1. The International Comparative Legal Guide to:
A practical cross-border insight into aviation law
Published by Global Legal Group, with contributions from:
Advokatfirman Eriksson & Partners
Alexander Holburn Beaudin + Lang LLP
Ante law firm LLC
Arnecke Sibeth
Arte Law Firm
Austen-Peters & Co
Bahas, Gramatidis & Partners
Chacón & Rodríguez, S.C.
Christodoulou & Mavrikis Inc.
Clyde & Co
DDSA – De Luca, Derenusson,
Schuttoff e Azevedo Advogados
Dentons US LLP
Dingli & Dingli Law Firm
GDP Advogados
Kaye Scholer LLP
Kromann Reumert
Kubes Passeyrer Attorneys at Law
Locke Lord (UK) LLP
Maples and Calder
McAfee & Taft, A P.C.
MMMLegal - Legal Counsels
Mori Hamada & Matsumoto
ONV LAW
Rojs, Peljhan, Prelesnik & partners
Salazar & Asociados
Studio Pierallini
VARUL and partners
Ventura Garcés & López-Ibor
Abogados
VISCHER AG
4th Edition
Aviation Law 2016
ICLG

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General Chapters:
Country Question and Answer Chapters:
5 Austria Kubes Passeyrer Attorneys at Law: Dr. David Kubes 14
6 Bolivia Salazar & Asociados: Sergio Salazar-Machicado & Ignacio Salazar-Machicado 20
7 Brazil DDSA – De Luca, Derenusson, Schuttoff e Azevedo Advogados:
Ana Luisa Castro Cunha Derenusson 27
8 Canada Alexander Holburn Beaudin + Lang LLP: Darryl G. Pankratz & Michael Dery 34
9 Denmark Kromann Reumert: Jakob Bernhoft & Julie Bak-Larsen 42
10 France Clyde & Co: Maylis Casati-Ollier & Benjamin Potier 49
11 Germany Arnecke Sibeth: Holger Bürskens & Ulrich Steppler 57
12 Greece Bahas, Gramatidis & Partners: Betty Smyrniou 66
13 Ireland Maples and Calder: Donna Ager & Mary Dunne 73
14 Italy Studio Pierallini: Laura Pierallini & Francesco Grassetti 81
15 Japan Mori Hamada & Matsumoto: Hiromi Hayashi & Akira Marumo 90
16 Kyrgyzstan Arte Law Firm: Aisulu Chubarova & Liliia Kim 99
17 Lithuania VARUL and partners: Paulius Docka 105
18 Malta Dingli & Dingli Law Firm: Dr. Tonio Grech 111
19 Mexico Chacón & Rodríguez, S.C.: Samuel Chacón 117
20 Nigeria Austen-Peters & Co: Jide Ogundana & Uzo Ekwegh 124
21 Poland MMMLegal - Legal Counsels: Krystyna Marut & Anna Burchacińska-Mańko 129
22 Portugal GDP Advogados: Francisco de Sousa Alves Dias 137
23 Romania ONV LAW: Mihai Furtună & Ioana Anghel 142
24 Slovenia Rojs, Peljhan, Prelesnik & partners: Sonja Radošević 150
25 South Africa Christodoulou & Mavrikis Inc.: Chris Christodoulou & Antonia Harrison 158
26 Spain Ventura Garcés & López-Ibor Abogados: Alfonso López-Ibor Aliño &
Pablo Stöger Pérez 174
27 Sweden Advokatfirman Eriksson & Partners: Stephan Eriksson & Martin Thysell 183
28 Switzerland VISCHER AG: Urs Haegi & Dr. Thomas Weibel 189
29 Ukraine Ante law firm LLC: Andriy Guck & Kateryna Ishchenko 196
30 United Kingdom Locke Lord (UK) LLP: Alan D. Meneghetti & Kaye Scholer LLP:
Philip Perrotta 203
31 USA Dentons US LLP: Diane Westwood Wilson & Laura Jennings 215
1 The Use of Personal Data by the Commercial Aviation Industry – Alan D. Meneghetti,
Locke Lord (UK) LLP 1
2 The Aviation Industry – Constant Change Leading to Tales of the Unexpected – Philip Perrotta,
Kaye Scholer LLP 4
3 The Applicability of the Cape Town Convention to Changes to an Existing Transaction –
Erin M. Van Laanen & Maria E. Gonzalez, McAfee & Taft, A P.C. 9
4 The Need to Extend WALA’s Presence in the Airport Industry – Alan D. Meneghetti & Michael Siebold,
Worldwide Airports Lawyers Association (WALA) 12
Contributing Editors
Alan D. Meneghetti, Locke
Lord (UK) LLP and Philip
Perrotta, Kaye Scholer LLP
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Senior Editor
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Richard Firth
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ISBN 978-1-910083-80-2
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The International Comparative Legal Guide to: Aviation Law 2016

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© Published and reproduced with kind permission by Global Legal Group Ltd, London
Chapter 11
1 General
1.1 Please list and briefly describe the principal
legislation and regulatory bodies which apply to and/
or regulate aviation in your country.
Aviation legislation in Germany is, to a high degree, characterised
by international treaties and by European law. On a national
level, aviation law is primarily based on the German Air
Traffic Act (Luftverkehrsgesetz) of 1922, the Air Traffic Order
(Luftverkehrs-Ordnung) of 1963 and the Aviation Security Act
(Luftsicherheitsgesetz) of 2005.
The Federal Aviation Office (Luftfahrt-Bundesamt or “LBA”) was
established in 1954 in Braunschweig as the supreme authority in civil
aviation and, as such, is directly subordinated to the Federal Ministry
of Transport, Building and Urban Development (Bundesministerium
für Verkehr, Bau und Stadtentwicklung). Amongst other tasks, the
LBA is responsible for the supervision of the aviation industry and
for the German Aircraft Register (Luftfahrzeugrolle).
1.2 What are the steps which air carriers need to take in
order to obtain an operating licence?
