commercial contract with air navigation providers. In 2004 the largest provider was NSL, having a market share of approximately 55 per cent.707 The British government argued that there was no realistic prospect for competition in the en-route air navigation sector. The en-route service provider NERL therefore obtained a monopolist position. To safeguard the users from any abusive monopolistic behaviour by NERL, the government created a controlling regime by means of licensing and economic regulation. The remainder of this Chapter shall restrict itself to the licensing regime.
Under the Transport Act 2000, persons providing air navigation services in the United Kingdom commit an offence, unless they are authorised to do so by means of a license or an exemption.708 The aforementioned local services at airports are exempted for a period up to 2011. License conditions only apply to the en-route service provision.709 Although the national law is not appointing a national provider, the license conditions prescribe that a license is granted to a company formed and registered or to an existing company under the commercial laws of Britain or Northern Ireland.710 The licensor, either the Secretary of State or the Civil Aviation Authority (hereinafter “UK-CAA”), may include provisions in the license as he deems necessary or appropriate.711 The Transport Act further lies down general duties ensuring a safe, efficient and co-ordinated system for the provision of services.712 The UK-CAA may modify the conditions of the license because of system developments, new technology or other developments which require changes in the way air traffic services are being provided.713 The license has been granted for a thirty years period.714 It contains
704 House of Commons - Committee of Public Accounts, The Public Private Partnership for National Air Traffic Services Ltd (2003), at 12. 705 B. Webster, ‘BAA offer £65 m rescue plan for Nats’ < http://www.timesonline.co.uk>, 1 July 2004. British Airport Authority, ‘BAA invests £65 million in NATS’, BAA newsdesk of 19 March 2003. NATS is a public private partnership between the airline group, a consortium of seven UK airlines that comprises British Airways, bmi British Midland, Virgin Atlantic, Britannia, Monarch, easyJet and Airtours that hold 42%, NATS staff who hold 5%, the UK airport operator BAA plc with 4%, and, lastly, the UK government which holds 49%. 706 EUROCONTROL, ATM Cost-Effectiveness (ACE) 2001 Benchmarking Report (2003), at 149. 707 British Civil Aviation Authority, Air Traffic Services and Competition Law, A CAA consultation document (2004), at 15. For a historical review on airport air traffic services provision in Britain, see British Civil Aviation Authority, A report on the supplying by the Authority of navigation and air traffic control services to civil aircraft (1982), chapter 7. 708 Section 3 Transport Act 2000 – Chapter 38. 709 The Air Traffic Services (Exemption) Order of 2001. 710 Section 5(4) Transport Act 2000 – Chapter 38. 711 Section 6 and 7 Transport Act 2000 – Chapter 38. 712 Section 8 Transport Act 2000 – Chapter 38. 713 See also Explanatory Notes to the Transport Act of 2000 – Chapter 38 (2000), Para. 27. 714 UK Civil Aviation Authority, Air Traffic Services License for NATS (En Route) PLC (consolidated including all modifications at 1 November 2003) of 2003, at 5. The license shall continue to have effect
166 Organisation of air navigation service providers in Europe performance indicators such as a condition on the availability of resources, including financial, management and staff resources, including financial ring fencing to ensure stability.715
In order to comply with the license the regulator has an incentive-based regulation which encompasses the economic regulation over the services of NATS with price control. The other regulatory competency lies in the area of fixed requirements backed by sanctions. Performance and quality of services (service standards) that NATS will provide to its users are pre-defined in an annual statement of NATS.716 The British authorities retain the right to issue an order if it is satisfied that the license holder is contravening or likely to contravene the above-mentioned general duties or a license condition. Such order requires the license holder to do or not to do specific things. A provisional order may be issued by the authorities if it is not satisfied, but there is a likelihood that the ANSP is contravening the general duties or license conditions.717 The license holder has a duty to adhere to the orders being issued on the basis of Section 8 Transport Act.718
Although no action is to lie in respect of failure by a license holder to adhere to the orders being issued, this does not affect a right of action in respect of an act or omission which takes place in the course of the provision of air navigation services.719 In the drafting process of the Transport Act, the House of Commons was also slightly mystified by the foregoing.720 It was explained that if there is a failure of a duty ex Section 8 Transport Act, it is not desirable to have just any party taking up proceedings, but enforcement should be left to the competent authorities.721 Claiming compensation is possible by any party if the competent authority has issued a final or provisional order and the air navigation service provider breaches this order
until determined by not less than ten years’ notice, such notice not to be served earlier than the twentieth anniversary of the grant of the license. 715 Ibid., Condition 5. 716 UK Civil Aviation Authority, NATS En Route Limited License Condition 11: Service Performance and Standards of 2001, at 1. See also UK Civil Aviation Authority, NATS En Route PLC License Condition 11: Service Performance and Standards of 2005. 717 Section 20 Transport Act 2000 – Chapter 38. 718 Section 8 Transport Act 2000 – Chapter 38: 8(1) While a license is in force its holder: - must secure that a safe system for the provision of authorised air traffic services in respect of a licensed area is provided, developed and maintained; - must take all reasonable steps to secure that the system is also efficient and co-ordinated; - must take all reasonable steps to secure that the demand for authorised air traffic services in the licensed area is met; - must have regard, in providing, developing and maintaining the system, to the demands which are likely to be placed on it in the future. In Section 8(4) is specified that for the purpose of subsection 8(1)(a) a system is safe if (and only if) in providing the services the person who provides them complies with such requirements as are imposed by Air Navigation Orders with regard to their provision. 719 Section 10 Transport Act 2000 – Chapter 38: 10(1) No action is to lie in respect of a failure by a license holder to perform; - a duty imposed by section 8; - a condition of a license. 10(2) But subsection (1) does not affect: - a right of action in respect of an act or omission which takes place in the course of the provision of air traffic services; - the power to make an order under section 20, a duty to comply with the order and a power to bring proceedings in respect of the duty. 720 House of Commons, Transport Bill, Standing Committee E (27 January 2000) on clause 9 “Breach of Duties or Conditions”. This clause has been renumbered into clause 10 of the Transport Act 2000 – Chapter 38. 721 Ibid.
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and provided that the breach of the duty causes loss or damage.722 For circumstances not related to orders there can be a right of action in respect of a failure by the air navigation service provider in respect of an act or omission which takes place in the course of the provision of air traffic services.723 In the author’s view, this acknowledges the fault-based liability regime for which a damage claim should be filed with NATS.724
5.4 The Organisation of Air Navigation Service Providers in the European Community
Triggered for purposes of economic reasons, states have, as evidenced in the previous Chapter 5.3 reorganised the way air navigation services are provided in their airspace which has resulted in a patchwork of organisations and a variety of different national legal regimes. After this first wave of national reorganisation comes a second wave of restructuring which causes the contracting parties to the European Community to revisit the national organisation of air navigation service provision. This because of the Single European Sky Regulations.725
This Chapter will highlight one of the regulations issued under the umbrella of the Single European Sky regulatory framework, the Service Provision Regulation and its common requirements. First of all a parallel will be drawn between the regulatory framework that has been issued for the benefit of European air carrier transportation and the regulatory framework dealing with air navigation service providers (5.4.1 and 5.4.2). After a brief revisit of the entry into force of the Service Provision Regulation, the remaining Chapter will spell- out the Service Provision Regulation and related Common Requirements with respect to the organisational structure of the air navigation service provider (5.4.4).
5.4.1 Air Carrier Transportation: Operating License and Route License
The liberalisation measures in the field of air transport were issued in three successive stages. The “first package” that was issued in 1987 introduced a more liberal regime in the field of fares and granted states a limited right to object to fares, including introduction of capacity sharing. This regulation was replaced by a “second package” in 1990 taking the liberalisation even further and next to fares and capacity sharing also dealt with access to routes.726 The “third package”, applied as from 1993, covered areas of air carrier licensing, market access, fares and rates and competition.727 This including from 1997 the freedom for so-called Community air carriers to operate intra-Community routes, including domestic routes (cabotage).728
For this study, two regulations issued under the umbrella of the “third package” are relevant. Firstly, the regulation that deals with air carrier licensing according to which the airline can be awarded a so-called operating license.729 Such a license is granted by the individual state of the European Community to the applying air carriers on the basis of non-discriminatory
722 Section 24 Transport Act 2000 – Chapter 38. 723 Section 10 Transport Act 2000 – Chapter 38. 724 See also F.P. Schubert, ‘The Liability of Air Navigation Services in the Single European Sky’, supra note 460, at 68. 725 For the framework of Single European Sky regulations, see Ch. 3.4.2. 726 For additional information, see B.J.H. Crans and M.B.W. Biesheuvel, ‘EC Aviation Scene’, (1991) 16 Air Law 133-135. 727 P.P.C. Haanappel, ‘Recent European Air Transport Developments’, (1992) 17 AASL – Part II 217, at 221-224. See also, P.P.C. Haanappel, ‘Recent European Air Transport Developments: 1992-93’, (1993) 18 AASL – Part I 133. 728 P.M.J. Mendes de Leon, Cabotage in Air Transport Regulation (1992), at 151. 729 Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (OJ L240/1-7, 24/08/1992).
168 Organisation of air navigation service providers in Europe criteria as defined in the regulation. These criteria are of a financial and technical nature. The operating license is issued by the state, provided that, amongst others, the airline operator has an air operator certificate. This is a document issued to an undertaking by the competent authorities of the state affirming that the operator has the professional ability and organisation to secure the safe operation of aircraft.730 The company should also be financially fit.731 There should be insurance coverage for liability in case of accidents, in particular in respect of passengers, luggage, cargo, mail and third parties.732
No undertaking shall be granted an operating license by the authorities of a state, unless it’s principal place of operation and, if any, its registered office are located in that state and the main occupation is air transport.733 Also, the undertaking shall be owned and continued to be owned directly or through majority ownership by European member states and, or nationals of such states. It shall at all times be effectively controlled by such states or nationals.734
Despite meeting the requirements and having obtained an operating license, this does not mean the applicant (airline) automatically has a right of access to specific route or markets within the European Community.735 Next to the operating license, the applicant should also apply for a route license. This is where the second regulation kicks in, the market access regulation.736 The air carrier requires a permit to operate flights (permission to fly) within the European Community.737 This permit is granted by way of a so-called route license that will be issued by the applicable authorities. Although not clear from the outset of the provision, member states of the European Community may impose additional requirements in the authorisation procedure prior to granting the carrier the route license.738
730 Ibid., Arts. 9(1) and 2(d). 731 Ibid., Art. 5. 732 Ibid., Art. 7. 733 Ibid., Art. 4(1). 734 Ibid., Art. 4(2). See also, P.M.J. Mendes de Leon, ‘A New Phase in Alliance Building: The Air France / KLM Venture as a Case Study’, (2004) 53 ZLW 359, at 365-366. 735 See Licensing of Air Carriers Regulation, supra note 729, Art. 3(2). 736 Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ L240/8-14, 24/08/1992). 737 Ibid., Art 3(1). 738 J. Balfour, supra note 204,, at 58-59.
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5.4.2 Air Navigation Services: Certification and Designation
The framework under the Service Provision Regulation has similarities with the “third package” that was introduced for the liberalisation of the European air carrier transportation as discussed in the previous Chapter. For purposes of air navigation services the terms operating license and route license under that third package are replaced by certification and designation as outlined in Figure 5.4.2 below.
Certification and Designation
Air Navigation Services
Air Traffic Services CNS MET AIS Certification Designation Certification Certification Designation Certification
National Super- National Super- National Super- National Super- State State visory Authority visory Authority visory Authority visory Authority
• Common • Local • Common • Common • Safety - • Common Requirements Conditions Requirements Requirements Considerations Requirements • Additional • Additional • Additional • Additional Conditions Conditions Conditions Conditions
Certificate Designation Certificate Certificate Designation Certificate
ANSP ANSP ANSP ANSP
Figure 5.4.2 Certification and Designation of air navigation service providers
Firstly, similar to the operating license for air carrier transportation, the provision of air navigation services within the European Community is subject to certification. The application for a certificate shall be submitted to a national supervisory authority.739 The states shall nominate or establish a body or bodies as their national supervisory authority. This body is established by the state independent of the air navigation service provider.740 The national supervisory authorities shall ensure the appropriate supervision of the application of the Service Provision Regulation, in particular with regard to the safe and efficient operation of the air navigation service providers which provide services relating to the airspace falling under the responsibility of the state which nominated or established the relevant authority.741 Whereas the requirements for granting an operating air carrier license refers to the requirement that the applicant has its principal place of business and, if any, its registered office in the state, application for an air navigation service certificate shall be submitted to the national supervisory authority of the state where the applicant has its principal place of operation and, if any, its registered office.742 See for further information Chapter 5.4.4.1.
739 See Service Provision Regulation, supra note 223, Art. 7(1). 740 See Framework Regulation, supra note 222, Art. 4(1). 741 See Service Provision Regulation, supra note 223, Art. 2(1). 742 Ibid., Art. 7(2). For licensing requirement of air carriers and the reference to principal place of business and, if any, its registered office see Ch. 5.4.1.
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Secondly, in order to obtain a certificate, the applicant has to meet Common Requirements.743 The applicant for a certificate shall comply with general requirements as well as, subject to the type of air navigation service they provide, with specific additional requirements that are further defined in the Common Requirements.744 In the event that air navigation service providers may elect not to use the opportunity to provide cross-border services they may apply for a certificate that is limited to the airspace under the responsibility of the state where they have their principal place of operation and, if any, its registered office.745 Thirdly, beside the aforementioned requirements, certification may be subject to additional conditions. Also these additional conditions fall apart into general- and specific requirements.746 Just like the operating license for air carriers the certificate for air navigation service provision shall be recognised by all member states of the European Community.747
Interestingly, with respect to the Common Requirements that were developed by the European Community at such a high level, EUROCONTROL came up with extensive guidance material to support the implementation of these Common Requirements. Although not binding, they have indirectly shaped national implementing rules. See earlier Chapter 3.6.2.2.
The member states of the European Community, rather than the national supervisory authorities, shall ensure that the provision of air traffic services shall take place on an exclusive basis within specific airspace blocks in respect of airspace under their responsibility. For this purpose, such state shall designate air traffic service provider holding a valid certificate.748 There is only designation as far as this involved Air Traffic Service providers and providers of meteorological services and for both services counts that the states shall ensure the provision of such services in all or part of their airspace on an exclusive basis.749
Fourthly, and only with respect to Air Traffic Services and Meteorological services, designation requirements should be met and these requirements are referred to as so-called local conditions. These local conditions may be derived from various factors, including national security or operational purposes such as the geographical nature of a state. The location may be such that a local condition is required such as the air traffic service provider being capable of providing a specific service in oceanic areas, or where civil personnel has access to military data and states wish to impose security clearance requirements.750 For meteorological services, the designation requirements are limited to safety considerations.751 Provided the applicant meets the certification- and designation requirement, a state has discretionary powers in choosing the provider of Air Traffic Services or Meteorological services.752 For CNS and AIS there are no designation requirements. See also the framework of the certification and designation requirements set forth in Figure 5.4.2 above.
743 Ibid., Arts. 7(3) and 6. For the Common Requirements, see Commission Regulation (EC) No 2096/2005 laying down common requirements for the provision of air navigation services (The Common Requirements), 2005 OJ L 335/13-30. 744 See Common Requirements, supra note 743, Art. 3(1). 745 Ibid., Art. 4(1). 746 See Service Provision Regulation, supra note 223, Art. 7(4) and Annex II (Essential Requirements) to that regulation. 747 Ibid., Art. 7(8). 748 Ibid., Art 8(1). 749 Ibid., Arts. 8 and 9. 750 Booze Allen Hamilton, Study on Common Requirements for the Provision of Air Navigation Services (Final Report) prepared for Directorate-General Energy and Transport (6 August 2003), at 9. 751 See Service Provision Regulation, supra note 223, Art. 9(1). 752 Ibid., Art. 8(3).
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Leaving certification and moving onwards to the designation requirements. With respect to the designation requirements, the European Community may find itself in the same position as for the route license for air transport operations in the European Community. In the beginning it was not clear from the outset whether governments were allowed to impose restrictions on the basis of their competencies for issuing (or better said not issuing) the route license to the air carrier which caused the European Commission to issue principles of interpretation.753 Depending on the extent air navigation service providers are prevented in actual practise from providing cross-border service provision because of the requirements imposed under the designation process the European Commission may have to issue principles of interpretation as far as designation is concerned.
5.4.3 Service Provision Regulation – Entry into Force
Although the Service Provision Regulation entered into force on the twentieth day following its publication (in April 2004), the certification and designation system as provided for in the regulation would only enter into force one year after the publication of the Common Requirements.754 These common requirements were published on December 21, 2005.755 This would imply that the member states of the European Community have to pursue the certification and designation no later than December 21, 2006. The air navigation service providers gradually received operating certificates pursuant to the regulations of the Single European Sky.756 In exceptional circumstances states may postpone certification by six months, provided that the state has notified the Commission of such postponement.757
The Commission shall periodically review the application of the regulations issued in the context of the Single European Sky framework. The report shall contain an evaluation of the results achieved, including developments in the sector and about the quality of the service in light of the original objectives and with a view to future needs.758 This review should safeguard insights in the developments in certification and designation system, perhaps giving rise to additional rule making if states (continue) discriminatory practice.
753 Viva Air, Commission Decision (EEC) 93/347 on a procedure relating to the application of Regulation (EEC) No 2408/92 (OJ L 140/51-57, 11/06/1993). In the case of Viva Air the French authorities refused the airline to operate a route between Paris and Madrid. Viva Air requested the Commission to investigate the legality of the decision by the French authorities under the Access Regulation. Following this decision, the Commission issued a document with principles of interpretation to be applied to the implementation of certain articles. By this document states were made aware of the clear intent of particular provisions. 754 See Service Provision Regulation, supra note 223, Art. 19(2) Service Provision Regulation. Arts. 7 and 8 of that regulation shall enter into force one year after publication of the common requirements, as referred to in Article 6 thereof, in the Official Journal of the European Union. 755 See the Common Requirements, supra note 743. 756 See for example The Maastricht UACC that received its Single European Sky certification EUROCONTROL, Press Release: “EUROCONTROL Receives Single European Sky Certification” (13 November 2006). For the Germany see DFS, Press Release: “Flugsicherung erhält Single European Sky-Zertifikat. Anforderung der Europäischen Union erfüllt” (30 November 2006). For the Austria, see Press Austro Control Press Release: “Austro Control erhält Single European Sky Zertifizierung” (14 December 2006). For the Swiss air navigation service provider see Skyguide, Press Release: “Skyguide zertifiziert für den Single European Sky” (20 December 2006). 757 See Service Provision Regulation, supra note 223, Art. 7(9). 758 See Framework Regulation, supra note 222, Art. 12.
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5.4.4 The Organisation of Air Navigation Service Providers
This Chapter will concentrate on the organisational requirements under the Service Provision Regulation by taking a closer look at the certification and designation requirements in terms of the organisation, regulatory regime, and introduction of performance indicators as well as liability aspects under the Single European Sky Regulations.
Air Navigation ENTITY REGULATORY LIABILITY Service Provider (ANSP)
Principal place of Autonomous Community Law NO operation and, if Authority [Certification and any, its registered Designation] office
5.4.4.1 Principal Place of Operation and Registered Office (Ownership and Control)
The definition of air navigation service provider under the Framework Regulation explicitly recognises that air navigation services can be provided through a public or private entity.759 This definition caters for the various organisational formats, including corporatised- or privatised air navigation service providers. However, in order to obtain an operating permit, the air navigation service provider should meet particular requirements, one of which deals with the principal place of operation and its registered office. See earlier Chapter 5.4.2.
As discussed in Chapter 5.4.1, within the context of the liberalisation of air carrier transportation, the operating license for air carriers requires that the principal place of business and, if any, its registered office is located in a member state of the European Community. For air navigation service providers, it has been stated that the applicant shall have its principal place of operation and, if any, its registered office in a member state of the European Community. The draft Common Requirements that were issued for public consultation in July 2004 still reflected the licensing requirements for air carriers. The ownership requirements stipulated that the provider of air traffic services had to be owned and continued to be owned directly or through majority ownership by Community government(s) or individuals or undertakings of Community nationality. Furthermore, the air navigation service provider was at all times to be effectively and substantially controlled by such governments, individuals or undertakings of Community nationality.760 If this ownership and control provision had been incorporated, it would have been a copy from the licensing requirements for air carriers that has a similar structure.761
Eventually, the Common Requirements for air navigation service providers have not copied the same requirements for air navigation service provision and does not provide such reference to the ownership of air navigation service providers. According to the general requirements, the air navigation service provider shall meet mere general organisational requirements in terms of management and business operations.762 The specific requirements only presuppose that the air navigation service provider makes explicit to its national supervisory authority its legal status, its ownership structure and any arrangements having a
759 Ibid., Art. 2(5). 760 Draft Commission Regulation for public consultation issued by DG TREN/F/2 (20 July 2004), Annex 2: Specific Requirements for the provision of Air Traffic Services (Para. 2.1.). 761 See Licensing of Air Carriers Regulation, supra note 729, Arts. 4(2) and 2(g). 762 See the Common Requirements, supra note 743, Art. 2 on Organisational Structure and Management in Annex I (General Requirements).
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significant impact on the control over its assets. It shall notify any change of any single shareholding, which represents 10 per cent or more of its total shareholding.763
Notwithstanding the fact that air navigation service providers do not have to meet strict ownership and control requirements, an applicant for an operating certificate shall have its principal place of operation and, if any, its registered office in the territory of a member state of the European Community. In the view of the author, this requirement is of importance as this safeguards that the state, or more particularly its national supervising authority, is able to exercise jurisaction and jurisfaction over the air navigation service provider. That state, through its civil servants, will be able to exercise rulemaking- and, if necessary, enforcement competencies on the air navigation service provider, unless of course that state has delegated the exercise of those national competencies to another entity with international personality.
Once the air navigation service provider has the operating certificate, other member states of the European Community shall recognise this certificate.764 When meeting designation requirements other member states of the European Community can then designate such air traffic service provider to provide services in their airspace as well.765
5.4.4.2 Regulatory
According to the Service Provision Regulation the national supervisory authority shall ensures appropriate supervision of the application of the regulation with respect to the safe and efficient operation of the air navigation service provider.766 The national supervisory authorities shall monitor compliance with the common requirements and additional conditions attached to the certificate. If the supervisory authority finds that the holder of the certificate no longer satisfies the requirements or conditions it may take appropriate measures, ultimately revoking the certificate altogether.767 Provided the provider has a certificate, the state has discretionary powers to choose a particular provider by way of designation.768
In view of the author, states should be forced to reconsider designation at pre-determined time intervals. Even though air navigation service providers continue to meet the certification and designation requirements, a designation that is limited in time can break-through static organisation of the air navigation service provision and would allow new entrants to step into the air navigation services arena. An example of time-limitation of air navigation service operations can be found in Belgium where the state has concluded a management contract with Belgocontrol for a five year term time-interval (5.3.2). The United Kingdom is on the other side of the spectrum as the British air navigation service provider NATS has been awarded an operating license for a period of thirty years (5.3.8). The time constraint could facilitate the free movement of goods, persons and services in the field of air navigation services. It would not only trigger states to reconsider the air navigation services organisation from time-to-time, but could also serve as an incentive for other (competing) air navigation service providers to consider expanding the provision of air navigation services and negotiate possibilities in this respect with respect to the airspace of the underlying state involved.
763 Ibid., Art. 1 on Ownership in Annex II (Specific Requirements). 764 See Service Provision Regulation, supra note 223, Art. 7(8). 765 Ibid., Art. 8(1) 766 Ibid., Art. 2. 767 Ibid., Art. 7(7). 768 See further Para 5.4.2 on certification and designation.
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5.4.4.3 Liability
According to the Service Provision Regulation, the Common Requirements should include liability and insurance cover.769 According to the general requirements, air navigation service providers shall have in place arrangements to cover its liabilities arising from applicable law. The method employed to provide the cover shall be appropriate to the potential loss and damage in question, taking into account the legal status of the air navigation service provider and the level of commercial insurance cover available. Furthermore, an air navigation service provider which avails itself of services of another air navigation service provider shall ensure that the agreements cover the allocation of liability between them.770
The Service Provision Regulation leaves it to the national organisation of the air navigation service provision how to deal with liability issues and as to whether or not to pursue a liability mechanism under national law. For the sake of clear lines of liability in the event of (cross- border) provision of air navigation services, the next Chapter will focus on the liability for cross-border provision of air navigation services.
5.5 Liability for (Cross-Border) Air Navigation Services
5.5.1 Traditional Liability Concepts
Traditionally, the providers of air navigation services have been organised as a part of the governmental structure and fell within the same liability regime as applied against the state for state liability. However, this liability concept, liability of the state for damage caused by the air navigation service provider, has to a certain extent been maintained even though the providing entities are no longer governmental agencies but corporatised or privatised entities.771
Reconsidering the national organisation of air navigation service provision and questions pertaining to liability by reference to the three doctrines (state primary responsibility-, state ultimate responsibility- and, last lastly, service provider’s exclusive liability doctrine) as developed by Schubert, the following can be noted.772 According to the national laws of
769 See Service Provision Regulation, supra note 223, Art. 6. 770 See the Common Requirements, supra note 743, Art. 7 on Liability and Insurance Cover in Annex I (General Requirements): An air navigation service provider shall have in place arrangements to cover its liabilities arising from applicable law. The method employed to provide the cover shall be appropriate to the potential loss and damage in question, taking into account the legal status of the air navigation service provider and the level of commercial insurance cover available. An air navigation service provider which avails itself of services of another air navigation service provider shall ensure that the agreements cover the allocation of liability between them. 771 F.P. Schubert, ‘Warsaw Claims and ATC Liability: Addressing the Global Dimension of Aviation Liability’, (1997) 22 AASL Part I 237, at 241. 772 For an analysis of liability provisions on a state-per-state basis, see Ch. 5.3. See also F.P. Schubert, ‘The liability of Air Navigation Services in the Single European Sky’, supra note 460, at 65-69. In this article SCHUBERT distinguishes several models where states mandate an independent company to provide air navigation services with the applicable liability regime. He sets for conceptual theories as far as a state’s national liability regime is concerned for air navigation services and distinguishes the following doctrines: - The state primary responsibility doctrine: This theory assumes that, regardless of the identity and status of the air navigation service provider, and independently from any fault of wrong doing of the state itself, the state stands liable on the front line for any damage resulting from ANS failures. Under this model, the law prescribes that any claim for compensation must be brought exclusively against the state itself under the applicable state liability laws and in front of that state’s domestic courts. Subject to the national law of a state and although the state remains primarily responsible and liable for damages, the state may have a right of recourse against the effective service provider. The basic
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Germany and Austria (5.3.4. and 5.3.5) liability is channelled to the state (the state primary responsibility doctrine) where the state may have a right of recourse on the air navigation service provider. In other states liability is channelled to the air navigation service provider where the government only steps in if the air navigation service provider cannot meet its liability obligations (the state ultimate responsibility doctrine) such as in Switzerland (5.3.6). On certain occasions there is even direct liability of the air navigation service provider without there being any formal backing by the state (the service provider’s exclusive liability doctrine), such as in the case of the United Kingdom (5.3.8). Despite the different doctrines, they all have in common that, whether or not in first instance or at a later stage, the air navigation service providers will always be asked to pay for the damage that has been caused.773
For sake of clarity, the author notes that despite reference in the aforementioned doctrines to responsibility, such reference to responsibility should not be read in the context of state responsibility as international wrongful acts of a state as earlier discussed in Chapter 4.3.1. The matter at hand concerns liability for damages and damage claims that are filed for acts or omissions of the air navigation service provider pursuant to the applicable national legal regimes by individuals. See also the mid-air collision near Überlingen (Lake Constance) where the German state was held liable on the basis of the applicable national legal regime by Bashkirian Airlines as further discussed in Chapter 1.2. Inter-state responsibility is not discussed in this Chapter.
