· 2020. 9. 3. · Air Transport 2016 Contributing editors John Balfour and Mark Bisset Clyde & Co...

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Air TransportContributing editorsJohn Balfour and Mark Bisset

2016© Law Business Research Ltd 2015

Air Transport 2016Contributing editors

John Balfour and Mark BissetClyde & Co LLP

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CONTENTS

2 Getting the Deal Through – Air Transport 2016

Global Overview 7John BalfourClyde & Co LLP

Afghanistan 11M Wisal Khan and Ghazi KhanLegal Oracles

Argentina 15Elizabeth Mireya FreidenbergFreidenberg, Freidenberg & Lifsic

Austria 21Joachim J JanezicRecht & Co – Janezic & Schmidt Rechtsanwälte OG

Bahamas 25Arthur K ParrisParrisWhittaker

Belgium 28Birgitta Van ItterbeekMonard Law

Brazil 33Renata IezziBasch & Rameh Advogados Associados

Canada 38Laura M Safran QC and Prasad TaksalDLA Piper (Canada) LLP

Cayman Islands 45Louise Groom and Ellie Crespi-McCarthyHarneys

Denmark 49Henrik Kleis and Rune HamborgDelacour Law Firm

Dominican Republic 55Rodolfo Mesa ChavezMesa & Mesa Abogados

European Union 59Geert GoeteynShearman & Sterling LLP

France 71Vonnick Le Guillou, Edouard Sarrazin, Marie Bresson, Jonathan Rubinstein and Guilhem ArgueyrollesDLA Piper France

Germany 77P Nikolai EhlersEhlers, Ehlers & Partner

Greece 83Betty Smyrniou and Konstantina LinardouBahas, Gramatidis & Partners

Iceland 90Erlendur GíslasonLogos Legal Services

India 95Amir Singh Pasrich and Mohana MalhotraI.L.A. Pasrich & Company

Indonesia 106Wahyuni Bahar and Anggia RukmasariBahar & Partners

Italy 110Laura PieralliniStudio Pierallini

Japan 117Shuji YamaguchiOkabe & Yamaguchi

Malta 121Tonio GrechDingli & Dingli Law Firm

Mexico 127Javier Alegre and Carlos CampilloAlegre, Calderón y Márquez Abogados

Netherlands 133Jeroen Timmermans, Laetitia Kunst-den Teuling and Ruben ElkerboutStek

New Zealand 139Frank Porter, Anita Birkinshaw and Rishalat KhanBuddle Findlay

Nigeria 145Etigwe Uwa SAN, Chinasa Unaegbunam and Queenette Hogan Streamsowers & Köhn

Norway 151Knut Boye, Ingar Fuglevåg and Camilla FlatumAdvokatfirmaet Simonsen Vogt Wiig AS

Poland 155Krystyna Marut, Edyta Michalak and Anna Burchacińska-MańkoMMMLegal Legal Counsels

Portugal 160João Pedro Alves Pereira and João Marques de AlmeidaAPTS – Alves Pereira & Teixeira de Sousa RL

Russia 166Mikhail Sokolov, Anna Arkhipova and Sergey SeliverstovSokolov, Maslov and Partners

Singapore 172Rajaram Ramiah and Amos Tan Quahe Woo & Palmer LLC


www.gettingthedealthrough.com 3

CONTENTS

Sweden 178Stephan Eriksson and Erik Hägnefors SanderAdvokaterna Liman & Partners AB

Switzerland 183Andreas FankhauserBaumgartner Mächler

Turkey 189M Ali KartalAybay & Aybay

Ukraine 193Anna TsiratJurvneshservice International Legal Services

United Arab Emirates 198Donald H Bunker, Ian Veall, Christine Veall and Henock GirmaDonald H Bunker and Associates

United Kingdom 202John BalfourClyde & Co LLP

United States 208Andrew J Harakas and Christopher CarlsenClyde & Co US LLP

Uruguay 216Gonzalo YelpoYelpo & Facal Abogados



PREFACE

Getting the Deal Through is delighted to publish the tenth edition of Air Transport, which is available in print, as an e-book, via the GTDT iPad app, and online at www.gettingthedealthrough.com.

Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers.

Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes Austria, the Cayman Islands, France, Singapore, Sweden, Turkey and Ukraine.

Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com.

Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers.

Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editors, John Balfour and Mark Bisset of Clyde & Co, for their continued assistance with this volume.

LondonSeptember 2015

PrefaceAir Transport 2016Tenth edition

5 Getting the Deal Through – Air Transport 2016© Law Business Research Ltd 2015

Clyde & Co LLP GLOBAL OVERVIEW


Global overviewJohn BalfourClyde & Co LLP

An international business needs international rules. So it is not surpris-ing that international conventions provide a number of rules that apply to international air transport. That the need was recognised at an early stage is evident from the fact that the Warsaw Convention was signed in 1929 and the Chicago Convention in 1944.

The Warsaw Convention deals with the liability of air carriers in respect of carriage by air. It has been amended on several occasions, and has recently been replaced to a large extent by the Montreal Convention 1999. The Chicago Convention is concerned with various aspects of air transport, particularly aircraft and the right to fly, and also established the International Civil Aviation Organization (ICAO). It provides the basis for the regulation of many areas of air transport. In addition, there are several international conventions about crimes on board or involving aircraft, and the Cape Town Convention 2001, which is relevant to aircraft financing.

Air transport is also highly regulated at a national level – principally from a safety point of view, but also from an economic point of view. Traditionally, access to the market and the behaviour of airlines in the mar-ket have been restricted and regulated, although there has been significant liberalisation recently, at least in some areas of the world. Somewhat para-doxically, as access to markets is liberalised and deregulated, it becomes more necessary to regulate behaviour in the market in other ways, particu-larly through competition laws, which have an increasing relevance for the air transport industry.

There is a third level of regulation, at regional level, most notably in the European Union, where much has been done to break down national barriers and liberalise air transport on the one hand, and to harmonise con-ditions and introduce regulation intended to ensure that competition is not distorted on the other.

The Chicago ConventionOther than the establishment of the ICAO, the Chicago Convention is con-cerned with two main areas: the basic system of the registration and regu-lation of aircraft; and the right to fly (or rather lack of it).

The Chicago Convention requires every aircraft to be registered on the national register of a contracting state, which is to be responsible for regu-lating the safety of the aircraft and its operation and the competence of its crew and those who maintain it. The Convention provides for the adop-tion of international standards and recommended practices in a number of areas, such as airworthiness of aircraft, licensing of personnel, etc. The basic principle is that certificates and licences that meet these standards and are issued by one contracting state should be recognised by other con-tracting states, although exceptions are allowed.

The other main area dealt with by the Convention is the right to fly internationally – or rather the lack of such right, as the Convention is restrictive in this respect. It commences by affirming that the contracting states recognise that every state has complete and exclusive sovereignty over the airspace above its territory, and goes on to provide that no sched-uled international air service may be operated over or into a contracting state without its special permission (although there is a greater degree of liberalisation in respect of non-scheduled services). This has led to the emergence of a web of bilateral air service agreements between countries, under which traffic rights are granted on a reciprocal basis. Traditionally, these agreements have been restrictive and protective of competition, although there has been significant liberalisation recently in some parts of the world.

One restrictive provision remaining in most bilateral agreements, however, is that of enabling one party to the agreement to refuse to grant operating permission to, or to withdraw it from, a carrier from the other party if that carrier is not substantially owned and effectively controlled by its home state or nationals of its home state. This provision in bilateral agreements has essentially prevented cross-border mergers and takeovers between airlines, and has encouraged the development of consolidation by way of alliances.

Liability and Warsaw/MontrealThe Warsaw Convention was a visionary initiative, particularly as at the time it was conceived and agreed, aviation was still very much in its infancy. Since 1929, the Convention has done much to bring order where there might otherwise have been chaos, and to contribute to the orderly development of a broadly harmonised system of liability in respect of car-riage by air.

The main features of the Warsaw Convention are:• presumed liability of the airline for passenger death and bodily injury,

loss or damage of baggage and cargo and delay, with only limited defences;

• limits of liability, breakable only in exceptional circumstances;• rules on the jurisdiction in which claims may be brought;• a two-year time bar; and• exclusivity of remedies regarding claims within its scope.