The provisions of Regulation (EC) No. 1008/2008 of the European
Parliament and of the Council of 24 September 2008 on common
rules for the operation of air services in the Community (“Regulation
(EC) No. 1008/2008”), which were transposed into German law by
sec. 20 para. 4 German Air Traffic Act (see question 1.1), set out
the conditions for granting an operating licence. The Regulation
consolidates and updates the set of liberalisation measures known
as the ‘Third Package’, adopted by the European Commission in
1992. According to Art. 3 para. 1 Regulation (EC) No. 1008/2008,
no undertaking established in the Community shall be permitted to
carry air passengers, mail and/or cargo for remuneration and/or hire
unless it has been granted the appropriate operating licence.
An undertaking shall be granted an operating licence by the Federal
Aviation Office (Luftfahrt-Bundesamt or “LBA”) provided that:
■ its principal place of business is located in Germany;
■ it holds a valid Air Operator Certificate;
■ it has one or more aircraft at its disposal through ownership
or a dry lease agreement;
■ its main occupation is to operate air services in isolation or
combined with any other commercial operation of aircraft or
the repair and maintenance of aircraft;
■ its company structure allows for the implementation of the
provisions outlined in this chapter;
■ Member States and/or nationals of Member States own
more than 50% of the undertaking and effectively control
it, whether directly or indirectly through one or more
intermediate undertakings, except as provided for in an
agreement with a third country to which the Community is a
party;
■ it meets the financial conditions specified in Art. 5 of
Regulation (EC) No. 1008/2008;
■ it complies with the insurance requirements specified in Art.
11 of Regulation (EC) No. 1008/2008; and
■ it complies with the provisions on good repute as specified in
Art. 7 of Regulation (EC) No. 1008/2008.
Additional relevant information:
■ The LBA is entitled to revoke or suspend an operating licence
at any time if the above-mentioned requirements are not (all)
met.
■ Air carriers from Member States of the European Economic
Area (“EEA”) are allowed to operate intra-Community
scheduled air services in the EEA. A separate application
or notification is no longer necessary. Air carriers from EEA
Member States must, however, apply for entry permissions
with regard to commercial flights for other purposes (e.g.
aerial work, flights with balloons or local flights).
■ Air carriers from non-EEA Member States shall apply for
operating permission prior to commencing scheduled air
services to and from Germany. Prior to commencing charter
flights to and from Germany, air carriers from non-EEA
Member States, as well as air carriers from EEA Member
States wanting to conduct flights to third countries, have
to apply for an entry permit. Companies from non-EEA
Member States shall apply for entry permits with regard
to commercial flights for other purposes (e.g. aerial work,
flights with balloons or local flights).
1.3 What are the principal pieces of legislation in your
country which govern air safety, and who administers
air safety?
With the adoption of Regulation (EC) No. 1592/2002 of the
European Parliament and of the Council of 15 July 2002 on common
rules in the field of civil aviation, the establishment of a European
Aviation Safety Agency (“Regulation (EC) No. 1592/2002”) and
the subsequent establishment of the European Aviation Safety
Agency (“EASA”), a EuropeanAgency and Europe-wide regulatory
authority was created. In this regard EASA absorbed most tasks
from the Joint Aviation Authorities (“JAA”), as well as acquiring
new responsibilities. Initially, EASA was responsible for: safety
and environmental type certification of all aeronautical products;
approval of organisations involved in the design of aeronautical
Ulrich Steppler
Holger Bürskens
Arnecke Sibeth
Germany

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not necessary for flights that are exclusively carried out to drop
parachutists or which entail aerial sport devices.
1.5 Are air charters regulated separately for commercial,
cargo and private carriers?
In commercial air traffic, which does not qualify as scheduled
transport operations (Gelegenheitsverkehr or “non-scheduled
services”), the licensing authority can determine conditions and
requirements or prohibit transportation, if such air traffic has a
negative impact on the public interest. For special requirements
relating to licensing of non-scheduled services, refer to question 1.2.
1.6 As regards international air carriers operating in your
country, are there any particular limitations to be
aware of, in particular when compared with ‘domestic’
or local operators? By way of example only,
restrictions and taxes which apply to international but
not domestic carriers.
Yes. Concerning the German Air Travel Tax (Luftverkehrsteuer) for
instance, carriers with a registered office outside Germany have to
nominate a so-called licensed tax or fiscal representative, which can
be considered discriminative at least under the European aviation
law regimes if not also under the Chicago Convention.
Pursuant to sec. 3 of the GermanAir TrafficAct (Luftverkehrsgesetz),
aircraft can, inter alia, only be registered in the German Aircraft
Register (Luftfahrzeugrolle) if they are exclusively owned by
German nationals or nationals of an EU Member State.
An undertaking shall only be granted an operating licence by the
German Federal Aviation Office (Luftfahrt-Bundesamt) according
to Art. 4 lit. f of Regulation (EC) No. 1008/2008 of the European
Parliament and of the Council of 24 September 2008 on common
rules for the operation of air services in the Community, if Member
States and/or nationals of Member States own more than 50% of the
undertaking and effectively control it, whether directly or indirectly
through one or more intermediate undertakings, except as provided
for in an agreement with a third country to which the Community is
a party. See also question 1.2.
1.7 Are airports state or privately owned?
Germanairportsaremainlystate-ownedthroughoperatingcompanies
organised under private law, i.e. there are no airport authorities, in the
sense of a government agency, that operate an airport. Shareholders
are mostly the Federal Republic of Germany (“FRG”) and the federal
state and/or city/county in which the airport is situated. Some
operating companies also include private shareholders.
Out of the licensed German airports, of which there are currently
39, the six biggest (by passengers per year) are owned as follows:
FRA – state of Hesse, Deutsche Lufthansa AG and two other private
investors as well as free float; MUC – FRG, state of Bavaria, city of
Munich; DUS – city of Düsseldorf, private investor; TXL – FRG,
states of Berlin and Brandenburg; HAM – city of Hamburg, private
investor; and CGN – FRG, cities of Cologne and Bonn, state of
North Rhine-Westphalia, two counties.
1.8 Do the airports impose requirements on carriers
flying to and from the airports in your country?