The practical impact of the state being directly liable under its national laws (see state primary responsibility doctrine) is that there is a clear liability regime where the state will pick up all liabilities from day one and having, at best, recourse on the air navigation service provider in charge. Such liability regime prevents intermediate discussions between the state and its air navigation service provider before the damages of the victims are compensated. These discussions could potentially arise in the case of the state ultimate responsibility doctrine and the service provider’s exclusive liability doctrine where the air navigation service provider is primary liable and the state is liable in second instance for those damages that the air navigation service provider is unable to pay for. They could quarrel as to whether or not the air navigation service provider has or does not have the financial capability to compensate damages.
foundation of this doctrine is that states retain the ultimate responsibility for the proper operation of air navigation services whether or not the state is the provider of the air navigation services or leaves this to an entity outside the governmental structure. The state’s citizens should not have to suffer the consequences of the state’s decision to mandate a third party to perform the activity. - The state ultimate responsibility doctrine: This theory assumes that the “wrong-doer” has the primary obligation for compensation and places the effective air navigation service provider in the front line. All claims are to be brought against the service provider itself, but the applicable domestic law will impose an obligation on the state to compensate for any damage that the effective service provider is financially unable to pay for. Claims must be brought against the effective service provider in the courts and subject to the laws of the state that, if necessary, ultimately compensates such damages. - The service provider’s exclusive liability doctrine: The state will only remain responsible and liable for damages caused by its own, direct, fault. In all other instances the air navigation service provider stands alone on the liability front. Absent any “wrong doing” from the state there is formally no recourse or support in terms of compensation to be expected from the state. Albeit that no formal legal duty to step in exists in the United Kingdom, SCHUBERT is of the opinion that the presence of the state as the ultimate safeguard for national security and public safety also appears in Common Law and it would be politically unacceptable for the state not to substitute the British air navigation service provider NATS in the event of financial insolvency. 773 Ibid., at 69.
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The mid-air collision near Überlingen (Lake Constance) serves as an example that, from the point of view of cross-border provision of air navigation services, could potentially result to an undesired outcome. After all, contrary to the traditional situation where air navigation service providers restrict the provision of air navigation services to the airspace of the state in which they are based and where they are exclusively governed by the liability laws of that state, cross-border provision of air navigation services triggers different liability questions. Reflecting the aforementioned liability doctrines on the mid-air collision near Überlingen, it was established that German national law upholds the state primary responsibility doctrine whereas the effective air navigation service provider Skyguide, according to Swiss national laws, is subject to the state ultimate responsibility doctrine. Notwithstanding the fact that the Swiss air navigation service provider was the effective cross-border service provider and, pursuant to Swiss national laws, liable for damages, the German state was not able to redirect the plaintiff to Skyguide. The plaintiff was able to file his damage claim in the court and subject to the national laws of Germany and was subsequently awarded damages from the German state. Had the German state entered into a treaty with Switzerland, had the parties agreed on liability for air navigation service provision and had Germany implemented the same in its national laws the outcome could have been different.774
The issue of liability of air navigation service providers in the case of cross-border provision of air navigation services has been taken into consideration in the draft convention on the liability for air traffic control. The draft convention was initiated for the purpose of establishing international rules for uniform liability of air traffic control agencies.
5.5.2 The Draft Convention on the Liability for Air Traffic Control
The initiative of bringing uniformity to liability norms governing the provision of air traffic control dates back as early as the 1960’s where, within discussions of ICAO’s Legal Committee on a draft convention on aerial collisions between aircraft, the legal committee also raised the question of the liability of the air traffic control agencies in the case of an accident occurring to an aircraft.775 The delegates agreed that there should be uniformity in the rules dealing with the liability of air traffic control agencies as the ever-growing number of aircraft engaged in international flights and the greater importance of the activities of air traffic control agencies required the need for uniform liability rules.776 In the 1960’s air traffic control was provided exclusively by governmental bodies and after an assessment of the liability regimes, the legal committee concluded that there was deep divergence in the national laws regarding state liability ranging from unlimited liability of the state up to complete immunity from the state against any claims, including those for air traffic control services, whatsoever.777
For the purpose of bringing unification in the national liability regimes, the Republic of Argentina submitted to the ICAO Legal Committee in 1983 a Preliminary Draft International Convention on the Liability of Air Traffic Control agencies.778 The liability of air traffic control agencies has been long on the agenda of the legal committee, but no thorough work
774 For discussion of the court-ruling by the German District Court in the mid-air collision near Überlingen, see Ch. 1.2. 775 ICAO, ICAO Legal Committee 14th Session, Rome 28 August – 15 September 1962 (Doc 8302- LC/150-2), Volume II, Documents, at 160-161. 776 H. Sasseville, ‘Air Traffic Control Agencies: Fault Liability vs. Strict Liability’, (1985) 10 AASL 239, at 239-240. See also D. Hwan Kim, ‘Legal Aspects of ATCA Liability’, (1995) 20 AASL – Part I 209, at 212. 777 See Sasseville, supra note 776, at 240-241. 778 The Preliminary Draft of the International Convention on the Liability of Air Traffic Control Agencies was submitted by the Republic of Argentina to the 25th Session of the ICAO Legal Committee in Montreal (April 12-27, 1983). The text of the preliminary draft convention can be found in the McGill’s Annals of Air and Space Law: (1983) 3 AASL 539, 539-561.
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has been done. The consideration of a liability regime for air traffic control agencies has probably lain dormant because there has been no demonstrated practical need and states simply did not feel impelled to begin the burdensome process of negotiating and ultimately attempting to bring into force such a controversial convention.779 Although the unification of the liability rules for air traffic control agencies has so far not been successful the concepts embedded in the draft convention could serve as a useful instrument in order to get to a harmonised liability framework within the European Community on cross-border provision of air navigation services.
First of all, the draft Convention allocated liability to the air navigation service provider for damages caused by aircraft to persons, cargo, baggage and mail carried by the aircraft as well as to persons and objects on the surface for damages resulting from the following circumstances. The aircraft had to perform an international flight within the territory of a contracting state other than the country of its flag that was under the control of the air navigation service provider of that other state or of another contracting state, or secondly under the control of the air navigation service provider of its own country and causing damage in another contracting state. Also the draft Convention would be applicable if the aircraft made an international flight and would be in the territory of a non-contracting state, but under the control of an air navigation service provider of another contracting state or, lastly when the aircraft would be engaged in a flight within the territory of the state but under control of the air navigation service provider of another contracting state.780
From the face of the draft Convention followed an exclusive liability regime on the air navigation service provider. The air navigation service provider under the draft Convention, whether or not belonging to the state, to local governments (whether or not operated by military or civil authorities), private individuals (whether natural or legal persons) or mixed associations comprising governmental authorities and private persons would be subject to liability regime.781 The draft Convention acknowledged that there would be no exemption from liability on the basis of (sovereign) immunity of the air navigation service provider if it belonged to a state.782 However, if the air navigation service provider was a private international or multinational body and has been dissolved, the suit for damages could be brought against the state (or states) which authorised the entity to operate.783 This means that in principal the “wrong-doer”, the air navigation service provider, has the primary obligation for compensation, but the state should step in to compensate damages that the effective service provider is financially unable to pay for. In the opinion of the author the draft Convention therefore voices the state ultimate responsibility doctrine.784
Secondly, the system of liability was based on fault on the part of its officers, employees or agents, with a presumption of fault if firstly, the victims or operator of the aircraft prove that damage resulted from the failure of electronic equipment or other automatic communication machinery unless the air navigation service provider shows that it took all regulatory and possible steps to avoid the failure and a presumption of fault if the air navigation service provider fails present files or registers containing records of messages exchanged between its
779 ICAO, World Wide CNS/ATM Systems Implementation Conference, Rio de Janeiro 11-15 May 1998, speech by M.B. Jennison: A Legal Framework for CNS/ATM. 780 See the Preliminary Draft of the International Convention on the Liability of Air Traffic Control Agencies, supra note 778, Arts. 3 and 4. 781 Ibid., Art. 6. 782 Ibid., Art. 7(4). 783 Ibid., Art. 25(2). 784 See note 772 where the various doctrines are discussed.
178 Organisation of air navigation service providers in Europe officers, employees and agents, and the aircraft commander and other air navigation service providers with which they were exchanged.785
Next, it is worthwhile to point out that the liability framework was based on limited liability. The liability for the air navigation service provider would be limited to the sums of money laid down with respect to air carrier liability.786 This means for claims of liability against passengers, their baggage or cargo the amount of damages suffered are those amounts indicated in the Warsaw Convention.787 For liability for damage to persons or goods on the surface the injured party could claim damages up to the amounts indicated in the International Convention on Liability of the Operator.788
Lastly, with respect to the competent forum and applicable law, the competent forum for which any action for damage had to be brought is the court of the country in which the air navigation service provider had its office, even when the aircraft was flying through the airspace of another country at the time of the accident. The conventions and laws to be applied are prioritised, but eventually the internal law of the country where the air navigation service provider has his office shall be applied.789
5.5.3 Inter-State Liability Concepts for Cross-Border Service Provision
In order to establish transparent lines of liability for cross-border provision of air navigation services and for the sake of a harmonised liability framework it is necessary to not only analyse the traditional liability concepts that states have embedded in their national laws (see Chapter 5.5.1), but also to explore the various liability concepts that states have embedded in their inter-state bilateral- and multilateral agreements on cross-border provision of air navigation services. States have entered into a variety of agreements in which they tried to deal with liability for cross-border provision of air navigation services, albeit that they have not defined liability as such in their bilateral- or multilateral agreements. This Chapter will analyse the inter-state liability concepts that have been concluded under bilateral- and multilateral arrangements.
785 See The Preliminary Draft of the International Convention on the Liability of Air Traffic Control Agencies, supra note 778, Arts. 7(1) and 8. There is an exemption from liability ex Art. 7(3) if the damage occurred fortuitously or as a result of force majeure through an action of a third party, through fault of the victim or inaccurate information from another agency which the air navigation service provider only transmitted and, furthermore, the air navigation service provider demonstrates that it took every possible measure to avoid the damage or that it was impossible to take sure measures. 786 Ibid., Art. 14. 787 Ibid., Art. 10. This is the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention of 1929). 788 Ibid., Art. 11. The reference to the International Convention on Liability of the Operator as far as this concerns the liability caused by aircraft to third parties on the surface has been captured in the Rome Convention of 1933 that has been subsequently amended by various instruments. Only the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, signed at Rome, 7 October 1952 (Rome Convention 1952) and the Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, signed at Montreal, 23 September 1978 (Montreal Protocol of 1978) are in force. The system of the convention is based on a legal limitation of liability for the operator. For additional information on these instruments and, more specifically the limitation of liability, see A.J. Mauritz, Liability of the operators and owners of aircraft for damage inflicted to persons and property on the surface (2003), at 60 and 74-80. 789 See The Preliminary Draft of the International Convention on the Liability of Air Traffic Control Agencies, supra note 778, Arts. 23 and 24. The conventions and laws shall be applied in the following order: (i) the Convention itself, (ii) the other aeronautical conventions as the parties may invoke pursuant to the terms of the Convention, and (iii) the internal law of the country where the air navigation service provider against which the claim is brought has its offices.
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The following elements shall be taken into account. Firstly, according to the bilateral- or multilateral agreement, what is actor that should be held liable? Is this the state in whose airspace air navigation services are being provided (the delegating state), the state where the air navigation service provider has his principal place of operation, or the air navigation service provider? Secondly, does the bilateral- or multilateral agreement indicate what law should be applied? The law of the delegating state in whose airspace the damage occur or the law of the state where the air navigation service provider has his principal place of operation? Lastly, is there a provision as to what is the competent forum? Are these the courts of the delegating state or the courts of the state where the air navigation service provider has his principal place of operation?
First of all, states have determined that the delegating state shall remedy damages suffered even if there is provision of air navigation services by a foreign air navigation service provider in the airspace of the delegating state, subject to the national laws and exclusive competence of the courts of the delegating state (the territorial doctrine).790 See for example the bilateral agreement that has been concluded between The Netherlands and Germany (4.4.1.2) as well as under agreements that have been concluded for the purpose of Maastricht UACC and CEATS (4.4.2.1 and 4.4.2.2) where there is exclusive liability of The Netherlands according to Dutch law and the competent court in The Netherlands. EUROCONTROL shall indemnify each contracting state in second instance with respect to damages arising from the services by Maastricht UACC and CEATS.
A second doctrine to liability embedded in bilateral- and multilateral agreements between states is that the providing state shall remedy damage suffered arising from the provision of air navigation services by its air navigation service provider in which case claims for damages should be brought by individuals against the providing state in accordance with the latter’s national law and in front of its competent court (the provider state doctrine).791 This is the
790 F.P. Schubert, ‘The Liability of Air Navigation Services in the Single European Sky’, supra note 460, at 75-80. In this article Schubert distinguishes the following doctrines: - The Territorial doctrine: According to this doctrine it is the state over the territory in which the damage occurs that retains primary liability regardless of who effectively performs the service on his behalf. It starts reasoning from the fact that the exercise of air navigation services is a sovereign function and a public service of the sovereign state in whose airspace these services are being provided. Also, the functioning of the service is to protect citizens of the state and in case they are facing damages due to the performance (or better said lack of performance of the air navigation service provider), they would like to have access to the domestic courts and have their cases decided against the laws of that state, regardless of the nationality and location of the effective service provider. In its most fundamental form, the territorial doctrine foresees that the delegating state holds primary liability for damage arising from the provision of air navigation services in which case claims should be addressed to the state on an exclusive basis subject to the national laws and competent forum of that state. - The Provider state doctrine: This doctrine favours a liability regime that places the providing state in the front-line, regardless as to whether or not that state effectively provides the services through a governmental agency or its corporatised or privatised entity. Due to the fact that the providing state will not want to be bound by laws of the delegating state or decisions by the latter’s competent forum, but only on the basis of its own national laws and competent court, the latter is recognised under the provider state doctrine. - The Effective Service Provider doctrine: This doctrine places the liability not on the shoulders of the delegating or the providing state, but on the effective foreign air navigation service provider. The foreign national service provider can be charged in front of the courts of the delegating state and its liability would be ruled by that state’s national laws. Lastly, SCHUBERT also pays attention to the Territorial Extension doctrine which implies the extension of national public services over the territory of foreign states and builds on the concept that the state is authorised to extend its own public services over the territory of another state. This doctrine will not be further discussed in this study. 791 Ibid.
180 Organisation of air navigation service providers in Europe case in the Eurocontrol Model Agreement on the Delegation of Air Traffic Services (4.4.1.3) where the providing state is liable for damages caused by its negligence, that of its agents or any other person acting on its behalf. Interestingly, the Eurocontrol Model Agreement recognizes not only the direct liability of the providing state, but also covers any indemnification in favour of the delegating state. Beside the acknowledgement that the providing state is liable for the damages caused and that claims shall be made in the courts and subject to the laws of the providing state, the delegate state may bring an action against the providing state to recover any compensation or costs paid or incurred as a result of loss or damage caused by the negligence of the providing state. The latter action shall again be brought in the courts and subject to the laws of the providing state.792
According to the third doctrine, states may resort to the exclusive liability of the air navigation service provider where any and all liability claims are directed exclusively to the air navigation service provider rather than to the delegating or providing state (the Effective Service Provider doctrine).793 The effective service provider may now be charged in front of the courts and subject to the national laws of the state where the damage occurred. This concept is recognised in the Draft Eurocontrol Model State Level FAB Agreement (4.4.2.4). Also this model agreement acknowledges a right of recourse in favour of the delegating state in whose territory the damage occurred to recover damage suffered from the air navigation service provider. This Effective Service Provider doctrine deviates from the liability concept envisioned under the Draft Convention on the Liability of Air Traffic Control Agencies where, even in case of cross-border provision of air navigation services, the competent forum for which any action for damage should be brought is in the country in which the air navigation service provider has its office and where claims would remain subject to the internal law of the country where air navigation services has its office.794 In the last case, depending on private international law (conflicts of law rules) of the state where the air navigation service provider has its office the laws of the providing state could remain applicable rather than the laws of the delegating state.
Lastly, absent any bilateral- or multilateral arrangements and damage occurring in the territory of the delegating state, the delegating state may try to claim damages from the state where the air navigation service provider has his principal office on the basis of negotiorum gestio, or in other words acting without a mandate.795 The obligation of negotiorum gestio can be defined as the duty to repay an individual who has managed someone’s affairs.796 For the sake of transparent lines of liability, this study focuses on the establishment of clear rules through bilateral- or multilateral inter-state agreements and the possible application of the principle of negotiorum gestio in international public law shall therefore not be further discussed.
792 See Ch. 4.4.1.3. 793 See note 790. 794 See Preliminary Draft of the International Convention on the Liability of Air Traffic Control Agencies, supra note 778, Arts. 23 and 24(c). 795 S. Hobe, ‘Current Liability Problems of German Air Traffic Services: Überlingen and Other More Recent Developments’, in EUROCONTROL (ed.), proceedings of the workshop: Responsibility and Liability in ATM – moving targets in a changing European Airspace, organised by EUROCONTROL in 2006, at 7-9. 796 The European Council in its common position on the establishment of framework dealing with conflicts of law issues also recognises this principle. The principles are not to be applied for purpose of state liability, but govern the relationship between private entities and define the laws to be applied in such a case. Common Position (EC) No 22/2006 adopted by the Council on 25 September 2006 (2006), C 289E/68-83. Article 11 is dealing with Negotiorum gestio: If a non-contractual obligation arising out of an act performed without due authority in connection with the affairs of another person, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that non-contractual obligation, it shall be governed by the law that governs that relationship.
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5.6 Towards a Harmonised Cross-Border Liability Regime for the European Community
In the aforementioned Chapters attention was paid to the available traditional liability concepts under national laws (5.5.1), the harmonisation efforts with respect to such national laws through the Preliminary Draft Convention on the Liability of Air Traffic Control Agencies (5.5.2) and, lastly, the various inter-state liability regimes (5.5.3). In order to pursue wide-scale cross-border provision of air navigation services this requires transparent lines of liability on both inter-state level as well as the national law level and this Chapter will examine as to whether or not a harmonised liability regime for the benefit of cross-border provision of air navigation services in the European Community is achievable. After all, Chapter 5.3. illustrated that within the European Community there is a diversity of national air navigation service providers with, as also pointed out in Chapter 5.5.1 a variety of liability concepts. At the same time there are also various inter-state liability arrangements as discussed in Chapter 5.5.3. Such inter-state agreements will normally not generate any rights for individuals in respect of liability claims, unless the founding liability principles are of course embedded in the national laws of a state. The inter-state agreements only formalise the arrangements between signatory states on how liability claims are to be addressed between themselves.
The liability issue surrounding the mid-air collision near Überlingen, the push for cross- border provision of air navigation services as well as the upcoming developments pictured by the air navigation services industry illustrate that the variety in the forms of liability under national law will be difficult to handle in the future. With respect to the latter, see for example the views expressed by the trade association of air navigation service providers, the Civil Air Navigation Services Organisation (CANSO), indicating that the fragmentation in air navigation services can be reduced through cooperation between the air navigation service providers by way of, amongst others, cooperative agreements.797
Stronger voices for intense forms of cooperation have been raised by two major air navigation service providers in the European Community. According to the British air navigation service provider NATS the Single European Sky will only be realised by mergers, acquisitions and joint ventures of air navigation service providers. Efficiency will only be achieved by closing centres, sharing technologies and rationalising corporate functions which is common language in the industrial world, but whispered in the corridors of the ATC industry.798 According to the German air navigation service provider DFS, cooperation is the keyword to reduce the fragmentation799 Entrepreneurial movements in the field of air navigation services through cooperation should not be understood as being in the exclusive domain of privatisation, joint- ventures, mergers and take-overs of the service providers alone. See also the developments with respect to NUAC (4.4.2.3) and the establishment of a functional airspace block in the airspace of the United Kingdom and Ireland as an illustration of the need to achieve more transparent lines of liability on the inter-state level and the level of national law.800
797 CANSO, The Canso View on Air Navigation Services in Europe (2006), at 10. 798 CANSO, the 10th AGM & CEO Conference, Prague 14-17 May 2006, UK NATS: Lead Sponsor’s Speech. 799 European Community, Conference on the Future of Aviation Regulation in Europe, Brussels 20 September 2006, D.Kaden (CEO DFS), From National Services to a European Market. 800 CANSO, ‘NATS and IAA Joint Airspace Venture’, 2004/2005 (December/January) CANSO NEWS, at 14. See also, European Community and UK Department for Transport, Conference on the Functional Airspace Blocks, Crawley/Gatwick (UK) 12 January 2006, L. Hoskins, UK / Irish Functional Airspace Blocks (FAB). Also, Solar Alliances, Study into the issues and options associated with establishing a functional airspace block in UK and Irish airspace (Final Report) commissioned by NATS and IAA of 28 June 2005, p. 19 and 41. According to this report co-operation could be achieved in a reasonable
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Also the European Community has voiced that cooperation between providers of air navigation services, in particular at regional level, either on a contractual basis or through more structural arrangements such as joint ventures, is a useful way to enhance the integrated management of airspace and to operate the Functional Airspace Blocks regardless of national borders.801 In a response to the strikes launched by air traffic controllers in France, Portugal, Greece and Hungary the European Commission explicitly indicated that the purpose of the Single European Sky regulations is not to boost competition or privatisation between the service providers.802 While full competition could effectively appear in a longer-term perspective, the European Commission’s immediate goal is probably more to rationalise the organisation of the European airspace, which in itself requires a process for which a cooperative approach seems more suited than a competitive one.803
Leaving the intensive forms of cooperation such as mergers, acquisitions and joint ventures aside and concentrating on the simplest form of cooperation by way of private law contracts between the air navigation service providers what does this mean for liability? The next Chapters will suggest transparent lines of liability for the benefit of cross-border provision of air navigation services for the benefit of inter-state liability dealing with damages suffered by individuals (third parties) on the ground as well as damage suffered by the delegating state (5.6.1). The subsequent Chapter will focus on the relationship between air navigation service providers and aircraft operators and take into account contractual arrangements in place in New Zealand, the draft contractual framework explored for the benefit of CNS/ATM and, last but not least, the contractual relationship between airlines and airports (5.6.2). For the sake of clarity, the matter at hand is focussing on liability arrangements for damages and should be differentiated from state-responsibility for international wrongful acts.804
5.6.1 Conceptual Liability Framework: Inter-State Liability and Third Parties on the Ground
Taking into account the intensified collaboration between air navigation service providers pictured in the previous Chapter and the envisioned boost in cross-border provision of air navigation services there is a clear need for a transparent and harmonised liability regime in the European Community that takes into consideration the liability peculiarities connected with cross-border provision of air navigation services. This Chapter will consider a conceptual liability framework with respect to inter-state liability arrangements for the benefit of third parties on the ground and on what basis such arrangements should be formalised.
Figure 5.6.1 pictures the scenario where the air navigation service provider is controlling two aircraft that collide in mid-air in the territory of the delegating state (state B) and where a short timeframe due to the fact that the countries share a long common geographical boundary and have a long history of operational co-operation. The institutional structures have similarities and the role of governments, regulator and service providers are understood in similar terms. Furthermore, the parties have a shared need to manage the flows of air traffic heading or coming from North and Central America, including the Caribbean. One of the assurances, as also defined in the underlying study, was to make sure to staff and trade unions that the creation of the airspace block is a partnership between NATS and the IAA and not a competitive take-over of airspace by one party over the other. According to the study both states should agree to jointly designate both providers in their national airspace. The collaboration should result in a net reduction of overall costs for the airspace and its users. 801 European Community and UK Department for Transport, Conference on the Functional Airspace Blocks, Crawley/Gatwick (UK) 12 January 2006, B. van Houtte: Functional Airspace Blocks in the Single European Sky. 802 See Ch. 3.4.2. 803 See F.P. Schubert, supra note 627, at 49. 804 For the difference between state responsibility and state liability, see Ch. 4.3. Inter-state liability arrangements are dicussed in Ch. 5.5.3.
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third-party on the ground suffers damage in the territory of a state (state B) other than the state where the air navigation service provider has his principal place of operation (state A). How to deal with liability for damages suffered by third parties on the ground and damages suffered by delegating states? The mid-air collision near Überlingen (Lake Constance) could serve as an example. Albeit that there were no third-party claims by parties on the ground, would any third party that suffered its damage in German territory (State B) be able to file its damage claim against the Swiss based air navigation service provider or against the German state (State B) or against the Swiss state (State A). And, if so, which court would be competent and what laws should then be applied?
4M
State A State B
Figure 5.6.1 Liability for cross-border provision of air navigation services
In order to safeguard transparent lines of liability this requires an answer to the following three questions. Firstly, which actor is liable for damages: the authorities of the state where the air navigation service provider has his principal place of operation and that supervises the operations of the air navigation service provider (state A), the authorities of the state in whose territory the damage occurs (state B), or the effective air navigation service provider itself? Next what is the law to be applied? Is this the law of the state where the air navigation service provider has his principal place of operation (state A), or is this the lex loci delicti, the laws of the state in whose territory the damage occurs (state B)? Finally, what is the competent forum to deal with the damage claim? Are these the courts of state A or state B?
In order to enact the conceptual liability framework, states should formalise the same in bilateral- or multilateral agreements. In the view of the author, for the benefit of third parties on the ground, in first instance, the effective service provider, the “wrong-doer”, is the primary party liable for damages. The air navigation service provider should be on the front liability line and assume the primary obligation for compensation. The air navigation service provider is liable for damages caused by its own operations, including its agents, subcontractors or other person acting on its behalf. All claims should be channelled to the air navigation service provider and the plaintiff has the right to bring the claim before the courts and subject to the laws of the state where the damage occurred. Any judgement by the court should then be recognised in the state where the air navigation service provider has his principal place of operation.805
805 The enforcement of foreign judgements is the third element next to applicable law and competent forum that is generally dealt with through private international law (conflicts of law rules). Within the European Community there is a regulation on jurisdiction, recognition and enforcement of judgements in civil and commercial matters, see Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 2001 OJ L12/1-23. This regulation (also called EEX Regulation) converted the already existing EEX Treaty (Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial of 1968) that dealt with the competence of courts and enforcement of judgements into a Regulation.