In many ways, the Convention has worked well, particularly in resolving difficult conflicts of laws and jurisdictional questions that otherwise would have arisen. Its liability limits, however, particularly in respect of passen-ger death and injury, became increasingly controversial. Starting some 40 years ago, various steps were taken outside the Convention to try to rem-edy the situation – partly by airlines voluntarily agreeing a higher limit and partly by certain countries, or groups of countries, requiring airlines to do so. By 2000, most major airlines in the world, either voluntarily, or as the result of such national or regional requirement, had agreed not to apply any limit in respect of passenger death or injury, and also to waive any defence up to a level of 100,000 special drawing rights (SDR).

These changes, and certain others, were incorporated into interna-tional law by the Montreal Convention, signed in 1999, and designed to replace the Warsaw Convention where it applies. The principal innovation that the Montreal Convention makes – the abolition of the passenger liabil-ity limit and the introduction of strict liability up to a level of 100,000 SDR (increased as from 1 January 2010 to 113,100 SDR, to take inflation into account) – is less radical in practice than it looks, because many airlines had already adopted this position, as mentioned above.

There are three other main differences between the Montreal and Warsaw Conventions:• the baggage liability limit is more or less trebled and no longer based

on weight (so that Montreal introduced a limit of 1,000 SDR per pas-senger, now 1,131 SDR to take account of inflation, compared with a previous limit of 250 gold francs or 17 SDR per kilogram) – a change with greater practical than legal consequences;

• the cargo limit (of originally 17 SDR per kilogram, but increased to 19 SDR, to take account of inflation) is unbreakable – even in the event of intentional or reckless misconduct. This is also the position under the Warsaw Convention as amended by Montreal Protocol No. 4, but not many states are party to that; and


GLOBAL OVERVIEW Clyde & Co LLP


• the Montreal Convention adds a fifth jurisdiction in which claims may be brought, namely the country of the passenger’s principal and per-manent residence, provided that the airline operates there, either on its own or under an arrangement with another airline such as code-sharing. The effects of this additional jurisdiction still have to be seen, but they could be quite significant in legal terms in some cases, where they enable a US passenger, or his or her dependants, who would not otherwise have been entitled to do so, to bring a claim in the US and recover US levels of damages.

At present, 111 states and the EU are party to the Montreal Convention, including all EU and EEA states and the US, China, India, Australia and a number of other important aviation states, although some important states (eg, Russia) are not yet party. As a result, a potentially confusing position exists whereby, depending on the route of the journey, sometimes the Montreal Convention applies and sometimes the Warsaw Convention applies. This situation will continue, although increasingly diminish, until all states have ratified the Montreal Convention.

Two further conventions were signed in Montreal in 2009 on the sub-ject of damage caused by aircraft to third parties, but neither is yet in force.

CrimesThere are three international conventions specifically concerned with crimes on aircraft and affecting aviation, as follows.

The Tokyo Convention 1963The Tokyo Convention 1963 was drawn up principally to deal with prob-lems that had been experienced in practice concerning jurisdiction and extradition in the case of criminal offences committed on board aircraft off the ground. It entitles and obliges the state of registration of the aircraft, if it is party to the Convention, to establish jurisdiction in respect of such offences, and entitles other states to exercise jurisdiction if the offence has effects for that state. It also provides that such an offence is to be treated for extradition purposes as if committed in the state of registration of the aircraft, as well as where it was in fact committed, so that extradition may be sought and granted under existing extradition treaties, although the Convention creates no obligation to grant extradition.

It gives power to the aircraft commander to impose reasonable meas-ures if he or she has reasonable grounds to believe that a person has com-mitted or is about to commit such an offence, or an act jeopardising safety or good order on board. The measures, including restraint, are those that are necessary to protect the safety of the aircraft, and persons and property on board, to maintain good order and discipline, or to enable the commander to deliver the person to competent authorities or to require the person to disembark.

A protocol to amend the Convention was signed in Montreal in 2014 but is not yet in force.

The Hague Convention 1970The Hague Convention 1970 is aimed mainly at hijacking. It makes it an offence for a person on board an aircraft in flight to unlawfully, by force or by other form of intimidation, seize or exercise control of the aircraft, or attempt to do so or be an accomplice to such an offence or attempt.

The Convention applies if either the place of take-off or the place of landing is a state other than the state of registration of the aircraft. Each of the states of registration of the aircraft, the state where the aircraft lands with the offender on board and the state in which any lessee of the aircraft has its main residence or place of business must take all necessary measures to establish jurisdiction. The state in whose territory the offender is must either extradite the offender to one of those states or take steps to establish its own jurisdiction.

The Convention also aims to facilitate extradition by treating the offence as having been committed not only where it occurred but also in the other three states mentioned above, and providing that it is to be treated as an extraditable offence as between contracting states.

Montreal Convention 1971, supplemented by the Montreal Protocol 1988The Montreal Convention 1971 is aimed at similar behaviour, but with a broader scope. It makes it an offence for a person to perform an act of violence against a person either when the person is on board an aircraft in flight and the act is likely to endanger the safety of the aircraft, or when the

person is at an airport and the act is likely to cause serious injury or death or cause other types of damage or destruction prejudicial to safety.

The Convention applies if either the place of take-off or the place of actual or intended landing is situated, or the offence is committed or the offender found, outside the state of registration of the aircraft. The Convention obliges the state where the offence is committed, the state of registration of the aircraft, the state in which the lessee of the aircraft has its main residence or place of business and the state where the aircraft lands with the offender on board to take all necessary measures to establish jurisdiction, and the state in whose territory the offender is to extradite him or her to one of those states or take steps to establish its own jurisdiction.

A convention on the suppression of unlawful acts relating to interna-tional civil aviation and a protocol amending the 1970 Hague Convention were signed in Beijing in 2010, but neither is yet in force.

Aircraft financingThe Cape Town Convention on International Interests in Mobile Equipment, supplemented by a Protocol on Matters Specific to Aircraft Equipment, was adopted on 16 November 2001 and entered into force on 1 March 2006. At present, 57 states and the EU are party to it.

Its principal aim is to establish common rules dealing with the financ-ing and leasing of aircraft and an international system for the registration of rights and interests arising in connection therewith, so as to reduce the risks of lending for aircraft financiers, and hence reduce the cost of borrowing. The Convention also establishes an international register, administered by the ICAO, in which various interests in aircraft can be registered, where-upon they will take priority over subsequently registered and unregistered interests.

European Union measuresAlthough the European Economic Community (now known as the European Union) was founded in 1957, it was not until the 1980s that it started to make its effects felt in the air transport sector. Since then, progress has been sig-nificant and there now exists a virtually complete internal market in air transport among the 28 EU member states (and the three EEA states).

LiberalisationThe way in which this result was achieved was principally as a result of three ‘packages’, which liberalised access to routes, fares and rates in a phased process between 1988 and 1993. In addition, the third package introduced common licensing requirements for air carriers and the prin-ciple that any air carrier satisfying these requirements had to be allowed to operate, thus at the same time bringing an end to national monopolies and enabling an airline from one EU member state to establish itself and acquire an airline in another member state. Although the legal changes were slow to produce practical results, in due course they led to significant developments, not least the emergence and increasing expansion of low-cost carriers and cross-border operations. The third package was consoli-dated into and replaced by a new regulation with effect from 1 November 2008, which basically continues the previous provisions but adds some new rules, particularly on the transparency of fares.

Air transport policy legislationThe basic liberalisation laws have been accompanied by a growing body of legislation dealing with other aspects relevant to air transport, comple-menting liberalisation measures and harmonising rules and standards in the areas of environmental and consumer protection.

Regulation No. 95/93 (as amended by Regulation Nos. 894/2002 and 793/2004) provides common rules on slot allocation at airports within the EU. Directive 96/67 introduces greater competition into the ground-handling market at airports within the EU. The practical effects of both measures have been somewhat limited, but the ground-handling Directive will soon be updated. More recently, Directive 2009/12 on airport charges was adopted, but it makes only modest changes.

On the technical front, Regulation No. 3922/91 provides for the har-monisation of technical requirements and administrative procedures, and mutual recognition, in connection with the design, manufacture, operation and maintenance of aircraft and persons and organisations involved in these tasks. This regulation has been significantly supplemented recently by Regulation No. 216/2008, which also establishes the European Aviation Safety Agency.

Regulation No. 996/2010 establishes rules concerning the investiga-tion and prevention of civil aviation accidents and incidents and Directive


Clyde & Co LLP GLOBAL OVERVIEW


2003/42 contains rules on occurrence reporting in civil aviation. Regulation No. 300/2008 lays down common basic standards on aviation security, and Directive 2004/36 lays down rules and procedures for ramp inspections of third-country aircraft using airports within the EU.

