New EU rules to improve transparency of decisions on airport noise

European Commission Press Release – Brussels, 16 April 2014

The European Commission welcomes today’s decision by the European Parliament to make the rules on noise-related operating restrictions more transparent and evidence-based.

Commission Vice-President Siim Kallas, responsible for transport, said: “These new rules will make it easier to find solutions that will satisfy citizens living close by the airports without losing sight of the important economic impact that those airports have on local economies, and in full respect of international rules.”

With these new rules, national and local authorities keep responsibility for concrete decisions about noise-related operating restrictions, tailored to the particular characteristics of each airport. However, those decisions will be taken following an EU harmonised process. This will guarantee a fair outcome for all. The role of the Commission will be to review the quality of the process and, if necessary, take appropriate legal action before restricting measures are implemented, in order to guarantee the rights of citizens, businesses and all interested parties.

Noise restrictions are measures affecting the capacity of an airport to operate, for instance by introducing noise quotas, restricting the use of runways, phasing-out the noisiest aircraft or imposing night bans.

The process for any future decision on airport noise focuses on:

Evidence gathering on the basis of internationally recognized data and methods;

Timely and substantial consultations with all stakeholders;

Provision of sufficiently long notification times to the impacted operators.

Finally, national authorities will decide what is the acceptable level of noise for each specific case and find the most cost-effective solution to mitigate the noise impact.

Background information

Air traffic noise affects some 2.5 million citizens in Europe. At the same time, aviation activities boost local economic growth and employment. The challenge is to pursue regional and local policies which maximize connectivity, whilst mitigating the environmental impact of noise.

The new rules will facilitate this process. They clarify the relationship with strategic noise mapping actions undertaken under the Environmental Noise Directive and they strengthen the evidence base for decision makers so that the most cost-effective measures can be selected. The new rules are fully compliant with the international principles on noise management, the so-called ‘Balanced Approach’ developed by the International Civil Aviation Organization (ICAO).

The measures were proposed by the Commission as part of the Better Airport package. The proposals on slots and groundhandling are still pending.

What happens next?

Today’s decision ends the ordinary legislative procedure. The President of the Council and the President of the European Parliament now have to sign the European law. The new rules will then be published in the coming months. They are expected to enter into force two years after publication, i.e. around mid-2016.

European Commission calls for tough standards to regulate civil drones

European Commission Press Release – Brussels, 8 April 2014

The European Commission has today proposed to set tough new standards to regulate the operations of civil drones (or “remotely piloted aircraft sytems” – RPAS). The new standards will cover safety, security, privacy, data protection, insurance and liability. The aim is to allow European industry to become a global leader in the market for this emerging technology, while at the same time ensuring that all the necessary safeguards are in place.

Civil drones are increasingly being used in Europe, in countries such as Sweden, France and the UK, in different sectors, but under a fragmented regulatory framework. Basic national safety rules apply, but the rules differ across the EU and a number of key safeguards are not addressed in a coherent way.

Vice-President Siim Kallas, Commissioner for mobility and transport, said: “Civil drones can check for damage on road and rail bridges, monitor natural disasters such as flooding and spray crops with pinpoint accuracy. They come in all shapes and sizes. In the future they may even deliver books from your favourite online retailer. But many people, including myself, have concerns about the safety, security and privacy issues relating to these devices.”

The technology for civil drones is maturing and there is potential for significant growth and job creation. On some estimates in the next 10 years it could be worth 10% of the aviation market — that’s €15 billion per year. The Vice-President added, “If ever there was a right time to do this, and to do this at a European level, it is now. Because remotely piloted aircraft, almost by definition, are going to cross borders and the industry is still in its infancy. We have an opportunity now to make a single set of rules that everyone can work with, just like we do for larger aircraft.”

The new standards will cover the following areas

Strict EU wide rules on safety authorisations. Safety is the first priority for EU aviation policy. EU standards will be based on the principle that civil drones (remotely piloted aircraft) must provide an equivalent level of safety to ‘manned’ aviation operations. EASA, the European Aviation Safety Agency, will start developing specific EU-wide standards for remotely piloted aircraft.