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In second instance, in view of the author, the state whose authorities have granted an operating license to the air navigation service provider and supervise the same should step in, but this should be made conditional to the extent that the plaintiff encounters a problem enforcing the judgement against the air navigation service provider that, after all, has its principal place of operation in a state other than the state where the accident occurs and whose courts and national laws govern the liability matter. The supervising state should also step in if the air navigation service provider is financially incapable of remedying the damages that have been awarded to the plaintiff. In the latter case, the state whose authorities have granted the operating license should remedy the damages on the same basis and to the same extent as the air navigation service provider is obliged to remedy the same.
The liability of the supervising state envisioned in this conceptual liability framework has nothing to do with the fact that this state, or his authorities, has not met its regulatory compliance duties and could have avoided the damage. Channelling liability to the state whose authorities have granted an operating license and are supervising the air navigation service provider is based on the thought that the ultimate liability for damages suffered due to improper operation of air navigation facilities should not be a cause of concern for the people on the ground that are affected by a failure of these facilities or services and are confronted with the unwillingness or impossibility for the foreign air navigation service provider to repair the damages. In the view of the author, the air navigation service provider will always have its principal place of operation in a state whose supervising authorities have issued the operating license and therefore is subject to the latter’s jurisaction and jurisfaction. Therefore, those supervising authorities are always able pursue rulemaking- and enforcement competencies to safeguard recourse on the air navigation service provider through their national law. Furthermore, the fear of having to eventually being liable for compensating the damage itself may push the state whose authorities have granted the operating license, to pursue the air navigation service provider of defending its claim in the state in whose airspace the accident occurred.
The author recognises that there may be complications for plaintiffs in rendering the award against the supervising state that is, after all, not the same entity, the air navigation service provider, against whom a court-ruling is issued. Furthermore, the damages may be awarded by the courts and pursuant to the national laws of the delegating state in whose airspace the damage occurred which is a state other than the supervising state. The plaintiff would have to rely on the courts and national laws of the supervising state in order to be able to enforce a foreign judgement against the supervising state. In order to bridge this potential gap, the supervising state and delegating state should approach and resolve the matter in their inter- state liability arrangement as follows. If, notwithstanding any favourable court-ruling for the benefit of the plaintiff, the air navigation service provider does not or is unable to remedy the damages suffered, the plaintiff shall be able to rely on the delegating state that, similar to the state ultimate responsibility doctrine like in Switzerland, shall reimburse the damages suffered by the plaintiff. On the basis of the inter-state liability arrangement, the supervising state will indemnify the delegating state for any damages suffered. The remedy for delegating states to seek indemnification from a supervising state is already acknowledged in, for
According to the Regulation, the basic principle is that the courts with jurisdiction are those of the states in which the defendant is domiciled, but that a defendant may on certain circumstances be sued in the courts of another state for particular events as set forth in the regulation. According to the regulation, the areas of specific jurisdiction where the person may be sued in another member state are, for example, matters relating to a contract, matters relating to tort and matters relating to insurance. In view of the author, for the benefit of cross-border service provision, third-parties on the ground should be able to sue the defendant (air navigation service provider) in tort subject to the laws and national courts of the state where the damage occurred. Pursuant to Art. 3 of the Regulation in matters relating to tort a person (air navigation service provider) domiciled in a member state may be sued in the courts for the place where the harmful event occurred or may occur.
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example, the bilateral agreement between The Netherlands and Germany (4.4.1.2) and the multilateral agreements surrounding Maastricht UACC and CEATS (4.4.2.1 and 4.4.2.2).
In the view of the author the following paradigm shift should be developed for the benefit of wide-scale cross-border provision. There should be firstly liability of the air navigation service provider and, secondly, liability for the supervising state through its reimbursement obligation indemnifying the damages or losses suffered by the delegating state. The air navigation service provider should repair any damages suffered in accordance with the laws and before the competent courts of the state where the third party suffered the damage. If the air navigation service provider does not adhere to the foreign judgement or is financially incapable of remedying the damage, the state or states whose authorities have granted an operating license to the air navigation service provider and supervise the same shall ultimately compensate damages suffered. The latter through the involvement of the delegating state that, due the complications at the side of the air navigation service provider, has the obligation to reimburse the damages suffered by the third parties on the ground.
This new doctrine is hereinafter cited by the author as the so-called supervising state ultimate liability doctrine where the liable actor is in principal the effective air navigation service provider and, through involvement of the state in which the damage occurred (the delegating state), in second instance the supervising state, provided that, in accordance with the local remedies rule as recognised under customary international law, the plaintiff has exhausted the local remedies of the delegating state.806 The supervising state ultimate liability doctrine should be incorporated in a bilateral- or multilateral cross-border agreements or be recognised in the legal order of the European Community. The doctrine is also incorporated in the liability section of the draft model agreement for delegation of air navigation service provision which is enclosed to this study as Appendix I.
Closely connected with transparent lines of liability come two subsequent questions that deal with, firstly, fault-based or strict liability and, secondly, with the issue of limited or unlimited liability of the air navigation service provider as far as inter-state liability is concerned. This shall be briefly discussed in the remainder of this Chapter. Firstly, on the issue of the fault- based or strict liability, the bilateral- and multilateral arrangements that have been concluded for cross-border provision of air navigation services could give an indication to the prevailing liability framework. The analysis of the agreement show that states either leave the matter undecided and subject to the national liability laws of the state concerned or recognise fault- based liability where inter-state claims can be made on the basis of negligence. The concept of negligence is recognised in the Eurocontrol Model Agreement on the Delegation of Air Traffic Services, the reparation for damages by EUROCONTROL for non-contractual liability under its founding treaty and, lastly, is recognised in the Draft Eurocontrol Model State Level FAB.807 The Draft International Convention on the Liability of Air Traffic
806 An injured individual or company should exhaust remedies in the courts of the defendant state first before an international claim can be brought on his behalf. See P. Malanczuk, supra note 412, at 267- 268. 807 Under Common Law, negligence is an independent tort that is culpable because the tortfeasor has not protected another person against foreseeable risky and harmful acts which gives such other person a right to compensation for the harm to their person or property. Under the concept of negligence it is the plaintiff has the burden of proof showing that the air navigation service provider had a duty of care towards the plaintiff that the duty has been breached which, furthermore, results in damage. Also there should be a factual causal connection between the breach and the harm suffered by the plaintiff and, lastly, the harm is not too remote a consequence of the breach. For additional information, see W.V.H. Rogers, Winfield and Jolowicz on Tort (1994), 78. The bilateral agreement between The Netherlands and Germany only confirms that for damages against persons or goods in the territory of The Netherlands, the Dutch state shall indemnify the
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Control Agencies also builds on a fault-based liability concept, with a presumption of fault for failure of electronic equipment or other automatic communication machinery and a presumption of fault if the air navigation provider fails to disclose files or registers containing records of messages exchanged between the air navigation service provider and the aircraft commander or other air navigation service providers (5.5.2). On national level, the national laws of Germany and Austria make it very clear that, notwithstanding the fact that there is in principal exclusive liability of the state, the liability framework is founded on fault-based liability (5.3.4 and 5.3.5). On the other hand Swiss national law encompasses a liability framework that is based on strict liability (5.3.6).
A harmonised liability framework for the European Community that is fault-based, despite the liability framework under the national laws of Switzerland, would be in line with the common denominator under the bilateral- multilateral agreements dealing with inter-state liability and under the national laws of some European states. When also bearing in mind that air navigation service providers try to avoid the inherent risks of collisions that are associated with aircraft operations this would be another reason for such providers not per se to be confronted with a liability framework that is based on strict-liability. Only in the event damages are caused through a technical failure, this could be subject to strict-liability of the air navigation service provider as the organisation should be able to cope with a technical failure and the dependency of the agency on automated systems and infrastructure. The application of a mixed regime that relies on fault-based liability for all damages resulting from a human error and strict-liability for accidents following a technical failure would meet the specificity of air traffic control activities in general.808 According to the author, the burden of proof can remain on the side of the (non-professional) plaintiff. Court cases dealing with such delicate matters are prepared highly skilled legal advisors that are specialised in this area and national laws allow the disclosure of information as well as the hearing of witnesses. Through depositions the claimants and courts will be able to get a clear picture of the events surrounding an accident.
Secondly, on the issue of limited or unlimited liability, the Draft International Convention on the Liability of Air Traffic Control Agencies is not of great help. True, the convention relied on limited liability, but only as far as this concerned sums of money due under conventions of which the majority was never widely ratified (5.5.2).809 Also the bilateral- and multilateral damage suffered in accordance with the liability regime that applies to its own air navigation service providers. Such damages should be reimbursed by Germany (4.4.1.2). The Eurocontrol Model Agreement on the Delegation of Air Traffic Services channels liability claims to the providing state, provided that the damage is caused by its negligence, or that of its agents or of any other person acting on its behalf (4.4.1.3). For Maastricht UACC and CEATS counts that there is an outright indemnification obligation of EUROCONTROL in favour of the contracting states for any claim arising on account of damage sustained as a result of services offered by EUROCONTROL. This implicitly confirms that the underlying state shall indemnify damages on the basis of its liability laws that has, in second instance, a right of recourse on EUROCONTROL. In the event of non-contractual liability, EUROCONTROL shall make reparation for damage caused by the negligence of its organs, or of its servants in the scope of their employment in so far as that damage can be attributed to them (4.4.2.1 and 4.4.2.2). According to the Draft Eurocontrol Model State Level FAB Agreement liability is channelled to the effective air navigation service provider according to the liability laws of the state where the damage occurred. The state in whose territory the accident occurred can recover compensation or costs paid as a result of loss or damage that is caused by the negligence of the air navigation service provider, including its agents or any other person acting on its behalf (4.4.2.4). 808 F.P. Schubert, ‘Warsaw and ATC Liability: Addressing the Global Dimension of Aviation Liability’, (1997) 22 AASL Part I 237, at 256. For extensive discussion on the concept of strict- versus fault based liability, see also H. Sasseville, ‘Air Traffic Control Agencies: Fault Liability vs. Strict Liability’, supra note 776, at 243-248. 809 The liability of the air navigation service provider under the Draft International Convention on the Liability of Air Traffic Control Agencies would be limited to the amounts laid down for the liability of
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agreements (4.4) are not of great help either as they do not give an express answer to the question of limited- or unlimited liability. Lastly, there is no explicit reference in the national laws of states as to whether or not there is limited- or unlimited liability of the air navigation service provider (5.3). Of course the national laws should limit plaintiffs to such extent that they should not be able to claim damages to the extent that these have already been compensated by a third party. In the event third parties on the surface have already been compensated by the aircraft operator for all of their damage suffered they should not be able to avail themselves from damage by the air navigation service provider. In the view of the author, in the event there is no fault at the side of the air navigation service provider, that party should likewise not be subject to any greater liability than the aircraft operator with respect to its passengers, their baggage or cargo on board the aircraft or for damage towards third-parties on the surface. If there is contributory negligence between the air navigation service provider and the aircraft operator where the latter is able to limit liability on the basis of the Montreal Convention (for passengers on board the aircraft), the Rome Convention or is liable for damages up to a certain amount, third parties should not be able to swing around this limitation of liability of the aircraft operator by claiming (remaining) damages from the air navigation service provider who is unable to rely on the aforementioned limitations of liability.810
The most pragmatic and efficient way to pursue transparent lines of liability dealing with the provision of air navigation services can be achieved through the regulatory competency of the European Community. There should be clarity as to which actor is liable for air navigation service provision and subject to which national law and competent forum. Contrary to the current regulatory framework under the Single European Sky that merely acknowledge that the air navigation service provider should have in place arrangements to cover its liabilities from applicable law (5.4.4.3), the regulatory framework should implement the supervising state ultimate liability doctrine to safeguard clear lines of inter-state liability that not only safeguards recourse for the benefit of third-parties on the ground, but also allows the delegating state to seek indemnification from the supervising state for damages suffered in its own territory. This would at least create a minimum legal framework and protect third parties (including delegating states) on the ground from liability issues connected with cross-border provision without them getting lost in the jungle of conflicts of law issues. Bearing in mind the peculiarities of air navigation service provision, the author proposes a liability framework that is fault-based, except for the failure of electronic or other automatic communication machinery.
the aircraft operator under the Warsaw Convention, the International Convention on Liability of the Operator (liability for surface damage) or the International Convention on liability of the operator in the event of collision. 810 The Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal, 28 May 1999 (Montreal Convention). In Europe all carriage on Community Carriers are subject to the rules of this Montreal Convention because of EU Regulation 2027/97 of 9 October 1997 as amended by EU Regulation 889/2002 of 13 May 2002. See further: Council Regulation (EC) 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, 1997 OJ L 285/1-3. Council Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, 2002 OJ L 140/2-5. According to the Montreal Convention there is strict liability of the air carrier for damages up to 100,000 SDR and a presumption of fault for damages exceeding 100,000 SDR for which the carrier shall not be liable if he proves that such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or such damage was solely due to the negligence or other wrongful act or omissions of a third party. For a critical comment to the liability framework under the Rome Convention, see A.J. Mauritz, supra note 788. In his study on the liability of the operators and owners of aircraft for damage inflicted to persons and propery on the surface he comes to the conclusion that these parties should be subjected to a framework of unlimited strict liability.
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5.6.2 Contractual liability framework for the benefit of aircraft operators
Next to the issues of inter-state liability and damage suffered by third parties suffered on the ground there is another matter that should not be overlooked: the liability framework between aircraft operators and air navigation service providers. Placing this matter in the context of the mid-air collision near Überlingen, notwithstanding the liability claim of Bashkirian Airlines against the German state, the aircraft operator could of course also have chosen to pursue a liability claim against the Swiss state and Skyguide in the competent courts of Switzerland. However, the plaintiff chose for Germany instead.
In order to prevent the delegating state (state B) like Germany facing any liability claims from aircraft operators, this party could of course invoke the supervising state ultimate liability doctrine as discussed in the previous Chapter (5.6.1). This would then govern not only the liability claims for the benefit of third parties suffering damage on the ground, but also enabling aircraft operators to rely on the same liability scheme. On the other hand, aircraft operators are the root of triggering the provision of air navigation services in the first place. By virtue of their own air traffic movement they are in the business of a risk creating activity which the air navigation service providers try to mitigate. Bearing in mind the fact that both air navigation service providers and aircraft operators are professional market parties a different approach between the parties could be preferable. This also with a view of introducing possible limitations of liability for the benefit of air navigation service providers against damage claims from the aircraft operators. This Chapter will explore whether or not such liability arrangements can be formalised on the basis of a contractual liability framework such as pictured in Figure 5.6.2 below.
4M
State A State B
Figure 5.6.2 Liability for cross-border provision of air navigation services suffered by air carriers
Du Perron and Hwan Kim pointed out that liability of ANSP towards the airline is universally accepted to constitute a delictual liability as opposed to contractual liability. Also Schubert has argued that liability of air navigation service providers is not of a contractual nature, but finds its roots directly in the applicable law.811 But does this mean that air navigation service providers and airlines cannot resort to a contractual arrangement in order to deal with the twilight of uncertainty with respect to the liability of air navigation service providers that, due to wide-scale cross border provision of air navigation services, becomes of greater importance in the European Community? Can these liability questions be resolved through a contract between the aircraft operator and the air navigation service provider? In order to answer this question it is useful to analyse the relationship between aircraft operators and the air
811 A.E. du Perron, ‘Liability of Air Traffic Control Agencies and Airport Operators in Civil Law Jurisdictions’, (1985) Air Law 203, at 205. D. Hwan Kim, ‘Legal Aspects of ATCA Liability’, supra note 776, at 209. See F.P. Schubert, ‘Warsaw Claims and ATC Liability’, supra note 771, at 243.
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navigation service provider in New Zealand (5.6.2.1), the contractual frameworks and draft conventions that are being developed for satellite air navigation systems (5.6.2.2) and the relationship between aircraft operators and airports (5.6.3.3). This in order to come to preliminary remarks (5.6.3.4) on the possibilities to get to a contractual relationship between the two.
5.6.2.1 The Airways Corporation of New Zealand
The contractual approach between aircraft operators and air navigation service providers is not a novelty and is already applied in New Zealand. The air navigation service provider of New Zealand is the Airways Corporation of New Zealand (“Airways”) that is a corporatised entity owned by its government.812 The air navigation service provider has a standard form of contract, the Standard Terms and Conditions and Pricing Information (hereinafter “the Standard Terms”), which are contractual terms upon which the air navigation service provider provides those services as specified in those Standard Terms.813 When the air carriers file their flight plan and request air navigation services from the air navigation service provider, after prior notification to them of the Standard Terms, such air carriers are deemed in law to have accepted the Standard Terms.814
In the past the New Zealand air navigation service provider ran into difficulty as far as this concerned the binding effect of its Standard Terms. See the case Airways Corporation of New Zealand Ltd. v. Geyserland Airways Ltd. and White Island Airways Ltd..815 Due to the fact that Airways was required under national laws to operate commercially, this necessarily involved contracting for the services it provided and, because of lack of legislative authority, also required the charging for such services to take place on a contractual basis. The underlying dispute was about the charges levied in return for the air navigation services offered by Airways, which the airline refused to pay. Airways continued to provide services, but then took legal action to recover the unpaid charges. Although the air carriers accepted the service provision of Airways this conduct was not be regarded as accepting the standard terms due to the fact that they had expressly indicated that they were not prepared to enter into any agreement regarding the use of services received. In other words, although the offer could have been accepted because of the fact that the airline was using the services, there had been no acceptance as the act was done with express intention by the airline not to make a contract. The court held that there was no contract between Airways and the air carriers. Negotiations between the parties resulted in operators agreeing to accept the standards terms and conditions.816 On the basis of its Standard Terms, Airways retains the right to refuse to provide service to any air carrier who refuses to abide by these Standard Terms or to any air carrier who is in breach of the Standard Terms.817 Taking into account the Standard Terms of
812 See P.S. Dempsey, R. Janda and Y. Nyampong, ‘The McGill Report on Governance of Commercialized Air Navigation Services’, supra note 618, at 300. 813 Airways New Zealand, ‘Standard Terms and Conditions and Pricing Information’, (updated November 2005). The Airways Corporation of New Zealand Limited is a corporatised body that was established under the State-Owned Enterprises Act 1987. Airways provides services on a commercial basis under that Act and is also authorised by Section 99 of the Civil Aviation Act 1990 and under Part 172 of the Civil Aviation Rules to provide the airways services covered by these standard terms and conditions. Airways will provide Airways Services, which includes the provision of air navigation services, only in accordance with the Standard Terms. See Standard Terms, Art. 2(1). 814 K. Murray, ‘The Law Relating to Satellite Navigation and Air Traffic Management Systems – A View from the South Pacific’, (2000) 31 Victoria University of Wellington Law Review 383, at 395- 396. 815 Airways Corporation of New Zealand Ltd. v. Geyserland Airways Ltd and White Island Airways Ltd 1996 1 New Zealand Law Report 116. 816 L. Brown, ‘Case Notes – New Zealand’, (1996) 21 Air Law 300, at 302. 817 See Standard Terms, supra note 813, Art. 2(3).
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Airways, it is accepted that there are contractual terms and conditions between the air navigation service provider and the airline, but this concept should be recognised under the national laws of the state in whose airspace air navigation services are being used.
The Standard Terms deal with liability for loss, damage or delay suffered or incurred by aircraft operators in respect of or arising out of or in any way connected with the provision of the air navigation services by Airways. The air navigation service provider Airways is the liable party, the laws to be applied are the laws of New Zealand and, lastly, the dispute should be submitted to the non-exclusive jurisdiction of the courts of New Zealand.818 The Standard Terms do not refer to fault-based or strict liability and, as far as limited- and unlimited liability are concerned, follow the concept of limited liability as they exclude any liability for loss, damage or delay (including consequential, financial or economic loss) suffered or incurred by an aircraft operator, except for claims for loss or damage to the hull of the aircraft or for claims arising from the death of or injury of persons on board the aircraft, including baggage and cargo.819 In case of claims by the aircraft operator for death of or injury to any person, the liability of Airways shall be limited to the equivalent of 100,000 Special Drawing Rights or the amount in respect of each person to which the operator is entitled to limit its liability under the Warsaw Convention or any other instrument in amendment, supplementation or substitution thereof, whichever is the lower.820
Bearing in mind that the Montreal Convention recognises unlimited liability of aircraft operators, but a defence for the airline for claim amounts exceeding 100,000 Special Drawing Rights, it would be preferably for the airlines to amend the Standard Terms as the airline can only recover amounts, whichever are the lower of 100,000 Special Drawing Rights. On the basis of the Montreal Convention the possibility for the carrier to exonerate himself for
818 Ibid., Art. 10 (Limitation and Exclusion of Liability) and Art. 11 (Governing Law) 819 See Airways New Zealand, ‘Standard Terms and Conditions and Pricing Information’, supra note 813, at Art. 10 (Limitation and Exclusion of Liability): 10.1 Airways shall have no liability for loss, damage or delay (including consequential, financial or economic loss, and claims for indemnity or contribution) suffered or incurred by an operator, whether such liability arises in contract or in tort or in any way howsoever, in respect of or arising out of or in any way connected with the provision of Airways Services contemplated by these Standard Terms except as follows: (a) In the case of claims for loss or damage to the hull of any aircraft, the liability of Airways (if any) shall be limited to the direct cost of repair or replacement up to the insured value of such aircraft. (b) In the case of claims arising from the death of or injury to any person the liability of Airways (if any) shall be limited to: (i) the equivalent of 100,000 Special Drawing Rights (approximately $US126,000.00) per person; or (ii) the amount in respect of each person to which the operator is entitled to limit its liability under the Warsaw Convention or any other instrument in amendment, supplementation or substitution thereof; whichever is the lower. (c) In the case of claims in respect of loss of or damage to cargo or passengers’ registered baggage, the liability of Airways (if any) shall be limited to the lowest liability limit applicable to the aircraft operator according to law. 10.2 The sums mentioned in this clause are subject to abatement in accordance with Airways proportion of responsibility (if any) for the event giving rise to the claim. 10.3 Nothing in this clause shall be construed as any indication or acceptance by Airways of any liability for any amount. 10.4 Every operator undertakes and agrees that no claim shall be made against Airways or any director, officer, agent or employee of Airways which imposes or attempts to impose upon them or any of them any liability greater than the limits referred to in Clause 10.1 hereof in respect of or arising out of or in any way connected with the provision of Airways Services contemplated by these Standard Terms, and if such claim should nevertheless be made, to indemnify Airways, its directors, officers, agents and employees against all consequences thereof.. 820 Ibid., Art. 10(2)(b).
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damages in case of death or bodily injury of passengers over 100,000 Special Drawing Rights is merely theoretical.821 For the benefit of the liability position of the international air carriers, the Standard Terms should be amended and whichever is the lower should be replaced by whichever is the higher, unless this provision is read from the perspective that aviation is a risk increasing factor itself that the air navigation service providers try to mitigate through facilitating safe and expeditious flow of air traffic through their air navigation service provision. In that case, the limitation of liability by the air navigation service provider is understandable.
As a final comment on the Standard Terms it should be pointed out that they do not cover liability of third parties on the surface or the liability against passengers or cargo owners on board the aircraft. They only govern the relationship between the aircraft operator and the air navigation service provider. Any third-party liability claim for accidents occurring in the territory of New Zealand would be subject to the liability framework under the national laws of New Zealand.
5.6.2.2 Draft contractual framework for GNSS (CNS/ATM)
Next to the contractual adventures in New Zealand, the concept of a contract between the aircraft operator and the service provider has also been considered in legal discussions surrounding the development of a satellite based air navigation system (CNS/ATM) for the benefit of air navigation services to aircraft operators. By way of a satellite based air navigation system aircraft operators would no longer be bound to fixed air navigation corridors with predefined traffic routings. Aircraft would be able to operate through airspace on the basis of satellite signals and would no longer have to follow (inefficient) predefined fixed aircraft routings. The aircraft operators will be able to fly preferred flight paths independently from the availability of ground infrastructure. This would reduce travel time as well as additional fuel consumption since the fixed network of airways which impose longer distances no longer need to be followed. The satellite based air navigation system would mean that parties move away from the fixed network of airways which has the effect of channelling air traffic through limited airspace sectors with increased risk of congestion and potential collisions. Aircraft operators would be making use of the full airspace.822
The satellites would be broadcasting timing signals and data message which allows the receivers to calculate the range from the aircraft to the satellite and, by combining the signals received from various satellites, allow them to calculate a three-dimensional position of the aircraft that is traversing a particular portion of airspace. However, the core satellite signal cannot be relied on as it does not meet strict aviation requirements and for the purpose of operational requirements for various phases of a flight, the core signal requires augmentation. This augmentation is taken care of by avionic equipment and technology in the form of Aircraft-Based Augmentation Systems (ABAS) as well as augmentation by (third-party) monitoring stations on the ground that verifies the validity of satellite signals and calculates corrections to enhance accuracy. The latter augmentation services can be performed through either an (independent) satellite signal, the so-called Satellite Based Augmentation System
821 See I.H. Ph. Diederiks-Verschoor, supra note 67, at 175-176. New Zealand has signed and ratified the Montreal Convention. 822 The system would increase the available airspace capacity and would also facilitate the concept of Free Flight. On the basis of Free Flight there is a move away from ground-based separation assurance to airborne separation assurance. The concept offers aircraft commanders the freedom to select their flight path, while simultaneously increasing their operating autonomy by taking some of the separation tasks presently performed by air navigation service providers on their shoulder. For further study on the relationship between pilots and air traffic controllers, see F.P. Schubert, ‘Pilots and Air Traffic Controllers: Allocating Legal Liabilities in a Free Flight Environment’, (2001) 26 AASL 197.