In March 2004, four regulations (Nos. 549/2004 to 552/2004) were adopted with the intention of creating a single European sky by laying down common provisions on various aspects of the provision of air traffic management services. They were amended by a ‘second package’ of meas-ures in October 2009, and there is a current proposal for a further update. There have been several directives aimed at reducing aircraft noise (most recently Directive 2006/93), and Directive 2008/101 included aviation within the EU emissions trading scheme.

In relation to passenger protection, Regulation No. 2027/97 abolished the Warsaw Convention’s passenger liability limit in respect of EU-based airlines, and was amended by Regulation No. 889/2002 to bring the liabil-ity position of these airlines into line with the Montreal Convention.

Regulation No. 785/2004 imposes various minimum insurance requirements on air carriers and aircraft operators. Regulation No. 261/2004 lays down rules on compensation and assistance to passengers in the event of denied boarding, cancellation and long delay. Regulation No. 2111/2005 authorises the European Commission to establish a black-list of airlines banned from operating in the EU, and obliges carriers and others selling air tickets to advise passengers of the identity of the carrier actually operating the flight. Finally, Regulation No. 1107/2006 imposes obligations on airlines and airports with regard to passengers with reduced mobility.

Competition rulesThe internal market in aviation within the EU has been achieved largely by the legislative measures mentioned above, but application of the competi-tion rules contained in the EU Treaty has also played an important part. Original doubts about whether the competition rules even applied to air transport were dispelled by the landmark judgment of the European Court of Justice in 1986 in the Nouvelles Frontières case. Following that judg-ment, special regulations were introduced implementing the competition rules for air transport within the EU. This special regime ended on 1 May 2004 and since then air transport has been subject to competition rules in exactly the same way as other industry sectors. This means that air trans-port between the EU and non-EU states is now fully subject to competition rules – a fact perhaps not as widely appreciated as it should be.

The European Commission has applied the competition rules to a number of airline practices, agreements and arrangements. It has issued decisions granting exemptions for a number of airline alliances, subject to conditions – including the three main global airlines.

The European Commission has also imposed fines in several cases where it has found infringement of the competition rules – most signifi-cantly, fines amounting to almost €800 million imposed on 11 airlines in November 2010 for a cartel on air cargo surcharges.

The European Commission has applied the treaty’s rules on state aid to a number of cases of assistance to airlines, in most cases permitting the assistance, either on the ground that it does not constitute ‘aid’ or in return for commitments given by the government or airline concerned. In some cases, the European Commission has found the assistance to be con-trary to the rules – for example, in February 2004 in respect of assistance given by Charleroi Airport in Belgium and its regional government owner to Ryanair, although its decision was annulled by the European Court of Justice towards the end of 2008.

The European Commission has also used its powers under the Merger Regulation (139/2004) to investigate a number of concentrations involving airlines, in each case except three (Ryanair/Aer Lingus (twice) and Aegean/Olympic (the first time)) permitting the concentration to proceed, but often on the basis of various commitments accepted by the airlines in question intended to facilitate new entry and competition, principally by way of giv-ing up slots at congested airports.

Although the state aid rules only apply to aid given by governments of EU member states, Regulation No. 868/2004 enables the European Commission to take action against airlines from non-EU states receiving subsidy from public sources or engaging in unfair pricing practices, in such a way as to cause injury to EU airlines, by imposing duties on them. The European Commission has not yet exercised these powers, and is currently working on a possible amendment or replacement of the regulation.

External relationsWith the internal air transport market in the EU more or less completed, the European Commission has recently been turning its attention to the question of external aviation relations. Its hand was considerably strength-ened by the judgments of the European Court of Justice in November 2002 in infringement proceedings that the European Commission brought against various member states in respect of their air services agreements with the US. Although the court upheld the validity of these agreements in most respects, it held that member states had infringed their EU law obli-gations in connection with the right of establishment by allowing a tradi-tional ‘nationality clause’ to subsist in the agreements – namely, a clause permitting the US to withhold or withdraw operating rights from an airline if it is not substantially owned and effectively controlled by the home state or its nationals.

Following the judgments, the European Council gave the European Commission a mandate to negotiate with third countries to amend air ser-vice agreements to bring them into line with the judgments, while the right of individual member states to continue to negotiate air service agreements was recognised, provided that they respect certain conditions. Such negoti-ations have been successfully concluded between the commission and over 40 other countries. At the same time, the European Commission has been proceeding with fuller negotiations with various other states, particularly neighbouring and nearby states: common aviation area agreements have been concluded with Switzerland, Morocco, Georgia, Jordan, Moldova, Israel and with the eight Balkan countries. A significant breakthrough took

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GLOBAL OVERVIEW Clyde & Co LLP


place on 30 April 2007, with the signature of the Air Transport Agreement between the EU and the US, which came into provisional effect on 30 March 2008. While it did not go as far as the commission would have liked, and was only extended to a limited extent by the protocol that has been applied since 24 June 2010, it essentially applies ‘open skies’ principles between the US and the EU and confirms that the US will accept that any EU airline can operate to or from the US from any point in the EU. A similar agreement was signed with Canada early in 2009 and with Brazil in 2011.

Rules and regulationThe air transport industry will always remain highly regulated from the safety point of view. In relation to other forms of regulation, the focus is

moving from regulation controlling entry to the market and the ability to compete to the other types of regulation necessary in a competitive mar-ket. This is in the form of competition rules and other measures designed to ensure fair conditions for competition and protection of consumers.

As such rules and measures are applied on a national or regional (eg, EU) basis, there is an increasing risk of international fragmentation, and of airlines having to satisfy a variety of differing rules – something that the Chicago Convention and the ICAO system have on the whole successfully avoided in relation to safety rules. Paradoxically, this is taking place at the same time as increasing consolidation among airlines. It may become desirable for the ICAO’s areas of competence to be extended, or for air transport to be more fully involved in the WTO system.


Legal Oracles AFGHANISTAN


AfghanistanM Wisal Khan and Ghazi KhanLegal Oracles

General

1 Which bodies regulate aviation in your country, under what basic laws?

Prior to the promulgation of new aviation legislation in 2012, the Ministry of Transport and Civil Aviation regulated civil aviation in Afghanistan. The newly established independent body, the Civil Aviation Authority (CAA), pursuant to the Civil Aviation Law, 2012 (the Aviation Law), now regulates it.

In addition, as a party to the Chicago Convention, Afghanistan has laid down the Civil Aviation Safety Regulations (the Safety Regulations) in accordance with the standards set forth and recommended by the International Civil Aviation Organization (ICAO).

Regulation of aviation operations

2 How is air transport regulated in terms of safety?Air transport in terms of safety is regulated in accordance with the Safety Regulations. The Safety Regulations present ICAO standards as regulatory requirements for aircraft operations in Afghanistan mainly derived from Title 14 of the United States Code of Federal Regulations (14 CFR) and the European Joint Aviation Requirements (JAR). The Safety Regulations com-prise 11 parts and provide, inter alia, for the following:• Part 1: general policies, procedures and definitions;• Part 2: licensing of personnel;• Part 3: certification and administration of aviation training

organisations;• Part 5: aircraft airworthiness;• Part 7: safety requirements for instruments and equipment;• Part 8: operation of aircraft and flight norms;• Part 9: air operation certification, flight operations management,

maintenance requirements, security management and dangerous goods management;

• Part 10: operation requirements for foreign commercial air carriers; and

• Part 11: aerial work operations.

The CAA enforces the Safety Regulations. However, they have not been laid down in accordance with the Regulation on the Procedure and Preparation of Legislative Documents and have not been gazetted as required under the Regulation on Publication and Enforcement of Legislative Documents 1999. Therefore, the enforceability of the Safety Regulations is question-able in view of the laws of Afghanistan.

3 What safety regulation is provided for air operations that do not constitute public or commercial transport and how is the distinction made?

Air operations that do not constitute public or commercial transport are regulated by Part 11 of the Safety Regulations: aerial work operations. Pursuant to article 5(3) of the Aviation Law, aircraft operations can take place for specialised services. Clause 1.1.2(a)(1) of Part 11 of the Safety Regulation defines ‘aerial work’ as an aircraft operation in which an air-craft is used for specialised services such as agriculture, construction, photography, surveying, observation and patrol, search and rescue, aerial advertisement, etc.

Part 11 of the Safety Regulations requires all persons who conduct aerial work in Afghanistan to comply with the applicable airworthiness and

operational requirements provided thereunder, except where such persons are exempt from such requirements.