Tough controls on privacy and data protection. Data collected by remotely piloted aircraft, must comply with the applicable data protection rules and data protection authorities must monitor the subsequent collection and processing of personal data. The Commission will assess how to ensure data protection rules apply fully to remotely piloted aircraft and propose changes or specific guidance where it is needed.

Controls to ensure security. Civil drones can be subject to potential unlawful actions and security threats, like other aircraft. EASA will start work to develop the necessary security requirements, particularly to protect information streams, and then propose specific legal obligations for all players concerned (e.g. air traffic management, the operator, the telecom service providers), to be enforced by national authorities.

A clear framework for liability and insurance. The current third-party insurance regime has been established mostly in terms of manned aircraft, where mass (starting from 500kg) determines the minimum amount of insurance. The Commission will assess the need to amend the current rules to take into account the specificities of remotely piloted aircraft.

Streamlining R&D and supporting new industry. The Commission will streamline R&D work, in particular the EU R&D funds managed by the SESAR Joint Undertaking to keep lead times for promising technologies for the insertion of RPAS into the European airspace as short as possible. SMEs and start-ups in the sector will get industrial support to develop appropriate technologies (under Horizon 2020 and COSME programmes).

What happens next?

The Commission will carry out in 2014 an in-depth impact assessment to examine the issues and define the best options to address them. This may be followed by a legislative proposal, to be approved by Member States and the European Parliament. In addition, EASA can immediately start to develop the necessary safety standards. Other measures may include support actions under existing EU programmes such as SESAR, Horizon 2020 or COSME. All this work aims to meet the stated objective of the European Council of December 2013 to ensure the progressive integration of RPAS into airspace as from 2016.

Ryanair’s attempt to recover Air Passenger Duty from HMRC

Ryanair Ltd v HM Revenue and Customs [2014] EWCA Civ 410
Court of Appeal
The Master of the Rolls, Lord Justice Patten, Lord Justice Pitchford
4 April 2014

Ryanair made a claim to recover Air Passenger Duty (APD) totalling £10,230,613 which it alleged was overpaid between 16 September 2007 and 31 March 2011. The claim was rejected by HMRC and Ryanair appealed against the refusal under s.16 Finance Act (FA) 1994. At a subsequent hearing before the First-tier Tribunal, the FTT transferred to the Upper Tribunal (Tax and Chancery Chamber) the issues of the proper construction of the relevant provisions of FA 1994 and the orders made under it and whether, on the proper construction of those provisions, Ryanair was entitled to the benefit of an exemption for connected flights. Ryanair also issued proceedings in the Administrative Court for judicial review of HMRC’s treatment of it in respect of the connected flights exemption which it alleged was substantially unfair and inconsistent in the way that it has allowed some other airlines to enjoy the benefit of the exemption even though they do not issue conjunction tickets as defined but has refused to extend the concession to Ryanair.

For further UK case law, see our United Kingdom – Cases page.

MEPs back CO2 permit exemption for long-haul flights

MEPs back CO2 permit exemption for long-haul flights

Press release 03-04-2014

EU legislation on aviation emission allowances would cover only intra-EU flights until the start of 2017, but would apply to all flights to or from the EU thereafter, under rules approved by Parliament on Thursday. The legislation would also require EU member states to report on how they spend revenue from auctioning emission allowances.

“For the environment, this text is not only better than the Council position, but also better than the Commission proposal. I thank my colleagues for giving it the support it deserved”, said lead MEP Peter Liese (EPP, DE) on Wednesday. The informal agreement struck with Council of Ministers was approved by 458 votes to 120 with 24 abstentions, despite having been opposed by the Environment Committee in March.

“The key element for us concerns the scope. The Emissions Trading System will again apply in full after 2016. Parliament could not accept the Council’s wish to ‘stop the clock’ until 2020. We have the next International Civil Aviation Organization (ICAO) assembly in 2016, and if it fails to deliver a global agreement, then nobody could justify our maintaining such an exemption for another four years”, Mr Liese added.

Clarity on how ETS auction revenues are spent

In negotiations, MEPs also secured provisions requiring member states to report on how they spend revenues from ETS allowance auctions. Those revenues should be used to tackle climate change and fund research, inter alia for low-emissions transport, in particular in aeronautics. Such transparency is key to underpin the EU’s international commitments, MEPs say.