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(SBAS) or through augmentation on the basis of a radio signal from a ground station, the so- called Ground-Based Augmentation System (GBAS).823
The ICAO Secretariat Study Group on Legal Aspects of CNS/ATM Systems discussed the best suitable framework and considered various options, ranging from leaving the issue of liability entirely up to the national laws of states, to conclude a liability convention on CNS/ATM, or to deal with the framework of liability on the basis of a contractual framework.824 According to the study group the contractual framework would not bridge the gap, but would be an interim solution between the status quo and the long-term elaboration of an international convention.825 The ICAO Study Group when considering a contractual framework proposed a Draft Contractual Framework that, amongst others, deals with liability matters among different players in various stages of the provision of GNSS services, including primary signal providers, augmentation signal providers and states having jurisdiction.826 The Draft Contractual Framework Relating to the Provision of GNSS Services was included as separate attachment to ICAO study.827
According to the opening article of the Draft Contractual Framework Relating to the Provision of GNSS Services, the contract appears only to cater for the relationship between the air navigation service provider and the GNSS Signal Provider.828 The aircraft operators are not specifically mentioned as possible contracting parties, but the explanatory memorandum of the ICAO Secretariat Study Group appears to leave room for aircraft operators to enter into a contractual arrangement as well. The framework is designed for the relationship between the air navigation service provider and the GNSS signal provider, but may also be used to cover the relationship between the air navigation service provider, the augmentation signal provider and potentially other parties.829 Due to the fact that aircraft operators may contract augmentation providers for the purpose of using GNSS signals for air navigation services, this could result in the situation that the aircraft operator enters into a contract.
The liability of each contracting party for the failure to perform its obligations under the agreement shall be governed by the liability regime applicable to its activity.830 This therefore does not answer which laws exclusively govern the liability matter. The Draft Contractual Framework only determines that the parties choose the applicable law that governs the agreement. There is a choice between the contracting parties for a competent forum to deal with the settlement of disputes.831 The Draft Contractual Framework envisages that the
823 ICAO, Global Navigation Satellite System (GNSS) Manual, (ICAO Doc 9849, AN/457) of 2005, at Para. 1.2. 824 ICAO, 35th Session of the Assembly, Montreal 28 September – 8 October 2004, ICAO Legal Commission, Report on the Establishment of a Legal Framework with regard to CNS/ATM Systems including GNSS: Development of a Contractual Framework Leading Towards a Long-Term Legal Framework to Govern the implementation of GNSS (A35-WP/75 LE/5). 825 Ibid., Para. 2.4. 826 Ibid., Appendix: Final Report on the Work of the Secretariat Study Group on Legal Aspects of CNS/ATM Systems, Para. 4.2. 827 Ibid., Attachment F: Draft Contractual Framework Relating to the Provision of GNSS Services (A35-WP/75 LE/5, Appendix: Attachment F). 828 Ibid., Art. 1. 829 Ibid., Appendix, Para. 4.3.2.1. 830 See Attachment F, supra note 827: Art. 6 (Liability): The liability of each Party for failure to perform its obligations under this contract shall be governed by the liability regime applicable to its activity. 831 Ibid., Art. 9 (Settlement of Disputes): The Parties shall use their best efforts to settle any dispute, disagreement or claim arising from or relating to the interpretation or performance of this contract by negotiation. Any dispute, disagreement or claim which cannot be settled by negotiation shall be submitted to conciliation in accordance with the UNCITRAL Conciliation Rules.
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agreement is registered with ICAO.832 There is no answer as to whether or not the liability framework should be based fault-based or strict, neither does it provide an answer as to whether such liability is limited- or unlimited. In the view of the author, any such questions are left to the, and what is referred to under the Draft Contractual Framework as the, liability regime that is deemed applicable to the activity. As a final comment, the Draft Contractual Framework only sorts out the liability between the parties and does not mention the issue of liability towards a third parties.
Next to discussion within ICAO, the concept of a contractual framework for the benefit of GNSS has also been discussed in Europe. This because of the discussions surrounding the European satellite positioning and air navigation system (GALILEO) that should compete with its rival, the satellite position and air navigation system of the United States of America, that is operating satellite navigation services under the name: the Global Positioning System (GPS). Similar to GPS, the application of the satellite systems under Galileo will not per se be restricted to air navigation services, but may also be relied on for purpose of other modes of transport such as road- or marine transportation as well as for other commercial or private industries.833 For the purpose of establishing an appropriate legal and institutional framework of the European GNSS system (GALILEO) the contracting parties of ECAC have, in close collaboration with European Community and EUROCONTROL, proposed a Concept Contractual Framework.834
Any such dispute, disagreement or claim which cannot be settled under the preceding paragraph shall, upon the request of one Party, be referred to arbitration in accordance with the UNCITRAL Arbitration Rules then prevailing. The place of arbitration shall be [....] and it shall be conducted in the [....] language. See also Art. 10 (Applicable Law): The law of [....] shall govern this contract. 832 Ibid., Art. 12 (Registration of the Contract): Pursuant to Article 83 of the Chicago Convention, if at least one Party to this contract is a Contracting State of ICAO, the contract shall be registered with ICAO. 833 Contrary to GPS that, other than for the US military system, provides a satellite signal free to all without augmentation, Galileo will provide, beside its open and unaugmented free signal to all, additional downstream satellite navigation services (including augmentation) on a commercial basis to end-users. In order to boost the development of the European satellite navigation system and for the purpose of bringing together a number of keyplayers, financial resources and technical expertise, the European Community and the European Space Agency initiated the set-up of the legal entity: Galileo Joint Undertaking, which main task was to successfully complete the development of the Galileo program by combining public- and private funding and manage projects related to the program. The activities of the Galileo Joint Undertaking have meanwhile been taken over by the so-called European GNSS Supervisory Authority. For a comparison between GPS and GALILEO, see F.G. von der Dunk, ‘Liability for Global Navigation Satellite Services: A Comparative Analysis of GPS and GALILEO’, (2004) 30 Journal of Space Law 129. Von der Dunk comes to the conclusion that for GPS no contractual liability would be accepted and in the absence of international treaties, a party will have to resort tot non-contractual liability that probably will only be possible under the tort law of the United States of America. For additional information on the GALILEO initiative, see European Space Agency, Galileo: The European Programme for Global Navigation Services (2005). Also Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking, 2002 OJ L 138/1-8. Also the Council Regulation (EC) No 1943/2006 of 12 December 2006 amending Regulation 876/2002 setting up the Galileo Joint Undertaking. The GNSS Supervisory Authority was established as a community agency to manage public interest relating to, as well as the regulatory authority for European GNSS programs and has taken over all of the activities carried out by the Galileo Joint Undertaking. Council Regulation (EC) No 1321/2004 of 12 July 2004 on the establishment of structures for the management of European satellite radio-navigation programmes. Also the Council Regulation (EC) 1942/2006 of 12 December 2006 amending Regulation (EC) 1321/2004 on the establishment of structures for the management of the European satellite radio-navigation programmes. 834 ICAO, 35th Session of the Assembly, Montreal 28 September – 8 October 2004, ICAO Legal Commission, ECAC: Development of a Contractual Framework Leading Towards a Long-Term Legal Framework to Govern the Implementation of GNSS, (A35-WP/125 LE/11), Para. 1.1.
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The Conceptual Contractual Framework put forward by ECAC differs from the ICAO Draft Contractual Framework envisioned by the Secretariat Study Group. The private law contracts to be concluded are between those parties that are involved in the implementation, operation, provision and use of the GNSS signals. This clearly embraces aircraft operators.835 At the same time the Conceptual Contractual Framework talks about public law agreements between states involved to ensure that the private law contracts are harmonised and contain the same essential provisions on safety, certification and liability.836 The contracts concluded between the private parties shall be concluded in accordance with the requirements of the aforementioned public law agreement.837
According to the Conceptual Contractual Framework, the liability of the parties shall be ruled by the material liability regime normally applicable to its activity, in accordance with applicable existing international- and national laws where each entity or person shall, in the event of loss or damage arising out of a failure, malfunction or improper use of GNSS, be liable to the extent that it has contributed to the occurrence of the loss or the damage.838 If loss or damage can be attributed to a GNSS failure, malfunction or improper use, but cannot be traced to a specific defendant, the defendants involved in the chain of events which resulted in the occurrence of the loss or damage shall be declared jointly liable for the entire amount of the loss or damage.839 The Conceptual Contractual Framework therefore does not answer which law exclusively governs the liability matter and the parties may bring their matter to the competent forum which is through arbitration.840 Similar to the Draft Contractual Framework, the agreement shall be registered with ICAO.841
5.6.2.3 Airports and Airlines
As a final pointer for a contractual based framework for the benefit of aircraft operators when availing themselves of air navigation services, attention should be paid to the relationship between aircraft operators and airports. The main driver for airports to pursue contracts through standard terms and conditions with aircraft operators is connected with the subsidiary (but not less important) issues of fault-based or strict liability and limited- or unlimited liability. The general terms and conditions of the airport will apply, provided that they have been brought to the attention of the affected parties by way of publication through general international aviation communication channels or otherwise before any liability arises. The extent that airports may limit their liability depends on the national laws of contracts of the
835 Ibid., Para. 4.3. 836 Ibid. The contractual framework between the states is attached as Appendix B: Framework Agreement between the Governments of [….] Concerning the Implementation, Provision, Operation and Use of a Global Navigation Satellite System for Air Navigation Purposes. 837 Ibid., Appendix B: Art. 8 (Contractual Agreements). 838 Ibid., Arts. 12(1) and 12(2). 839 Ibid., Art. 12(4). 840 Ibid., Art. 13 (Arbitration): 13.1 All liability claims shall be consolidated and brought to arbitration, in accordance with the rules of arbitration established under this Agreement and detailed in Annex [X]. The consolidated claims shall include those against the concerned GNSS Entity, GNSS system operators, GNSS service providers, aircraft operators, air carriers, Air Navigation Services Providers, equipment manufacturers and regulators. 13.2 Nothing in this Agreement shall prejudice the rights of any individuals with regard to the Warsaw/ Montreal Conventions. 13.3 Decisions of the arbitration panel shall be final and binding on the Parties to the arbitration procedure. 841 Ibid., Art. 14(1) This Agreement shall be registered with the ICAO Council, in accordance with the provisions of Article 83 of the Chicago Convention.
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state where they are located.842 Also, similar to Airways Corporation of New Zealand, there is no binding effect of the standard terms and conditions if the aircraft operator expressly rejects the application of the airport’s standard terms and conditions.843
Those resisting a contractual relationship between air navigation service providers and aircraft operators could argue that airports can indeed run their business in accordance with private law principles as they are not involved with the fulfilment of a higher task, namely that of protecting citizens from damages by objects flying over their head. True, the airport is providing a platform and infrastructure from which or to which the airline may choose to fly, but at the same time the provision of airports finds itself at the same root of international public law as the provision of air navigation services. According to Article 28 Chicago contracting parties to the Chicago Convention shall provide in their territory airports and (other) air navigation facilities to facilitate international air navigation in accordance with Standards and Recommended Practices. From this point of view the public law connotation related to the provision of airports (albeit it different in the services it offers) is not any different from that of air navigation service providers.844 Therefore, this would imply that similar to airports also air navigation service providers should be able to enter into a contractual agreement with aircraft operators.
5.6.2.4 Preliminary Remarks
As illustrated by the air navigations service provision in New Zealand (5.6.2.1), the developments in the field of CNS/ATM presupposing a contractual framework between the aircraft operator and the GNSS signal provider (5.6.2.2) and, lastly, the already existing contractual relationship between aircraft operators and airports (5.6.2.3), imposing a contractual relationship between the air navigation service provider and the aircraft operators is not a novelty. Within such contractual relationship attention can be paid to transparent lines of liability which, if implemented and recognised would, contrary to the mid-air collision near Überlingen (Lake Constance), safeguard the delegating state from liability claims from the aircraft operator and would have re-directed the latter immediately to the effective air navigation service provider instead.
In order to circumvent discussions as to whether or not air navigation services is considered as a public service that should be offered, even without the aircraft operator entering into a contract with the air navigation service provider or a rejection by the aircraft operator of the binding effect of the contractual terms and conditions of the air navigation service provider altogether, states can impose the contract under their national law. This would oblige the aircraft operators and air navigation service providers to enter into a contract. Schwenk also
842 Seventy-eight airlines contested the conditions of use introduced by the British Airports Authority in November 1979. See N.M.L. Hughes, ‘Air Traffic Control and Airport Authorities – The U.K. Viewpoint’, (1984) 9 Air Law 202, at 208. See also A. Kean, ‘Case law and comments: British Airports Authority v. British Airways Board’, (1981) 6 Air Law 185; W. Guldimann, ‘Towards a complete revision of the Swiss Aviation Act’, (1981) 6 Air Law 17, at 18. 843 With respect to the general terms and conditions for the use of Schiphol Airport by Aircraft (1998), the homebased carrier KLM Royal Dutch Airlines expressly rejected the application of these standard terms and conditions by way of a letter to the airport on 7 September 1998 and this was repeated by a letter of 30 October 1998. 844 Notwithstanding the fact that the provision of airports and air navigation services find a common ground in the international public law framework, national law of states could of course differentiate between the two. See W. Schwenk, ‘Rechtsgrundlagen für Kapazitätsregelungen des Luftverhkehrs im Luftraum und an Flugplätzen’, (1988) 37 ZLW 302, at 309-310. In his article Schwenk points out that in Germany airports are considered to be of a private law nature as they do not have a governmental connotation. In principle anybody could develop and operate airport operations whereas the provision of air navigation services is in principle a governmental task and the service provision is exclusively reserved to the state.
196 Organisation of air navigation service providers in Europe pointed out the complexity of applying a contractual relationship between the air navigation service provider and the aircraft operator by reference to the freedom to enter into a contract. What would be needed is a legal provision obliging the user to enter into a contract with an air navigation provider either through national law or on the basis of a multilateral legal instrument.845 States could give the contractual relationship between aircraft operators and air navigation service providers an inter-state effect by incorporating the same in their bilateral- or multilateral arrangements, or potentially even through the regulatory machinery of the European Community.846 At the same time, if such relationship is captured in this regulatory environment, the question arises whether the relationship between the air navigation service provider and the aircraft operator can then still be regarded as one of a contractual nature.
The air navigation service providers could make the first step showing the underlying states that they should not fear cross-border provision of air navigation services and also relieve the airlines from uncertainty with respect to issues surrounding liability. Bearing in mind the anticipated CNS/ATM developments, the contractual framework facilitating the cross-border provision of air navigation services could form the basis of the ultimate gateway for standard terms and conditions governing the relationship between aircraft operators and air navigation service providers.
For the benefit of transparent lines of liability, particularly with respect to the cross-border provision of air navigation services, the air navigation service providers and aircraft operators should develop a uniform set of standard terms and conditions defining their liability regime, the applicable law and competent forum to decide on any damage or losses suffered. Due to the fact that the air navigation service providers and aircraft operators cannot commit states to an inter-state liability regime they cannot pursue the supervising state ultimate liability doctrine (5.6.4.1) where the effective air navigation service provider and, in second instance, the supervising state, through the reimbursement of the damages or losses suffered by the delegating state, is liable. Furthermore, they should not rely on the traditional liability concepts (5.5.1) such as the service provider’s exclusive liability doctrine because, according to this doctrine, the air navigation service provider is liable pursuant to the laws and the competent forum of the state where the air navigation service provider has his principal place of operation. The parties should agree on a liability concept that was discussed in the context of inter-state liability, the effective service provider doctrine (5.5.3) where the wrongdoer is liable subject to the national laws and competent courts of the state in whose airspace the accident occurs.847
The air navigation service providers and aircraft operators should rely on their respective trade representatives, including but not limited to CANSO, IATA and (for Europe) AEA and
845 W. Schwenk and R. Schwenk, Aspects of International Co-operation in Air Traffic Management (1998), at 158-159. 846 The European Community has already taken the first step in harmonising general principles of European Contract Law through the so-called Principles of European Contract Law (PECL). The PECL have been developed for the purpose of harmonising principles of contract law and should do away with obstacles that frustrate cross-border business. The PECL is not designed to solve differences between national laws, but is aimed at creating a foundation of contract law throughout the European Community and reflects the common understanding towards problems of contract law. The PECL cover a variety of subjects in the field of general contract law such as freedom of contract, offer-and- acceptance, pre-contractual liability, authority of agents binding the principal to contracts, including remedies in case of non-performance. For additional information on the PECL, see O. Lando and H. Beale (eds.), Principles of European Contract Law Parts I and II (2000); see also L.A. DiMatteo, The Law of International Contracting (2000). 847 Bearing in mind Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, supra note 805, this regulation also prescribes that a party may be sued in another member state where, in the case of provision of services, under the contract the services were provided or should have been provided.
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ERA to draft a first basic set of general terms and conditions in consultation with ECAC, EUROCONTROL and the European Community. The latter institutions are involved in the contractual framework developed for the future provision of satellite based air navigation services through CNS/ATM (5.6.2.2) and can provide useful input and guidance on this particular topic. After all, the contractual framework for (cross-border) provision of air navigation services could form the basis of the ultimate gateway for standard terms and conditions that ultimately govern the relationship between aircraft operators and the CNS/ATM air navigation service providers. Once this uniform framework of clear lines of liability between air navigation service providers and aircraft operators has been rolled the questions pertaining to fault-based or strict liability, including those dealing with limited- or limited liability, such as for example embedded in the Standard Terms of Airways New Zealand, should be placed on the discussion table.
5.7 Concluding Remarks
In this Chapter, the question has been raised how states could best deal with the problem of inter-state liability, damage caused to third parties on the ground and as well as with respect to damage aircraft operators arising out of cross-border provision of air navigation services. Whereas traditionally the provision of air navigation service providers remained within the government structure and was subject to state liability, the states have placed the providers outside the government structure by way of corporatisation and privatisation.848 However, this does not mean that they have at the same time laid down transparent lines of liability for damages arising out of the air navigation service provision or, let alone, took into consideration damages arising from cross-border provision of air navigation services whereas the mid-air collision near Überlingen illustrates that law-making action is justifiable.
In the first part of this Chapter the national organisation of air navigation service providers in Luxembourg, Belgium, the Netherlands, Germany, Austria, Switzerland, Ireland and the United Kingdom have been set out where particular attention was paid to the status of the air navigation service provider(s) and as to whether or not explicit liability provisions had been taken into account. Certain states have refrained from incorporating explicit liability provisions, whereas others have done so either through national law or by way of separate agreements with their national air navigation service provider.849 Furthermore, the Single European Sky regulations require states to revisit their national organisation of air navigation service provision. States that already reorganised their air navigation service provider the first time (first wave) are now subject to a second wave under which they should rearrange the organisation of air navigation service provision in their airspace. They should have an open- eye towards cross-border provision and also allow foreign air navigation service providers to provide services in their airspace.850
The Single European Sky regulations do not give an answer as how to deal with liability arising from the provision of cross-border air navigation services and only stipulate that air navigation service providers should have in place arrangements to cover their liabilities arising from applicable law.851 In terms of transparent lines of liability there should be clarity as to who the liable actor is, what law should be applied and what is the competent forum for which a claim should be brought.
For the establishment of transparent lines of inter-state liability and damage caused to third parties on the ground, the fictitious legislator, whether or not these are the states through
848 See Ch. 5.2. 849 See Ch. 5.3.4, 5.3.5, 5.3.6 and 5.3.8 on the German, Austrian, Swiss and the United Kingdom. 850 See Ch. 5.4. 851 See Ch. 5.4.4.3.
198 Organisation of air navigation service providers in Europe bilateral- or multilateral agreements (and subsequent implementation into national laws) or the European Community, should take up regulatory action and keep the “wrong-doer” primary party liable for damages. The effective air navigation service provider should be on the front liability line and assume the primary obligation for compensation. The provider is liable for damages caused by its own operations, including its agents, subcontractors or other person acting on its behalf. All claims should be channelled to the air navigation service provider and the plaintiff shall bring the claim before the courts and subject to the laws of the state where the damage was suffered.
The ultimate liability for damages of losses suffered because of improper operation of air navigation services should not be a cause of concern for the people on the ground that are affected by a failure of these facilities or services and are confronted with the unwillingness or impossibility for the foreign air navigation service provider to repair the damages. In the view of the author the following paradigm shift should be developed for the benefit of wide- scale cross-border provision. There should be firstly liability of the air navigation service provider and, secondly, liability for the supervising state through its reimbursement obligation indemnifying the damages or losses suffered by the delegating state. The air navigation service provider should repair any damages suffered in accordance with the laws and before the competent courts of the state where the third party suffered the damage. If the air navigation service provider does not adhere to the foreign judgement or is financially incapable of remedying the damages, the state or states whose authorities have granted an operating license to the air navigation service provider and supervise the same shall ultimately compensate damages suffered. The latter through the involvement of the delegating state that has the obligation to reimburse the damages suffered by the third parties on the ground.
This new doctrine is the so-called supervising state ultimate liability doctrine where the liable actor is in principal the effective air navigation service provider and in second instance the supervising state. In order to have full-fledged effect, this doctrine should be incorporated in a bilateral- or multilateral cross-border agreements or be recognised in the legal order of the European Community. The doctrine is incorporated in the liability section of the draft model agreement for delegation of air navigation service provision which is enclosed to this study as Appendix I.
As a final pointer in this Chapter clear lines of liability between the air navigation service provider and the aircraft operator have been discussed. The aircraft operator and air navigation service provider can sort out questions pertaining to the liable actor, the laws to be applied and competent forum by way of contract without the involvement of the fictitious legislator. Taking into account the Standard Terms imposed by the Airways Corporation of New Zealand, the Draft Contractual Framework proposed by the ICAO Secretariat Study Group, the Conceptual Contractual Framework proposed by ECAC (in consultation with the European Community and EUROCONTROL) and the contractual relationship between airports and aircraft operators there is nothing that goes against such contractual approach. Due to the fact that the private parties cannot bind states to an inter-state liability regime they cannot pursue the supervising state ultimate liability doctrine where the air navigation service provider and, in second instance, the supervising state, through the reimbursement of the delegating state, is liable for damages or losses suffered. The parties should agree on a liability framework that has similarities with the effective service provider doctrine where the “wrong-doer”, the air navigation service provider, can be challenged subject to the national laws and competent courts of the state in whose airspace where the accident occurs.
The only concern could be the freedom of contracting which bears with it the potential that a party rejects the contract terms (standards terms and conditions) imposed on it. This could be remedied through national law by which a state impose aircraft operators to enter into a contract with the air navigation service provider. However, notwithstanding the absence of such national law, if the terms of the agreement only tackle the non-controversial issues as the
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liable actor, the national laws to be applied and competent forum this should not give rise to any uproar amongst the air navigation service providers or aircraft operators. Controversy will only arise with respect to discussions surrounding fault-based or strict liability and those dealing with limited- or unlimited liability for damages. If the various trade representatives of the air navigation service providers and the airline industry in consultation with ECAC, EUROCONTROL and the European Community would work on a first basic set of general terms and conditions, the controversial issues, such as the limitation of liability as imposed under the Standard Terms of Airways New Zealand, can be dealt with at a later stage.
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CHAPTER 6 Conclusions and Recommendations
6.1 Introduction
Based on the EUROCONTROL’s statistical reference of 2006 there were no less than 69 area control centres providing air traffic control to aircraft in the upper airspace. The en-route air navigation inefficiencies alone are estimated to cost airspace users to be around Euro 880 million and Euro 1.4 billion per annum. The main component of the cost of fragmentation are that many national air navigation control centres operate below their optimum economic size. Other major areas of costs of fragmentation are the multiplication of ATM systems (piecemeal procurement, sub-optimal scale in maintenance) and duplication of associated support (training, administration and research and development). There are national initiatives to mitigate the adverse impact of fragmentation costs by way of corporatisation and privatisation of national air navigation service providers. However, they tend to limit themselves to projects within a single air navigation service provider and do not focus on the efficient flow and routing of aircraft beyond the national airspace. Although there are limits to the feasible size of airspace that can be managed by an air navigation service provider, they could potentially control larger blocks of airspace, even if this means that the airspace is located outside the territory of the state in which they have their principal place of operation. Such cross-border provision of air navigation services could facilitate efficient flight routing and enhance the overall flight efficiency of air carriers.
The improvement of the safe and orderly flow of air traffic requires a common approach rather than solutions that are restricted to the airspace of a single state and in this study attention is paid to one of the measures that could reduce the fragmentation and fragmentation costs, namely allowing the navigation service providers to provide services beyond their national airspace, or in other words, cross-border provision of air navigation services. An evaluation has been made of the international- and national legal regimes that govern air navigation service provision and, more specifically, cross-border service provision. The mid- air collision near Überlingen serves as a grim example for the need of a thorough legal framework catering for wide-scale cross-border provision of air navigation services.
As a result of the analysis in the previous chapters, three essential elements for cross-border service provision can be enumerated (6.2). Subsequently, based on these essential elements and in an effort to enhance wide scale cross-border provision of air navigation services throughout the airspace of several states, this study provides several paradigm shifts dealing with the preferred legislative approach to cross-border service provision where the first paradigm shift is the fortification of the rulemaking role of EUROCONTROL in the European Community (6.3). This is followed by the recommendation to establish transparent lines of state responsibility in case of cross-border service provision by allocating responsibility to a supervising authority under a model delegation agreement (6.4). The third step is to give binding effect to cross-border service arrangements under the model agreement against third- party states by relying on the Regional Air Navigation Plan (6.5). Finally, also within the context of cross-border provision of air navigation services there should be transparent lines of inter-state liability as well as with respect to third parties on the surface and aircraft operators (6.6). This Chapter will conclude by extrapolating the findings and recommendations of this study for the benefit of cross-border provision of air navigation services outside the European Community (6.7).
202 Conclusions and recommendations
6.2 Essential elements for cross-border provision of air navigation services
(1) International organisation
The first essential element for achieving wide-scale cross-border provision of air navigation services is the establishment of an international organisation that has the competence to legislate and interpret legislation (jurisfaction) and the power to enforce said legislation and carry out laws, judgements and sentences (jurisaction) in the field of air navigation services.
From a global level, ICAO has on the basis of rulemaking- and enforcement competencies under the Chicago Convention launched and developed a leading global framework of air navigation services. This including terminology and interrelationships between the various operating units. However, despite the credits of the Chicago Convention and the framework of air navigation services that have been developed under its umbrella, the international organisation has so-far not be able to pursue arrangements on which basis cross-border provision of air navigation services could be achieved. Within the regulatory framework under the Chicago Convention there is at most a Standard acknowledging that there can be a delegation to another state of the responsibility for establishing and providing Air Traffic Services in the FIR, control areas or control zones extending over the territories of the former as well as a Standard that says that the states concerned shall designate the authority responsible for providing such services. Beside the fact that ICAO should have used its regulatory competencies to enact more Standards to pursue cross-border service provision in the airspace of its member states, the organisation lacks a suitable enforcement mechanism to enforce such regulations altogether. Amending the Chicago Convention by turning ICAO into a supranational organisation will not, at least in the short-term, happen.
From a regional perspective, EUROCONTROL and the European Community are very important international organisations as far as drawing up regulations for their member states in order to pursue cross-border provision of air navigation services. In terms of regulatory competencies, EUROCONTROL, similar to ICAO, is also issuing mandatory rules binding its member states. For non-safety related issues, these are the so-called EUROCONTROL Standards and for safety related matters, these are ESARRs. However, just like ICAO Standards, the member states of EUROCONTROL are allowed to opt-out from the mandatory rules. Derogation is possible in the event overriding national considerations pertaining to national defence and security interests prevent it from acting on a decision adopted, this being subject to the communication by the state of an explanation of its reasons.
