The International Comparative Legal Guide to Aviation Law ... - Jarolim

The International Comparative Legal Guide to:
Aviation Law 2013
1st Edition
A practical cross-border insight into aviation law
Published by Global Legal Group, in association with Clyde & Co LLP, with contributions from:
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Asters
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Cozen O'Connor
Cruz Costa Advogados Associados
Del Hierro Abogados
DFDL
Dikici Law Office
Dingli & Dingli Law Firm
Donald R. Andersen, P.C.
Jarolim Flitsch Rechtsanwälte GmbH
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Salazar, Salazar & Asociados, Soc. Civ.
Studio Pierallini
Tayo Laleye & Company
ThomannFischer
Ventura Garcés & López-Ibor Abogados

The International Comparative Legal Guide to: Aviation Law 2013
General Chapters:
1 Global Aviation - The Next Ten Years - Philip Perrotta & Alan Meneghetti, Clyde & Co LLP 1
2 Recent Developments in U.S. Aviation Product Liability Law - Donald R. Andersen 6
Contributing Editors
Philip Perrotta & Alan
Meneghetti, Clyde & Co
LLP
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Levy, Maria Lopez, Florjan
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Stategic Partners
3 The Cape Town Convention: Key Issues for the Practitioner - Erin M. Van Laanen &
Maria E. Gonzalez, McAfee & Taft A Professional Corporation 13
Country Question and Answer Chapters:
4 Austria Jarolim Flitsch Rechtsanwälte GmbH: Martina Flitsch & Irena Gogl 18
5 Bolivia Salazar, Salazar & Asociados, Soc. Civ.: Sergio Salazar-Machicado &
Ignacio Salazar-Machicado 25
6 Brazil Cruz Costa Advogados Associados: Julio Costa & Gustavo Lasalvia 32
7 Canada Alexander Holburn Beaudin + Lang LLP: Darryl G. Pankratz &
Michael Dery 38
8 Colombia Del Hierro Abogados: José Elías Del Hierro Hoyos 45
9 Czech Republic Johnson Šťastný Kramařík, advokátní kancelář, s.r.o.: Roman Kramařík &
Roman Šťastný 51
10 France Cabinet BOPS – Bouckaert Ormen Passemard Sportes: Carole Sportes 57
11 Germany Arnecke Siebold Rechtsanwälte Partnerschaftsgesellschaft:
Holger Bürskens & Ulrich Steppler 63
12 Greece Bahas, Gramatidis & Partners: Betty Smyrniou 71
13 Indonesia Ali Budiardjo, Nugroho, Reksodiputro Counsellors at Law:
Theodoor Bakker & Dinasti Brian Harahap 78
14 Italy Studio Pierallini: Laura Pierallini 85
15 Lebanon Alem & Associates: Dolly M. Choucair 92
16 Malta Dingli & Dingli Law Firm: Dr. Tonio Grech 98
17 Mexico Chacón & Rodríguez, S.C.: Samuel Chacón 104
18 Morocco Benzakour Law Firm: Rachid Benzakour 111
19 Myanmar DFDL: James Finch 115
20 Netherlands AKD N.V.: Guido de Vos & Jan Appel 120
21 Nigeria Tayo Laleye & Company: Christiana Laleye & Bassey Attoe 126
22 Poland MMMLegal - Legal Counsels: Krystyna Marut & Anna Burchacińska-Mańko 131
23 Portugal Neville de Rougemont & Associados RL: Geoffrey Graham &
Vicky Rodrigues 138
24 South Africa Christodoulou & Mavrikis Inc.: Chris Christodoulou 144
25 Spain Ventura Garcés & López-Ibor Abogados: Alfonso López-Ibor Aliño &
Pablo Stöger Pérez 156
26 Switzerland ThomannFischer: Stephan Erbe 164
27 Taiwan Lee and Li, Attorneys-at-Law: Patricia Lin & Mark Yu 169
28 Turkey Dikici Law Office: Fulya Dikici 176
29 Ukraine Asters: Anna Vlasiuk & Oleksiy Demyanenko 182
30 United Kingdom Clyde & Co LLP: Alan Meneghetti & Philip Perrotta 188
31 USA Cozen O’Connor: Mark W. Atwood & Allan I. Mendelsohn 199
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Chapter 4
Austria
Martina Flitsch
Jarolim Flitsch Rechtsanwälte GmbH
Irena Gogl
1 General
1.1 Please list and briefly describe the principal legislation
and regulatory bodies which apply to and/or regulate
aviation in Austria.