Yes. The most notable requirement is the payment of airport charges
as laid down in the Airport Charges Regulation (Entgeltordnung)
drawn up by each airport and subject to prior authorisation by
products, as well as foreign production, maintenance and training
organisations; and coordination of the European Union programme,
Safety Assessment of Foreign Aircraft (“SAFA”).
Regulation (EC) No. 216/2008 of the European Parliament and
of the Council of 20 February 2008 on common rules in the field
of civil aviation, establishing a European Aviation Safety Agency,
and repealing Council Directive 91/670/EEC, Regulation (EC)
No. 1592/2002 and Directive 2004/36/EC (“Regulation (EC)
No. 216/2008” or the so-called “Basic Regulation”), entered into
force on 8 April 2008 and extended the competencies of EASA to
air operations, pilot licensing and authorisation of third-country
operators (first extension). On 7 September 2009, the Council
further extended EASA’s competencies in order to cover the safety
of aerodromes, air traffic management and air navigation services
(second extension).
EASA works closely with the Federal Aviation Office (Luftfahrt-
Bundesamt or “LBA”), but has taken over many of the LBA’s
functions in the interest of aviation standardisation across the
European Union (“EU”).
By performing ramp inspections on third-country aircraft landing
at Community airports, the EU tries to meet the need for effective
enforcement of international safety standards. In this regard,
Directive 2004/36/EC of the European Parliament and of the
Council of 21 April 2004 on the safety of third-country aircraft
using Community airports (the so-called “SAFA Directive”), which
came into effect on 30 April 2004, provides a legal obligation for
EU Member States to perform ramp inspections upon third-country
aircraft landing at their airports.
On 6 May 2014, Commission Regulation (EU) No. 452/2014 laying
down technical requirements and administrative procedures related
to air operations of third-country operators pursuant to Regulation
(EC) No 216/2008 of the European Parliament and of the Council,
was published in the Official Journal of the European Union.
As from 26 May 2014, EASA will issue safety authorisations to
commercial air carriers from outside the EU upon earlier request,
if all authorisation requirements are met. Third-country operators
(TCO) flying to any of the 28 EU Member States and/or to the EFTA
States (Iceland, Norway, Liechtenstein, Switzerland) must apply to
EASA for a so-called TCO authorisation.
Furthermore, air carriers may be refused landing within the EU
for safety reasons on the basis of Regulation (EC) No. 2111/2005
of the Parliament and of the Council of 14 December 2005 on
the establishment of a Community list of air carriers subject to an
operating ban within the Community and on informing air transport
passengers of the identity of the operating air carrier, and repealing
Art. 9 of Directive 2004/36/EC. The lists, which distinguish
between an operational ban and operation restrictions, are prepared
by EASA and updated every four months.
The German Air Traffic Control (Deutsche Flugsicherung GmbH)
is responsible for air traffic control in Germany. It is a company
organised under private law and 100% owned by the Federal
Republic of Germany. Under certain circumstances, flights might
remain under the control of EUROCONTROL.
1.4 Is air safety regulated separately for commercial,
cargo and private carriers?
Not entirely. An operating licence is required for non-commercial
air transport operations of passengers, mail or cargo if those
operations are conducted for remuneration, pursuant to sec. 20
para. 1 German Air Traffic Act (Luftverkehrsgesetz). An exception
is made whenever an operation is conducted with an aircraft with
no more than four passenger seats. An operating licence is also

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1.10 Have there been any recent cases of note or other
notable developments in your country involving air
operators and/or airports?
On 17 March 2015 the German Federal Court of Justice (“BGH”)
held (file no. X ZR 35/14) that Regulation (EC) No 261/2004 does
not apply to passengers travelling free of charge regardless of the
question whether the fare, here a child fare, was available directly or
indirectly to the public.
On the same date, the BGH also held (file no. X ZR 34/14) that
the rebooking of passengers without their consent may trigger
compensation for denied boarding under Regulation (EC) No.
261/2004. In this case the plaintiffs had booked a package travel
tour and were informed two weeks prior to departure by the tour
operator that they had been rebooked to another flight departing
nearly six hours later than originally scheduled. The Federal Court
of Justice argued that such a rebooking could be construed as denial
of transportation of the passengers on the originally booked flight.
The Court referred the matter back to the Court of Appeal to clarify
the further factual circumstances.
On 18 August 2015 the BGH (file no. X ZR 2/15) lodged a
reference for preliminary ruling of the Court of Justice of the
European Union (“CJEU”) asking for clarification with regard to
the interpretation of Art. 5 Regulation (EC) No 44/2001 (Brussels I),
i.e. special jurisdiction at the place of performance. In case of flight
connections operated by more than one carrier, the question arises
as to whether the wording “matters relating to a contract” in Art.
5(1)(b) Brussels I also includes claims for compensation pursuant
to Art. 7 of Regulation (EC) No 261/2004 against the operating
carrier who is not the contractual partner of the passenger. If so,
the follow-up question is whether the place of first departure is
the place of performance of the obligation as stipulated in Art. 5
(1)(b) Brussels I Regulation, even if the passenger asserts a claim
against the operating carrier of another flight segment who is not his
contractual partner. It remains to be seen how the CJEU will decide
these questions.
With final decisions on 17 February (file no. 4 B 53.14) and 22
July 22 2015 (file no. 4 B 59.14), respectively, the German Federal
Administrative Court (“BverwG”) rejected the last remaining
appeals against the building permit for a third runway at Munich
airport. While these decisions cleared the way for the airport
operator legally, the project is currently still on hold for political
reasons. Shareholder decisions in the operating company require
unanimous votes; however, the city of Munich in its capacity as
one of three shareholders (see question 1.7) opposes the airport
extension. Munich’s mayor, Mr. Dieter Reiter (Social Democratic
Party), explains the position of his administration with the results of
a referendum by the city’s population held in 2012, which showed
a majority against a third runway. At the time of writing, the
Bavarian government had not yet stated its intentions, with most
recent comments by prime minister Mr. Horst Seehofer (Christian
Social Union) indicating that he does not support the project, while
a majority of his party’s MPs in the Bavarian parliament declared
being in favour.