The European Community has more stringent rulemaking powers that have direct effect in the member states and has exercised such regulatory competencies in the field of air navigation services through the Single European Sky regulations. On the basis of these regulations the European Community tries to pursue a harmonised regulatory framework that forces states to engage in cross-border provision arrangements. Contrary to the mandatory ICAO Standards or EUROCONTROL Rules, there is no such thing as opting-out from rules issued under the Single European Sky regulations. This makes it possible to have a more efficient and coherent management of air navigation services in the airspace of its member states.
In December 2006, the European Commission decided to bring Greece before the European Court of Justice for its failure to respect the Single European Sky Regulations. Greece has failed to create or establish an independent national supervisory authority as is required under the regulations. This case underlines the stringent enforcement powers of the European Community that is able to pursue cross-border service provision in the airspace of its member states even against their will.
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From the face of it, the member states of the European Community have met the first essential element for wide-scale cross-border provision of air navigation services by delegating rulemaking- and enforcement competencies in the field of air navigation services to the European Community. However, due to the fact that they are also contracting parties to EUROCONTROL there are problems with respect to the extent each international organisation can exercise and pursue regulatory- and enforcement competencies binding the member states. In addition, the fact that the European Community has acceded to EUROCONTROL causes another regulatory- and enforcement complication between the two international organisations and their respective member states.852 Although the two international organisations have tried to establish transparent rulemaking structures where each international organisation respects the competencies of the other and EUROCONTROL has been granted regulatory influence within the European Community, this study recommends the strengthening of the rulemaking role of EUROCONTROL in the current legal framework of the European Community.853
(2) Transparent lines of state responsibility
The second essential element for wide-scale cross-border provision of air navigation services are transparent lines of state responsibility. On the basis of the draft articles on the responsibility of states for internationally wrongful acts there is state responsibility if there is, first, an act or omission that, second, is attributable to the state under international law and, third, constitutes a breach of an international obligation of the state.
Assuming that, similar to the mid-air collision near Überlingen (Lake Constance) there is no contributory negligence of the pilots but a clear omission of the air navigation service provider, the first requirement, an act or omission is met. The second requirement, attributability, should be judged on the basis of Article 28 Chicago. According to this provision the contracting states to the Chicago Convention undertake to provide air navigation services in their territory in accordance with the Standards and Recommended Practices established from time to time pursuant to the Chicago Convention. This provision encompasses an operational aspect, the provision of air navigation services, and a regulatory oversight and auditing aspect as the service provision should take place in accordance with the Standards and Recommended Practices established pursuant to the convention. In the event the air navigation services are provided by civil servants of the state any omission, like in the mid-air collision near Überlingen (Lake Constance), will be attributable to the state. However, in the event the air navigation services are provided by a corporatised- or privatised entity, there need not be any attributability. After all, the state has met its obligation to provide air navigation services in its airspace through a corporatised- or privatised entity. It is only if the state has failed to meet the regulatory oversight and auditing requirements that the act or omission by the air navigation service provider could trigger attributability. The third requirement is the breach of an international obligation of a state. This is the failure to meet the objective raised by a Standard embedded in Annex 11 to the Chicago Convention, in short, the failure to prevent collisions between aircraft, between aircraft and obstacles on the ground and to expedite and maintain an orderly flow of air traffic. This objective was not met in the case of the mid-air collision near Überlingen either.854
Despite the fact that states have entered into various bilateral- or multilateral arrangements, the issue of state responsibility has so far been underexposed. In the current cross-border arrangements that have been concluded, the failure of meeting the objectives in the airspace of the delegating state gives the delegating state, at best, a right of recourse on the providing
852 See Ch. 3.6. 853 See the recommendation in Ch. 6.3. 854 For further information on the concept of state responsibility for air navigation services, see Ch. 4.3.1.
204 Conclusions and recommendations state that shall indemnify the delegating state for any costs and damages suffered arising out of the provision of air navigation services such as a mid-air collision.855 There is no recourse in favour of the delegating state in case it is challenged by another state for international wrongful acts which have not resulted in damage like a mid-air collision. In the event of a near-miss, this potentially triggers an internationally wrongful act which is liable for reparation. See earlier Chapter 4.3.1 on reparation through restitution in integrum, compensation or satisfaction despite the fact that the near-miss did not result in physical damage as such. So even if nobody suffers any damage, which is possible in the case of state responsibility that requires an act or omission, attributable to the state under international law which constitutes a breach of an international obligation of the state without the need for there to be damages, transparent lines of responsibility should also be safeguarded. When applying this analysis to cross-border provision of air navigation services it implies that the question of state responsibility goes back to the state in whose airspace particular air navigation services are being provided. The fact that the air navigation service provider has his principal place of operation in another state is irrelevant. The delegating state has to compensate damages that occur in its airspace. The Draft EUROCONTROL Model State Level FAB Agreement is different in the way that it channels claims from individuals and the delegating state seeking recourse for damages directly to the air navigation service provider in the courts and subject to the national laws of the in whose territory the damage occurred. Moreover, contrary to previous model delegation agreements this model agreement also considers covering issues related to state responsibility in terms of failure to meet supervisory responsibilities.856
For the sake of wide-scale cross-border provision of air navigation services it is preferable to establish transparent lines of state responsibility. Rather than clinging on to territory (airspace) as the point of departure for state responsibility this study recommends a paradigm shift where no longer territory but the air navigation service provider is starting point. If any questions regarding state responsibility are triggered, questions pertaining to such state responsibility should not be directed at the state in whose airspace the issue of state responsibility arises, but should be directed to the supervising authority of such air navigation service provider.857
In order to safeguard a multilateral effect of this paradigm shift, this study recommends that for the benefit of wide-scale cross-border provision of air navigation services such transparent lines of state responsibility, the concept of the responsibility of the supervising authority, is granted wide-scale effect. The multilateral vehicle is the Regional Air Navigation Plan that would grant a binding effect of this concept against the contracting states of the Chicago Convention. This recommendation will be further elaborated in Chapter 6.4 below.
(3) Transparent lines of inter-state liability and for third parties on the ground and aircraft operators
The third essential element for wide-scale cross-border provision are transparent lines of liability for damages caused by the air navigation service provider. Clear lines of liability should not only be for the benefit of states (inter-state liability), but also for the benefit of aircraft operators and third parties suffering damage on the surface. Traditionally, the providers of air navigation services were a part of the governmental structure. Any damage caused fell within the regime of state liability. For various reasons states have decided to place the provision of air navigation services outside the governmental structure. The entity would for example be better equipped to borrow money from the capital markets rather than having to rely on funds received from the taxpayer, be more transparent and efficient in terms of cost allocation and be capable of reducing operating costs. Also, the entity would be able to
855 See Ch. 4.4. 856 See Ch. 4.4.2.4. 857 See the recommendation in Ch. 6.4.
Chapter 6 205 make instant decisions with respect to updating technology without having to rely on administrative budget discussions and approval mechanisms that slow down the performance of the air navigation service provider.
This first wave of restructuring has created corporatised- and privatised air navigation service providers.858 Each state has followed its own restructuring strategy and the (restructured) air navigation service providers are subject to national laws and sometimes even subject to separate agreements with their national government. Depending on the chosen strategy, states have sometimes imposed clear performance indicators as well as liability provisions on their (restructured) entities.859 As a result of the Single European Sky regulations, the member states of the European Community are forced to carry out a second wave of restructuring where they should subject their national air navigation services providers to a system of certification and designation and allow the provision of air navigation services in their airspace by air navigation service providers that have their principal place of operation outside their territory.860
Other than stipulating that the air navigation service providers should have in place suitable arrangements to cover their liabilities arising from applicable law, the Single European Sky regulations do not give a clear answer as to how to deal with liability for damage arising from the provision of air navigation services and conflicts of law issues. There is no specific answer as to the actor being liable, the law to be applied and the competent forum, let alone as to whether or not damage claims should be dealt with on a liability regime of fault-based or strict liability and whether or not the liability of the air navigation service provider subject to limited- or unlimited liability.
In the mid-air collision near Überlingen the issue of transparent lines of liability for cross- border provision of air navigation services on an inter-state basis as well against the aircraft operator was subject to discussion.861 Bearing in mind the wide-scale cross-border provision of air navigation services that is envisioned under the Single European Sky regulations and anticipated cooperation between the various European air navigation service providers, this study recommends the implementation of a harmonised liability regime in the European Community for the benefit of states (inter-state liability) and for the benefit of third-parties on the ground suffering damages as a result of the provision of air navigation services as well as for the benefit of aircraft operators. This will be further explained in Chapter 6.6 below.
6.3 Strengnthening the rulemaking role of EUROCONTROL in the European Community
In principal, within the European Community the first essential element, the establishment of an international organisation that has the competence to legislate, interpret and enforce, is met. All in all, within the European Community there are rulemaking competencies in the field air navigation services at no less than four different levels of which there are three international organisations involved.
858 See Ch. 5.2 859 For an overview of various European air navigation service providers in terms of organisation, regulation and liability, see Ch. 5.3. 860 See Ch. 5.4. 861 The District Court came to the conclusion that Germany and Switzerland had not concluded a treaty. dealing with inter-state liability However, even if they would have concluded a treaty and sorted out inter-state liability matters, this would not have a binding effect on the individuals that suffered damages in Germany. According to German national law there is liability of the German state for damage arising out of air navigation services provided in German airspace. For additional information on the mid-air collision near Überlingen (Lake Constance), see Ch. 1.2.
206 Conclusions and recommendations
The first level is with ICAO. ICAO is able to exercise rulemaking competencies by issuing binding Standards. The next level is with EUROCONTROL that is able to issue binding EUROCONTROL Rules or ESARRs on its member states. The third level is with the European Community. The last level at which rulemaking competencies can be exercised is at the national level. Within this context one should think of the implementation of ICAO Standards, EUROCONTROL Rules or ESARRs into the national legal order of a state. Contrary to the European Community those rules are binding on the member states, but require subsequent national implementation.
Although the international organisations are able to break-through the doctrine of airspace sovereignty of their member states by exercising exclusive rulemaking competencies, the fact that member states of the European Community are confronted with no less than three international organisations could pose a threat to the establishment of transparent lines of responsibility. The role of ICAO and its global rulemaking competencies is recognised by EUROCONTROL and the European Community. It is therefore mainly the interrelationship between EUROCONTROL and the European Community that could give rise to confusion. This study recommends that, despite the regulatory competencies currently exercised by the European Community, there is a stronger rulemaking role of EUROCONTROL in the overall rulemaking process of the European Community both with respect to non-safety related rules as well as with respect to safety related rules. The distinction between non-safety related rules and the safety related rules is made in Chapter 3.3.5.
Starting with non-safety related rules, the European Community only recognises the role of EUROCONTROL by way of a hybrid rulemaking framework.862 This as far as this concerns the development of implementing rules that it deems to fall within the remit of EUROCONTROL where the European Community has the liberty to circumvent the involvement of EUROCONTROL as far as it deems non-safety related rules to fall outside the remit of EUROCONTROL. This is also true for Common Requirements that the European Community can develop through comitology without involving EUROCONTROL.
The European Community has signed up to the Revised Convention. Although the European Community did not deposit the instrument of accession with the Belgian depositary as required under the Revised Convention, the European Community endorsed a resolution that was part of the Final Act on the Protocol on the accession of the European Community to the Revised Convention. This was a resolution on the early implementation of the Accession Protocol. Taking into account the Vienna Convention on the Law of Treaties the express commitment by the European Community means that, despite the treaty not be in force and despite the failure of the European Community to deposit the instrument of accession to the Accession Protocol with the Belgian depositary, the fact that the parties have signed an agreement and agreed on provisional application before the entry in to force of the treaty in the final act, this makes the provisions of the Revised Convention binding on the European Community.863 Therefore, the European Commission should involve EUROCONTROL even when it is exercising rulemaking competencies in its own legal order as far as this concerns the development of non-safety related rules that fall within the scope of en-route air navigation services and related approach and aerodrome services and there is in the view of the author no such thing as supremacy of European Community law above EUROCONTROL law in this respect.
This study therefore recommends that for non-safety related rules all matters concerning en- route air navigation services and related approach and aerodrome services triggered by the European Community are channelled through the hybrid rulemaking structure that is already in place between the EUROCONTROL and the European Community. The European
862 See Ch. 3.6.2.1 and 3.6.2.2. 863 See Ch. 3.6.1.
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Community should deem any such matters relating thereto to fall within the remit of EUROCONTROL. Furthermore, also the Common Requirements that are related to en-route air navigation services and related approach and aerodrome services for air traffic should also be developed through the hybrid rulemaking structure between the institutions rather than the comitology procedure in the legal order of the European Community.
Next to the fortification of the role of EUROCONTROL in the domain of non-safety related rules developed by the European Community, the second recommendation in this study is the strengthening of the rulemaking role of EUROCONTROL in the area of safety related rules. The regulatory regime under the Revised Convention (as provisionally applied) grants exclusive powers to EUROCONTROL to develop and implement ESARRs. This role is recognised under the legal regime of the European Community as the latter shall identify and adopt ESARRs and subsequent amendments hereto in its own legal order. Due to this identification and adopting process, this illustrates that there is a dual legal regime within both EUROCONTROL and the European Community. Not all ESARRs are copied into the legal order of the European Community. However, for those that have been copied into the legal order of the European Community and that are amended by EUROCONTROL over time, this requires the European Community to act swiftly as well. The European Community would have to amend its own legal order accordingly. Due to the fact that the member states of the European Community, including the international organisation itself, are parties to EUROCONTROL they would have to meet those obligations anyway.864
This study recommends that the rulemaking process for safety related rules provides for an active role of EUROCONTROL for purposes of involving the best stakeholders in the field of air navigation services and, through EUROCONTROL involvement, safeguarding pan- European embracement of safety standards that are issued the European Community. In order to balance the role of EUROCONTROL and EASA in the field of safety-related rulemaking competencies, the development of safety rules would have to be initiated by EUROCONTROL that, subject to widespread consultation with various stakeholders and EASA in the EUROCONTROL legal order results in a draft safety-rule. This draft rule then only becoming binding upon approval hereof by the SRC and EASA in which event the SRC forwards the safety rule for approval pursuant to EUROCONTROL’s regulatory framework and, at the same time, by virtue of the endorsement by EASA, the safety rule becomes at the same time binding in the European Community.
6.4 The Establishment of transparent lines of state responsibility by allocating responsibility to the supervising authority under a model delegation agreement
In the case of lease, charter or interchange of aircraft, the state of registry can transfer certain functions and duties to the state of the operator whereby the state of registry is relieved from responsibility in respect of those functions and duties. This was considered to be fair due to the fact that the aircraft is operated outside the airspace of the state of registry which therefore prevents the state from exercising proper surveillance. The transfer of functions and duties can only take place by way of pre-defined formalities and is only binding those states that recognise this concept. The state of the operator will be internationally responsible and liable as far as these transferred functions and duties are concerned. Similar to the state of registry whose aircraft are involved in a lease, charter or interchange, also in case of cross-border provision of air navigation services the state in whose airspace the air navigation services are ultimately being provided is also unable to exercise proper surveillance over the air navigation service provider. Although the delegating state has rulemaking competencies as far as this concerns the provision of air navigation services in the airspace over its territory, due
864 See Ch. 3.6.2.3 and 3.6.2.4.
208 Conclusions and recommendations to the fact that the air navigation service provider has its principal place of operation outside its territory, the delegating state lacks suitable enforcement powers other than perhaps revoking the authorisation of air navigation service provider to provide services in its airspace altogether.865
Rather then clinging on to the territory (airspace) as the point of departure for state responsibility, this study recommends a paradigm shift under which not territory but the air navigation service provider is the starting point and state responsibility is no longer channelled to the state in whose territory the air navigation services are being provided, but to the state (or body of states) that designated the supervising authority that ultimately granted the operating license to the air navigation provider. This is conditional to the air navigation service provider having its principal place of operation in the territory of the supervising state. The definition principal place of operation is used in the Single European Sky regulation and requires the applicant for an operating certificate to have its principal place of operation and, if any, its registered office in the territory of the member state of the European Community. See Chapter 5.4.4.1. For the sake of rulemaking- and, more important, enforcement competencies, the air navigation service provider should have its principal place of operation within the territory where the supervising state (group of states or international organisation) can exercise those competencies. The air navigation service provider holds an operating certificate issued by the supervising authority, that authority on its turn can be appointed by the state or group of states (individually or collectively referred to as supervising state) of which the delegating state forms no part.
The supervising state, as defined in Chapter 4.5, whether or not through the intervention of its supervising authority, has regulatory and enforcement competencies. Such state is able to ensure that the objectives under the Chicago Convention, the prevention of collisions between aircraft, between aircraft and obstacles on the ground, are met by way of the conditions attached to the operating certificate. For the sake of safety and efficiency of cross-border provision of air navigation services the delegating state and the supervising state it is recommended that the air navigation service provider applies the procedures, planning and rules and regulation issued by the supervising authority, or at least that the air navigation service provider offers air navigation services throughout the block of airspace on the basis of harmonised procedures, planning and rules and regulations. The delegating state and supervising state(s) shall enter into a model agreement that formalises the delegation of air navigation services, including the operating- and designation requirements issued by the state parties to that agreement. For a draft model agreement, see Appendix I attached to this study.
For the sake of establishing transparent lines of state responsibility and where, according to the Chicago Convention, each contracting state undertakes, so far as it may find practicable, to provide air navigation services to facilitate international air navigation in accordance with the Standards, there should at the same time be a transfer of functions and duties to the supervising state as far as the overall responsibility for the provision of air navigation services in compliance with the regulatory framework of the Chicago Convention is concerned.
The underlying model delegation agreement is concluded as a bilateral- or multilateral agreement where contracting states delegate the provision of air navigation services in a predefined airspace block to a particular air navigation service provider. The airspace block could cover (portions of) airspace over the territory of the delegating state(s), including airspace over the high seas or airspace of undetermined sovereignty when the delegating state has committed that air navigation services shall be provided. According to the model agreement, the delegating state(s) or any body established by such state(s) as designating authority shall be entitled to designate air navigation service providers to provide services in its airspace, provided that such air navigation service provider has been granted an operating
865 See Ch. 4.5.
Chapter 6 209 permit through certification by the supervising authority. On the basis of the model agreement, the delegating state transfers to the supervising state the responsibility for meeting the objectives of air traffic services, including the prevention of collisions between aircraft, between aircraft and obstacles on the ground as well as to expedite and maintain an orderly flow of air traffic and the delegating state is relieved from responsibility in respect of those functions and duties, in lieu of the supervising state, unless the delegating state has issued rules and procedures that differ from those of the supervising state which have contributed to the failure to meet the objectives.
Beside this establishment of transparency in terms of state responsibility, this study also recommends to overcome the shortcomings of the current bilateral- and multilateral agreements as they should also have a binding effect against third parties. Preferably, transparent lines of responsibility by allocating state responsibility to the supervising authority under a model delegation agreement is recognised in the legal order of the Chicago Convention as it could then potentially bind all contracting parties to this convention and safeguard wide-scale effect. This possibility is discussed in the next Chapter 6.5.
6.5 The Regional Air Navigation Plan as Multilateral Vehicle for Cross-Border Arrangements
For the benefit of the states that are affected by cross-border provision of air navigation services the paradigm shift, allocating responsibility for the failure to meet the international obligation to the supervising state (the supervising authority) should have a binding effect on third-party states. Notwithstanding the fact that bilateral- or multilateral agreements endorse the concept of the responsibility of the supervising authority the delegating state should also be able to rely on this concept against states that are not a contracting party to the delegation agreement.
The Single European Sky regulations of the European Community are aiming at cross-border provision of air navigation services. Provided that the European Community embraces the paradigm shift of delegating responsibility to the supervising authority in its legal order, the member states of the European Community would at least ascertain the concept of the responsibility of the supervising state. Formalising the paradigm shift in the European Community could be the first step in granting a multilateral effect. As a second step, the member states of the European Community should preach the allocation of responsibility to the supervising authority in the legal order of the Chicago Convention. After all, the member states of the European Community should be able to rely on the paradigm shift against any contracting state to the Chicago Convention that is not a member of the European Community. This study recommends that this formalisation takes place by formalising the same under the Regional Air Navigation Plan.
The purpose of the Regional Air Navigation Plan (RANP) is to set forth the recommendations concerning the facilities and services needed and the regional procedures to be applied. The recommendations shall be such that when followed by the states concerned, they will, in conjunction with the provisions of word-wide applicability being implemented by the states, lead to an integrated international civil air navigation system for the region concerned.866 Two ICAO bodies, namely the ICAO Legal Committee and the European Air Navigation Planning Group (EANPG) have argued that the RANP can be used as a binding multilateral vehicle towards the contracting parties of the Chicago Convention. The RANP is considered to be an authoritative internationally agreed and ICAO Council approved reference document corresponding to a contract between states covered by the plan regarding air navigation facilities to be provided and approved by the Council under the provisions of the Chicago Convention, acting on behalf of all ICAO states, including states not covered by the plan.
866 See Ch. 4.6.2.
210 Conclusions and recommendations
Also for the benefit of negotiating air traffic rights for an airport located in the Exclusive Economic Zone (EEZ) by the particular coastal state and provided that the coastal state negotiates with the other states that are a party to the Regional Air Navigation Plan the exclusive use of a portion of airspace over an airport in the EEZ, the coastal state will be able to negotiate air traffic rights against other states as well.867
The RANP should recognise the concept of the responsibility of the supervising authority and, provided that the particular states have entered into the model agreement that is attached as Appendix I to this study, establishes clear lines of state responsibility to the supervising authority. Provided that this concept is recognised and states have indeed entered into the model delegation agreement, the delegating state may redirect any claims under international law based on state responsibility to the supervising authority instead. Those states that engage in cross-border provision of air navigation services but fail to conclude or register the model agreement with the ICAO Regional Office or reject the conclusion of such model agreement altogether will not be able to rely on the concept of the responsibility of the supervising authority and not be able to relieve themselves from state responsibility.
The Regional Air Navigation Plan should embrace the concept of the responsibility of the supervising authority in accordance with the procedure for the amendment of approved basic air navigation plans which requires discussion between the states of that region as well as the involvement of ICAO bodies such as the Secretary General, the Air Navigation Commission and the President of the Council. Meanwhile, as a preliminary step, the European Community should not wait the outcome of the deliberations within ICAO but consider how to pursue the concept of the responsibility of the supervising authority within its member states. This would at least facilitate clear lines of state responsibility amongst the member states of the European Community. Of course, such rearrangement of state responsibility only has effect against the contracting states of the European Community but not against those states outside the European Community that are not bound hereto.
6.6 Establish transparent lines of (inter-state) liability for the provision of cross-border Air Navigation Services
The mid-air collision near Überlingen has illustrated the difficulties surrounding liability claims for damages in case of cross-border provision of air navigation services. The establishment of transparent lines of liability have therefore become an indispensable element when pursuing cross-border provision of air navigation services on a large scale. This study recommends a two-step approach for the purpose of establishing transparent lines of liability in terms of determining the liable actor, the laws to be applied and competent forum. Firstly there should be a clear liability regime dealing with inter-state liability and with respect to damages suffered by third parties on the ground. This should be achieved through the involvement of a legislator. Secondly, for the benefit of transparent lines of liability between the air navigation service providers that engage into cross-border provision of air navigation services and aircraft operators, those parties could enter into a contractual arrangement with pre-defined standard terms and conditions.
Starting with the first element, transparent lines of inter-state liability and transparent lines of liability with respect to damage suffered by third parties on the ground. As discussed in Chapter 5.6.1, this requires an answer to the following three questions. Firstly, which actor is liable for damages: the authorities of the state where the air navigation service provider has his principal place of operation and that supervises the operations of the air navigation service provider, the authorities of the state in whose territory the damage occurs, or the effective air navigation service provider itself? Secondly,what is the law to be applied? Is this the law of the state where the air navigation service provider has his principal place of operation or the
867 See Ch. 4.6.3.
Chapter 6 211 lex loci delicti, the laws of the state in whose territory the damage occurs? Finally, what is the competent forum to deal with the damage claim?
The air navigation service provider should be on the front liability line and assume the primary obligation for compensation. The air navigation service provider is liable for damages caused by its own operations, including its agents, subcontractors or other person acting on its behalf. All claims should be channelled to the air navigation service provider and the plaintiff should have the right to bring the claim before the courts and subject to the laws of the state where the damage occurred. Any judgement by the court should then be recognised in the state where the air navigation service provider has his principal place of operation. If the plaintiff encounters a problem in enforcing the judgement against the air navigation service provider that, after all, has its principal place of operation in another state, the state whose authorities have granted an operating license to the air navigation service provider should remedy the damages on the same basis and to the same extent as the air navigation service provider. The liability of the supervising state envisioned in this conceptual liability framework has nothing to do with the fact that this state, or his authorities, has not met its regulatory compliance duties and could have avoided the damage. Channelling liability to the state whose authorities have granted an operating license and are supervising the air navigation service provider is based on the thought that the ultimate liability for damages suffered due to improper operation of air navigation facilities should not be a cause of concern for the people on the ground that are affected by a failure of these facilities or services and are confronted with the unwillingness or impossibility for the foreign air navigation service provider to repair the damages.
The author recognises that there may be complications for plaintiffs in rendering the award against the supervising state that is, after all, not the same entity, the air navigation service provider, against whom a court-ruling is issued. The plaintiff would have to rely on the courts and national laws of the supervising state in order to be able to enforce a foreign judgement against the supervising state. In order to bridge this potential gap, the supervising state and delegating state should approach and resolve the matter through an their inter-state liability arrangement. If, notwithstanding any favourable court-ruling for the benefit of the plaintiff, the air navigation service provider does not or is unable to remedy the damages suffered, the plaintiff shall be able to rely on the delegating state that, similar to the state ultimate responsibility doctrine like in Switzerland, shall reimburse the damages suffered by the plaintiff. On the basis of the inter-state liability arrangement, the supervising state will indemnify the delegating state for any damages suffered. This paradigm shift is cited by the author as the so-called supervising state ultimate liability doctrine where the liable actor is in principal the effective air navigation service provider and, provided that local remedies in the delegating state have been exhausted, in second instance through intervention of the delegating state, the supervising state. In order to have full-fledged effect, this doctrine should be incorporated in a bilateral- or multilateral cross-border agreements or be recognised in the legal order of the European Community. The paradigm shift is incorporated in the model agreement for the delegation of air navigation services that is enclosed as Appendix I to this study.