Aviation is considered a federal matter in respect of legislative and
administrative competence. The basic law is the Aviation Act
(Luftfahrtgesetz - LFG). Based on the LFG, many regulations have
been enacted by the competent Federal Minister of Transport,
Innovation and Technology (Bundesministerium für Verkehr,
Innovation und Technologie - BMVIT).
Further important laws regulating aviation matters are the Airport
Charges Act (Flughafenentgeltegesetz - FEG), the Act on Airport
Ground Handling (Flughafen-Bodenabfertigungsgesetz - FBG), the
Federal Act on International Air Services (Bundesgesetz über den
zwischenstaatlichen Luftverkehr - BGzLV), the Aviation Security
Act (Luftfahrtsicherheitsgesetz - LSG), the Accident Investigation
Act (Unfalluntersuchungsgesetz - UUG) and the Air Transport
Levy Act (Flugabgabegesetz - FlugAbgG).
Important national regulations comprising aviation matters are the
Civil Aviation Personnel Licencing Regulation (Zivilluftfahrt-
Personalverordnung - ZLPV), the Civil Aircraft and Aeronautical
Equipment Regulation (Zivilluftfahrzeug und luftfahrtgerät-
Verordnung - ZLLV), the Rules of the air (Luftverkehrsregeln -
LVR), the Ordinance on Civil Aerodrome Operations
(Zivilflugplatz-Betriebsordnung - ZFBO) or the Air Operator
Certificate Regulation (Luftverkehrsbetreiberzeugnis-Verordnung -
AOCV).
As a Member State of the EU, Austria is also subject to all aviationspecific
legislation by the EU regulatory bodies.
The supreme civil aviation authority in Austria is the BMVIT. The
competent authority for operational, technical and licensing matters
is the Austro Control GmbH (ACG), a wholly state-owned entity.
The decisions of ACG can be appealed against before the BMVIT.
1.2 What are the steps which air carriers need to take in
order to obtain an operating licence?
The competent authority that grants an operating licence is the
BMVIT. An operating licence is granted on the basis of EC
Regulation No. 1008/2008 on common rules for the operation of air
services in the Community (Recast of the EEC Regulation No.
2407/92 on licensing of air carriers (‘Community air carrier’)).
The following documents have to be provided together with the
application form:
Articles of association and extract from the company register
(from the company, as well as its shareholders).
Proof of nationality.
Proof that the seat of the company is in Austria and that its
main activity is commercial air transport.
Proof of substantial ownership/effective control by nationals
of EU Member States.
(Clear) criminal record of the management.
Proof of insurance according to Regulation (EC) No.
785/2004.
Proof of financial fitness (see information provided under
www.bmvit.gv.at).
Proof of the technical and operational prerequisites, in
particular in respect of the aircraft to be used (note: the
aircraft have to be registered in Austria).
Proof of Air Operator Certificate (AOC), issued by the ACG.
1.3 What are the principal pieces of legislation in Austria
which govern air safety, and who administers air safety?
The LFG provides several rules relating to the safety of air transport
operations. Aircraft may only be operated if they are airworthy,
which is certified by the ACG. The BMVIT has issued the ZLLV
which provides further prerequisites in respect of equipment,
maintenance or airworthiness, taking into consideration the
regulations of the Joint Aviation Authorities (JAA) and EU
legislation. Aircraft operators need an air operating certificate
(AOC) and an operating licence.