2 Aircraft Trading, Finance and Leasing
2.1 Does registration of ownership in the aircraft register
constitute proof of ownership?
No. The registration in the Aircraft Register (Luftfahrzeugrolle) is
only a declaratory one. It does not have any constitutive effect on
the supervising authority (sec. 19 lit. b German Air Traffic Act
(Luftverkehrsgesetz or “LuftVG”), i.e. the Ministry of Transport of
the federal state where the airport is located. Operational limitations
for carriers result e.g. from varying charges for aircraft in categories
like noise and pollutant emissions, as well as maximum take-off
weight (“MTOW”) or time of operation. Sec. 19 lit. b LuftVG
contains a non-discrimination clause, therefore in general there is
no distinction e.g. between domestic and foreign carriers whereas
the law expressly states that differentiations by noise categories or
other material reasons are justified.
Technical requirements, such as specific approach or take-off
procedures or specifications of aircraft allowed to use the airport,
are frequently not imposed on carriers and other users by the airport
itself; instead the competent authorities such as the Ministries of
Transport or the Federal Aviation Agency act in these matters.
Further requirements may also stem from the licence under which
the airport in question operates, e.g. curfew hours, etc.
1.9 What legislative and/or regulatory regime applies to
air accidents? For example, are there any particular
rules, regulations, systems and procedures in place
which need to be adhered to?
The German Federal Bureau of Aircraft Accident Investigation
(Bundesstelle für Flugunfalluntersuchung or “BFU”) is
subordinated to the Federal Ministry of Transport and is responsible
for the investigation of civil aircraft accidents and serious incidents
in Germany. The purpose of the BFU is to improve aviation safety
by determining the causes of accidents and serious incidents and
making safety recommendations in order to prevent recurrence. The
BFU is not, however, responsible for determining liability.
Regulation (EC) No. 996/2010 of the European Parliament and the
Council of 20 October 2010 on the investigation and prevention
of accidents and incidents in civil aviation and repealing Directive
94/56/EC (“Regulation (EC) No. 996/2010”) came into force on
2 December 2010. According to this regulation, each Member
State has to set up a national safety investigation authority and
information on safety investigation should be exchanged between
Member States. Regulation (EC) No. 996/2010 supplements the
provisions contained inAnnex 13 to the Convention on International
Civil Aviation (“ICAO Convention”) dated 7 December 1944.
Germany ratified the ICAO Convention in 1956. Annex 13 of
the ICAO Convention contains information regarding the process
of investigation and analysis of aviation accidents and incidents
regarding civil aviation, and stipulates the rights and responsibilities
of signatory states in relation to their collaboration. Pursuant to Art.
37 and 38 of the ICAO Convention, signatory states are obliged
to implement the rules and regulations and processes provided by
the International Civil Aviation Organisation (“ICAO”), preferably
unmodified.
On a national level, there is also the Law Relating to the Investigation
into Accidents and Incidents Associated with the Operation of
Civil Aircraft (Gesetz über die Untersuchung von Unfällen und
Störungen bei dem Betrieb ziviler Luftfahrzeuge), which is in line
with Regulation (EC) No. 996/2010 and the ICAO Convention, and
which came into force on 1 September 1998. This law replaced
existing general administrative regulations regarding the specialist
investigation of aviation accidents in relation to the operation of
aircraft. In the course of the new regulation, sec. 5 of the German
Air Traffic Regulations (Luftverkehrsordnung) regarding the
notification of aviation accidents and incidents was also adapted.

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Germany
nominate. However, if an international carrier does not nominate
a licensed or fiscal representative, then the owner (lessor) or keeper
(operator) of the aircraft will be liable for ATT.
Regarding the restrictions of the lessor/financier on their right to
retake possession of the aircraft, see question 3.2.
2.4 Is your country a signatory to the main international
Conventions (Montreal, Geneva and Cape Town)?
Germany is a signatory to the International Conventions of Montreal
1999 (effective date 28 June 2004), Warsaw 1929 (effective date
29 December 1933), the Hague Protocol for the amendment of
the Warsaw Convention 1955 (effective date 1 August 1963), the
Chicago Convention (effective date 8 June 1956), as well as the
Geneva Convention on the International Recognition of Rights
in Aircraft (effective date 5 October 1959). The Cape Town
Convention has not been ratified by Germany.
2.5 How are the Conventions applied in your country?
The ratification process renders the International Conventions
into directly applicable national and EU law. The application is
performed by the relevant German courts.
3 Litigation and Dispute Resolution
3.1 What rights of detention are available in relation to
aircraft and unpaid debts?
If a creditor has a claim regarding an outstanding debt against the
owner of an aircraft, and if this creditor does not have a registered
mortgageinrelationtotherelevantoutstandingdebt,thenthecreditor
has to obtain an enforceable title (as recognised under German law)
for the outstanding debt against the owner of the aircraft (e.g. by
way of an enforceable court judgment or enforcement order) from
the German civil courts. The enforceable title also needs to be
issued with an enforcement clause by the competent German civil
court and must be duly served on the debtor.
If the aircraft in question is registered in the German Aircraft
Register, then the creditor needs to apply to the Local Court in
Braunschweig (where the Register of Mortgages on Aircraft is kept)
for the entry of a registered mortgage on the aircraft.
The enforcement of the mortgage is carried out by way of
enforcement proceedings. In order to enforce the mortgage,
the creditor has to apply to the relevant German civil court for
compulsory auction of the aircraft.
If the outstanding debt is already secured by way of a registered
mortgage and if the debtor has agreed to be subjected to immediate
enforcement proceedings (which is common), then the creditor can
(if all the necessary requirements are fulfilled) apply for compulsory
auction of the aircraft with the relevant German civil court straight
away.
Aircraft of foreign origin are not registered in the German Aircraft
Register and no registered mortgage can be entered against such
aircraft. Once the creditor has received an enforceable title with the
relevant enforcement clause and has served this title on the debtor,
the creditor will need to apply to the relevant bailiff to enforce title
by way of seizure.