4 Is access to the market for the provision of air transport services regulated and, if so, how?

Yes. Air carriers can access the market after their existence is duly estab-lished in accordance with the Aviation Law and international stand-ards. The procedure for establishment of an air carrier is provided in the Regulation on the Incorporation of Air Operating Entities 2009 (the Air Operators Incorporation Regulation) and the Private Investment Law 2005 (the Investment Law). The Air Operators Incorporation Regulation requires the applicant to have, inter alia:• a sound and competent flight safety, technical and managerial organi-

sational structure with highly competent human resources;• an operations manual;• a business plan;• a security programme;• an ICAO registration certificate and three-digit code; and• approval from the Council of Ministers.

Further, in order to operate, air carriers must obtain an air operator’s cer-tificate (AOC) from the CAA. The detailed procedure for obtaining an AOC and the application requirements are set out in Part 9 of the Safety Regulations.

Access to the market for the provision of domestic air transport services within the country is available only to aircraft registered in Afghanistan.

5 What requirements apply in the areas of financial fitness and nationality of ownership regarding control of air carriers?

Part 10 of the Safety Regulations requires a foreign air operator to have sufficient financial resources to conduct safe operations within and to and from Afghanistan. The CAA determines the financial fitness of the appli-cant or air carrier, keeping in view the type of operations, operations base and flight routes provided in the business plan.

There are no restrictions or limitations on nationality of ownership regarding control of air carriers. The Investment Law and the Air Operators Incorporation Regulation permits 100 per cent foreign ownership in an air carrier incorporated in Afghanistan.

6 What procedures are there to obtain licences or other rights to operate particular routes?

While applying for an AOC the applicant/air carrier is also required to state in its application the routes intended to be used. The routes approved by the CAA are specified in the air transport certificate (ATC).

Domestic routes are largely allocated at the discretion of the CAA while international routes are regulated in accordance with mutual agreements on bilateral air services or international treaties to which Afghanistan is a party.

7 What procedures are there for hearing or deciding contested applications for licences or other rights to operate particular routes?

There are no specific procedures for hearing contested applications. Applications are examined by the CAA based on the merit of the applicant, which is assessed according to the applicant’s readiness and the suitability


AFGHANISTAN Legal Oracles


of the air operations such as number of aircraft, frequencies, type of air-craft, aircraft use, market size, financial situation and an increase in tour-ism and facilitating consumers. The CAA is authorised to prohibit the issuance of ATCs to foreign applicants or limit them to fulfilment of special conditions.

8 Is there a declared policy on airline access or competition and, if so, what is it?

There is no declared policy of the CAA on airline access or competition. However, access to airline services depends on the general policy of the Ministry of Transport and the CAA depending on the licensing criteria pro-vided in the Aviation Law and the Air Operators Incorporation Regulation.

9 What requirements must a foreign air carrier satisfy in order to operate to or from your country?

Pursuant to article 9 of the Aviation Law and Part 9 of the Safety Regulations, no foreign air carrier is allowed to operate in Afghanistan unless it holds an AOC from its respective country and is duly authorised by the terms and conditions thereof to conduct air operations to and from Afghanistan. The CAA grants the AOC in consideration of a fee in accord-ance with the provisions of the Aviation Law.

Part 10 of the Safety Regulations provides that requirements under-lined in the applicable provisions of Parts 7 and 8 of the Safety Regulations, and applicable standards contained in the Annexes to the ICAO Convention, shall be applicable to the foreign air carrier as well as any other requirements specified by the CAA.

However, foreign air carriers are required to hold operations specifica-tions provided by the CAA. The application for OPs must be filed with the CAA in the form and manner prescribed by the CAA and be supported by, among others, the following documents:• a copy of a valid AOC or equivalent document issued by the relevant

foreign authority;• a copy of the licence or authorisation granted to the air carrier by the

appropriate CAA of the state of the air operator to operate an air trans-port service to and from Afghanistan;

• a copy of the approval page for a minimum equipment list for each air-craft type intended to be operated by the air carrier in Afghanistan;

• a representative copy of a certificate of registration and certificate of airworthiness issued for the aircraft types proposed to be operated by the air operator in Afghanistan;

• a copy of a document identifying the maintenance checks that are required to be carried out for aircraft of the air carrier while they are operated in Afghanistan (ie, a maintenance programme);

• a copy of any equivalent operations specifications issued by the for-eign CAA/relevant authority for any specialised flight operations specifications requested by the foreign air operator for operations in Afghanistan; and

• a proposed aircraft operator security programme for the foreign air operator who does not hold an AOC issued by the CAA that meets the requirements of the Safety Regulations, for the acceptance and subse-quent approval of the Authority.

Operation specifications contain details of the purpose of issuance, appli-cation and duration, limitations required by the operator, general provi-sions, en-route authorisation and limitations, aerodrome authorisations and limitations, maintenance, mass and balance, interchange of equip-ment operations, and aircraft leasing operations.

The Safety Regulations also require a foreign air carrier to use an air-craft technical log and carry an air operations manual, documents and flight crew licences and other additional information, forms and docu-ments prescribed under Part 10 of the Safety Regulations.

Further, as required by the Aviation Law, foreign air carriers are not allowed to conduct domestic operations within Afghanistan and their international services are regulated in accordance with mutual agreements on bilateral air services or international treaties to which Afghanistan is a party.

Further, a foreign air carrier shall also supply to the CAA proof of insurance of the aircraft, flight crew, passengers, luggage and cargo in accordance with the international conventions and applicable laws and regulations.

10 Are there specific rules in place to ensure aviation services are offered to remote destinations when vital for the local economy?

There are no specific rules in place to ensure that aviation services are offered to remote destinations when vital for the local economy. However, the CAA intends to lay down rules by providing tax incentives to air carriers providing services to remote destinations.

11 Are charter services specially regulated?No. Charter services are considered part of commercial air transport ser-vices and therefore are subject to the provisions of the Aviation Law, the Safety Regulations and the Airport and Civil Aviation’s Installation Fee Regulation (ACAIFR).

12 Are airfares regulated and, if so, how?Airfares were not regulated under the Civil Aviation Law 2003. The new Aviation Law provides that air carriers shall fix airfares and thereafter obtain approval of the same from the CAA. However, the CAA has not yet started regulating airfares as required by the new Aviation Law. Further, the Law on Protection of Competition, published in the Official Gazette Issue No. 1010 dated 30 June 2010 (the Competition Law), prohibits unjust commercial practices provided thereunder.

Aircraft

13 Who is entitled to be mentioned in the aircraft register? Do requirements or limitations apply to the ownership of an aircraft listed on your country’s register?

Pursuant to the provisions of article 16 of the Aviation Law, aircraft regis-tration is the responsibility of the CAA, which shall maintain an Aircraft Registry. The Aviation Law requires the CAA to examine ownership docu-ments of the aircraft and its engines, wings and all other parts at the time of registration of the aircraft. Persons who wish to register an aircraft in Afghanistan should have ownership rights or possessory rights to the aircraft such as a lease. The CAA registers leased aircraft in the Aircraft Registry after confirmation of the same from the owners of the aircraft. In addition, Part 4 of the Safety Regulations requires that the name of the owner and the operator of the aircraft shall appear on the certificate of registration.

There are no nationality limitations with regard to ownership of an air-craft. In view of article 17 of the Aviation Law and Part 4.2.1.2 of the Safety Regulations, aircraft are eligible for registration if they are owned by:• government institutions;• domestic and foreign entities;• aid agencies and social organisations;• private enterprises; or• local and foreign individuals.

14 Is there a register of aircraft mortgages or charges and, if so, how does it function?

There is no register of aircraft mortgages in Afghanistan. Although Afghanistan is a signatory to the Convention on International Interests in Mobile Equipment, the Convention has not been ratified by the Afghan parliament. In view of article 90 of the Constitution of Afghanistan, ratifi-cation of international treaties and conventions is under the powers of the parliament. International treaties and conventions not ratified in accord-ance with the International Treaties Law promulgated in 1989 are not enforceable in Afghanistan.

Aircraft mortgages or charges may, however, be registered under the mortgage laws in the general mortgage registries maintained by different authorities.

15 What rights are there to detain aircraft, in respect of unpaid airport or air navigation charges, or other unpaid debts?

Generally, there is no specific detention right available to the CAA in respect of unpaid airport or air navigation charges or other unpaid debts. However, Chapters 9 of the Aviation Law provides a range of penalties for failure of an operator to fulfil its financial obligations and pay aviation ser-vice charges, including fines, suspension of flights and cancellation of the AOC. Further, the CAA may also exercise the right to lien available under the Civil Law of Afghanistan.