Persons involved in aviation operations need to be licensed by the
ACG. The BMVIT has determined certain minimum requirements
(e.g., minimum age, reliability and fitness), training and instruction
programmes, which have to be met by potential candidates (Civil
Aviation Personnel Regulation, ZLPV 2006).
Aircraft of non EEA-countries (third-country aircraft) are subject to
ramp checks under the Law on safety measures for third-country
aircraft (implementing EC Council Directive No. 2004/36/CE on
the safety of third-country aircraft using Community airports).
These national provisions are complemented by EU legislation, in
particular the EC Regulation No. 216/2008 on common rules in the
field of civil aviation and establishing a European Aviation Safety
Agency (as last amended by EC Regulation No. 1108/2009), EC
Regulation No. 1702/2003 laying down implementing rules for the
airworthiness and environmental certification of aircraft and related
products, parts and appliances, as well as for the certification of
design and production organisations (as last amended by EC
Regulation No. 1194/2009), and EC Regulation No. 2042/2003
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(covering EASA part M, part 145, part 66 and part 147) on the
continuing airworthiness of aircraft and aeronautical products, parts
and appliances, and on the approval of organisations and personnel
involved in these tasks (as last amended by EC Regulation No.
127/2010).
1.4 Is air safety regulated separately for commercial, cargo
and private carriers?
No, it is not.
1.5 Are air charters regulated separately for commercial,
cargo and private carriers?
Special rules for charter flights to/from places outside of the EU are
contained in the BGzLV.
1.6 As regard to international air carriers operating in Austria,
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.
In general, there is no legal differentiation between flight operations
of international and domestic carriers. It may, however, be noted
that international flights are exempt from Austrian VAT.
to the BMVIT. Although organised as part of the BMVIT, the
Federal Accident Investigation Agency may act independently and
is not bound to any instructions of the BMVIT.
The exclusive duty of the Federal Accident Investigation Agency is
to determine the cause of the accident, in order to elaborate safety
recommendations to avoid similar accidents in the future. It is not
entitled to comment on liability issues, which are determined by
Austrian civil courts. The investigation procedure is not public and
must be initiated without delay. Premises where an accident has
arisen may be accessed, any documents and evidence necessary to
complete the agency’s duty may be viewed, witnesses and other
persons may be questioned and experts may be assigned. The
aircraft operator, manufacturer, crew, maintenance companies and
relevant authorities must be granted the opportunity to submit a
written statement before the agency’s investigation report is
finalised. The final investigation report must be made public, if
possible, not later than 12 months after the accident.
Air accidents causing bodily injury or death to persons are regularly
subject to criminal investigation proceedings of the Federal
Prosecution Authority. In such cases, the simultaneous
investigation of the Federal Accident Investigation Agency is
subject to the consent of and collaboration with the Federal
Prosecution Authority. Details of this cooperative approach are set
out in two public decrees of the Austrian Ministry of Justice of 2
August 2006 and 26 March 2008.
2 Aircraft Trading, Finance and Leasing
Austria
1.7 Are airports state or privately owned?
The Austrian airports are directly or indirectly (through state-owned
companies) owned by the province or city the airport is located in,
or both. There are six airports in Austria: Vienna; Graz; Innsbruck;
Klagenfurt; Linz; and Salzburg. Vienna Airport, as the largest
Austrian airport, is the only one owned by a public limited company
whose shares are listed on the stock exchange. According to the
annual report for 2011, 50 per cent of its shares are in free float and
20 per cent are owned by the city of Vienna and the province of
Lower Austria, respectively. The remaining 10 per cent are owned
by an employee foundation.
1.8 Do the airports impose requirements on carriers flying to
and from the airports in Austria?
In general, each airport has to publish its Conditions of Use
(including the Tariff Regulations) which set out the specific
requirements for the use of the airport.