An aircraft can be released from a registered mortgage by
cancellation of the registered mortgage by way of a transaction
between the owner of the aircraft and the owner of the registered
the ownership of the aircraft under German law. Ownership can be
proven by an effective transfer of ownership according to sec. 929 et
seqq. of the German Civil Code (Bürgerliches Gesetzbuch) through
mutual consent and delivery to the buyer on the basis of an effective
contractual agreement under the law of obligations, e.g. a purchase and
sale agreement. Good faith (bona fide) regarding the ownership of the
registered party is not protected. This is a consequence of the fact that
the German Aircraft Register mainly aims at securing registered data
for purposes under public law, i.e. airworthiness and identification of
the owner, nationality of the same, etc. Regardless of the public law
nature and character of the Register, it is common practice to make use
of the Aircraft Register for transactions under civil law.
2.2 Is there a register of aircraft mortgages and charges?
Broadly speaking, what are the rules around the
operation of this register?
Yes. Aircraft mortgages can be registered in the separate Register
of Mortgages on Aircraft (Pfandrechtsregister für Luftfahrzeuge) in
accordance with the 1948 Geneva Convention on the International
Recognition of Rights in Aircraft. The conditions are set out
in the German Aircraft Mortgage Act (Gesetz über Rechte an
Luftfahrzeugen). The public register is maintained by the Local
Court in Braunschweig. Upon request, a certified excerpt from the
register may be issued.
A key precondition for the registration in the Register of Mortgages
on Aircraft is that the aircraft is registered in the Aircraft Register.
An effective mortgage requires mutual consent between the
owner and the creditor and needs to be recorded in the Register
of Mortgages on Aircraft. The declarations of the parties have
to be certified before a notary public or the Register Court. As a
consequence, recordings in the Register of Mortgages on Aircraft
are not only declaratory but constitutive for the creation of the
mortgage.
Upon its registration (Eintragung), the mortgage is a valid,
enforceable and perfected security interest in the form of a first-
ranking aircraft mortgage over the aircraft. The German aircraft
mortgage generally covers the engines, provided such engines are
installed at the airframe; title to the engines is and remains with the
mortgagor as owner of the aircraft and they do not qualify as third-
party accessories (Zubehör) of the airframe. Due to the flexible use of
aircraft engines, it was in dispute in jurisprudence and amongst legal
scholars in Germany in the past whether the ownership right of the
aircraft owner and the rights of a mortgagee over the aircraft extend
to the respective engine(s). It can now be considered a prevailing
view for the time being under German law that aircraft engines do
not form an integral part (wesentlicher Bestandteil) of an aircraft, and
engines are therefore capable of being subject to independent rights.
It is still controversial whether engines do qualify as accessories
(Zubehör). Consequently, extra liens separate from the aircraft
could rest on the engines without being registered in the Register of
Mortgages on Aircraft. In Germany a separate register of mortgages
on aircraft engines does not exist. However, so far the German
Federal Court (Bundesgerichtshof) has not ruled on this qualification
and therefore the questions have not been clarified yet.
2.3 Are there any particular regulatory requirements
which a lessor or a financier needs to be aware of as
regards aircraft operation?
The lessor/financier needs to be aware that the tax debtor in relation
to the German Air Travel Tax (Luftverkehrsteuer or “ATT”) is
generally the carrier or the so-called licensed or fiscal representative,
which carriers with a registered office outside Germany have to
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Civil claims in relation to aviation disputes have to be brought
before the German civil courts. For a more detailed description of
the civil court system and the remedies available, see questions 3.4
and 3.5.
Administrative proceedings regarding aviation disputes have to the
brought before the relevant German administrative courts.
Criminal proceedings in relation to aviation disputes have to be
brought before the relevant German criminal courts.
3.4 What service requirements apply for the service of
court proceedings, and do these differ for domestic
airlines/parties and non-domestic airlines/parties?
Service of documents in court proceedings is effected according
to the German rules of civil procedure. Generally speaking, and
unless the recipient has appointed legal representation, the service
is effected to the legal representative or the respective party. In
this regard there is no differentiation between domestic and foreign
parties. However, service of documents to foreign parties may often
require service to be performed in foreign countries. Depending on
applicable international conventions, the respective service can
either be performed via mail or formal diplomatic service.
It should further be noted that foreign carriers from non-Member
States of the EU need to legitimate an officially authorised recipient
(according to the law on service in administrative procedure and the
law on administrative procedure) for the entire correspondence with
German administrative authorities and the law courts in the Federal
Republic of Germany. The respective person has to be named before
the German aviation authorities (Luftfahrtbundesamt – “LBA”).
3.5 What type of remedies are available from the courts or
arbitral tribunals in your country, both on an i) interim
and a ii) final basis?
Entering into legal proceedings before a court of law is the standard
remedy to be taken in Germany in order to enforce one’s rights.
Summary proceedings are available for monetary claims and can
be initiated by filing a standard form with the local court. Lawsuits
require the filing of a detailed statement of claim, in particular
including proper documentation of all facts presented to the court.
Depending on the content and volume of the claim, the case will
be heard on different levels of the German court system, typically
comprising first instance, appellate level and – under certain
conditions – a further appeal on questions of law at the federal level
and/or the European level. The likely time involved to obtain a
court order is two to three months (summary proceedings), six to
18 months (judgment at first instance) or several years (appeal up to
federal level). Obviously, exceptions may apply. Injunctive relief
offers interim rulings in urgent matters to be obtained within days if
not hours. Appeals are possible. Injunctive proceedings are often
followed by regular court proceedings in which the subject matter of
the injunctive proceedings will be reviewed in greater detail.
The parties are free to submit to arbitration proceedings rather than
regular court proceedings. Arbitration proceedings can be rather
time-consuming but are decided in one instance, usually without the
right to appeal. Only in rare cases is an appeal to the public courts of
law possible. Arbitration proceedings take between several months
and up to several years, depending on the complexity of the subject
matter, the experience of the arbitrators, etc. Depending on the
arbitration rules established between the parties, the arbitral tribunal
may also render injunctions for an interim solution.
mortgage. Further, if the outstanding debt ceases to exist (e.g. by
way of settlement) then the registered mortgage ceases to exist.