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16 Do specific rules regulate the maintenance of aircraft?Yes. Part 9 of the Safety Regulations provides maintenance requirements of aircraft in respect of operational and emergency equipment and air-worthiness. Air carriers shall ensure that their aircraft are maintained and released to service by either an approved maintenance organisation cer-tificated under Part 6 of the Safety Regulations or by an equivalent system.

Pursuant to the provisions of article 42 of the Aviation Law, the CAA shall issue a certificate of airworthiness, which shall contain information in respect of operational guides, flight safety requirements and other require-ments and limitations.

Airports

17 Who owns the airports?All airports in Afghanistan are state-owned and operated by the CAA.

18 What system is there for the licensing of airports?There is no system for the licensing of airports. However, the new avia-tion law authorises the CAA to lease out parts of airport facilities and structures, with the exception of air traffic control services, aviation infor-mation services, aviation communication services and arrival and depar-ture strips, to third parties. The CAA is contemplating initiating the same in the near future.

19 Is there a system of economic regulation of airports and, if so, how does it function?

Yes. In view of the ACAIFR promulgated in 2005, airports are divided into three categories in respect of airport structure and technical facilities. In addition, Hamid Karzai Airport in the capital Kabul, Kandahar Airport in Kandahar province. Mazar Sharif Airport in Mazar province and Herat Airport in Herat province are international airports. All airport charges are collected in accordance with the rates provided under the ACAIFR for each airport category.

20 Are there laws or rules restricting or qualifying access to airports?

Generally, all aircraft are required to land at the designated airports and strips complying with all the requirements stipulated by the CAA. The Aviation Law authorises the CAA to restrict or qualify access to airports due to the unavailability of necessary facilities required for safety of the aircraft or for public security reasons. Further, the Aviation Law prohibits the entry of unauthorised persons in airport vicinities that have been des-ignated with special signs.

21 How are slots allocated at congested airports?Slots are allocated by the CAA at each individual airport in accordance with the aerodrome and en-route procedures published and edited by the CAA from time to time and other policies of the individual airports.

22 Are there any laws or rules specifically relating to ground handling?

Part 9 of the Safety Regulations requires an AOC holder to arrange appro-priate ground handling facilities at each airport to ensure the safe servicing and loading of its flights. The Safety Regulations allow air carriers to sub-contract services related to ground handling to external agencies. Rules of the Competition Law are applicable in case of unjust commercial practices and agreements concluded in violation of its provisions.

23 Who provides air traffic control services? And how are they regulated?

Air traffic control services are provided and regulated by the CAA in accordance with Part 8 of the Safety Regulations.

Liability and accidents

24 Are there any special rules in respect of death of, or injury to, passengers or loss or damage to baggage or cargo in respect of domestic carriage?

Yes. Chapter VIII of the Aviation Law provides special rules with respect to death of or injury to passengers or loss or damage to baggage or cargo in domestic carriage. With regard to death or injury of a passenger, the air car-rier shall pay diyya (the Islamic concept of compensation as blood money

for the death of a person) or arsh (the Islamic concept of fixed compensa-tion for injury not resulting in death of a person) or hukumat al-’adl (the Islamic concept of compensation for injury not resulting in the death of a person).

With regard to loss or damage to baggage or cargo, air carriers are liable to pay 1,000 afghani per kilogram for loss of baggage and cargo, and 20,000 afghani against each passenger for damage to baggage in the pos-session of the passenger within the aircraft. Where the value of the cargo or baggage is higher than the amount of compensation mentioned above, then requirements of the provisions of article 67 of the Aviation Law shall be fulfilled before loading of such baggage and cargo.

25 Are there any special rules about the liability of aircraft operators for surface damage?

Yes. Compensation rules mentioned in question 24 are also applicable to operators for surface damage. Pursuant to the provisions of article 65 of the Aviation Law, any event that causes death or any other injury to a pas-senger in the aircraft or when boarding or disembarking the aircraft shall be compensated. Article 50 of the Aviation Law further creates liability of the carrier for damage caused by objects that fall from, or are thrown out of, the aircraft.

However, the air carrier would not be liable to compensate the passen-gers if it is established that loss or damage was caused due to a fault in the cargo itself or its packing.

26 What system and procedures are in place for the investigation of air accidents?

The CAA conducts investigation of air accidents. Once an accident is reported to the CAA, it appoints an investigation team. Investigations are conducted in accordance with Parts 8 and 9 of the Safety Regulations and the policies of the CAA. Investigation reports are submitted with the CAA, which may be made public.

27 Is there a mandatory accident and incident reporting system and, if so, how does it operate?

The Aviation Law requires the pilot in command to report any threat or dan-ger posed to the aircraft and its passengers. The Aviation Law also requires any person who finds traces of a lost or damaged or destroyed aircraft to report to local authorities immediately. Part 8 of the Safety Regulations provides detailed rules with regard to mandatory reporting.

Competition law

28 Do sector-specific competition rules apply to aviation? If not, do the general competition law rules apply?

There are no competition rules in the aviation sector in Afghanistan. General provisions of the Competition Law would be applicable.

29 Is there a sector-specific regulator or are competition rules applied by the general competition authority?

There is no regulator for competition in the aviation sector. In view of the Competition Law, the National Competition Board (NCB) is the only regulator that is responsible for regulating competition-related mat-ters. However, the NCB has not yet started functioning, even though the Competition Law has been in effect since 2010. Instead, a new body, the Competition Promotion and Consumer Protection Directorate under the Ministry of Commerce and Industry is given mandate to regulate matters related to competition.

30 How is the relevant market for the purposes of a competition assessment in the aviation sector defined by the competition authorities?

Since there is no regulator and no sector-specific competition rules exist in Afghanistan, there are no criteria that define the relevant market for com-petition assessment.

31 What are the main standards for assessing the competitive effect of a transaction?

In view of the provisions of the Competition Law, there are three types of infringement of competition rules:• transactions, contracts or agreements that tend to prevent, restrict or

distort fair competition and harm consumers are prohibited;


AFGHANISTAN Legal Oracles


• unjust commercial practices and the abuse of a dominant position in a market that results in prevention, restriction and distortion of fair competition are prohibited; and

• mergers by one or more undertakings that result in any of the follow-ing are prohibited:• unjust commercial practices in the market;• an extraordinary increase or decrease in prices;• creation of a dominant position or strengthening of a dominant

position in favour of a person; and• establishment of a controlling entity in the market.

The Competition Law prohibits acquisition of assets, capital or shares of an entity that distort fair competition in one or more markets.

The Competition Law prohibits the abuse of a dominant position in a market for goods or services within the entire country.

32 What types of remedies have been imposed to remedy concerns identified by the competition authorities?

The Competition Law authorises the NCB to initiate investigation pro-ceedings with regard to transactions and acts that may infringe competi-tion rules. As a result, the NCB may undo all transactions, agreements, mergers and acquisitions, and impose fines and order cessation of the busi-ness operations of the violators. Persons affected by unjust commercial and anti-competitive practices may bring compensation claims under the Competition Law in the competent courts. Since the competition regime is very new in Afghanistan, cases under the Competition Law are rare.

Financial support and state aid

33 Are there sector-specific rules regulating direct or indirect financial support to companies by the government or government-controlled agencies or companies (state aid) in the aviation sector? If not, do general state aid rules apply?

There are no sector-specific rules regulating direct or indirect financial support to companies by the government or government-controlled agen-cies or companies in the aviation sector in Afghanistan. However, the Public Finance and Expenditure Management Law governs direct financial support to companies by the state.

34 What are the main principles of the state aid rules applicable to the aviation sector?

Not applicable.

35 Are there exemptions from the state aid rules or situations in which they do not apply?

Not applicable.

36 Must clearance from the competition authorities be obtained before state aid may be granted?

Not applicable.

37 If so, what are the main procedural steps to obtain clearance?Not applicable.

38 If no clearance is obtained, what procedures apply to recover unlawfully granted state aid?

Not applicable.

Miscellaneous

39 Is there any aviation-specific passenger protection legislation?

No. However, the Aviation Law provides basic and general rules regarding cancellation and airfares. In addition, general provisions of the Civil Law 1977 and the Commercial Code 1955 would be applicable with regard to denied boarding, cancellation and delays.

40 Are there mandatory insurance requirements for the operators of aircraft?

Yes. Article 10 of the Aviation Law stipulates that air carriers shall obtain insurance for the aircraft, flight crew, passengers, luggage and cargo in accordance with the international conventions and applicable laws and regulations.