With respect to establishing transparent lines of liability between air navigation service providers and aircraft operators, this study recommends a paradigm shift by introducing a contractual approach between the aircraft operators and air navigation service provider. Bearing in mind the Standard Terms of Airways New Zealand, the Draft contractual framework envisioned for CNS/ATM and the relationship between airports and airlines, the introducting of such a contractual relationship is not a strange thing. The air navigation service providers could hereby make a first step showing the underlying states that they should not fear cross-border provision of air navigation services and also relieve the airlines from uncertainty with respect to issues surrounding liability.
212 Conclusions and recommendations
The air navigation service providers and aircraft operators should develop a uniform set of standard terms and conditions defining their relationship, including the applicable law and competent forum to decide on any damage or losses suffered. Due to the fact that the air navigation service providers and aircraft operators cannot commit states to an inter-state liability regime they cannot pursue the supervising state ultimate liability doctrine. They should rely on a liability concept that was discussed in the context of inter-state liability, the effective service provider doctrine (5.5.3), where the wrongdoer, the air navigation service provider, is liable subject to the national laws and competent courts of the state in whose airspace the accident occurs.
The only concern is that there exists under private law a freedom of contracting which bears with it the potential that a party rejects the contract terms (standards terms and conditions) imposed on it. This could be remedied through national law by which a state impose aircraft operators to enter into a contract with the air navigation service provider. Failure of such legal connotation under the national laws of the state in whose airspace air navigation services are being provided, aircraft operators and air navigation service providers would not be bound to adhere or impose standard terms and conditions. If the standard terms and conditions only tackle non-controversial issues as the liable actor, the national laws to be applied and competent forum in case of cross-border provision of air navigation services this should not give rise to any uproar amongst the air navigation service providers or aircraft operators. Controversy will only arise with respect to discussions surrounding fault-based or strict liability and those dealing with limited- or unlimited liability for damages. If the various trade representatives of the air navigation service providers and the airline industry like CANSO, IATA, AEA and ERA in consultation with ECAC, EUROCONTROL and the European Community would work on a first basic set of general terms and conditions that restricts itself to non-controversial issues and implement such uniform liability framework for the benefit of cross-border provision, the controversial issues, such as the limitation of liability by the air navigation service provider against the aircraft operator under the Standard Terms of Airways New Zealand, can be dealt with at a later stage.
6.7 Extrapolating the Conclusions and Recommendations beyond European Airspace
Triggered by the consolidation developments and the regulatory restructuring that are taking place in the European air navigation services industry, this study has primarily restricted itself to establishing transparent lines of responsibility and liability for cross-border provision of air navigation services in the airspace of the member states of the European Community. However, as evidenced by the initiatives such as COCESNA and ASECNA (4.4.2.5), cross- border provision of air navigation services is also implemented at places outside the domain of the European Community. Therefore this Chapter will conclude by extrapolating the findings and recommendations of this study for the benefit of cross-border provision of air navigation services outside the European Community.
The first essential element for achieving cross-border provision of air navigation services is the establishment of an international organisation that has jurisfaction and jurisaction which is able to break through the doctrine of airspace sovereignty of individual states and thereby able to pursue wide-scale cross-border provision of air navigation services throughout the airspace of a group of states. The international organisation would be able to impose, interpret and enforce rules and regulations throughout the airspace of its member states even against their will. The second essential element is transparent lines of state responsibility in case of cross-border provision of air navigation services. When applying the articles on state responsibility for internationally wrongful acts on the provision of air navigation services, there is state responsibility if there is an act or omission attributable to the state under international law that constitutes a breach of an international obligation of the state. If the
Chapter 6 213 state is not providing air navigation services in its airspace, there can be attributability if the state fails to provide suitable regulatory oversight and auditing over the effective air navigation service provider. However, the air navigation service provider that is offering cross-border provision of air navigation services has its principal place of operation in the territory of the supervising state (or group of states or international organisation) rather than the delegating state exercises rulemaking- and enforcement competencies. Rather than clinging on to territory (airspace) as the point of departure for state responsibility and in order for the supervising state to bear state responsibility in lieu of the delegating state there should be a paradigm shift where states recognise and channel state responsibility to the state (or body of states) that designated the supervising authority that ultimately granted an operating license to the air navigation service provider.
In the absence of an international organisation with rulemaking and enforcement competencies pursuing cross-border provision of air navigation services and the transparent lines of state responsibility, the states should rely on the model agreement enclosed as Appendix I to this study in their bilateral- or multilateral cross-border air navigation services arrangements. On the basis of this agreement the states can channel state responsibility for cross-border provision of air navigation services amongst themselves to the supervising state. Furthermore, in order to give this cross-border arrangement a binding effect against third- party states that are not part of the bilateral- or multilateral cross-border arrangement, the states should incorporate in their RANP the concept of the responsibility of the supervising authority and register their agreement with the ICAO Regional Office.
Lastly, the state parties, such as the contracting parties to COCESNA and ASECNA, should focus on transparent lines of inter-state liability as well as transparent lines of liability for third parties on the ground and aircraft operators. In terms of inter-state liability, the states should incorporate in their bilateral- or multilateral arrangements the supervising state ultimate liability doctrine pursuant to which the interests of the state and third parties on the ground are safeguarded. According to this doctrine, the effective service provider, the “wrong-doer”, is the primary party liable for damages subject to the national laws and the competent courts of the state where the accident occurred.
In the event the plaintiff encounters a problem enforcing the judgement against the air navigation service provider or if the provider is financially incapable of remedying the damages that have been awarded to the plaintiff, the delegating state shall step in and remedy the damages or losses suffered. The delegating state is on its turn, on the basis of inter-state liability arrangements, indemnified by the supervising state. The liability of the supervising state envisioned in this conceptual liability framework has nothing to do with the fact that this state, or his authorities, has not met its operational-, regulatory compliance or auditing duties and could have avoided the damage. Channelling liability to the state whose authorities have granted an operating license and are supervising the air navigation service provider is based on the thought that the ultimate liability for damages suffered due to improper operation of air navigation facilities should not be a cause of concern for the people on the ground that are affected by a failure of these facilities or services and are confronted with the unwillingness or impossibility for the foreign air navigation service provider to repair the damages. The supervising state on the basis of its rulemaking- and enforcement competencies will on its turn through national laws affecting the effective air navigation service provider be able to recover the damages and losses that it has compensated.
214 Conclusions and recommendations
In terms of the relationship between the air navigation service provider and the aircraft operator, the state parties to COCENSA or ASECNA could impose under their national laws that aircraft operators and air navigation service providers are subject to standard terms and conditions where the effective air navigation service provider, the “wrong-doer”, can be sued for damages or losses suffered pursuant to the national laws and competent courts of the state in whose territory the accident occurred. However, even if states do not enact such national laws, the trade representatives of the airline industry and the air navigation service providers of those particular regions could of course voluntarily agree and commit themselves to a general set of standard terms and conditions.
215
APPENDIX I: MODEL AGREEMENT FOR CROSS-BORDER PROVISION OF AIR NAVIGATION SERVICES
The model agreement hereunder can be concluded on a bilateral- or multilateral basis which depends on the extent as to whether the airspace and underlying territory of two or more states are affected by such delegation of air navigation service provision.
The focus of this conceptual model agreement is on certification and designation as well as the accompanying question of responsibility and liability in the event of cross-border provision of air navigation services.
Model Agreement between [State 1], [State 2] and [State 3] on the cross-border provision of Air Navigation Services (Collectively “Contracting States”)
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Article 1 Definitions 1. Airspace, means the airspace over the territory of the Delegating State, which are deemed the land areas and territorial waters adjacent thereto under the sovereignty of the state, including those portions of airspace over the high seas or in airspace of undetermined sovereignty where the Delegating State has committed itself that Air Navigation Services are being provided; 2. Airspace Block, means the airspace block, including (portions of) the Airspace, defined by the Contracting States based on operational requirements, reflecting the need to ensure more integrated management of Air Navigation Services regardless of any existing territorial boundaries; 3. Air Navigation Services, means any service offered by the Air Navigation Service Provider in the context of air traffic management- (including air traffic control), communication, navigation and surveillance systems- , meteorological-, or ancillary aviation services; 4. Air Navigation Service Provider, means any public or private entity providing Air Navigation Services in the Airspace Block that has its principal place of operation in the territory of the Supervising State; 5. Delegating State, means the Contracting State that nominates or establishes a body as its Designating Authority for the Airspace; 6. Designating Authority, means the Delegating State, or a body nominated or established by the Delegating State, that designates the Air Navigation Service Provider to provide particular Air Navigation Services in a part or the whole of its Airspace and issues rules and procedures that are binding on the Air Navigation Service Provider; 7. Supervising State, means the Contracting State, or a combination of Contracting States, that nominates or establishes a body as its Supervisory Authority that is independent from the Air Navigation Service Provider; 8. Supervising Authority, means the Supervising State or a body nominated or established by one or more Supervising States that has issued an operating certificate to the Air Navigation Service Provider;
216 Model Agreement
Article 2 Objective 1. The objective of this Agreement is the delegation of the provision of Air Navigation Services to certain Air Navigation Service Providers in the Airspace Block and to define the relationship between the Contracting States.
2. The Contracting States will define the co-ordinates of the Airspace and the Airspace Block, the name and principal place of operation of the Air Navigation Service Provider and the Air Navigation Services that will be provided, including the details of the Delegating State, the Delegating Authority, the Supervising State and Supervising Authority in Exhibit I to this Agreement.
3. The Contracting States may decide to have one or more Air Navigation Service Provider(s) performing Air Navigation Services in the Airspace Block, provided that there can only be a single provider providing a particular Air Navigation Service in a portion of the Airspace Block at all times.
Article 3 Certification and Designation868 1. Every Air Navigation Service Provider in the Airspace Block shall be subject to certification (operating certificate) by the Supervising Authority and designation by the Designating Authority.
2. Applications for certification shall be submitted by the applicant to the Supervising Authority of the Supervising State where the applicant has its principal place of operation.
3. Operating certificates shall specify the rights and obligations of the Air Navigation Service Provider as further defined in Exhibit 2.
4. Provided the Air Navigation Service Provider holds a valid operating certificate and the Supervising State and Delegating state are a party to this Agreement, the Designating Authority shall designate the Air Navigation Service Provider enabling it to provide particular Air Navigation Services in a part or the whole of the Airspace.
5. Designation shall be subject to the designation requirements as further defined in Exhibit 3 .
6. The Supervising Authority ensures the appropriate supervision and enforcement of the Air Navigation Service Provider and shall monitor compliance with the certification requirements (Exhibit 2) and the designation requirements (Exhibit 3) in the Airspace Block. Details of such monitoring shall be included in the annual report of the Supervising Authority that will be submitted to the Designating Authority on an annual basis.
868 For the European Community; certification and designation is subject to the provisions of the Service Provision Regulation and Common Requirements (Ch. 5.4.2).
Appendix I 217
7. If the Supervising Authority finds that the Air Navigation Service Provider does no longer meet the certification- or designation requirements under Section 3 or is of the view that it is unable to meet the objectives for Air Navigation Services transferred to it under Section 5, it shall take appropriate measures while ensuring continuity of the Air Navigation Services. Such measures may include the revocation of the certificate.
8. If the Designating Authority finds that the Air Navigation Service Provider does no longer meet the designation requirements under Section 3, it shall notify the Supervising Authority and report and suggest the Supervising Authority take appropriate measures. The Designating Authority may revoke the designation whilst ensuring the continuity of the Air Navigation Services.
Article 4 Management of rules and procedures 1. The Contracting States shall establish a committee to ensure appropriate consultation as well as cooperation with all relevant parties with respect to the management of the Airspace Block.
2. The committee shall provide appropriate consultation and coordination mechanisms between the Contracting States, the Supervising Authorities and the Designating Authorities.
3. Notwithstanding any consultation and coordination efforts between the Contracting States, the rules and procedures of the Designating Authority pertaining to the provision of Air Navigation Services in the Airspace shall be applied by the Air Navigation Service Provider. The Contracting States may agree, however, that the rules and procedures issued by the Supervising Authority shall be applicable in the Airspace.
4. The committee will deal with any issue on the explanation and interpretation of this Agreement.
Article 5 Responsibility 1. The Contracting States agree that the Supervising State, as far as the Airspace Block is concerned, shall ensure that the Air Navigation Service provider is meeting the objectives to prevent collisions between aircraft, prevent collisions between aircraft on manoeuvring area and obstructions on that area, to expedite and maintain an orderly flow of air traffic, provide advice and information useful for the safe and efficient conduct of flights and notifying appropriate organisations regarding aircraft in need of search and rescue aid, and assist such organisations as required.
2. Provided that this Agreement is recorded in accordance with the provisions of Section XX (ICAO Registration and Notification) below, the Delegating State shall be relieved of state responsibility against any Contracting States in respect of the objectives transferred to the Supervising State for its Airspace that is governed by the Airspace Block, unless rules and procedures issued by the Delegating State have contributed to the failure to meet the objectives.
218 Model Agreement
Article 6 Liability 1. The Air Navigation Service Provider providing Air Navigation Services within the Airspace Block is liable for damage caused by it or caused by its agents or any other person otherwise acting on its behalf and any action for damages against the Air Navigation Service Provider shall be brought before the competent courts and subject to the national laws of the Delegating State.
2. In the event the Air Navigation Service Provider has his principal place of operation in a state other than the Delegating State and does not adhere to the judgement of the court or is financially incapable of remedying the damages, the Delegating State shall indemnify the damages that have been awarded by the court. The Supervising State shall indemnify the Delegating State for any costs and damages suffered by the Delegating State.
Other issues that should also be tackled in the model agreement are:
Article XX Financial Arrangements869 Regarding collection of charges for air navigation services.
Article XX Military flight operations Regarding the relationship between civil- and military aircraft.
Article XX Investigation of Accidents and Serious Incidents Regarding the national competencies of the Delegating State in relation to aircraft accident investigation activities or serious incidents occurring in its territory.
Article XX Entry into force and duration of the Agreement Regarding the entry into force and duration of the agreement.
Article XX Withdrawal/ Accession of a state Transitional arrangement if a state withdraws or accedes to the Airspace Block .
Article XX Termination / Suspension Regarding termination and suspension of the agreement by a Contracting State and the operational impact for cross-border service provision arrangements.
Article XX Dispute Resolution Regarding dispute resolution between Contracting States which shall be brought before the (for the European Community: Single Sky Committee) Committee for an opinion, such opinion to be taken into account in order to find a solution. A second forum should be agreed upon between the contracting states enabling the Contracting States to file an appeal against the decision of the Committee.
869 For the European Community, the Service Provision Regulation is supplemented by way of specific common charging scheme for air navigation services. See Ch. 3.4.2.2.
Appendix I 219
Article XX ICAO Registration and Notification 1. The Agreement shall be registered with the ICAO Regional Office of the ICAO Air Navigation Region in which the Contracting States are located
2. The responsibility for notifying this Agreement with the Contracting States, ICAO, the RANP and any third state concerned rests collectively with the Delegating State and the Supervising State.
In witness whereof, the undersigned, being duly authorised by their respective Governments, have signed this agreement
For the For the Government of [State 1] Government of [State 2]
[Signature] [Signature]
For the Government of [State 3]
[Signature]
Exhibit 1 Airspace : [Co-ordinates /chart] Airspace Block : [Co-ordinates/ chart]
Air Navigation Service Provider : [Name], [Principal place of operation] Air Navigation Services being provided : [ATS, MET, etc]. Co-ordinates per Air Navigation Service : [Co-ordinates/ chart].
Delegating State : [State 1], [State 2] Designating Authority : Authority appointed by [State 1], [State 2] Supervising State : [State 3] Supervising Authority : Authority appointed by [State 3]
Exhibit 2 Certification conditions Define common certification conditions for the operation of the Air Navigation Service Provider between the Contracting States. For members of the European Community, this is further defined in the Service Provision Regulation.
Exhibit 3 Designation Requirements Define common designation requirements between the Contracting States. For members of the European Community, this is further defined in the Service Provision Regulation.
220_
APPENDIX II: STRUCTURE OF PROPOSAL (GRAPHIC)
CHAPTERS International- and European legal framework 2 and 3 ICAO ICAO
Eurocontrol Eurocontrol and European Community: • non-safety related rules • Non-safety related rules dealing with en-route (Guidance Material on Common Requirements) air navigation services and related approach and • safety related rules (ESARR) aerodrome services to be developed through ENPRM. European Community to mandate EUROCONTROL. European Community • non-safety related rules outside remit Eurocontrol • Safety related rules dealing with en-route air navigation (comitology/ Common Requirements) services and related approach and aerodrome services • safety related rules (comitology/EASA) to be developed through EUROCONTROL and EASA. European Community to mandate EUROCONTROL.
CHAPTER 4 Cross-border provision of Air Navigation Services Contracting parties Chicago Convention Contracting parties Chicago Convention
RANP
Supervising Authority
4M 4M State A State B State A State B State responsibility channeled to the state in whose State responsibility channeled to the supervising state airspace (delegating state) the mid-air collision or near- whose authorities (supervising authority) issued the miss occurs. operating certificate to the ANSP (State A)
CHAPTER 5 Organisation of ANSPs in Europe
4M 4M State A State B State A State B
• Third Parties on the Ground and Aircraft Operators: • Third parties on the Ground: Liability governed by supervising state ultimate liability National laws govern the liability of ANSP’s for air navigation doctrine. For the interest of third-parties on the services, but they do not envisage the concept of cross-border ground suffering damage in the territory of provision of air navigation services beyond the airspace of delegate state (B), the liable actor is the ANSP the state where the ANSP has his principal place of operation. subject to the national laws and competent courts of the delegating state (State B). If the ANSP does Questions: Who is liable for damages? Is this the state not compensate the damages, the delegating state (B) supervising the ANSP (State A), the state in whose will, in second instance, compensate the damages airspace the accident occurs (State B) or the effective ANSP? suffered by the third party. The delegating state will be Next, what law to be applied? The laws of state A or the lex loci able to seek reimbursement from supervising state delicti (state B)? Lastly, what is the competent forum to deal with (State A) provided that the plaintiff has exhausted the the damages? The courts of State A or State B? local remedies against the ANSP in the delegating state.
• Aircraft Operators: Liability governed by the effective service provider doctrine on the basis of a contractual relationship. The ANSP is challenged by the aircraft operator subject to the national laws and competent courts of the delegating state (B). Depending on the contractual terms and conditions the ANSP could rely on limitations of liability.
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Samenvatting (Summary in Dutch)
Grensoverschrijdende luchtverkeersdienstverlening met speciale aandacht voor Europa: Waarborgen van transparante lijnen van verantwoordelijkheid en aansprakelijkheid
De aanleiding voor dit onderzoek is het initiatief van de Europese Gemeenschap om te komen tot een nieuwe indeling van het Europees luchtruim door middel van het creëren van een gemeenschappelijk luchtruim voor luchtverkeersdienstverlening (Single European Sky). Omwille van de verhoging van de veiligheid van het luchtverkeer en de verbetering van operationele- en financiële aspecten verbonden aan de luchtverkeersleiding zouden luchtverkeersdienstverlener hun diensten niet langer moeten beperken tot het luchtruim van de staat waarin de dienstverlener is gevestigd. De luchtverkeersdienstverlener zou de mogelijkheid moeten hebben om op grotere schaal grensoverschrijdende luchtverkeers- diensten aan te bieden.
Met uitzondering van EUROCONTROL’s luchtverkeersleidingsorganisatie in Maastricht dat toeziet op de veilige en efficiënte doorstroming van het luchtverkeer in het hoger gelegen luchtruim boven de Benelux en Noordwest Duitsland, is de dienstverlening van luchtverkeersleidingsorganisaties meestal beperkt tot het luchtruim van het land waarin de organisatie is gevestigd. Op basis van cijfers van EUROCONTROL over het jaar 2006 waren er in Europa niet minder dan 69 area control centres betrokken bij het aanbieden van dienstverlening in het hoger gelegen luchtruim.
Ondanks de introduktie van nieuwe methodes en technieken zijn de huidige luchtverkeersdienstverleners niet opgewassen tegen de voortdurende groei van het luchtverkeer en zijn er situaties waarbij er op een bepaald moment meer vraag is naar luchtverkeersdienstverlening dan dat er capaciteit beschikbaar is. Om overbelasting tegen te gaan worden luchtvaartuigen, omwille van de veiligheid, langer aan de grond gehouden of worden vluchten omgeleid. Dit leidt tot vertragingen en ongerief bij passagiers en luchtvaartmaatschappijen. Ook is het vanuit milieu oogpunt onwenselijk dat luchtvaartuigen worden omgeleid. Luchtvaartuigen moeten hierdoor langer vliegen dan strikt noodzakelijk. Dit resulteert in extra brandstof verbruik en luchtvervuiling. Luchtvaartuigen zouden de kortst mogelijke route moeten kunnen vliegen en de herziening van het Europese luchtruimstructuur met grensoverschrijdende luchtverkeersdienstverlening zou dit mogelijk moeten maken.
Bij het tragische ongeluk nabij Überlingen in Juli 2002 kwamen twee luchtvaartuigen, een Tupolev TU154 en een Boeing 757, op 10.600 meter hoogte met elkaar in botsing. In totaal kwamen hierbij alle 71 mensen aan boord van beide luchtvaartuigen, inclusief 49 kinderen, om het leven. De botsing illustreert de noodzaak om bij grensoverschrijdende luchtverkeersdienstverlening op nationaal- als ook op internationaal niveau afspraken te maken over kwesties als verantwoordelijkheid van de staat (hierna aangeduid als staatsaansprakelijkheid) en aansprakelijkheid van luchtverkeersdienstverleners voor schade toegebracht aan derde partijen op de grond en luchtvaartmaatschappijen. In dit onderzoek wordt gekeken hoe hier invulling aan kan worden gegeven.
Het onderzoek is gesplitst in drie delen, met ieder hun eigen deelvragen. Het eerste gedeelte (hoofdstukken 2 en 3) betreft het internationale juridische raamwerk waarbinnen luchtverkeersdienstverlening wordt gereguleerd. In het tweede gedeelte van het onderzoek (hoofdstuk 4) wordt grensoverschrijdende luchtverkeersdienstverlening onderscheiden van extraterritoriale luchtverkeersdienstverlening in het luchtruim boven de volle zee en
222 Samenvatting
Antarctica en wordt er stilgestaan bij luchtverkeersdienstverlening binnen autonome gebieden van een staat. Vervolgens wordt de aansprakelijkheid van staten voor internationale onrechtmatige daden (staatsaansprakelijkheid), bezien vanuit het perspectief van luchtverkeersdienstverlening, aan de orde gesteld en een analyse gegeven van bilaterale- en multilaterale afspraken die betrekking hebben op grensoverschrijdende luchtverkeers- dienstverlening. Tot slot wordt er in het laatste gedeelte (hoofdstuk 5) gekeken naar de organisatie van luchtverkeersdienstverleners op nationaal niveau en de wijzigingen die nationale luchtverkeersdienstverleners moeten ondergaan uit hoofde van de verordeningen die zijn uitgevaardigd binnen het Single European Sky initiatief van de Europese Gemeenschap. Er wordt aandacht besteed aan de aansprakelijkheid voor schade bij de uitoefening van luchtverkeersdienstverlening onder het toepasselijke nationale recht en wordt onderzocht hoe, met inachtneming van grensoverschrijdende luchtverkeersdienstverlening, de nationale aansprakelijkheidsregimes kunnen worden geharmoniseerd ten behoeve van derde partijen op de grond en luchtvaartmaatschappijen.
De complexiteit van luchtverkeersdienstverleners die zowel civiele- als militaire luchtverkeersleiding voor hun rekening nemen zal niet worden behandeld. Zie bijvoorbeeld de luchtverkeersdienstverleners in Duitsland en Zwitserland die naast een civiele taak ook een militaire taak vervullen. Op het moment dat dergelijke luchtverkeersdienstverleners grensoverschrijdende dienstverlening in het luchtruim van een ander land willen aanbieden zou dit op weerstand kunnen stuiten. Los van de civiele dienstverlening zal een ander land, omwille van haar binnenlandse veiligheid, zich erop kunnen beroepen dat het niet onder militaire controle en zeggenschap wil staan van een militaire gevechts- en verkeersleiding van een luchtverkeersdienstverlener die is gevestigd en onder toezicht staat van een ander land.
Hoofdstuk 2 behandelt de criteria die een entiteit tot een staat maken. Een staat bezit in zijn territoir, inclusief het luchtruim boven de binnenwateren en territoriale zee, het exclusieve gezag voor het opstellen en handhaven van regels. Naast deze jurisdictie heeft de staat ook internationale rechtspersoonlijkheid, soevereiniteit. Omwille van internationale samen- werking en ter bevordering van grensoverschrijdende doelen als veiligheid en milieu hebben staten internationale organisaties opgericht. Deze intergouvernementele organisaties hebben, vanwege het kunnen opereren op internationaal vlak een zogeheten afgeleide internationale rechtspersoonlijkheid, een rechtspersoonlijkheid voorzover door de staten is toegestaan. Met het oog op het nastreven van grensoverschrijdende luchtverkeersdienstverlening is het van belang om te kijken welke internationale organisaties aktief zijn op het gebied van luchtverkeersdienstverlening, in hoeverre die organisaties bevoegdheden hebben om bindende regels op te stellen, en of ze, bij niet (volledige) nakoming door een verdragspartij, handhavend kunnen optreden.
Ten aanzien van de internationale burgerluchtvaart, inclusief de luchtverkeersdienstverlening, is allereerst gekeken naar de intergouvernementele Burgerluchtvaartorganisatie (International Civil Aviation Organization). Deze internationale organisatie is opgericht bij het Verdrag van Chicago (1944). De organen van deze organisatie hebben gezorgd voor een universele structuur waarop luchtverkeersdienstverlening wereldwijd wordt aangeboden. Uit de analyse van het materiële recht van de Burgerluchtvaartorganisatie blijkt dat ICAO regels kan uitvaardigen als Standaard (Standard) of als Aanbeveling (Recommended Practice). Alleen een Standaard is bindend voor de lidstaten, uitgezonderd in die gevallen waar de staat een uitzondering (difference) heeft gedeponeerd bij ICAO. Weliswaar voorziet het oprichtingsverdrag van ICAO in de controle op de naleving van de regels en is er een orgaan, de Raad (Council), die inbreuken op het verdrag zal rapporteren maar de handhavingmogelijkheden van ICAO zijn beperkt en afhankelijk van een klacht van een van de lidstaten.
Samenvatting 223
Ondanks het feit dat ICAO heeft gezorgd voor een wereldwijde universele structuur van luchtverkeersdienstverlening, heeft de organisatie geen uitvoerige Standaard opgesteld die de staten dwingt tot het aanbieden van grensoverschrijdende luchtverkeersdienstverlening. Tevens ontbreekt een krachtig handhavinginstrument.