Similarly, the registered mortgage ceases to exist if outstanding debt
is settled as a result of enforcement proceedings.
If a foreign aircraft is seized, seizure can be released by way of
a transaction between the owner of the aircraft and the creditor.
Further, seizure can be released by way of settlement of the
outstanding debt or return of the aircraft to the owner.
In order to secure the enforcement proceedings, the creditor can
apply for an arrest of the aircraft with the relevant German civil
court. The enforcement of the arrest regarding an aircraft, which is
registered in the German Aircraft Register or the German Register of
Mortgages on Aircraft, is executed by the bailiff entering a registered
mortgage against the aircraft and (if permissible) taking the aircraft
into safe custody. In relation to aircraft of foreign origin, the bailiff
will seize the aircraft instead of entering a registered mortgage.
3.2 Is there a regime of self-help available to a lessor or a
financier of aircraft if it needs to reacquire possession
of the aircraft or enforce any of its rights under the
lease/finance agreement?
No, the lessor/financier has to proceed in accordance with the
German laws of enforcement and debt recovery in order to repossess
the aircraft or enforce its rights under the lease/finance agreement.
If the lessor/financier has a claim for the return of the aircraft against
the debtor which is not fulfilled, then the lessor/financier has to
obtain an enforceable title (recognised under German law) for this
claim from the relevant German civil court. The title has to contain
the necessary enforcement clause and needs to be duly served on
the debtor. The creditor can then apply for the enforcement of
the enforceable title with a bailiff, who will procure the creditor
possession of the aircraft. This process can be rather lengthy.
The parties can, however, agree in the lease/credit agreement/surety
agreement that the lessee/borrower submits to subjecting the aircraft
to immediate enforcement proceedings. In such cases the lessor/
financier does not need to go through the first step of obtaining an
enforceable title from the German civil courts. Instead, the creditor
can (if all the requirements are fulfilled) apply for the enforcement
of the enforceable title with a bailiff directly, who will procure the
creditor possession of the aircraft.
If ownership of the aircraft has not been transferred to the financier
as a security and the financier only has a registered mortgage, then
the financier cannot claim the return of the aircraft, but has to apply
for the compulsory auction of the aircraft according to the relevant
rules (see question 3.1).
In order to secure the enforcement proceedings of the claim for the
return of the aircraft, the owner can apply for an injunction with
the relevant German civil court. The enforcement of an injunction
in relation to an aircraft which is registered in the German Aircraft
Register or the German Register of Mortgages on Aircraft, is
executed by the bailiff entering a registered mortgage for the claim
and (if permissible) taking the aircraft into safe custody. In relation
to foreign aircraft, the bailiff will enforce the injunction by way of
seizure of the aircraft instead of entering a registered mortgage.
3.3 Which courts are appropriate for aviation disputes?
Does this depend on the value of the dispute? For
example, is there a distinction in your country
regarding the courts in which civil and criminal cases
are brought?
There are no special courts (of any type) for aviation disputes.
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4.5 Details of the procedure, including time frames for
clearance and any costs of notifications.
A notification procedure before the Federal Cartel Office
(Bundeskartellamt) begins with Phase I investigations, which take
up to four weeks (no reaction = clearance). If the case at hand is
rather complicated, Phase II investigations will be initiated (in few
cases). Their duration is limited to another three months. Normally,
costs for Phase I proceedings range between EUR 2,000.00 and
8,000.00, while Phase II proceedings are much more expensive.
4.6 Are there any sector-specific rules which govern the
aviation sector in relation to financial support for air
operators and airports, including (without limitation)
state aid?
There are no sector-specific rules, but there are various forms of
support (tax relief regarding kerosene and VAT, state aid for airlines,
flight control and infrastructure).
4.7 Are state subsidies available in respect of particular
routes? What criteria apply to obtaining these
subsidies?
Yes, state subsidies may be granted in the context of so-called “public
service obligations” according to Art. 16 et seqq. of Regulation (EC)
No. 1008/2008 of the European Parliament and of the Council of 24
September 2008 on common rules for the operation of air services in
the Community (“Regulation (EC) No. 1008/2008”). The individual
criteria are determined in the corresponding public tender procedure
(cf. Art. 16 para. 10 and 17 Regulation (EC) No. 1008/2008).
4.8 What are the main regulatory instruments governing
the acquisition, retention and use of passenger data,
and what rights do passengers have in respect of
their data which is held by airlines?
The main regulatory instrument in Germany governing the
acquisition, retention and use of passenger data is the Federal Data
Protection Act (Bundesdatenschutzgesetz or “BDSG”), in which
Directive 95/46/EC of the European Parliament and of the Council
of 24 October 1995 on the protection of individuals with regard to
the processing of personal data and on the free movement of such
data, was incorporated. According to the BDSG, the acquisition,
retention and use of personal data is only lawful if permitted by the
BDSG or other law or if the passenger has provided consent.
According to the BDSG, passengers have a right of information
on recorded data relating to them, the recipients or categories of
recipients to which the data are transferred and the purpose of the data
recording. If data is collected without the passenger’s knowledge,
the passenger has to be notified of such collection. Furthermore,
passengers have the right to request rectification of recorded personal
data relating to them if such personal data is inaccurate. In addition,
passengers may claim damages in case of unlawful acquisition,
retention or use of personal data relating to them.
4.9 In the event of a data loss by a carrier, what
obligations are there on the airline which has lost the
data and are there any applicable sanctions?
If an airline determines that in case:
■ special categories of personal data (any information on racial
3.6 Are there any rights of appeal to the courts from the
decision of a court or arbitral tribunal, and, if so, in
what circumstances do these rights arise?
In court cases an appeal to the respective higher instance is possible
if either party faces negative effects with a value of more than
EUR 600.00. A further appeal on a question of law requires an
explicit admission, to be granted inter alia if the case involves legal
questions of fundamental importance.
An appeal against an arbitration award is only possible in case of a
grave violation of procedural principles. In order to be enforceable,
arbitration rulings have to be declared enforceable by a court of
law. Germany is a signatory to the New York Convention on the
enforcement of arbitral awards.
