Will SES require a new legal framework by A. Masutti
Will the Single European Skyrequire a new legal framework for air transport? Alias Conference June, 14-15, 2012 Anna Masutti University of Bologna
The Single European Sky: current frameworkThe European air traffic management (ATM) system currentlyhandles around 26,000 flights daily.Air traffic levels are likely to double by 2020. As a response to the dramatic growth in air transport, theEuropean Commission passed the two Single European Skypackages to create a legislative framework for EuropeanAviation. The SES framework establishes a harmonised regulatoryframework in conjunction with airspace, service provision andinteroperability regulations.
The Single European Sky: current framework However, the regulatory framework of SES is still mainly public-law related: the designation of Air Traffic Services Providers (ATSP) is a unilateral administrative decision of each designating State; the competence of the State extends to the supervision of ATS activities: it is however difficult to monitor these activities across national boundaries; there are practical 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.
The Single European Sky: current framework 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?
The Single European Sky: current frameworkIf there are accidents within the SES framework, the only private-lawdiscipline, set up in order to protect the victims of those accidents, is theone which provides for the liability of the air carriers and aircraftoperators.
The Single European Sky: current frameworkWhile for ATMs or airports, as well as for all the other operators (e.g.satellite services providers), there are no regulations which define theirliability.[Except for Product Liability for Manufacturers, Importers, DistributorsAnd Installers]
The Single European Sky: current framework 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.
The Single European Sky: current frameworkFor instance, one of the regulations existing in the air transportframework provides for a detailed legislative discipline for theprotection of the passengers:Montreal Convention 1999 for the Unification of Certain Rulesfor 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 passengersinvolved in air accidents.Moreover, the liability of the air carrier is becoming more andmore severe: EU Regulation n.261/2004/EC applies tocompensate delays.
The Single European Sky: current frameworkBut…Art. 37 of Montreal Convention establishes that:“Nothing in this Convention shall prejudice the question whether aperson liable for damage in accordance with its provisions has a rightof recourse against any other person”.However, in absence of a specific regulatory framework for theliabilities of operators other than the carriers, such as airports, ATMs etc,this Article is hardly applicable in the future SES.
The Single European Sky: current frameworkAnother example of regulatorydiscipline for liability is theConvention on Damage Caused byForeign Aircraft to Third Partieson the Surface, signed at Rome,on 7.10.1952.It introduces a strict and limitedliability regime for the aircraftoperator in case of damage caused byan aircraft in flight.
The Single European Sky: current frameworkArt. 10 of Rome Convention also establishes that:“Nothing in this Convention shall prejudice the question whethera person liable for damage in accordance with its provisions hasa right of recourse against any other person”,Art. 16 par. 7 of Rome Convention, which introduces acompulsory TPL insurance regime, establishes that:“The provisions of this Article shall not prejudice the questionwhether the insurer or guarantor has a right of recourseagainst any other person”.
The Single European Sky: current frameworkIn the light of the above, it is clearthat the current framework lacks auniform regulation on liability,and that in this context it is difficultfor the air carrier to recover theamounts paid to the victimsfrom the liable subjects.More difficulties will certainly arise due to the fact that SES willbe characterized by automation and interoperabilityamong all the operators.
The Single European Sky: current frameworkIn the SES system there are different entities – ATMs, airports, services providers are involve
The Single European Sky: current frameworkIt is difficult to provide a single solution regarding the need forregulation relating to different operators, which act withdifferent roles and in different fields.An acceptable solution thus implies the existence of differentlegal provisions based on well recognized principles ofprivate law.They should be adequate to the role of each party involved,within all the specific instruments which form the entireinfrastructure and the functioning of the SES system
The Single European Sky: current frameworkFurther to the observations raised by the parties involved in thisfield, we can examine various different SES componentprogrammes 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 systemThe ATM community has identified interoperability needswhich involve transforming the ATM system from an essentiallydistributed network of independent units to an efficientnetwork of integrated co-operators able to cope withsignificantly 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?
1) A legal framework for interoperability systemPossible 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.
1) A legal framework for interoperability systema) A code of conduct for SWIM needs to contain compulsory rules which ensure the stability and security of the system and traceability andb) 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.
1) A legal framework for interoperability system 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 liability for 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.
2) A regulatory system for the liability for the use of GNSS 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.
2) A regulatory system for the liability for the use of GNSS 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);
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 aircraftToday there are important reasons for integrating UASs for civiluse in civil airspace.The European Commissionwithin the general aviationframework (SES, SESAR, GNSSetc.) has the capacity to designa regulatory framework tointegrate UASs for civil use incivil airspace.
Conclusions SES has no uniform provisions on liability based on principlesof private law.A global answer cannot be offered.In addition, the future features characterizing SES will require aliability legal framework in case of damage caused to personsand properties.This framework should also allow a right of recourse for the fewsubjects for which a TPL regulation has been already provided.We certainly need more than one new legal framework in the SESstructure, in order to fulfil the different needs of the differentoperators in the air transport sector.