41 What legal requirements are there with regard to aviation security?

In view of the Aviation Law, the CAA is responsible for security of the civil aircraft, airports and aviation facilities with coordination of the relevant law-enforcement agencies in accordance with ICAO standards and inter-national procedures. To this end, the CAA takes all necessary measures with regard to security of airports, passengers and crew screening includ-ing aerodrome security.

42 What serious crimes exist with regard to aviation?The Aviation Law and other criminal laws of Afghanistan establish a num-ber of crimes relating to aviation that include:• any act of aggression against a person on-board an aircraft in flight if

such action endangers the safety of the aircraft;• use of force or threat to use force and seizure of an aircraft thereof; and• hijacking of an aircraft.

M Wisal Khan [email protected] Ghazi Khan [email protected]

2nd FloorPark Plaza, Shahr e NawKabulAfghanistan

Tel: +93 20 221 1427www.legaloracles.com


Freidenberg, Freidenberg & Lifsic ARGENTINA


ArgentinaElizabeth Mireya FreidenbergFreidenberg, Freidenberg & Lifsic

General

1 Which bodies regulate aviation in your country, under what basic laws?

The National Civil Aviation Agency (ANAC) (Executive Decree 239/2007 and Executive Decree 1770/2007). ANAC has authority regarding the compliance with the Argentine Aeronautical Code (AAC) and bilateral and multilateral international agreements, to which Argentina is a party and all matters regarding air transport and civil aviation and airport activities, as well as developing Argentina’s air policy.

In accordance with Executive Decree 1770/07, articles 13 and 26, the Secretary of Transportation (ST) will deal exclusively with fare regulations, air policy related to the concession of airports and traffic rights and the negotiation of bilateral agreements.

As of 1 July 2009, ANAC has jurisdiction over:• operational matters;• the granting of slots (in conjunction with the airport concessionaire in

certain airports);• the granting of traffic rights to the carriers;• the granting of licences to technical personnel;• operators;• technical certification of aircraft; and• handling of the aircraft registry, the accidents investigation board,

meteorology.

Since the creation of Executive Decree 1840/2011, air traffic control has been under the jurisdiction of the Argentinian Air Force General Directorate of Air Traffic Control and overseen by ANAC.

The basic aeronautical laws and regulations are Law No. 17,285, as amended by Law No. 22,390 (ACC) and Executive Decree 326/82, which regulate the activities connected with the civil and commercial use of pri-vate aircraft, infrastructure, liability, insurance, contracts on aircraft, the National Aircraft Register, personnel, etc.

Article 2 of the AAC sets forth that when a matter is not contemplated within its norms, the matter has to be resolved by the general principles of aeronautical rules, uses, traditions and customs of the aeronautical activ-ity. If the solution of the case remains confused despite the application of those rules, analogous laws and general principles of the law of the country should be applied.

Executive Decree 919/2010 created the Ministry of Tourism. The decree provides that the Ministry of Tourism will, in connection with the ST, participate in the elaboration, implementation and coordination of the air transport policy only when it is related to a tourism matter.

Other air transport regulations include Law No. 19,030 as amended by Law No. 19,534 (the National Policy on Commercial Air Transport), Law No. 26,102 Airport Security Police (PSA), Executive Decree No. 239/07 as amended by Executive Decrees 1770/2007, 52/94 as amended by Executive Decrees 1012/2006, 2186/92, 1401/98, 1470/97, Executive Decree 1364/90 regulated by Air Force Resolution 444/91, and Executive Decree 2145/73 as amended by Executive Decrees 480/94 and 698/01. Argentine Civil Aviation Regulations (RAAC) approved by ANAC Resolution No. 3/2005 and many others also regulate air transport in Argentina.

Argentina has ratified the following multilateral conventions:• Decree-Law No. 15,110/46, Law No. 13,891 and Law No. 25,622 (ratifi-

cation of the Chicago Convention 1944);

• Law Nos. 22,028, 23,399 and 23,519 (ratification of the 1977, 1984 and 1980 Montreal amendments to the Chicago Convention);

• Law No. 14,111 (ratification of the Warsaw Convention 1929);• Law No. 17,386 (ratification of the Hague Protocol 1955);• Law No. 23,556 (ratification of the 1975 Montreal Protocols modifying

the Warsaw Convention and the Hague Convention);• Decree-Law No. 12,359/57 (ratification of the Geneva Convention 1948

on the International Recognition of Rights in Aircraft);• Law No. 17,404 (ratification of the Rome Convention 1952 on Damage

Caused by Foreign Aircraft to Third Parties on the Surface);• Decree-Law No. 18,730/70 (ratification of the Tokyo Convention 1963

on Offences and Certain Other Acts Committed on Board Aircraft);• Law No. 19,793 (ratification of the Hague Convention 1970 for the

Suppression of Unlawful Seizure of Aircraft);• Law No. 20,411 (ratification of the Montreal Convention 1971 for the

Suppression of Unlawful Acts Against the Safety of Civil Aviation);• Law No. 23,111 (ratification of the Rome Convention 1933 for the

Unification of Certain Rules on Precautionary Arrest of Aircraft);• Law No. 23,915 (ratification of the 1971 Protocol for the Suppression

of Unlawful Acts of Violence at Airports Serving International Civil Aviation);

• Law No. 25,806 (sub-regional agreement with Bolivia, Chile, Brazil, Paraguay, Peru and Uruguay. Fortaleza Agreement for the exchange of traffic rights in routes outside of the scope of the bilateral air services agreements between those countries);

• Law No. 26,451 (the Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28 May 1999); and

• Law No. 14,457 (ratification of the 1948 Geneva Convention on the international recognition of rights in aircraft).

Argentina has also signed bilateral agreements on air transport services with the following countries ratified by the following laws:• Law No. 23,339 (Germany);• Law No. 17,988 (Bolivia);• Law No. 13,920 (Brazil);• Law No. 23,453 (Canada);• Law No. 25,834 (Korea);• Law No. 25,836 (Netherlands);• Law No. 23,970 (Denmark);• Law No. 23,426 (United States);• Decree-Law No. 35,544 (Spain);• Decree-Law No. 431/63 (Switzerland);• Law No. 23,558 (France);• Law No. 25,805 (Russia);• Law No. 13,913 (Italy);• Law No. 25,397 (Malaysia);• Law No. 22,912 (Mexico);• Law No. 25,621 (Mexico);• Law No. 23,969 (Norway);• Law No. 23,911 (New Zealand);• Law No. 17,103 (Paraguay);• Law No. 25,833 (UK);• Law No. 26,188 (China);• Law No. 25,025 (Singapore);• Law No. 24,237 (Sweden);


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• Law No. 16,748 (Switzerland);• Law No. 26,450 (Panama);• Law No. 26,677 (Ecuador); and• Memorandum No. 2074 (Qatar).

Memoranda of consultation have been agreed between Argentina and most of the countries with which it has signed the above agreements to amend or modify the ratified agreements.

Bilateral air services agreements have also been signed with Turkey, the United Arab Emirates and South Africa, but they still have not been ratified by law.

Other memoranda of consultation have been signed with countries with which no bilateral air services agreements are in force.

Regulation of aviation operations

2 How is air transport regulated in terms of safety?The ANAC (formerly the AAF) sets out the rules on safety and checks compliance.

Every aircraft must fly with a pilot on board who is the principal authority. In the case of danger, the captain must stay at his or her position until all of the safety measures have been taken. He or she ensures the effi-ciency of the aircraft and the safe conditions of the flight before taking off. A mechanic licensed by the Argentine Authority must approve the safety conditions of the aircraft before it takes off. A flight dispatcher licensed by the Argentine Authority takes responsibility for the weight and balance of the aircraft before it takes off, even if remote dispatch is implemented.

As of 1 July 2009, ANAC establishes general rules related to aircraft circulation and may impose restrictions when national defence, public interest or the safety of the flight is at risk.

No aircraft can fly without a crew with valid licences, aircraft airwor-thiness and registration certificates, and a logbook. It is also required that when an aircraft has been repaired, modified or built, that an inspection is carried out by the aeronautical authority before an aircraft can take off. The authority can inspect persons, aircraft, crew and carried goods, particularly those that may endanger the safety of the flight, before departure, during flight, upon landing and while on the ground, taking the proper measures to secure the safety of the flight (AAC sections 3, 8, 9, 10, 12 and 13, Law No. 24,051 on Hazardous Remains). The PSA is in charge of security within the airport terminals and ramp according to Law No. 26,102. A National Safety Operational Programme for Civil Aviation (2008/2011) was approved by the Argentine Air Force on 2/5709 by Disposition 28/2009 and revised by Disposition 074/10.