4 Commercial and Regulatory
4.1 How does your country approach and regulate joint
ventures between airline competitors?
Joint ventures on the basis of a joint venture company are subject
to German merger control if the turnover thresholds are met. Joint
ventures based solely on a cooperation agreement may be subject
to the rules on the prohibition of cartels, which are similar to EU
antitrust law.
4.2 How do the competition authorities in your country
determine the “relevant market” for the purposes of
mergers and acquisitions?
The essential authority with regard to mergers and acquisitions
is the Federal Cartel Office (Bundeskartellamt). Its decision can
be appealed before the Dusseldorf Higher Regional Court. As
regards the determination of the relevant market, the specific type
of aviation sector has to be considered. While in the context of
passenger flights further distinction is made between the direct
destinations served by the airlines at hand, cargo flights require a
broader market definition.
4.3 Does your country have a notification system
whereby parties to an agreement can obtain
regulatory clearance/anti-trust immunity from
regulatory agencies?
Yes, parties can obtain regulatory clearance for mergers from the
Federal Cartel Office (Bundeskartellamt) under the terms of sec. 35
et seqq. of the Act against Restraints of Competition (Gesetz gegen
Wettbewerbsbeschränkungen). There is no system of clearances for
cartels.
4.4 How does your country approach mergers,
acquisition mergers and full-function joint ventures?
According to sec. 37 of the Act against Restraints in Competition
(Gesetz gegen Wettbewerbsbeschränkungen), mergers are defined
as a) acquisition of assets, b) acquisition of joint or sole control, c)
acquisition of shares (at least 25%), or d) exercise of competitively
significant influence (also in case of shares below 20%). However,
no distinction is made between various forms of joint ventures.
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compensation and assistance to passengers in the event of denied
boarding and of cancellation or long delay of flights, and repealing
Regulation (EEC) No. 295/91, grants passengers a right to fixed-rate
compensation, a right to reimbursement or re-routing, as well as a
right to care in case of denied boarding and cancellation. Passengers
may also have contractual claims for damages under the contract
of carriage pursuant to sec. 631 et seqq. of the German Civil Code
(Bürgerliches Gesetzbuch or “BGB”). Passengers travelling on
a package holiday may have claims for damages against the tour
operator under sec. 651a et seqq. BGB. Furthermore, a conciliation
body for air passenger rights was established in Germany as of 1
November 2013.
4.12 What powers do the relevant authorities have in
relation to the late arrival and departure of flights?
According to Regulation (EC) No. 261/2004 of the European
Parliament and of the Council of 11 February 2004 establishing
common rules on compensation and assistance to passengers in the
event of denied boarding and of cancellation or long delay of flights,
and repealing Regulation (EEC) No. 295/91 (“Regulation (EC) No.
261/2004”), Member States should ensure and supervise general
compliance by their air carriers with this Regulation and designate
an appropriate body to carry out such enforcement tasks.
In Germany, the Federal Aviation Office (Luftfahrt-Bundesamt or
“LBA”) is the National Enforcement Body (“NEB”) and, as such, is
the competent authority for the implementation of Regulation (EC)
No. 261/2004.
As a first step, the LBA investigates passenger complaints. If the
LBAfinds potential infringements based on a passenger’s complaint,
it will initiate administrative fine proceedings. The air carrier has
the right to be heard and can submit a written statement regarding
the accusations directed at it.
As a second step, the LBA may end the proceedings based on the air
carrier’s statement or may issue an administrative order imposing a
fine. In this respect, the LBAcan impose fines up to EUR 25,000.00.
The air carrier can file objections against this administrative order.
Finally, the LBA may end the proceedings or may dismiss the
objection to the administrative order. In the latter case, the air
carrier may file an application for a decision by a court of law, which
then has to decide on the matter.
The LBA procedure is a purely administrative procedure. The LBA
is not in a position to enforce possible civil claims for passengers
legally. Passengers can only assert their claims according to the
procedures provided for in German civil law.
4.13 Are the airport authorities governed by particular
legislation? If so, what obligations, broadly speaking,
are imposed on the airport authorities?
Airport operators (see question 1.7) are subject to German and EU
legislation, as well as international agreements to which Germany
is a signatory. Specific rules on the construction and operation
of airports are contained in sec. 6 et seqq. German Air Traffic
Act (Luftverkehrsgesetz) and sec. 38 et seqq. German Air Traffic
Licensing Regulation (Luftverkehrszulassungsordnung), stipulating
a general licensing requirement and compliance, e.g., with zoning,
construction and environmental compatibility laws. Also relevant
are the German Aviation Security Act (Luftsicherheitsgesetz),
imposing various obligations e.g. to secure and control the airport
premises, and the German Ground Handling Services Regulation
(Bodenabfertigungsdienstverordnung), the latter implementing
Council Directive 96/67/EC of 15 October 1996 on access to the
or ethnic origin, political opinions, religious or philosophical
beliefs, trade union membership, health or sex life);
■ personal data subject to professional secrecy;
■ personal data referring to criminal or administrative offences;
or
■ personal data concerning bank or credit card accounts,
which it has recorded have been unlawfully transferred or otherwise
unlawfully disclosed to third parties, threatening serious harm to
the rights and legitimate interests of passengers, the airline has
to inform the supervisory authority and the passengers, without
undue delay, describing the nature of the unlawful disclosure, and
recommend measures to minimise possible harm. The notification
to the supervisory authority shall, in addition, describe possible
harmful consequences and measures taken by the airline as a result.
Any breach of this obligation is deemed to be an administrative
offence and may be punished by a fine of up to EUR 300,000.00, or
more if the benefit derived from such offence is higher.
4.10 What are the mechanisms available for the protection
of intellectual property (e.g. trademarks) and other
assets and data of a proprietary nature?
In the Federal Republic of Germany (“FRG”), intellectual property
is protected by industrial property rights (“IPR”), which prevent the
IPR from being copied or imitated. IPR include patents (protection
of technical inventions), utility models (protection of technical
innovations), designs (protection of designs and models) and
trademarks. These IPR must be registered to obtain the respective
protection. The administrative body dealing with industrial property
rights is the German Patent and Trademark Office (Deutsches
Patent- und Markenamt).