Next steps

The legislation now needs to be approved by the Council of Ministers.

Background

The International Civil Aviation Organisation (ICAO) agreed at its 38th assembly to adopt a global market-based measure (MBM) on aviation greenhouse gas emissions in 2016, to be implemented by 2020. To bridge the time gap, the Commission tabled new draft legislation in 2013 which aimed to reduce the proportion of emissions to which the ETS scheme would apply for flights to and from countries outside the EU until 2020.

Procedure: Co-decision (Ordinary legislative procedure), first reading agreement

REF: 20140331IPR41187

CJEU Decision in International Jet Management

International Jet Management
Case C-628/11, Court of Justice of the European Union, 18 March 2014

EU – discrimination – operating licences

Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, is applicable to a situation such as that at issue in the main proceedings, in which a first Member State requires an air carrier holding an operating licence issued by a second Member State to obtain an authorisation to enter the airspace of the first Member State to operate private flights in non-scheduled traffic from a third country to that first Member State, although such an authorisation is not required for air carriers holding an operating licence issued by that first Member State.

Article 18 TFEU must be interpreted as precluding legislation of a first Member State which requires, on pain of a fine, an air carrier holding an operating licence issued by a second Member State to obtain an authorisation to enter the airspace of the first Member State to operate private flights in non-scheduled traffic from a third country to that first Member State, although such an authorisation is not required for air carriers holding an operating licence issued by that first Member State, and which makes the grant of that authorisation subject to production of a declaration confirming that the air carriers holding an operating licence issued by that first Member State are either not willing to operate those flights or are prevented from operating them.

For further CJEU case law, see our European Law – Cases page.

2014: Volume 39(2) of Air & Space Law is now available

The second issue of Volume 39 contains the following articles:

Sofia Michaelides-Mateou & Chrystel Erotokritou, ‘Flying into the Future with UAVs: The Jetstream 31 Flight’ (2014) Air & Space Law, Vol. 39(2), 111–129

Ruwantissa Abeyratne, ‘The Aviation System Block Upgrades: Legal and Regulatory Issues’ (2014) Air & Space Law, Vol. 39(2), 131–154

Manu Mohan, ‘Ray of Hope for Airline Alliances: Consideration of Out of Market Efficiencies by the European Commission’ (2014) Air & Space Law, Vol. 39(2), 155–162

Geoffrey Deasy, ‘EU Competition Law Developments in the Aviation Sector from 4 July to 31 December 2013′ (2014) Air & Space Law, Vol. 39(2), 163–184

For further articles on or related to aviation law, see our Articles page.

Admissibility of Air Accident Investigation Branch Report in Fatal Accident Case

 Hoyle v Rogers & Anor [2014] EWCA Civ 257
Court of Appeal
Lady Justice Arden, Lord Justice Treacy, Lord Justice Christopher Clarke
13 March 2014

On appeal from the High Court decision of Mr Justice Leggatt: 2013 EWHC 1409 (QB)

On 15 May 2011 Orlando Rogers was a passenger in a vintage Tiger Moth propeller bi-plane manufactured in 1940 of which the appellant, Scott Hoyle, was the pilot. In the course of the flight the aircraft crashed to the ground. Mr Rogers was killed. Mr Hoyle was seriously injured but survived. The claimants, respondents to this appeal, who are Mr Rogers’ mother and sister, bring this action as executors on behalf of his estate and as dependants, claiming damages for his death as a result of the accident, which they attribute to Mr Hoyle’s negligence.

The Air Accident Investigation Branch (“AAIB”) investigated the accident and on 14 June 2012 produced a report (“the Report”). The issue in this appeal was whether the judge was right to hold that the Report was admissible in evidence and to decline to exclude it as a matter of discretion.

As to whether the Report was admissible, the judge held that “it is not apparent to me that any part of the Report should be regarded as simply expressing an opinion on matters of fact (as opposed to recording evidence) in relation to which the expertise of the AAIB has no relevance. But even if any part of the Report was (or proves on close analysis hereafter) to have that character, the correct approach is as outlined by the judge.” The Report is admissible for its record of factual evidence (of whatever degree of hearsay) and its expert opinion.