In hoofdstuk 3 is gekeken naar een tweetal Europese internationale organisaties, te weten EUROCONTROL, een Europese intergouvernementele organisatie die als voornaamste doel heeft het ontwikkelen van een pan-Europese luchtverkeersdienstverlening, en de Europese Gemeenschap, een van de pijlers van de Europese Unie. Naast de regelgevende- en handhavingbevoegdheden die staten hebben verstrekt aan ICAO hebben deze twee internationale organisaties ook regelgevende- en handhavingbevoegdheden op het gebied van luchtverkeersdienstverlening.
Bij EUROCONTROL moet een onderscheid worden gemaakt tussen niet- veiligheidsgerelateerde regelgeving (EUROCONTROL Rules) en veiligheidsgerelateerde regelgeving (ESARR). De EUROCONTROL Rules zijn bindend voor de lidstaten, behoudens in die gevallen waar de staat een uitzondering (derogation) heeft gedeponeerd bij EUROCONTROL. Overige richtlijnen die worden uitgevaardigd zoals EUROCONTROL Practices, EUROCONTROL Specifications en EUROCONTROL Guidelines hebben formeel geen bindende kracht. Daarnaast zijn er bindende veiligheidsgerelateerde regels die worden uitgevaardigd als ESARR’s. Ook hier kunnen lidstaten een uitzondering deponeren. In tegenstelling tot ICAO is de handhaving niet afhankelijk van het optreden van een van de lidstaten maar kan EUROCONTROL zelf een arbitrage procedure opstarten tegen een van de lidstaten.
De lidstaten van ICAO en EUROCONTROL kunnen niet willekeurig afwijken van de bindende regels die beide organisaties uitvaardigen. Afwijking is uitsluitend toegestaan indien zulks geschiedt te goeder trouw. Bij ICAO geldt dat het voor een staat onmogelijk moet zijn om aan de Standard te voldoen of dat een staat van mening is dat het afwijkende regels moet opstellen in welk geval de staat ICAO direct zal moeten informeren. Bij EUROCONTROL geldt dat een staat niet aan de bindende regels kan voldoen uit hoofde van overheersende motieven van nationale veiligheid, in welk geval de staat de verplichting heeft om de toepasselijke EUROCONTROL organen te informeren over de redenen waarom ze hiervan afwijkt.
De Europese Gemeenschap heeft ook regelgevende- en handhavingbevoegdheden op het gebied van luchtverkeersdienstverlening. Hoewel de Europese Gemeenschap individuele regels heeft uitgevaardigd op het gebied van luchtverkeersleiding zijn er onder het zogeheten Single European Sky programma een aantal samenhangende regels uitgevaardigd. In tegenstelling tot ICAO en EUROCONTROL is er binnen de Europese Gemeenschap sprake van rechtstreekse werking van regels waarvan niet kan worden afgeweken en voorziet de Europese Gemeenschap in een krachtig handhavingmechanisme.
Op basis van haar regelgevende- en handhavingbevoegdheden is de Europese Gemeenschap in staat om grensoverschrijdende luchtverkeersdienstverlening binnen het luchtruim van haar lidstaten te bevorderen. De Hushkit-affaire uit 2000 toont echter aan dat een internationale organisatie als de Europese Gemeenschap wel is gehouden om internationale afspraken waaraan haar lidstaten zijn gebonden, zoals de bindende regels uitgevaardigd onder auspiciën van ICAO, te respecteren.
Binnen dit kader is ook gekeken naar de relatie tussen EUROCONTROL en de Europese Gemeenschap. De Europese Gemeenschap is toegetreden tot EUROCONTROL en is,
224 Samenvatting
onverlet het nog niet neerleggen van het instrument van bekrachtiging bij de depositaris en gelet op de beginselen van het Weens Verdragenverdrag, door de schriftelijke bevestiging van al haar lidstaten en de bevestiging van de Raad van de Europese Gemeenschap toegetreden tot en gehouden aan de regelgevende- en handhavingbevoegdheden van EUROCONTROL. Aangezien er een tweetal lidstaten zijn van de Europese Gemeenschap, te weten Estland en Letland, die nog geen verdragspartij zijn bij EUROCONTROL zal de Europese Gemeenschap ervoor moeten zorgdragen dat ook die staten voldoen aan het juridische regime dat geldt voor de lidstaten van EUROCONTROL.
De Europese Gemeenschap erkent de regelgevende rol van EUROCONTROL voorzover het betreft niet-veiligheidsgerelateerde regelgeving (EUROCONTROL Rules) die vallen binnen de bevoegdheid van EUROCONTROL. Er wordt dan een mandaat gegeven door de Europese Gemeenschap aan EUROCONTROL om regels te ontwikkelen. Nadat EUROCONTROL met een voorstel is gekomen zal de uiteindelijke implementatie van deze regels afhangen van de goedkeuring door de betrokken organen van de Europese Gemeenschap onder de comitologie procedure. Regels die naar het oordeel van de Europese Gemeenschap buiten de bevoegdheid vallen van EUROCONTROL worden door de Commissie zelf ontwikkeld op basis van comitologie. In ieder geval, aldus de rechtsorde van de Europese Gemeenschap, vallen de zogeheten Common Requirements, regels die betrekking hebben op de certificering door overheidsorganen van luchtverkeersdienstverlening, buiten de bevoegdheid van EUROCONTROL en zijn die derhalve op basis van comitologie, in plaats van op basis van samenwerking met EUROCONTROL, vastgesteld. Aangezien de Common Requirements op een abstract niveau waren vastgelegd heeft EUROCONTROL aanvullende adviesmateriaal opgesteld dat aangaf hoe nationale overheden om moesten gaan met het certificeringproces. Alhoewel dit materiaal geen bindende kracht had hebben veel lidstaten van de Europese Gemeenschap op basis van deze aanvullende regels hun certificeringsproces laten plaatsvinden.
Vanwege het feit dat de Europese Gemeenschap en haar lidstaten tevens partij zijn bij EUROCONTROL is er een conflict. Immers, op basis van het verdrag van EUROCONTROL (Revised Convention) waarvan een groot gedeelte reeds bij voorbaat wordt toegepast heeft EUROCONTROL regelgevende- en handhavende bevoegdheden voorzover het betreft de luchtverkeersdienstverlening voor het hoger gelegen luchtverkeer en gerelateerde aankomst en luchthaven diensten. Regels die de Europese Gemeenschap uitvaardigt die betrekking hebben op deze vorm van luchtverkeersdienstverlening, inclusief de Common Requirements, vallen binnen de bevoegdheid van EUROCONTROL en hieraan kan niet zo maar aan voorbij worden gaan. Het te prefereren regime van opstellen en uitvaardigen van niet-veiligheid gerelateerde regelgeving op het gebied van luchtverkeersdienstverlening zou altijd via de bovenvermelde structuur moeten plaatsvinden tussen EUROCONTROL en de Europese Gemeenschap en niet via comitologie.
Ten aanzien van veiligheidsgerelateerde regels (ESARRs) die zijn ontwikkeld in de rechtsorde van EUROCONTROL, is het, aldus de rechtsorde van Europese Gemeenschap, mogelijk om bepaalde ESARRs direct van toepassing te verklaren in de Europese Gemeenschap. Dit is echter onderhevig aan het rechtssysteem dat geldt binnen de gemeenschap. Het is mogelijk dat EUROCONTROL de ESARRs die in de Gemeenschap van toepassing zijn verklaard wijzigt. In dat geval zijn de Europese Gemeenschap, de lidstaten van de Europese Gemeenschap evenals de verdragspartijen van EUROCONTROL gebonden aan de gewijzigde ESARR. Indien de Europese Gemeenschap achterblijft bij het implementeren van deze wijziging in haar eigen rechtsorde zou er mogelijk een conflict kunnen ontstaan dat de veiligheid van de luchtverkeersleiding zou kunnen compromiteren.
Door de opkomst van het Europees agentschap EASA dat zich in de nabije toekomst waarschijnlijk ook zal gaan richten op veiligheidsregels op het gebied van
Samenvatting 225
luchtverkeersleiding is het van groot belang om de structuur tussen EUROCONTROL en de Europese Gemeenschap helder op het netvlies te hebben. Met inachtneming van de (thans nog beperkte) regelgevende bevoegdheden van EASA in de Europese Gemeenschap, ligt het voor de hand dat dit agentschap het mandaat krijgt van de Europese Gemeenschap om binnen de Gemeenschap veiligheidsregels uit te vaardigen of in ieder geval voor te stellen ten aanzien van luchtverkeersdienstverlening. Tegelijkertijd moet de kennis en kunde als gebundeld binnen EUROCONTROL niet uit het oog worden verloren. Ten aanzien van veiligheidsregels op het gebied van luchtverkeersdienstverlening is een regime te prefereren waaronder deze regels worden uitgevaardigd op basis van een samenwerking tussen de Europese Gemeenschap (EASA) enerzijds en EUROCONTROL anderzijds. Net als bij de niet- veiligheidsgerelateerde regelgeving worden de benodigde organen binnen EUROCONTROL geconsulteerd hetgeen resulteert in een concept veiligheidsregel die, na afstemming met EASA en na gezamenlijke goedkeuring, binnen zowel de Europese Gemeenschap alsmede de rechtsorde van EUROCONTROL kan worden geïmplementeerd.
Verbetering van de samenwerking tussen EUROCONTROL en de Europese Gemeenschap op het gebied van niet-veiligheids gerelateerde en veiligheids gerelateerde regels zal ook resulteren in een pan-Europese dimensie van de Single European Sky. Hiermee blijft het gedachtegoed van de Single European Sky niet beperkt tot de zevenentwintig lidstaten van de Europese Gemeenschap maar kan het worden uitgebreid tot maar liefst achtendertig lidstaten van EUROCONTROL.
Na een toelichting op grensoverschrijdende luchtverkeersdienstverlening schenkt Hoofdstuk 4 aandacht aan de vraag of een staat op het gebied van luchtverkeersleiding kan worden aangesproken op schending van een internationale verplichting. Toerekenbaar handelen of nalaten van een staat op het gebied van luchtverkeersleiding dat als zodanig een schending vormt van een internationale verplichting van die staat, kan resulteren in internationale aansprakelijkheid van die staat jegens andere staten. Deze vorm van aansprakelijkheid bestempelt men in het Nederlands juridisch taalgebruik ook wel als staatsaansprakelijkheid (state responsibility). Voor deze analyse zijn de ontwerpartikelen van de Commissie voor Internationaal Recht van de Verenigde Naties (International Law Commission) inzake aansprakelijkheid van staten voor internationale onrechtmatige daden als uitgangspunt genomen.
Bij het toepassen van de ontwerpartikelen van de Commissie voor Internationaal Recht op luchtverkeersdienstverlening betekent dit dat er allereerst sprake moet zijn van het toerekenbaar handelen of nalaten door de luchtverkeersleider. Hoewel er bij vrijwel ieder incident of ongeval meerdere omstandigheden en oorzaken zijn waardoor het feitelijk plaatsvond, blijkt, zoals ook door de rechtbank vastgesteld in de Überlingen-zaak, dat er situaties mogelijk zijn dat er sprake is van nalatigheid bij de luchtverkeersleiding.
Vervolgens moet het handelen of nalaten van de luchtverkeersdienstverlener kunnen worden toegerekend aan de staat. Indien de luchtverkeersleiding wordt aangeboden door een orgaan van de staat dan zal de staat verantwoordelijk zijn voor het handelen of nalaten van de luchtverkeersleider voorzover deze heeft gehandeld in de uitoefening van zijn functie. De luchtverkeersleider heeft in de hoedanigheid van orgaan van de staat opgetreden en dit handelen of nalaten is dan toerekenbaar aan de staat. Ten aanzien van het handelen of nalaten voorzover het betreft luchtverkeersdienstverleners die geen onderdeel uitmaken van het publieke bestel, kan er staatsaansprakelijkheid ontstaan indien de staat is tekortgeschoten in zijn toezichthoudende rol en heeft nagelaten om de naleving van de regels te controleren. Immers, ondanks het feit dat de staat een organisatie, anders dan een staatsorgaan, de luchtverkeersdienstverlening laat aanbieden in het luchtruim, de dienstverlening moet wel
226 Samenvatting
geschieden conform de juridische structuur als verankerd in het Verdrag van Chicago en de staat moet erop toezien dat diensten worden aangeboden conform de relevante ICAO Standaarden en Aanbevelingen als aanvaard door de staat.
Tenslotte betreft het derde element voor staatsaansprakelijkheid, de schending van een internationaal-rechtelijke verplichting. Voor luchtverkeersdienstverlening is Artikel 28 van het Verdrag van Chicago (1944) van belang. Hierin wordt onder meer bepaald dat iedere verdragsstaat, voorzover ze luchtverkeersdienstverlening aanbiedt in haar territoir voor de internationale burgerluchtvaart, deze dienstverlening laat plaatsvinden conform de Standaarden (Standards) en Aanbevelingen (Recommended Practices) behorend bij voornoemd verdrag. Volgens de Standaard in Annex 11 bij het verdrag is het doel van luchtverkeersleiding het voorkomen van botsingen tussen vliegtuigen, tussen vliegtuigen en obstakels op de grond, alsmede het bevorderen en behouden van een ordelijk verloop van luchtverkeer, het aanbieden van advies en informatie noodzakelijk voor de veilige en efficiënt verloop van vluchten en, tot slot, het informeren van de juiste organisaties indien luchtvaartuigen in nood verkeren. Hoewel het Verdrag van Chicago voorziet in een mogelijkheid om van Standaarden af te wijken kan van voornoemde Standaard niet te goeder trouw worden afgeweken. Bij een botsing in de lucht tussen twee luchtvaartuigen (mid-air collision) is niet voldaan aan het gedeelte van de Standaard dat zich richt op het voorkomen van botsingen. Hetzelfde geldt voor een bijna botsing tussen twee luchtvaartuigen (near-miss) waarbij niet is voldaan aan het gedeelte van de Standaard dat toeziet op het bevorderen en behouden van een ordelijk verloop van het luchtverkeer. De schending van de Standaard is een schending van een internationale verplichting van die staat.
Door de schending van de internationale verplichting en de toerekenbaarheid van het handelen of nalaten aan de staat is er sprake van staatsaansprakelijkheid. De staat heeft de verplichting om deze schending ongedaan te maken en dit kan langs verschillende wegen. Ten eerste kan de staat besluiten tot restitutio in integrum, het terugbrengen in de oorspronkelijke toestand, dat wil zeggen in de toestand voordat de schending plaatsvond. Als dit onmogelijk is, bijvoorbeeld omdat er een botsing is geweest tussen twee luchtvaartuigen, dan kan er ook worden gekozen voor satisfactie, een officiële verontschuldiging. Zonodig kan in beide gevallen ook nog aanvullende schadevergoeding bestaan voor de schade die is ontstaan als gevolg van de inbreuk op de internationaal-rechtelijke verplichting.
Naast staatsaansprakelijkheid (state responsibility) wordt in deze studie ook gesproken over aansprakelijkheid voor schade (state liability). Het betreft een zelfde situatie als staatsaansprakelijkheid, met toepassing van dezelfde criteria, behoudens dat bij deze vorm van aansprakelijkheid de schending van de internationale verplichting ook heeft geresulteerd in fysieke schade. Als voorbeeld kan dienen de botsing tussen twee luchtvaartuigen (mid-air collision).
Het is van belang om te constateren dat, onverlet het feit dat er geen fysieke schade is ontstaan zoals bij een near-miss, de staat toch uit hoofde van staatsaansprakelijkheid (state responsibility) geconfronteerd kan worden met een verplichting tot het betalen van schadevergoeding. Ingeval staten bij grensoverschrijdende luchtverkeersdienstverlening bilaterale- of multilaterale overeenkomsten hebben afgesloten dan voorzien deze overeenkomsten soms in een regres mogelijkheid. De staat die de dienstverlener toestaat om in zijn luchtruim diensten aan te bieden heeft de mogelijkheid om regres te nemen op de staat waar die luchtverkeersdienstverlener is gevestigd. Behoudens de concept modelovereenkomst ontwikkelt door EUROCONTROL voor FAB doeleinden (4.4.2.4) voorzien de huidige overeenkomsten niet in een verhaalsmogelijkheid voor de situatie dat er sprake is van staatsaansprakelijkheid, dus een schending van een internationale verplichting van de staat zonder fysieke schade. Deze situaties betreffen uitsluitend de situatie van de aansprakelijkheid van een staat ten opzichte van andere internationale rechtssubjecten, dat wil
Samenvatting 227
zeggen andere staten, en geeft op zich geen recht aan private personen zoals de onderdanen van een staat, om op gelijke wijze schadevergoeding te vorderen. Dat laatste is afhankelijk van het nationale recht van een staat en mogelijk zelfs afhankelijk van regels van internationaal privaatrecht hetgeen verder wordt besproken in Hoofdstuk 5.
Vervolgens is onderzocht of, ingeval van grensoverschrijdende luchtverkeersleiding, de staat in wiens luchtruim luchtverkeersleiding wordt aangeboden zich kan onttrekken aan staatsaansprakelijkheid. Met andere woorden, is het mogelijk om de staat in wiens luchtruim de grensoverschrijdende luchtverkeersleiding wordt aangeboden, op het moment dat de luchtverkeersdienstverlener onder toezicht staat van de autoriteiten van een of meer andere staten, te ontheffen van aansprakelijkheid bij een schending van internationale verplichtingen in zijn luchtruim? Als een dergelijke verschuiving van staatsaansprakelijkheid mogelijk is dan zouden mogelijk meer staten geneigd zijn om, vanwege het feit dat bij grensoverschrijdende luchtverkeersdienstverlening het handelen of nalaten van de dienstverlener niet meer resulteert in een schending van de internationale verplichting, grensoverschrijdende luchtverkeersdienstverlening toe te staan in hun luchtruim. Het veronderstelt een paradigma wisseling waarin niet langer het nationale territoir, het nationale luchtruim, maar de luchtverkeersdienstverlener aanknopingspunt is en waar staatsaansprakelijkheid niet is gericht op de staat in wiens luchtruim luchtverkeersdienstverlening wordt aangeboden, maar zich richt op de staat, of staten, die toezicht houden op de luchtverkeersdienstverlener.
In dit onderzoek is gekeken naar de mogelijkheid die onder het Verdrag van Chicago wordt geboden als luchtvaartuigen op basis van een huur-, charter-, of ruilovereenkomst of soortgelijke regeling worden geëxploiteerd door een exploitant die zijn hoofdkantoor of, bij afwezigheid daarvan, zijn vaste woonplaats in een andere verdragsluitende staat heeft dan de staat waarin het luchtvaartuig is geregistreerd. De staat waarin het luchtvaartuig is geregistreerd mag met de staat waar de bedrijfsvoering plaatsvindt, of bij gebrek aan zo’n vaste plaats, waar de exploitant zijn vestigingsplaats heeft, overeenkomen dat functies en taken betreffende veiligheidstoezicht die volgens het Verdrag bij de staat behoren waar het luchtvaartuig is geregistreerd worden overgedragen aan die andere staat. Hierdoor draagt die andere verdragsluitende staat, in plaats van de staat waarin het luchtvaartuig is geregistreerd, de internationale verantwoordelijkheid voor functies en taken die in eerste aanleg bij de staat hoorde waarin het luchtvaartuig is ingeschreven. De achterliggende reden is gelegen in het feit dat vanwege de huur-, charter-, of ruilovereenkomst de staat waarin het luchtvaartuig is geregistreerd onvoldoende toezicht kon houden en daarom in de gelegenheid moest worden gesteld om bepaalde taken en functies aan een andere verdragstaat te kunnen overdragen. Vervolgens is de staat waarin het luchtvaartuig is geregistreerd ontheven van verantwoordelijkheid voor die taken en functies.
Dit beginsel is toegepast voor grensoverschrijdende luchtverkeersdienstverlening. Een luchtverkeersdienstverlener mag luchtverkeersdienstverlening aanbieden, mits deze door een subject met internationale rechtspersoonlijkheid, te weten een staat of groep van staten, is geautoriseerd en is gecertificeerd. Eventueel kan de staat, of groep van staten, een toezichthouder benoemen die dit namens hun doet. De toezichthouder verstrekt een operating certificate aan de luchtverkeersdienstverlener mits, omwille van regelgeving- en handhaving competenties, de luchtverkeersdienstverlener haar principal place of operation heeft liggen in het territoir van de staat of, indien meerdere staten gezamenlijk een toezichthouder benoemen, binnen het territoir van een van de deelnemende staten. De samenwerking tussen de staat die toestaat dat er grensoverschrijdende luchtverkeersdienstverlening wordt aangeboden in zijn luchtruim door een luchtverkeersdienstverlener die is gevestigd buiten zijn territoir en de toezichthouders moet worden vastgelegd in een modelovereenkomst die is ingevoegd als
228 Samenvatting
Bijlage I bij dit onderzoek dat, afhankelijk van het aantal betrokken staten, kan worden afgesloten op een bilaterale- of multilaterale basis.
Aangezien de bilaterale- of multilaterale overeenkomst uitsluitend werking zou hebben ten opzichte van de daarbij behorende verdragspartijen is het, met oog op de gewenste grensoverschrijdende luchtverkeersdienstverlening in de Europese Gemeenschap, wenselijk dat de paradigma wisseling, de staatsaansprakelijkheid van de toezichthouder op de luchtverkeersdienstverlener in plaats van de staat in wiens luchtruim de diensten worden aangeboden, op grotere schaal wordt erkend. De Europese Gemeenschap zou dit uitgangspunt moeten neerleggen en uitdragen bij haar lidstaten. Omwille van het feit dat voorgaand uitgangspunt ook ten opzicht van de overige verdragstaten bij het Verdrag van Chicago zou moeten kunnen worden ingeroepen, is op dit punt een voorstel gedaan om aansluiting te zoeken bij het Regional Air Navigation Plan dat als een multilaterale overeenkomst alle verdragspartijen bij het Verdrag van Chicago kan binden aan voornoemd uitgangspunt.
Het derde deel van dit onderzoek, hoofdstuk 5, ziet op het waarborgen van transparante lijnen van aansprakelijkheid voor schade bij de uitoefening van luchtverkeersdienstverlening. Het hoofdstuk begint met een rechtsvergelijkend onderzoek van de nationale luchtvaartwetgeving van verschillende landen. Hierbij is gekeken naar de wijze waarop diverse verzelfstandigde nationale luchtverkeersdienstverleners zijn georganiseerd en is, waar mogelijk, gekeken hoe is omgegaan met aansprakelijkheid voor schade. Hiertoe zijn de regimes van Luxemburg, België, Nederland, Duitsland, Oostenrijk, Zwitserland, Ierland en het Verenigd Koninkrijk onderzocht. Vervolgens is vastgesteld dat deze staten uit hoofde van de Single European Sky regelgeving de organisatie van hun luchtverkeersleiding nogmaals zullen moeten herzien vanwege de certification en designation criteria als nader uitgewerkt in die Europese regelgeving. Ten aanzien van aansprakelijkheid voor schade die voortvloeit uit de luchtverkeersdienstverlening wordt er door de Europese Gemeenschap, behalve dat de luchtverkeersleidingorganisatie een afdoende verzekering moet hebben, geen richting gegeven hoe om te gaan met aansprakelijkheid.
Bij het gebrek aan geharmoniseerde aansprakelijkheidsregels is er in dit hoofdstuk een inventarisatie gemaakt van de verschillende aansprakelijkheidsregimes die variëren van volledige aansprakelijkheid van de staat (primary state responsibility doctrine), volledige aansprakelijkheid van de luchtverkeersdienstverlener waar de staat zal ingrijpen als deze organisatie niet in staat is om de schade te voldoen (state ultimate responsibility doctrine) en, tenslotte, de volledige en exclusieve aansprakelijkheid van de luchtverkeersdienstverlener (service provider’s exclusive liability doctrine). Daarnaast is tevens een inventarisatie gemaakt van de verschillende vormen van staatsaansprakelijkheid als opgenomen in diverse bilaterale- en multilaterale overeenkomsten. Ook in deze overeenkomsten is variëteit aan aansprakelijkheidsbepalingen neergelegd, uiteenlopend van de aansprakelijkheid voor schade van de staat in wiens luchtruim schade ontstaat ongeacht waar de luchtverkeersdienstverlener is gevestigd (territorial doctrine), de staat die grensoverschrijdende luchtverkeers- dienstverlening aanbiedt conform het nationale recht en de bevoegde rechtbank van die staat (providing state doctrine), en zelfs de aansprakelijkheid van de luchtverkeersdienstverlener conform het nationale recht en de bevoegde rechter van de staat in welk luchtruim de schade is toegebracht (effective service provider doctrine).
Omwille van transparante lijnen van aansprakelijkheid bij grensoverschrijdende luchtverkeersdienstverlening is een analyse gemaakt van het te prefereren regime van aansprakelijkheid ten behoeve van derden op de grond en het te prefereren regime voor luchtvaartmaatschappijen. Omwille van aansprakelijkheid van de luchtverkeersdienstverlener ten behoeve van derden op de grond die schade lijden is een nieuwe doctrine voorgesteld, de supervising state ultimate liability doctrine. Deze doctrine veronderstelt dat een derde die schade heeft een schadeclaim kan indienen tegen de luchtverkeersdienstverlener conform het
Samenvatting 229
nationale recht en de bevoegde rechter van de staat in wiens luchtruim de derde de schade heeft geleden. In het geval de luchtverkeersdienstverlener, onverminderd uitspraken van de bevoegde rechter, de schade niet vergoedt kan de derde terugvallen op de staat in wiens luchtruim de schade is ontstaan. Deze staat (delegating state) zal dan de schade vergoeden en op basis van een bilaterale- of multilaterale overeenkomst regres nemen op de toezichthouder op de luchtverkeersdienstverlener (supervising state). Omdat de luchtverkeersdienstverlener zijn hoofdkantoor of bedrijfsvoering zal hebben binnen het territoir van de toezichthouder zal die laatste op basis van regelgeving- en handhavingbevoegdheid weer in staat zijn om de gecompenseerde schade alsnog te verhalen op de luchtverkeersdienstverlener.
Met inachtneming van de reeds geïntroduceerde contractuele relatie tussen luchtverkeersdienstverleners en luchtvaartmaatschappijen in Nieuw Zeeland, de contractuele ontwikkelingen op het gebied van CNS/ATM en de contractuele relaties tussen airports en luchtvaartmaatschappijen is, ten behoeve van transparante lijnen van aansprakelijkheid tussen luchtverkeersdienstverleners en luchtvaartmaatschappijen, voorgesteld om de aansprakelijkheid te regelen in een contractuele relatie. Aangezien deze partijen niet in de gelegenheid zijn om staten te binden kunnen ze zich niet committeren aan de supervising state ultimate liability doctrine. Wel zouden de partijen kunnen terugvallen op de effective service provider doctrine waar de luchtverkeersdienstverlener aansprakelijk is voor schade conform het nationale recht en de bevoegde rechter van het land waarin het ongeval heeft plaatsgehad. In tegenstelling tot het ongeval bij Überlingen is er dan direct een schadeclaim tussen de luchtvaartmaatschappij en de luchtverkeersdienstverlener en niet tussen de luchtvaartmaatschappij en de staat (Duitsland) in wiens luchtruim het ongeval plaatsheeft. Bovendien zouden luchtverkeersdienstverleners hun aansprakelijkheid contractueel kunnen beperken zoals ook in Nieuw Zeeland is gedaan. Mogelijk dat de contractsvrijheid van partijen wettelijk moet worden ingeperkt zodat luchtvaartmaatschappijen geen afstand kunnen doen van de onderliggende (standaard) voorwaarden. Alvorens de voorwaarden per wet voor te schrijven zouden belangenorganisaties als CANSO, IATA, AEA en ERA samen met ECAC, EUROCONTROL en de Europese Gemeenschap een voorzet kunnen doen voor een uniforme set van algemene voorwaarden.
