Will SES require a new legal framework by A. Masutti

Will the Single European SkyWill the Single European Skyrequire a new legal framework for air transport?require a new legal framework for air transport?

Alias ConferenceJune, 14-15, 2012

Anna MasuttiUniversity of BolognaUniversity of Bologna

The Single European Sky: current framework

The European air traffic management (ATM) system currently handles around 26,000 flights daily.

Air traffic levels are likely to double by 2020.

As a response to the dramatic growth in air transport, the European Commission passed the two Single European Sky packages to create a legislative framework for European Aviation.

The SES framework establishes a harmonised regulatory framework in conjunction with airspace, service provision and interoperability regulations.


However, the regulatory framework of SES is still mainly public-law related:

the designation of Air Traffic Services Providers (ATSP) is a unilateral administrative decisionunilateral administrative decision of each designating State;

the competence of the State extends to the supervision of to the supervision of ATS activitiesATS activities: : it is however difficult to monitor these activities across national boundaries;

there are practical constraintspractical constraints imposed by national political issues;

the framework for the provision and supervision of cross-border services is not yet properly established in a number of Member States.


There are no liability provisions in the SES regulatory framework: unless there are specific arrangements between States, liability dispositions are generally regulated by the national provisions of the State over the territory of which services are provided.

This leads to fragmentation of regulation with reference to liability amongt all air transport operators.

Do we need a private-law regulation on civil liability in the SES framework?


If there are accidents within the SES framework, the only private-law discipline, set up in order to protect the victims of those accidents, is the one which provides for the liability of the air carriers and aircraft operators.


While for ATMs or airports, as well as for all the other operators (e.g. satellite services providers), there are no regulations which define their liability.

[Except for Product Liability for Manufacturers, Importers, Distributors And Installers]


What happens in absence of a regulation of liability on a private-law basis?

conflicts of laws and jurisdictions due to different nationalities of the parties involved, and State immunity problems;

impossibility to identify the liable party;

risk of not indemnifying the victims of accidents;

difficulties in exercising the right of recourse against the effective liable party and in recovering the due sums of money.


For instance, one of the regulations existing in the air transport framework provides for a detailed legislative discipline for the protection of the passengers:

Montreal Convention 1999 for the Unification of Certain Rules for International Carriage by Air and the Regulation n. 889/2002/EC on air carrier liability in the event of accidents. They ensure a proper level of compensation for passengers involved in air accidents.

Moreover, the liability of the air carrier is becoming more and more severe: EU Regulation n.261/2004/EC applies to compensate delays.


But…Art. 37 of Montreal Convention establishes that: “Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person”.

However, in absence of a specific regulatory framework for the liabilities of operators other than the carriers, such as airports, ATMs etc, this Article is hardly applicable in the future SES.


Another example of regulatory discipline for liability is the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, signed at Rome, on 7.10.1952.

It introduces a strict and limited liability regime for the aircraft operator in case of damage caused by an aircraft in flight.


Art. 10 of Rome Convention also establishes that: “Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person”,

Art. 16 par. 7 of Rome Convention, which introduces a compulsory TPL insurance regime, establishes that:“The provisions of this Article shall not prejudice the question whether the insurer or guarantor has a right of recourse against any other person”.


In the light of the above, it is clear that the current framework lacks a uniform regulation on liability, and that in this context it is difficult for the air carrier to recover the amounts paid to the victims from the liable subjects.More difficulties will certainly arise due to the fact that SES will be characterized by automation and interoperability among all the operators.


In the SES system there are different entities – ATMs, airports, services providers are involve


It is difficult to provide a single solution regarding the need for regulation relating to different operators, which act with different roles and in different fields.

An acceptable solution thus implies the existence of different legal provisions based on well recognized principles of private law.

They should be adequate to the role of each party involved, within all the specific instruments which form the entire infrastructure and the functioning of the SES system


Further to the observations raised by the parties involved in this field, we can examine various different SES component programmes to which the said principles could be applied, e.g.:

1) a regulatory system for interoperability between all the parties involved in the air transport service;

2) a regulatory system for new technologies framework liability, e.g. for GNSS;

3) a regulatory framework for the use of unmanned aircraft.

1) A legal framework for interoperability system

The ATM community has identified interoperability needs which involve transforming the ATM system from an essentially distributed network of independent units to an efficient network of integrated co-operators able to cope with significantly increased traffic.

The early introduction of System-Wide Information Management (SWIM) capability is necessary to facilitate this co-operation.

How can we design a Governance system for SWIM?


Possible solution for the Governance of SWIM:

The first step could be a “code of conduct”.

To ensure the functionality of the System a regulatory framework compulsory for all actors is needed.


a) A code of conduct for SWIM needs to contain compulsory rules which ensure the stability and security of the system and traceability and

b) a system of administrative sanctions for infringement of the above rules.

c) As an infringement could cause damage to third parties and/or their properties, a third party liability regime should be set up.


When damage is caused to the user by wrong or incomplete information, a liability system including a compensation system for damage of properties and personal injury to the victims should be designed.

Normally, principles of private law quite common to Member States for compensation of damage comprise the loss of profit and accruing damage, and these principles will be taken into due consideration.

When damage is caused also to a third party not linked to a liable party by any contract, a Third Party Liability System must be established, according to international principles.

2) A regulatory system for the liabilityfor the use of GNSS

Satellite technology increases efficiency, safety, security and environment.

Legal considerations:

Accidents caused by malfunctioning of a GNSS signal will involve various actors (GNSS operator, Air Navigation Service Providers, air carriers) of different countries (and some countries will not provide GNSS signal directly and will receive the service from other countries).

The major utilisation of GNSS are the Air navigation services (ANS).

ANS activity is mainly ruled by domestic legislation.

Since the beginning experts noticed the absence of EU regulation.

Same problems arise from lack of regulation for the GNSS:

Identification of the applicable law and jurisdiction;

State immunity (ANSP);

definition of the notion of ‘damage compensation’ if an accident occurs;

identification of the liable party;

civil liability regime for catastrophic events as a consequence of the use of the systems.


Main principles of the TPL regulation can be useful for a new regulation:

the channelling of liability to a single liable party (LP);

strict liability of the liable party;

limited liability of the liable party (first tier);

compulsory insurance of the liable party, up to the limit of the first tier, and direct claim against the insurer;

supplementary compensation if the damage exceeds the first tier (entering the second tier);

limitations of the amount of compensation.


3) A legal framework for unmanned aircraft

Also with regards to the UAS/RPA, the absence of regulation is commonly seen as a hindrance.

We need a civil and public law framework for a safe introduction of UASs into common airspace and remove some barriers.

3) A legal framework for unconventional aircraft

Europe needs UAS public law that incorporates all the elements required for manned aircraft such as airworthiness, certification, pilot training and licensing, but …

also civil law that clearly defines responsibility and consequently establishing a civil liability regime for third party damage.

It is clear that a compulsory insurance system should be provided.

3) A legal framework for unconventional aircraft

Today there are important reasons for integrating UASs for civil use in civil airspace.

The European Commission within the general aviation framework (SES, SESAR, GNSS etc.) has the capacity to design a regulatory framework to integrate UASs for civil use in civil airspace.

Conclusions

SES has no uniform provisions on liability based on principles of private law.

A global answer cannot be offered.

In addition, the future features characterizing SES will require a liability legal framework in case of damage caused to persons and properties.

This framework should also allow a right of recourse for the few subjects for which a TPL regulation has been already provided.

We certainly need more than one new legal framework in the SES structure, in order to fulfil the different needs of the different operators in the air transport sector.

Thank you

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Will SES require a new legal framework by A. Masutti