Department for maritime and transport law Air transport in the eu Doc.dr.sc. Iva Savić Department for maritime and transport law December, 14 2016

International aviation Chicago convention, 1944 Sovereignty principle - Traffic rights Bilateral agreements

Bilateral air transport agreements 'specified routes‘ 'agreed services', 'specified traffic rights‘ 'agreed tariffs‘ etc.

Evolution of air transport Regulation vs air traffic market Evolution: protection of national carriers > liberalization, open skies, competition Liberalization= privatizing airlines, privatizing infrastructure, Internationally? > bilaterals (ASAs) remain Air transport remains national public service industry!

Eu single *air transport* market Position of MS vs EU institutions (commission!) Integrity - common policy Community air carrier – community licence („European Nationality) External policy? Case law

Air transport packages Procompetitive policy: Market access licensing Capacity and frequency Tariff regulation Competition rules and state aid rules Harmonization of rules in other fields: Safety and security Air traffic control Environment Passengers rights

Open skies case Case facts Outcome Consequences EC bringing claim against MS that concluded open skies agreement with the us Art. 4 TEU - principle of sincere cooperation („…ensuring fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union…The Member states shall…refrain from any measure which could jeopardise the attainment of the Union's objectives”) Art. 49 TFEU – freedom of establishment - nationality clause vs community carrier Outcome ECJ did not say antything on validity of agreements or ms’ obligations Ec has exclusive competence in concluding intl agreements as regards in certain areas* Consequences In 2003 EC received mandate for external relations in air transport

environment

Issues… Air polution (Emissions) Noise polution green technology (bio fuels etc.) modernised air traffic management systems, market-based measures: emission trading system Noise polution setting noise standards for airplanes managing the land around airports in a sustainable way reduce noise impact on the ground introducing operating restrictions

ets Directive 2008/101 –EU Emissions Trading Scheme (ETS) applies also to all non-EU air carriers (emissions on routes that require aircraft to land at or depart from airports within EU territory) C-366/10 - consistent with applicable international law chicago convention is not a valid instrument against which an EU directive could be judicially assessed; EU-US agreement - requires aircraft to comply with local (EU) regulations when in EU territory Kyoto protocol – parties may comply with their obligations in the manner and at the speed upon which they agree and the obligation to pursue limitation or reduction of emissions of certain greenhouse gases from aviation fuels, working through the ICAO is not unconditional and sufficiently precise to be capable of being relied upon choosing to utilize EU airports, foreign carriers choose also to subject themselves to the EU regulation, whatever the reach of its application International aviation relations? ICAO – CORSIA, 2016 - scheme to reduce greenhouse gas emissions from intl aviation

safety

Common safety rules overseen by the European Commission + EASA + National Aviation Authorities (*industry participating in the European aviation market) Europeaj aviation safety programme + ms safety programs ALL areas of aviation, including: airworthiness Aircrew Aerodromes air operations provision of air navigation services reporting, analysis and follow-up of occurrences in civil aviation

'Regulation No 216/2008 centrepiece of the EU aviation safety system establishing common rules and defining 'essential requirements' on authorities, persons and organisations concerning aeronautical products, parts and appliances, operators involved in air transport, as well as pilots and persons, products and organisations involved in their training and medical examination, aerodromes and air traffic management and air navigation services (ATM/ANS) provided in the airspace of the territory to which the EU Treaty applies enabling mutual recognition of certificates introducing standardisation inspections process to monitor rules' application by the Member States creating European Aviation Safety Agency (EASA)

EASA specific regulatory and executive tasks in the field of civil aviation safety and environmental protection Set up in 2002 > growing + influence Main tasks develops common safety and environmental rules at the European level* Inspections - monitors the implementation of standards technical expertise, training and research – cooperation with the MS

3rd country airlines TCO system - 3rd Country Operator Authorisation - prior verification of safety Black list - EU Air Safety List (http://ec.europa.eu/transport/sites/transport/files/modes/air/safety/air- ban/doc/list_en.pdf Safety Assessment of Foreign Aircraft (SAFA) programme - Actual verification of safety of aircraft through ramp inspections

Passengers rights

Regulation 261/2004 In cases of… Long delay Flight cancellation Denied boarding (overbooking) Applicable if… your flight is within the EU and is operated either by an EU or a non-EU airline your flight arrives in the EU from outside the EU and is operated by an EU airline your flight departs from the EU to a non-EU country operated by an EU or a non-EU airline

Cont.’d Rights: Information and assistance Re-routing financial compensation (cash, voucher) Enforcement: Air carrier (Tour operator) National enforcement body (civil aviation authority or transport ministry) court

Denied boarding Flight cancellation Flight delay  5 hours   Denied boarding Flight cancellation Flight delay  5 hours Flight delay  5 hours Compensation YES YES* NO Re-routing OR reimbursement(**) Care (food, drinks, hotel, transportation, phone, fax, e-mail) * Extraordinray circumstances ** full cost of the ticket at the price at which it was bought, for the part of the journey not made, and for the part already made if the flight is no longer serving any purpose in relation to the passenger's original travel plan

Case law C 432/07 and 402/07 (Sturgeon) C-581/10 and C-629/10 (Nelson) same compensation as in case of a flight cancellation C-581/10 and C-629/10 (Nelson) obligation to compensate delayed passengers falls outside the scope of montreal convention, but remains additional to the system for damages laid down by it C-11/11 (Folkerts) only the delay at the final destination of the journey is relevant for the right to compensation C-549/07 (Wallentin-Hermann) Concept of “extraordinary circumstances” - technical problem which comes to light during aircraft maintenance or is caused by failure to maintain an aircraft cannot be regarded as such C-22/11 (Finnair) concept of ‘denied boarding’ - not only overbooking but also cases where boarding is denied on other grounds, such as operational reasons Case C-83/10 (Sousa Rodríguez) concept of "cancellation" - covers the case where the aircraft took off but, for whatever reason, was subsequently forced to return to the airport of departure where the passengers of the said aircraft were transferred to other flights. Etc.