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Bibliography
Books, Journal Articles and Speeches Listed Alphabetically by Author
Abeyratne, R.I.R., ‘The Legal Status of the Chicago Convention and its Annexes’, (1994) 19 Air Law 113 - ‘Some Recommendations for A New Legal and Regulatory Structure for the Management of the Offense of Unlawful Interference with Civil Aviation’, (1998) 25 Transportation Law Journal 115 - ‘The Future of African Civil Aviation’, (1998) 3 Journal of Air Transportation World Wide 30 - ‘Bird Strikes against Aircraft – Issues of Liability’, (2001) 29 Transportation Law Journal 63 - ‘Privatisation of Hong Kong International Airport – Some Legal and Economic Issues, (2004) 12 Asia Pacific Law Review 43 - ‘Responsibility of States and Airports in Ensuring Safety in Adverse Weather Conditions’, (2007) 32 Air Law 156
Balfour, J., European Community Air Law, 1995 Bartkowski, M., ‘Responsibility for Air Navigation (ATM) in Europe’, (1996) 21 AASL-Part I 45. Brown, L., ‘Case Notes – New Zealand’, (1996) 21 Air Law 300 Brownlie, I., Principles of Public International Law, 2003 Buergenthal, T., Law-Making in the International Civil Aviation Organization, 1969
Caron, D.D., ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’, (2002) 96 AJIL 857 Carroz, J., ‘International Legislation on Air Navigation over the High Seas’, (1959) 26 JALC 158 Cheng, B., The Law of International Air Transport, 1962 - Studies in International Space Law, 1997 - ‘The Right to Fly’, (1957) 42 Problems of Public and Private International Law 99 - ‘The Legal Regime of Airspace and Outer Space: The Boundary Problem Functionalism versus Spatialism: The Major Premises’, (1980) 5 AASL 323 - ‘The Commercial Development of Space: The Need for New Treaties’, (1991) 19 Journal of Space Law 17 Crawford, J., The Creation of States in International Law, 1979 Crawford, J., Peel, J., and Ollson, S., ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading’, (2001) 12 EJIL 963
Dam, R.D. van, ‘Recent Developments in Aviation Safety Oversight’, (1995) 20 AASL – Part I 307 - ‘Recent Developments at the European Organization for the Safety of Air Navigation (EUROCONTROL)’, (1997) 22 AASL-Part II 327 - ‘The Development of an Arbitration Policy in the Context of the Revised EUROCONTROL Convention’, in The International Bureau of the Permanent Court of Arbitration (eds.), Arbitration in Air, Space and Telecommunications Law: Enforcing Regulatory Measures, 2002 - ‘The Single European Sky Framework Regulation’, (2004) (Spring) Skyway 16 Dempsey, P.S., Janda., R. and Nyampong, Y., ‘The McGill Report on Governance of
232 Bibliography
Commercialized Air Navigation Services’, (2006) 31 AASL 213 Diederiks-Verschoor, I.H. Ph., An Introduction to Air Law, 2006 - ‘Settlements of Disputes in Aviation and Space’, in C.J. Cheng (ed.), The Use of Air and Outer Space Cooperation and Competition, 1998 DiMatteo, L.A., The Law of International Contracting, 2000 Dominicé, C., ‘The International Responsibility of States for Breach of Multilateral Obligations’, (1999) 10 EJIL 353 Dunk, F.G. von der, Private Enterprise and Public Interest in the European ‘Spacescape’, 1998 - ‘Liability versus Responsibility in Space Law: Misconception or Misconstruction’, in American Institute of Aeronautics and Astronautics (ed.), Proceedings of the Thirty- Fourth Colloquium on the Law of Outer Space, 1992 - ‘Liability for Global Air Navigation Satellite Services: A Comparative Analysis of GPS and GALILEO’, (2004) 30 Journal of Space Law 129.
Elias, T.O., The Modern Law of Treaties, 1974 Erler, J., Rechtsfragen der ICAO, 1967
Fischer, Y. and Gautier, N., ‘CEATS, A regional ATM solution’, (2005) (Autumn) Skyway 14
Grief, N., Public International Law in the Airspace of the High Seas, 1994 Greig, D.W., International Law, 1976 Guillaume, G., ‘Les suites internationales de l’incident aérien américano-iranien du 3 juillet 1988’, (1989) 169 Revue Française de Droit Aérien et Spatial 351
Haanappel, P.P.C., The Law and Policy of Air Space and Outer Space: A Comparative Approach, 2003 - ‘Recent European Air Transport Developments’, (1992) 17 AASL – Part II 217 - ‘Recent European Air Transport Developments: 1992-93’, (1993) 18 AASL – Part I 133 - ‘The Transformation of Sovereignty in the Air’, (1995) 20 Air Law 311. Hailbronner, K., ‘Freedom of the Air and the Convention on the Law of the Sea’, (1983) 77 AJIL 490 Hamalian, S.K., ‘Liability of the United States Government in Cases of Air Traffic Controller Negligence’, (1986) 11 AASL 55 Havel, B.F., In Search of Open Skies: Law and Policy for a New Era in International Aviation, 1997 Heere, W., ‘Problems of Jurisdiction in Air and Outer Space’, (1999) 24 Air Law 70 Henaku, B.D.K., The Law on Global Air Navigation by Satellite, 1993 - ‘The ICAO CNS/ATM System: New King, New Law’, (1994) 29 Air Law 146 Hobe, S., ‘How can ATS be Held Liable … and Privatised?’, (2007) 56 ZLW 1 Hobe, S., K. Irmen and C. Plingen, ‘Privatization of German and Other European Air Navigation Service Providers and the Single European Sky Regulations’, (2007) 32 Air Law 168 Horbach, N.L.J.T., Liability versus Responsibility under International Law, Defending Strict State Responsibility for Transboundary Damage, 1996 Huijg, J.R.C. ‘An Analyses of the Air Transport Regime between the Metropolitan Country and the Overseas Countries of The Kingdom of The Netherlands’, (1996) 21 AASL-Part I 181 Hwan Kim, D., ‘Legal Aspects of ATCA Liability’, (1995) 20 AASL-Part I 209
Bibliography 233
Kamminga, M.S., The Aircraft Commander in Commercial Air Transportation, 1953 Kooijmans, P.H., ‘Tolerance, sovereignty and self-determination’, (1996) 43 NILR 211.
Lando, O., and Beale, H., Principles of European Contract Law Parts I and II, 2000 Linnan, D.K., ‘Iran Air Flight 655 and Beyond: Free Passage, Mistaken Self-Defense, and State Responsibility’, (1991) 16 Yale Journal of International Law 245 Lowenfeld, A.F., ‘Looking Back and Looking Ahead’, (1989) 83 AJIL 336.
Majid, A.A., Legal Status of International Institutions: SITA, INMARSAT and EUROCONTROL Examined, 1996 - ‘The New Face of EUROCONTROL – Scaling down of the Integration Dream’, (1988) Legal Issues of European Integration 87 - ‘Legal Capacity of Eurocontrol to Ensure Smooth Aviation in Europe’, (1991) 16 Air Law 267 Margo, R.D., ‘Kicking and Screaming into the Twenty-First Century: A Practitioner’s Prescription for updating the Chicago Convention’, (1995) 20 AASL-Part I 49 Martin Martinez, M.M., National Sovereignty and International Organizations, 1996 Mauritz, A.J., Liability of the Operators and Owners of Aircraft for Damage Inflicted to Persons and Property on the Surface, 2003 Mendes de Leon, P.M.J. and Molenaar, E.J., ‘Still a Mile too Far? International Law Implications of the Location of an Airport in the Sea’, (2001) 14 LJIL 233 Mendes de Leon, P.M.J., Cabotage in Air Transport Regulation, 1992 - ‘The Dynamics of Sovereignty and Jurisdiction in International Aviation Law’, in G. Kreijen (ed.), State, Sovereignty, and International Governance, 2001 - ‘Aircraft Noise: The Prerequisite of Non-discrimination under the Rule of International Law’, in M. Benkö and W. Kröll (eds.), Air and Space Law in the 21st Century, Liber Amicorum Karl-Heinz Böckstiegel, 2001 - ‘A New Phase in Alliance Building: The Air France / KLM Venture as a Case Study’, (2004) 53 ZLW 359 M. Milde, ‘United Nations Convention on the Law of the Sea – Possible Implications for International Air Law’, (1983) 8 AASL 167 - ‘The Chicago Convention – After Forty Years’, (1984) 9 AASL 119 - ‘Nationality and Registration or Aircraft Operated by Joint Air Transport Operating Organisations or International Operating Agencies’, (1985) 10 AASL 133 - ‘Problems of Safety Oversight: Enforcement of ICAO Standards’, in C.J. Cheng (ed.), The Use of Air and Outer Space Cooperation and Competition, 1998 Molenaar, E.J., ‘Netherlands Antilles and Aruba: Marine Fisheries in the Netherlands Antilles and Aruba in the context of International Law’, (2003) 18 The International Journal of Marine and Coastal Law 127 Moussé, J., ‘EUROCONTROL: The changes effected in the International Organisation by the Instruments signed on 12 February 1981’, (1982) 7 Air Law 22 Murphy, S.D., ‘Admissibility of US-EU “Hushkits” Dispute before the ICAO’, (2001) 95 AJIL 410
234 Bibliography
Ogus, A., Regulation, Legal Forms and Economic Theory, (1994)
Panhuys, H.F. van, ‘The International Aspects of the Reconstruction of the Kingdom of The Netherlands in 1954’, (1958) 5 NILR 1 Perron, A.E. du, ‘Liability of Air Traffic Control Agencies and Airport Operators in Civil Law Jurisdictions’, (1985) Air Law 203
Sasseville, ‘Air Traffic Control Agencies: Fault Liability vs. Strict Liability’, (1985) 10 AASL 239 Sauvage, J.J., ‘The Accession of the European Community to EUROCONTROL: New Stimulus for ATM’, (2002) (Winter) Skyway 6 Schenkman, J., International Civil Aviation Organization, 1955 Schubert, F.P., ‘Air Traffic Control – A Time for Change’, (1993) 18 AASL-Part I 257 - ‘Warsaw Claims and ATC Liability: Adresing the Global Dimension of Aviation Liability’, (1997) 22 AASL-Part I 237 - ‘The Corporatization of Air Traffic Control: Drifting between Private and Public law’, (1997) 22 AASL – Part II 223 - ‘Aircraft in Emergency: Pilots, Controllers and the Protection of Third Parties on the Surface’, (1998) 23 AASL 185 - ‘An International Convention on GNSS Liability: When Does Desirable Become Necessary?’, (1999) 24 AASL 245 - ‘The Creation of a Single European Sky: The Shrinking Concept of Sovereignty’, (2000) 25 AASL 239 - ‘Pilots and Air Traffic Controllers: Allocating Legal Liabilities in a Free Flight Environment’, (2001) 26 AASL 197 - ‘Pilots or Controllers, Who is liable in the Free Flight Environment’, 2002 (February) Avionics Magazine 23 - ‘The Single European Sky, Controversial Aspects of Cross-Border Service Provision’, (2003) 28 Air Law 32 - ‘The liability of Air Navigation Services in the Single European Sky’, (2003) 28 AASL 57 - ‘The Financing of Cross Border Air Traffic Services – A Legal Perspective’, (2003) 28 AASL 121 Schwenk, W., and Schwenk, R., Aspects of International Co-operation in Air Traffic Management, 1998 Schwenk, W., ‘Problems of Airports in the vicinity of Foreign States’, (1978) 3 AASL 225 - ‘Rechtsgrundlagen für Kapazitätsregelungen des Luftverkehrs im Luftraum und an Flugplätzen’, (1988) 37 ZLW 302 Shaw, M.N., International Law, 1997 Sheffy, M., ‘The Air Navigation Commission of the International Civil Aviation Organization, Part I, A Study of its Functions and Powers and an Outline of Its Main Fields of Activity’, (1958) 25 JALC 281 Shelton, D., ‘Righting Wrongs: Reparations in the Articles on State Responsibility’, (2002) 96 AJIL 833 Sinclair, I., The Vienna Convention on the Law of Treaties, 1984
Tompkins Jr, G.N., ‘Enforcement of Aviation Safety Standards’, (1995) 20 AASL-Part I 319
Wassenbergh, H.A., ‘The ‘Privatization’ of International Air and Space Law’, in C.J. Cheng (ed.) Regulatory Reform in International Air Transport: H.A. Wassenbergh’s Select Essays over a Period of Fifty Years 1950-2000, 2000 Watts, S.A., International Law and the Antarctic Treaty System, 1992 Weber, L., ‘Convention on International Civil Aviation – 60 Years’, (2004) 53 ZLW 289
Bibliography 235
Reports, Studies, Statements and Press Releases Listen Alphabetically by Issuing Institution
EUROCONTROL, Compendium of the Legal Instruments and reference documents relating to the early implementation of the Revised Convention during the Transitional Period, Revised Version (November 2000 Edition), EUROCONTROL, CFMU Operations: Executive Summary - Edition 2002 (2002) EUROCONTROL, Basic CFMU Handbook: General & CFMU Systems - Edition 8 (2002) EUROCONTROL, Memorandum concerning a framework for cooperation between Eurocontrol and the Commission of the European Communities (Brussels, 22 December 2003). EUROCONTROL, Regulatory Committee Report 2002-2003 EUROCONTROL, Long-Term Forecast of Flights 2004-2025 (December 2004) EUROCONTROL, Single European Sky (SES) Regulations: EUROCONTROL Final Report on European Commission’s Mandate to Support the Establishment of Functional Airspace Blocks (May 2005) EUROCONTROL, Regulatory Unit, Eurocontrol Regulatory and Advisory Framework (Regulatory Provisions) (November 2005) EUROCONTROL, Regulatory and Advisory Framework (Advisory Material) (November 2005). EUROCONTROL, Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2004 by the Performance Review Commission (April 2005) EUROCONTROL, Guidance Material related to the European Commission Regulation No. 2096/2005 laying down Common requirements for the provision of Air Navigation Services, Guidance Material for Air Navigation Services Providers compliance with the Common Requirements (Volume I) on Air Traffic Services Provider and Communication, Navigation and Surveillance Services Provider) of 13 January 2006 EUROCONTROL, Guidance Material related to the European Commission Regulation No. 2096/2005 laying down Common requirements for the provision of Air Navigation Services, Guidance Material for Air Navigation Services Providers compliance with the Common Requirements (Volume II): Aeronautical Information Services Provider of 13 January 2006 EUROCONTROL, Guidance Material related to the European Commission Regulation No. 2096/2005 laying down Common requirements for the provision of Air Navigation Services, Guidance Material for Air Navigation Services Providers compliance with the Common Requirements (Volume III): Meteorological Service Provider of 13 January 2006. EUROCONTROL, Performance Review Commission: Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2005 (April 2006) EUROCONTROL, Report commissioned by the Performance Review Commission: The Impact of Fragmentation in European ATM/CNS (April 2006) EUROCONTROL, Performance Review Commission: Evaluation of the Impact of the Single European Sky Initiative on ATM Performance (December 2006) EUROCONTROL, SESAR: Single European Sky ATM Research (February 2006). EUROCONTROL, Performance Review Report: An Assessment of Air Traffic Management in Europe during the Calendar Year 2006 by the Performance Review Commission (May 2007)
236 Bibliography
European Commission, DG for Energy and Transport, Single European Sky: Report of the high-level group (November 2000). European Commission, Communication from the Commission to the Council and the European Parliament: Action programme on the creation of the Single European Sky and Proposal for a Regulation of the European Parliament and of the Council laying down the framework for the creation of the Single European Sky (November 2001), COM (2001) 123 final/2 European Commission, Directorate-General for Energy and Transport: The Single European Sky, Implementing Political Commitments (2004) European Commission, Conclusions of the meeting on the South East Europe Functional Airspace Block Approach (Brussels, 28 February 2006) European Commission, High Level Group: Report of the High Level Group for the Future European Aviation Regulatory Framework: European Aviation, A Framework for Driving Performance Improvement (July 2007)
PICAO, International Conference on European and Mediterranean Route Service Organization, Final Report of the Conference, (Doc P.232, GEN P.38) (1946) PICAO, Provisional International Civil Aviation Organization Interim Council, Fourth Session – Minutes of the Second Meeting (Doc 1524 C/137) (1946) PICAO, European-Mediterranean Region of PICAO, Final Report of the A.T.C. Committee, Paris Conference (April-May 1946) (Doc. P.228, ATC P.38) (1946) PICAO, Provisional International Civil Aviation Organization International Conference on European and Mediterranean Route Service Organization, Final Report of the Conference, Paris (April-May 1946) (Doc P.232, GEN P.38) (1946) ICAO, International Civil Aviation Organization Third European-Mediterranean Regional Air Navigation Meeting, Rules of the Air and Air Traffic Services Committee, Paris (February-March 1952) (RAC-3) ICAO, International Civil Aviation Organization Report of the Fourth European- Mediterranean Regional Air Navigation Meeting (Doc 7870, EUM IV), Geneva (January-February 1958) ICAO, ICAO Legal Committee 14th Session, Rome 28 August – 15 September 1962 (Doc 8302-LC/150-2) ICAO, Report of the Fifth European-Mediterranean Regional Air Navigation Meeting (Doc 8588, EUM V), Geneva 1-26 February 1966 ICAO, Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 83bis) of 6 October 1980 (Doc 9318) ICAO, Air Traffic Services Planning Manual (Doc 9426-AN/924) (1984) ICAO, Regional Supplementary Procedures, Doc 7030/4 (1987). ICAO, Directives to Regional Air Navigation Meetings and Rules of Procedure for their Conduct, (Doc 8144-AN/874/6) of 1991 ICAO, Memorandum on ICAO (January 1994) (15th ed.) ICAO, European Air Navigation Planning Group, Thirty-eight meeting, Objectives and Status of the ICAO Regional Air Navigation Plans (EANPG/38-WP/10) of 1 October 1996 ICAO, Report of the Seventh Africa-Indian Ocean Regional Air Navigation Meeting, (Doc 9702, AFI/7), Abuja 12-23 May 1997 ICAO, World Wide CNS/ATM Systems Implementation Conference, Rio de Janeiro 11-15 May 1998, ICAO Secretariat, National organizational and international co-operative issues, WW/IMP-WP/4 of 4 February 1998 ICAO, World-wide CNS/ATM Systems Implementation Conference, Rio de Janeiro 11-15 May 1998, ICAO Secretariat, Organizational Forms of Air Navigation Services at the National Level, WW/IMP-WP/16
Bibliography 237
ICAO, Universal Safety Oversight Audit Programme: Audit Summary Report of the Civil Aviation Authorities of The Netherlands and The Netherlands Antilles of 2000 ICAO, Legal Committee - Thirty-first Session, United Nations Convention on the Law of the Sea- Implications, if any, for the application of the Chicago Convention, its Annexes and other International Air Law Instruments (LC/31-WP/4-4) of 23 June 2000 ICAO, Conference on the Economics of Airports and Air Navigation Services, Montreal 19- 28 June 2000, ICAO Secretariat, The ICAO Joint Financing Arrangements, ANSConf-WP/7 of 23 December 2000 ICAO, Compendium of Information on Regional Offices (December 2000) ICAO, 33rd Session of the Assembly, Montreal 25 September – 5 October 2001, IATA, Privatization and Regulation of Airports and Air Navigation Services, A33-WP/87. ICAO, ICAO’s Policies on charges for Airports and Air Navigation Services (Doc 9082/6) (2001) ICAO, Procedures for Air Navigation Services – Air Traffic Management (PANS-ATM), Doc 4444-ATM/501 (2001). ICAO, Assembly Resolutions in Force (as of 5 October 2001) (Doc 9790) ICAO, Assembly-33rd Session, European Commission, Single European Sky, A33-WP/79 (August 2001) ICAO, European Regional Air Navigation Plan, Volume I, Basic ANP (Doc 7754) of 2001 ICAO, Guidance and Information Material Concerning Air Navigation in the North Atlantic Region, January 2002 (7th ed.) ICAO, European Air Navigation Planning Group, EANPG Handbook (2002) ICAO, Privatization in the Provision of Airports and Air Navigation Services (Cir 284- AT/120) of 2002 ICAO, Guidance on the Implementation of Article 83bis of the Convention on International Civil Aviation (Cir 295/LE/2) of February 2003 ICAO, Assembly Resolutions in Force as of 8 October 2004 (Doc 9848) ICAO, 35th Session of the Assembly, Montreal 28 September – 8 October 2004, ICAO Legal Commission, Report on the Establishment of a Legal Framework with regard to CNS/ATM Systems including GNSS: Development of a Contractual Framework Leading Towards a Long-Term Legal Framework to Govern the implementation of GNSS (A35-WP/75 LE/5). ICAO, Secretariat, ‘ICAO’s updated policies on user charges address a new commercial environment’, 2005 (March/April) ICAO Journal 16 ICAO, Global Navigation Satellite System (GNSS) Manual, (ICAO Doc 9849, AN/457) of 2005 ICAO, Familiarization Course: Regional Affairs Office, Lecture No. 1, FAM/RAO/1 (2006). ICAO, 48th ICAO Familiarization Course (13 to 28 July 2006): Regional Affairs Office, Regional Air Navigation Meetings (Lecture No. 3), FAM/RAO/3 (2006)
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Index References are made to the pages
A ADIZ, 90 Air Navigation Charges, 152, 153 EUROCONTROL, 43, 45, 69 Air Navigation Service Provider, 62, 63, 154, 169, Amended Convention, 47 170 Eurocontrol Convention (1960), 46 Austria, 162 Non-Safety Related Rules, 51 Belgium, 156 Notice of Proposed Rule-Making (ENPRM), 52 Germany, 160 Provisional application Revised Convention, 49 Ireland, 164 Revised Convention, 48 Luxembourg, 156 Safety related rules (ESARR), 53 Switzerland, 163 European Community, 43, 56, 67 The Netherlands, 157 Extra-Territorial Provision of Air Navigation United Kingdom, 164 Services, 87 Air Navigation Services, 34 Antarctica, 91 Air Traffic Management, 34 High Seas, 87 Airspace, 25 ASECNA, 120 F Autonomous Authority, 149 Autonomous Entities, 149 FIR, 130, 131, 133 Autonomy, 93 Flexible Use of Airspace (FUA), 12 Hong Kong and Macao, 97 Functional Airspace Blocks (FABs), 13, 63, 118 The Netherlands Antilles and Aruba, 95 H B Hushkit-Affair, 57 Bashkirian Airlines, 15 I C ICAO, 25, 29 CADIZ, 90 Air Navigation Commission, 30 CEATS, 115 Air Navigation Regions, 31 Certification and Designation, 169 Assembly, 29 CFMU, 11 Council, 29 Chicago Convention, 26, 27 Planning and Implementation Regional Group CNS/ATM, 12 (PIRG), 33 COCESNA, 119 Recommended Practices, 35 Commercialisation, 150 Regional Air Navigation Meeting, 29, 32, 134, Contract 135, 136 Airports and Airlines, 194 Regional Air Navigation Plan (RANP), 29, 33, Airways Corporation of New Zealand, 189 130, 131, 134, 135, 136, 137, 139, 140, 141 Contractual Framework for GNSS, 191 Regional Office, 32, 134 Corporatisation, 150 Standards, 35, 36, 38, 39, 41 Cross-Border Arrangements, 107 International Organisation, 28 Bilateral Arrangements, 108 Multilateral Arrangements, 114 Cross-Border provision of air navigation services, J 85, 86, 125 Jurisaction, 27, 122 Jurisdiction, 26 D Jurisfaction, 27, 122 Delegating State, 86, 104, 105, 106, 127 DHL International Ltd, 15 L Lake Constance. See Überlingen E Letters of Agreement (LoA), 108 Liability EASA, 76, 77 Conceptual Liability Framework inter-state and ECAC, 43, 44 Third Parties on the Ground, 182 Economic Regulation, 153
240
Contractual liability framework aircraft Responsibility of the Supervising Authority, 127 operators, 188 RVSM, 12 Draft Convention on liability for Air Traffic Control, 176 Service provider's exclusive liability doctrine, S 175 SESAR, 13, 60 State liability, 104, 105, 178, 179, 180 Single European Sky, 13, 58 State primary responsibility doctrine, 175, 176 Airspace Regulation, 60, 63 State ultimate responsibility doctrine, 175, 176 Framework Regulation, 60, 61 Interoperability Regulation, 60, 64 M Non-Safety related rules, 70 Safety related rules, 76 Maastricht UACC, 114 Service Provision Regulation, 62, 171 Model Agreement on the Delegation of Air Traffic Sovereignty, 26, 27, 28 Services, 112 Standards, 123 Model State Level FAB Agreement, 118 State, 25, 26 Supervising Authority, 121, 126, 127, 129, 140 N Supervising State, 126, 128 Nordic Upper Area Control centre (NUAC), 116 T TCAS, 16 P Tenerife disaster, 14 Privatisation, 150 Territory, 25, 26 Providing State, 86, 104, 105, 106, 122 U R Überlingen, 15, 20, 85, 106 RANP. See under ICAO: Regional Air Navigation Plan Z Recommended Practices, 123 Responsibility, 99, 100, 101, 103, 104, 119, 123, Zagreb mid-air collision, 14 125, 129
241
Curriculum vitae
Niels van Antwerpen was born on November 14, 1975 in Nieuw-Vennep, The Netherlands. He studied civil law at the Erasmus University in Rotterdam from 1995-2000 where he obtained his law degree (LL.M.). From 2000-2001, he participated in the post-graduate teaching program of the International Institute of Air and Space Law (Leiden University) where he obtained the degree Master of Advanced Studies in International Air and Space Law (Adv. LL.M.).
Niels has been working as corporate legal counsel for the legal department of the Koninklijke Luchtvaart Maatschappij N.V. (KLM Royal Dutch Airlines) since June 2001 where his principal areas of practise are aircraft finance, passenger liability, insurance, commercial matters and agreements as well as air law and aviation policy related affairs. Niels has been a Ph.D. candidate at the International Institute of Air and Space Law (Leiden University) since March 2003.