ANAC is responsible for compliance with the Chicago Convention norms and its Annexes regarding safety.

3 What safety regulation is provided for air operations that do not constitute public or commercial transport and how is the distinction made?

Section 92 of the AAC makes a distinction between air service transporta-tion (the commercial transportation on an aircraft of passengers or goods from one airport to another), and aerial work, which includes all com-mercial air operations that are not transportation. To perform aerial work, operators need an authorisation granted by ANAC (AAC section 131/32).

Aircraft performing aerial work must comply with the general aviation regulations and the rules applicable to any special equipment they carry on board.

Safety is governed by the AAF Resolution (RAAC) approved by the Joint Resolution 3/2005 issued by three AAF agencies (the Air Transport Authority, the Air Navigation Authority and the Air Licensing Authority). On 18 November 2010, ANAC issued Resolution 980 approving modifica-tion No. 2 to the third edition of the Civil Avation Regulations with regard to Parts 1, 18, 61, 63, 64, 65, 67, 91, 119, 121, 135 and 145 (see www.anac.gov.ar).

4 Is access to the market for the provision of air transport services regulated and, if so, how?

For the provision of domestic transport, according to sections 97 and following of the AAC, Argentine individuals or corporations domiciled in Argentina may be eligible to obtain an authorisation from the federal government (see question 5).

Domestic and international scheduled services are granted by con-cession of the executive authority (ANAC or ST) but the concession to operate a route does not imply exclusivity.

Non-scheduled domestic and international services require authorisa-tion granted by the same listed authority.

International transport may be operated by foreign companies in accordance with the international air services agreements signed by Argentina, or under authorisation from the Argentine federal authority (ANAC) in the legal framework of Law No. 19,030 as amended by Law No. 19,534.

5 What requirements apply in the areas of financial fitness and nationality of ownership regarding control of air carriers?

According to AAC article 105, no permit or concession will be granted with-out examining the technical expertise and financial soundness of the peti-tioner. Such control is conducted throughout the duration of the permit or concession once granted by the authority. A permit or concession may be revoked by the Aeronautical Authority upon failure to comply with any pre-established condition attached to the granting of the permits.

According to section 99 of the AAC, 51 per cent of the share capital of an air carrier must be owned by Argentine individuals or Argentine legal entities, who must be domiciled in Argentina. In the case of legal enti-ties, the president of the corporation must be Argentine and 51 per cent of the members of the administrative bodies must also be Argentine. Furthermore, the chairman of the board and two-thirds of the board members must also be Argentine. The AAC (section 129) establishes a public hearing procedure for Argentine carriers requesting a concession or permit, which is regulated by Executive Decree 1492/92 as amended by Executive Decree 2186/92. Aircraft with a take-off weight of less than 38 tons can be excluded from this procedure.

Executive Decree 52/94 as amended by Executive Decree 1012/06 has clarified that Argentine commercial corporations as referred to in section 99 of the AAC may apply for the granting of a permit or concession even if its shareholders are foreigners.

There are several law projects to derogate both decrees, but at the time of writing none of them has been formally discussed by Congress.

6 What procedures are there to obtain licences or other rights to operate particular routes?

The licence or concessions procedure to operate particular routes is estab-lished by Law No. 19,030 as amended by Law No. 19,534 and by Executive Decree 2186/92. Licences are granted in relation to certain routes and for a period that will not exceed 15 years (the licence is renewable). See ques-tion 5.

7 What procedures are there for hearing or deciding contested applications for licences or other rights to operate particular routes?

The party interested in obtaining licences to operate commercial air ser-vices will have to describe the characteristics of the service it intends to operate and provide the documentation required by law. After the applica-tion is filed by the carrier, the authority will check if all the requirements have been met and notify the interested parties that a public hearing will be called. The interested parties must register with the Air Transport Board to take part in the hearing and be able to contest the application of the peti-tioners (AAC 129, Executive Decrees 1492/92 and 2186/92).

8 Is there a declared policy on airline access or competition and, if so, what is it?

Law No. 19,030 as amended by Law No. 19,534 governs Argentine Air Policy.

From 1998 onwards, permits and concessions to new carriers have only been granted on the basis of unsatisfied demand for certain routes. A detailed procedure to ascertain the unmet demand and the granting of routes is estab-lished in Annex 2 to Executive Decree No. 1401/98 as amended by Executive Decree 2186/92. Antitrust Law No. 25,156 may apply to airline agreements and mergers (see question 28).


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9 What requirements must a foreign air carrier satisfy in order to operate to or from your country?

The party interested in obtaining traffic rights to operate between a for-eign country and Argentina and vice versa must comply with the following requirements:• a diplomatic designation by the country of the carrier’s flag;• the foreign carrier must register as an Argentine branch of the foreign

corporation at the Argentine Superintendency of Corporations under the terms of section 118 of the Corporations Law No. 19,550; and

• once the foreign carrier has been duly registered in Argentina as a branch it must request the authorisation to operate international scheduled or non-scheduled air services to the Argentine Aeronautical Authority and provide:• the corporation’s documents;• the commercial and operative permits obtained in its country of

origin;• details of the aircraft that it intends to operate in the route;• certificates of registration and airworthiness;• an insurance certificate that covers the carrier’s operations; and• its liability regarding its passengers, cargo and mail, third parties

on the ground and crew members.

10 Are there specific rules in place to ensure aviation services are offered to remote destinations when vital for the local economy?

Sections 48 to 50 of Law No. 19,030 establish that public transport services may be authorised if there is a national interest in providing services to areas where public transport needs are not fulfilled.

Executive Decree No. 1012/2006 sets out that the provisions for emer-gency air transport in Argentine territory previously declared by Executive Decree 1654/2002 will continue. The main reason for the continuity of air transport emergency provisions is to protect transport to remote destina-tions and keep the different areas of Argentina connected.

Article 138 AAC sets forth that certain routes of special interest to Argentina may be subsidised under certain conditions.

11 Are charter services specially regulated?Charter services are regulated by Executive Decree, 1470/97, 1364/90 (Incoming), Resolution ST No. 205/1998 and Tourism Secretary Resolution No. 173/95 (outgoing). Some bilateral agreements contain provisions on charter flights.

12 Are airfares regulated and, if so, how?Resolution SSTA 275/87 establishes that there are minimum and maxi-mum limits for domestic fares for each route. Carriers must notify the ST of the fares that will apply for each route. Executive Decree 1012/06 sets forth that fares for domestic transport must be charged by the carriers with regard to Executive Decree No. 1654/2002 and complementary Resolution 35 of the Ministry of Production, which establishes the possibility of apply-ing touristic fares from those fixed, on routes of geopolitical, strategic or tourism interest. From time to time the ST has authorised increases in domestic airfares (ie, Resolution ST 257/08, ST 210/10 and ST 23/2012).

International airfares are deregulated but carriers must register its applicable airfares with ANAC.

Aircraft

13 Who is entitled to be mentioned in the aircraft register? Do requirements or limitations apply to the ownership of an aircraft listed on your country’s register?

Section 48 of the AAC, as governed by Executive Decree 4907/73, states that the only requirement for registering an aircraft in Argentina is to have legal domicile in the country, which applies to both individuals and corporations.

Section 42 of the AAC sets out that aircraft that have a take-off weight of more than six tons may obtain a provisional Argentine registration if they comply with certain requirements. In this case the owner or mortga-gee of the aircraft (or both) is recorded in the aircraft register. This section is used by Argentine carriers when leasing or acquiring aircraft in a foreign country to obtain a provisional Argentine registration until the full price agreed for the transaction is fully paid.

If the aircraft weighs less than six tons it can bear provisional Argentine registration if it is connected with a carrier holding commercial authority (article 43 CCA).

14 Is there a register of aircraft mortgages or charges and, if so, how does it function?

Mortgages and any rights on aircraft are registered at the Public Aircraft Registry.

A public or private instrument, duly notarised and legalised by the nearest Argentine consulate or apostilled if the transaction was imple-mented outside Argentina, is necessary for registration (AAC sections 45, 52, 53 and sections 1 and 28 of Executive Decree 4907/73).

The Aircraft Registry functions under the AAC and regulations estab-lished by Decree 4907/73. The registry issues regulations from time to time that must be complied with by the parties that intend to register rights on aircraft.

15 What rights are there to detain aircraft, in respect of unpaid airport or air navigation charges, or other unpaid debts?