With regard to patents and utility models, the Employee Invention
Act (Gesetz über Arbeitnehmererfindungen or “ArbNErfG”) needs
to be considered. The employee is entitled to any invention made
in the course of employment if the employee makes use of the
invention in accordance with the specifications of German law. The
employee shall receive the statutory compensation. The ArbNErfG
sets out how employee inventions and proposals for technical
improvement should be dealt with.
As regards copyrights, in the FRG, copyright protection comes into
effect when a work is created; official registration is not necessary.
The German Copyright Act (Urheberrechtsgesetz) applies to works
of literature, art and signs.
In relation to patents, utility models and trademarks, like in other
European countries, protection at a European level with effect also
in the FRG can be sought at the European Patent Office and/or the
Office for Harmonization in the Internal Market. New designs are
even protected without registration. The term of copyright expires,
however, after three years.
An infringement of an IPR can be pursued in court proceedings or
via interim injunctions, the latter of which may be obtained within
hours. There are specialised civil divisions at the various German
regional courts that deal with such cases.
The basic claims connected with any IPR proceeding are the cease
and desist claim, the information claim, the damage claim, as well
as the right to have the infringing products destroyed.
4.11 Is there any legislation governing the denial of
boarding rights?
Regulation (EC) No. 261/2004 of the European Parliament and of
the Council of 11 February 2004 establishing common rules on
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4.16 Are there any ownership requirements pertaining to
GDSs operating in your country?
No. However, it should be noted that a system vendor, pursuant to
Regulation (EC) No. 80/2009 of the European Parliament and of the
Council of 14 January 2009 on a Code of Conduct for computerised
reservation systems and repealing Council Regulation (EEC) No.
2299/89 (“Regulation (EC) No. 80/2009”), shall publicly disclose,
unless this is otherwise made public, the existence and extent of a
direct or indirect capital holding of an air carrier or rail-transport
operator in a system vendor, or of a system vendor in an air carrier
or rail transport operator. A system vendor within the meaning of
Regulation (EC) No. 80/2009 means any entity and its affiliates
which is or are responsible for the operation or marketing of a
computerised reservation system.
4.17 Is vertical integration permitted between air operators
and airports (and, if so, under what conditions)?
Yes. Although the shares in – especially the major – airports in
Germany are usually not owned by private investors (see question
1.7), there is no general prohibition on air operators acquiring such
shares, as illustrated by the fact that Deutsche Lufthansa AG owns
8.45% of Frankfurt airport operator Fraport AG (as of November
2015). Potential restrictions may arise under applicable national
and/or EU competition law but would, depending on the case, not
exist with the aim of preventing vertical integration.
5 In Future
5.1 In your opinion, which pending legislative or
regulatory changes (if any) or potential developments
affecting the aviation industry more generally in your
country are likely to feature or be worthy of attention
in the next two years or so?
The use of drones is developing at a fast pace on a global scale.
This poses a challenge to the various legislators on a national,
international and European level. The European Aviation Safety
Agency (“EASA”) seems to be at the forefront of such developments
for the harmonisation of regulations for drones not only in Europe
but worldwide. The industry has high hopes that the regulatory
framework will make a good step forward during 2016. It is
expected that the next legislative level will be reached in the not-
too-distant future, and that stakeholder consultation will emerge into
a concrete regulatory proposal.
ground handling market at Community airports. Furthermore, all
relevant EU legislation, such as Regulation (EC) No. 300/2008 of
the European Parliament and of the Council of 11 March 2008 on
common rules in the field of civil aviation security and repealing
Regulation (EC) No. 2320/2002, applies, as well as related
Regulations (EC) No. 272/2009, No. 18/2010 and No. 185/2010 and
specific international treaty law such as Annex 14 (airports) of the
Chicago Convention.
4.14 To what extent does general consumer protection
legislation apply to the relationship between the
airport operator and the passenger?
German consumer protection law is characterised by a rather high
standard, but there is no specific and consolidated codified law in
Germany. Instead, respective norms are placed in a number of
codes. Based on these norms, prior to a purchase or the signing
of a contract, consumers in Germany must be able to recognise
the benefits and consequences of their decision. Transparency and
information are important for the German market, including with
regard to the airline industry. The Federal Office of Consumer
Protection and Food Safety (“BVL”) and other authorities are
responsible for the enforcement of consumer protection in Germany.
According to sec. 13 German Civil Code and related norms,
German consumers are better protected than non-consumers. The
general German consumer protection legislation consists of norms
in the German Civil Code and, inter alia, insolvency law, unfair
competition law, law against unfair terms and conditions and many
norms related to protection of consumer health. There have also
been activities in German legislation against telephone marketing
and other means of distribution practice.
However, there is typically no contractual relationship between
passengers and airport operators, because passengers enter
into air carriage agreements with airlines or travel companies
whereas airlines enter into agreements with airport operators
in order to provide services for passengers. Thus many norms
regarding contracts with consumers are not directly applicable
concerning the relationship between the airport operator and the
passenger. Airport charges to be paid by passengers are a special
scenario and transparency is important in this regard, because of
general consumer protection law. Also, many general public law
regulations relating to safety and security exist in Germany in order
to protect consumers in airports. Furthermore, Regulation (EC) No.
1107/2006 is a specific consumer protection law which provides
that passengers with a disability must be properly assisted by airport
operators.
4.15 What global distribution suppliers (GDSs) operate in
your country?
The key players are Amadeus, Sabre, Galileo and Worldspan
(Travelport).
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ARNECKE SIBETH is one of the market leaders in Transport and Aviation Law. The firm’s highly specialised Transport, Aviation and Logistics
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Germany
Tel: +49 69 979 885 220
Fax: +49 69 979 885 85
Email: hbuerskens@arneckesibeth.com
URL: www.arneckesibeth.com
Ulrich Steppler, LL.M. is the joint head of the Transportation, Aviation
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Ulrich Steppler
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60486 Frankfurt am Main
Germany
Tel: +49 69 979 885 356
Fax: +49 69 979 885 85
Email: usteppler@arneckesibeth.com
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