For further UK case law, see our United Kingdom – Cases page

 

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Supreme Court rules on the issue of damages for disability discrimination

Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15
UK Supreme Court
Lord Neuberger, Lady Hale, Lord Reed, Lord Hughes, Lord Toulson
5 March 2014

Watch the judgment being handed down here: http://www.youtube.com/watch?v=U76J4GilB-A

The issue was whether a court may award damages for a claimant’s discomfort and injury to feelings caused by a breach of the UK Disability Regulations. The conclusion of the lower courts was that any such award is precluded by the Montreal Convention, as adopted in the EU by the Montreal Regulation (or, to use its full title, “Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, as amended by Parliament and Council Regulation (EC) No 889/2002″).

Lord Toulson, with whom the other judges agreed, held that:
The claim (in question) was for damages for the humiliation and distress which Mr Stott suffered in the course of embarkation and flight. The particulars of injury to Mr Stott’s feelings and the particulars of aggravated damages related exclusively to events on the aircraft. In the course of argument it was suggested that Mr Stott had a complete cause of action before boarding the aircraft based on his poor treatment prior to that stage. If so, it would of course follow that such a pre-existing claim would not be barred by the Montreal Convention, but that was not the claim advanced. Mr Stott’s subjection to humiliating and disgraceful maltreatment which formed the gravamen of his claim was squarely within the temporal scope of the Montreal Convention. It is no answer to the application of the Convention that the operative causes began prior to embarkation. To hold otherwise would encourage deft pleading in order to circumvent the purpose of the Convention. Many if not most accidents or mishaps on an aircraft are capable of being traced back to earlier operative causes and it would distort the broad purpose of the Convention explained by Lord Hope in Sidhu to hold that it does not apply to an accident or occurrence in the course of international carriage by air if its cause can be traced back to an antecedent fault.

The [Montreal] Convention is intended to deal comprehensively with the carrier’s liability for whatever may physically happen to passengers between embarkation and disembarkation. The answer to that general question also covers the more specific question.

Under the law as it stands, a declaration that the carrier was in breach of the UK Regulations is likely to be small comfort to a passenger who has had Mr Stott’s experience, but I draw attention, as did Sotomayor CJ at the end of her opinion in King v American Airlines, to the fact that there are other possible means of enforcement. It is for the Civil Aviation Authority to decide what other methods of enforcement should be used, including possible criminal proceedings.

The embarrassment and humiliation which Mr Stott suffered were exactly what the EC and UK Disability Regulations were intended to prevent. I share the regret of the lower courts that damages are not available as recompense for his ill-treatment and echo their sympathy for him, but I agree with the reasoning of their judgments and would dismiss this appeal.

For further UK case law, see our United Kingdom – Cases page.

Donkers & Anor v Storm Aviation Ltd [2014] EWHC 241 (QB)

Donkers & Anor v Storm Aviation Ltd [2014] EWHC 241 (QB)

Judge B C Forster QC sitting as a Deputy Judge
20 February 2014

The court had to determine four preliminary questions:

(a) Whether and, if so, to what extent, the claim of Mr Donkers against the Defendant in tort is governed by German law;

(b) Whether and, if so, to what extent the claim of the BGT against Storm is governed by German law;

(c) Whether Storm’s claim against Lufthansa for a contractual indemnity under the Ground Handling Agreement is governed by German law; and

(d) Whether and, if so, to what extent, Lufthansa is entitled in principle to rely on any of the defences, exclusions, limitations, or conditions governing employer’s liability in German Social Accident Insurance Law (in particular those provisions contained in SS104 – 113 of SGB V11) in response to Storm’s claim against it, pursuant to Regulation (EC) 883/2004, or Article 93(1) of EEC Regulation 1408/71, or otherwise.

In sum, the court held:

(1) The Claim brought by the First Claimant is to be determined by English Law.

(2) The Claim of the Second Claimant is subject to German law only to the extent that any issue arises as to whether there has been a subrogation or as to the extent of the subrogation. The applicable law of the claim is English law.

(3) The Third Party cannot rely upon exclusions and limitations governing employers liability in German Social Accident Insurance Law.

(4) The Claim by the Defendant against the Third Party is to be determined by English Law.

For further UK case law, see our United Kingdom – Cases page.