Section 73 of the AAC sets forth the only five scenarios where an aircraft may be detained:• in case of a judicial sentence being executed;• in case of credits being granted for the accomplishment of a trip;• in case of unpaid credits originating in an aircraft contract of sale;• in case of unpaid airport fees for more than three months (according to

Executive Decree 1674/1976); and• in case of non-compliance with certain regulations (deportees) set

forth in the Immigration Law No. 25871 (article 48).

Finally, it should be noted that Argentina is a party to the Convention for the Unification of Certain Rules relating to the Precautionary Attachment of Aircraft (Law 23,111).

16 Do specific rules regulate the maintenance of aircraft?Maintenance is regulated by the the RAAC and the Regulations of Airworthiness issued by ANAC (formerly the AAF). Those regulations apply to all aircraft that bear Argentine registration and also to aircraft with a foreign registration if they are operating for an Argentine carrier.

Airports

17 Who owns the airports?Section 25 of the AAC establishes that airports may be public or private. Public airports are owned by the provincial or federal government and may be granted in concession to private entities.

18 What system is there for the licensing of airports?The licences are granted by the executive power by means of public bidding.

19 Is there a system of economic regulation of airports and, if so, how does it function?

For airports that have been privatised, the terms and conditions of the con-cession are to be complied with by the concessionaire. Such terms and con-ditions require the concessionaire, among other obligations, to pay a fee and to make certain investments in each of the privatised airports. Some concessionaries must pay a fixed fee, and others pay a percentage of the income they receive.

Investments, control and planning of the privatised airports must be regularly reported to the Regulatory Agency for the National System of Airports (ORSNA) for approval.

Aeropuertos Argentina 2000 SA (AA2000) is the current conces-sionaire of 33 airports of the National Airport System including Ministro Pistarini, Ezeiza Airport and Aeroparque Jorge Newbery, serving Buenos Aires. This concession contract was renegotiated in 2007 as set forth in Executive Decree 1799/2007. By the negotiation terms the AA2000 has the obligation to invest in the airport but not to pay a fee. This concession is controlled by the ORSNA.

Many investments will be made by forming a trust. The airport conces-sionaire will assign part of the airport fees and taxes to a fiduciary trustee in order to grant the execution of new construction.


ARGENTINA Freidenberg, Freidenberg & Lifsic


20 Are there laws or rules restricting or qualifying access to airports?

Access to public airports should be granted by ANAC, in the framework of Title I, Chapter I of the AAC. Every commercial arrival or departure to public airports must be authorised by ANAC.

In order to operate international flights the airport must have been qualified as an international airport by the aviation authority.

Airport access restrictions (operation procedures) are published in NOTAMs (notices concerning the conditions or changes to any facility) issued by the aviation authority.

21 How are slots allocated at congested airports?Disposition 006/2003 issued by the former Undersecretary of Civil Aviation that established the slot allocation procedure was replaced by ANAC Resolution No. 764/10.

Before a scheduled or non-scheduled commercial service is approved by the Aviation Authority the airport principal (appointed by the Aviation Authority) and the airport administrator (appointed by the airport owner or concessionaire) must approve the slots. There are no specific rules for congested airports.

22 Are there any laws or rules specifically relating to ground handling?

Executive Decree 2145/73 sets forth that the AAF is the exclusive provider of ground handling to airlines at airports and authorises the AAF to assign such service to third parties. Consequently, the AAF has assigned the right to perform ground handling to a state-owned corporation, Intercargo SAC.

Executive Decrees 480/94 interpreted Executive Decree 2145/73 as follows: carriers operating in Argentine airports may self-handle but may not provide services to other operators.

Executive Decree 698/01 removed for domestic carriers the handling services exclusivity, allowing carriers to provide handling services not only to themselves but also to other domestic operators.

See question 1 regarding AAF duties being transferred to ANAC.ORSNA Resolution 421/11 establishes new fares for ramp services.

23 Who provides air traffic control services? And how are they regulated?

On 30 July 2015, Law 27.161 was published in the Argentine Public Gazette. Law 27.161 creates a government agency with the purpose of providing air navigation services. The agency is Air Navigation Company Argentina Sociedad del Estado (EANA SE) within the legal framework of the Ministry of the Interior and Transportation. This newly created government agency will provide service for commercial and civil navigation services since the wording of the law specifically exempts services provided at airports by the Ministry of Defence.

The role of Law 27.161 is to provide an essential public service and describes which are the public services that it will provide: administra-tion of air transit and ATC; administration of air traffic flow management, airspace management, aeronautical information services, aeronautical communication services, communications, navigations and surveillance, aeronautical meteorological services, search and rescue and the Airport Reservation Office.

EANA SE will be a state-owned company and its shareholders will be the Ministry of the Interior and Transportation and the Ministry of Defence.

The services to be provided by EANA SE are those that at this time are provided by the Argentine Air Force and the personnel and budget of the latter will be transferred from the Air Force to EANA SE.

EASA SE will be ruled by the legal norms and principles of private cor-porations. The employee contract of EANA SE will be ruled by the labour law.

In addition, the fees charged for the provision of services to users will constitute, among other funds, the budget of EANA SE.

Liability and accidents

24 Are there any special rules in respect of death of, or injury to, passengers or loss or damage to baggage or cargo in respect of domestic carriage?

According to sections 139 to 154 of the AAC, the carrier is responsible for the damages caused by death or corporal injury suffered by a passenger

when the accident that occasioned the damage had taken place on board the aircraft or during embarkation or disembarkation. (Note that Argentine courts also award moral, not just corporal, damages.) The carrier is also responsible in cases of destruction, loss or damage of registered luggage and cargo, when the cause of the damage has taken place during transpor-tation. The carrier will not be held responsible if it proves that it has taken all the necessary measures to avoid the damage, that it was impossible for it to take them, or if it proves that the person that has suffered the damage caused it or contributed to causing it.

The carrier’s liability is limited. The limitation will not, however, oper-ate when the damage is caused by its wilful misconduct or by a carrier’s employee.

Argentina is a party to the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 (Law No. 14,111); the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 and signed at The Hague on 28 September 1955 (Law No. 17,386); the Additional Protocols No. I, II, III and IV to amend the Convention for the Unification of Certain Rules Relating to International Carriage By Air signed in Warsaw on 12 October 1929 (Law No. 23,556) and the Convention for the Unification of Certain Rules for International Carriage by Air signed in Montreal on 28 May 1999 (Law No. 26,451).

25 Are there any special rules about the liability of aircraft operators for surface damage?

The operator is responsible for damages caused by an aircraft in flight or a person or a thing thrown from it or abnormal noise. The responsibility of the operator can be attenuated or exempted, if it proves that the victim caused the damage or contributed to causing it. Liability is limited accord-ing to the aircraft’s take-off weight (sections 155 to 162 of the AAC). Law No. 23,111 ratified the Rome Convention 1933 for the Unification of Certain Rules on Precautionary Arrest of Aircraft.

26 What system and procedures are in place for the investigation of air accidents?

Accident investigations are regulated by Annex 13 to the Chicago Convention, AAC sections 185 to 190 and Executive Decree 934/70.

The Accidents Investigation Board, which was within the jurisdiction of ANAC, was moved by Executive Decree 1192/10 to the jurisdiction of the secretary of transportation. The Accidents Investigation Board is in charge of carrying out the investigation. It will determine the causes of accidents and incidents to aircraft or produced by them.

27 Is there a mandatory accident and incident reporting system and, if so, how does it operate?

Sections 185 to 190 of the AAC and Executive Decree 934/70 govern acci-dent investigations in Argentina.

According to the above norms, any person who knows of a flight acci-dent or incident has to communicate this to the closest authority (military agency or police) who will immediately notify the Accidents Investigation Board. Until the arrival of the personnel in charge of the investigation a guard must be stationed at the accident site to avoid the site being dis-turbed or evidence being removed.

Competition law

28 Do sector-specific competition rules apply to aviation? If not, do the general competition law rules apply?

There are no sector-specific competition rules applied to aviation, general competition rules apply instead.

Antitrust Law No. 25,156 establishes a procedure to avoid disloyal com-petition based upon the abuse of a dominant position.

29 Is there a sector-specific regulator or are competition rules applied by the general competition authority?

The competition rules are applied by the National Antitrust Commission (CNDC), which is the competition authority.

The CNDC must request the opinion of the aviation authority in avia-tion-related matters.


Freidenberg

· 2020. 9. 3. · Air Transport 2016 Contributing editors John Balfour and Mark Bisset Clyde & Co...

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