Air Transport 2020 Air Transport Air Transport 2020 Contributing editors John Balfour and Thomas van der Wijngaart © Law Business Research 2019 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Air Transport [email protected] Senior business development managers Adam Sargent 2020 [email protected] Dan White [email protected] Contributing editors Published by Law Business Research Ltd John Balfour and Thomas van der Wijngaart Meridian House Clyde & Co LLP 34-35 Farringdon Street London EC4A 4HL, UK The information provided in this publication is general and may not apply in a specific situation. Legal advice should always Lexology Getting The Deal Through is delighted to publish the fourteenth edition of Air Transport, be sought before taking any legal action which is available in print and online at www.lexology.com/gtdt. based on the information provided. 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Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 London September 2019 Reproduced with permission from Law Business Research Ltd This article was first published in October 2019 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2019 Contents Global overview 3 Ireland 115 John Balfour Rory McPhillips, Stuart Kennedy and Stephen Gardiner Clyde & Co LLP Matheson Argentina 7 Italy 122 Elizabeth Mireya Freidenberg Laura Pierallini Freidenberg, Freidenberg & Lifsic Studio Pierallini Bahamas 16 Japan 131 Michael F L Allen Shuji Yamaguchi Higgs & Johnson Okabe & Yamaguchi Belgium 23 Malta 136 Birgitta Van Itterbeek Tonio Grech Monard Law Dingli & Dingli Law Firm Brazil 31 Netherlands 144 Renata Iezzi Jeroen Timmermans, Laetitia Kunst-den Teuling and Ruben Elkerbout Basch & Rameh Advogados Associados Stek Canada 38 Nigeria 152 Laura M Safran QC and Prasad Taksal Etigwe Uwa SAN, Chinasa Unaegbunam, Omolayo Tolu-Latunji DLA Piper (Canada) LLP and Oluyemi Oyewole Streamsowers & Köhn Chile 48 Felipe Allende and José Luis Ibáñez Poland 160 Allende Bascuñán & Cía Krystyna Marut, Edyta Michalak and Anna Burchacińska-Mańko MMMLegal Legal Counsels European Union 55 Geert Goeteyn Russia 168 Shearman & Sterling LLP Mikhail Sokolov and Sergey Seliverstov Sokolov, Maslov and Partners France 71 Vonnick Le Guillou, Camille Lallemand, Alexis André, Audrey Lemniaï Spain 176 and Edouard Sarrazin Sergi Giménez Binder DLA Piper France Augusta Abogados Germany 79 Switzerland 183 P Nikolai Ehlers Andreas Fankhauser Ehlers, Ehlers & Partner Proton Legal LLC Greece 86 United Kingdom 191 Betty Smyrniou Thomas van der Wijngaart and John Balfour Bahas, Gramatidis & Partners Clyde & Co LLP India 95 United States 199 Amir Singh Pasrich and Mohana Malhotra Jonathon H Foglia and Jol A Silversmith I.L.A. Pasrich & Company KMA Zuckert LLC 2 Air Transport 2020 © Law Business Research 2019 Belgium Birgitta Van Itterbeek Monard Law REGULATORY FRAMEWORK As a result of Regulation (EEC) No. 3922/91, the JAR rules (subse- quently replaced by EU-OPS and then by IR-OPS) also apply in Belgium Regulators and primary legislation and have been further implemented by the Royal Decree of 25 June 1 Which bodies regulate aviation in your country? Under what 2001 (OG 15 August 2001). With the creation of the European Aviation basic laws? Safety Agency, many safety issues are now further regulated and harmonised at EU level. There are three regulatory bodies in Belgium: • general authority lies with the Civil Aviation Authority of the Federal 3 What safety regulation is provided for air operations that do Public Service of Mobility and Transport (BCAA), which was created not constitute public or commercial transport, and how is the by the Law of 27 June 1937 amending the law of 16 November distinction made? 1919 with respect to air navigation (as amended) (Belgian Official Journal (OG) 26 July 1937) and its Royal Decree of 15 March 1954 The Royal Decree of 15 March 1954 applies to all civil aircraft whether with respect to air navigation (as amended) (OG 26 March 1954); or not they are used for commercial transport. However, with respect • Skeyes (previously known as Belgocontrol) is responsible for air to the licence requirements for commercial transport, a distinction is traffic control and civil air navigation services for Luxembourg and drawn between taxi services and other commercial operations. A taxi Belgium and was created by the Law of 19 December 1997, and for service is defined as aircraft with no more than 10 seats and in respect the rationalisation of Brussels National Airport (OG 30 December of which the destination is fixed by the users without any seat going 1997); and to other commercial passengers. The licence requirements for taxi • the Belgian Supervising Authority for Air Navigation Service, which services are less stringent than for other commercial operations. If an was created in the context of the Single European Sky by the Royal aircraft is not used for commercial transport, the licence requirements Decree of 14 February 2006 for the creation of the national super- for commercial operations do not apply. Both the Royal Decrees of 9 vising authority for air navigation services (OG 28 February 2006). January 2005 with respect to technical operations and of 25 October 2013 with respect to flight operation licences make a clear distinction AVIATION OPERATIONS between the different types of aircraft. Safety regulations Market access 2 How is air transport regulated in terms of safety? 4 How is access to the market for the provision of air transport services regulated? A distinction should be made between international conventions and treaties that are directly applicable and their implementation instru- Regulation (EC) No. 1008/2008 of 24 September 2008 is directly appli- ments, EU regulations and directives and Belgian law. cable in Belgium. A Ministerial Decree of 3 August 1994 (OG 1 October The Chicago Convention was ratified in Belgium on 30 April 1947 1994) further sets out the licence requirements for the commercial (OG 2 December 1948) and was implemented by the Royal Decree of 15 operation of aircraft. March 1954, which has been amended several times. The Law of 30 April The licence and the air operator’s certificate (AOC) are issued by 1947 has been further implemented by another 25 royal and ministerial the Civil Aviation Authority. decrees. In effect that law, together with the Law of 27 June 1937 and the Royal Decree of 15 March 1954, are the basic regulations for aviation Ownership and control operations in Belgium. 5 What requirements apply in the areas of financial fitness and The basic regulations with respect to technical operations are laid nationality of ownership regarding control of air carriers? down in the Royal Decree of 9 January 2005 regulating the conditions for technical operations of aircraft belonging to general aviation (OG The applicants must have their principal place of business and, if any, 7 February 2005) and, with respect to flight operation licences, as set out their registered office in Belgium. Applicants must have at least one in the Royal Decree of 25 October 2013 (OG 16 December 2013) imple- aircraft registered in Belgium, adequate insurance and evidence that the menting Regulation (EU) No. 1178/2011 as amended by Regulation (EU) company is and will continue to be owned directly or through a majority No. 290/2012. The Ministerial Decree of 13 February 1970, as amended shareholding by a company established and controlled by a company (see especially Ministerial Decree of 20 October 2003), sets out further or person established in the EEA. The application must be accompa- technical requirements for the operation of aircraft of 5,700kg or more nied by the documents that identify the applicant and its shareholding as well as organisational requirements for the airline and the mainte- structure and the routes it wishes to operate