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 system and procedure of investigation of aircraft accidents is
set out in the UUG, which implemented EC Council Directive No.
56/94, establishing the fundamental principles governing the
investigation of civil aviation accidents and incidents and
Regulation (EU) No. 996/2010 on the investigation and prevention
of accidents and incidents in civil aviation and repealing Directive
No. 94/56/EC.
Aircraft accidents are investigated in an administrative procedure
by the Federal Accident Investigation Agency, which is subordinate
2.1 Does registration of ownership in the aircraft register
constitute proof of ownership?
Registration is only a formal requirement and is no proof of any
ownership. The Austrian aircraft register is a so-called “operator
register”, from which the public can only obtain information about
the operator, but not about the aircraft owner.
2.2 Is there a register of aircraft mortgages and charges?
Broadly speaking, what are the rules around the operation
of this register?
The registration of mortgages and charges is not possible in Austria.
Only the following information is registered and publicly available:
Registration number.
Nationality and registration mark.
Manufacturer and manufacturer’s designation of aircraft.
Aircraft serial number.
MTOM.
Name and address of the Operator.
The legal owner of the aircraft is neither named in the certificate of
registration nor publicly disclosed in the aircraft register.
2.3 Are there any particular regulatory requirements which a
lessor or a financier need to be aware of as regards
aircraft operation?
No. The lessor/financier, who is typically the owner or pledgee of
the aircraft is not publicly disclosed in Austria. Only the aircraft
register itself is aware of the name of the owner of the aircraft.
Since pledges cannot be registered, the fact that the aircraft is
pledged in favour of a third party is irrelevant for the aircraft
register.
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Austria
2.4 Is Austria a signatory to the main international
conventions (Montreal, Geneva and Cape Town)?
Austria is a signatory to the Montreal and Geneva Conventions.
The Cape Town Convention has not yet been ratified; neither has
the Rome Convention.
2.5 How are the Conventions applied in Austria?
The liability for damages caused by an aircraft operator is governed by
Article 146 of the LFG. This Article explicitly states that the liability
provisions of the LFG are subsidiary to international conventions (in
particular the Montreal and Warsaw Conventions) and European law
(see Regulation (EC) No. 2027/97 and Regulation (EC) No.
889/2002). As a consequence, there is no further national liability
regime in respect of the death of, or injury to, passengers or loss of or
damage to baggage or cargo. In respect to Community air carriers
with a valid operating licence granted by a Member State in
accordance with the provisions of EC Regulation No. 1008/2008 on
common rules for the operation of air services in the Community, the
European regulations mentioned above shall apply.
3 Litigation and Dispute Resolution
3.1 What rights of detention are available in relation to aircraft
and unpaid debts?
There are no aviation-specific detention rights in Austria. The
general regime of civil and commercial detention rights in case of
unpaid debts applies.
According to Article 471 section 1 of the Austrian Civil Code
(Allgemeines Bürgerliches Gesetzbuch - ABGB) a creditor may retain
an object as security for (possible) expenses or damages caused by
that object. The effect of such detention is that the retained object
must only be returned if such expenses or damages are paid or if a
security payment is made in respect of such expenses or damages.
According to Article 1440 ABGB, this right of detention is not
applicable to leased or borrowed objects or such which were given
into custody or acquired in an unauthorised or cunning way.
Article 970 c ABGB provides for a special right of detention of
objects which were given to or put into the custody of a provider of
storage or parking services as security for any unpaid debts in
relation to the provision of its services. Following the latest case
law, companies entertaining an aircraft hangar are regarded as such
service providers, and therefore have a right of detention according
to Article 970 c ABGB.
In commercial relations, Article 369 of the Austrian Commercial
Code (Unternehmensgesetzbuch - UGB) provides for an extended
right of detention. According to Article 369 UGB, an entrepreneur
may retain any movable object of one of his commercial debtors
that comes into his possession, even if he did not come into its
possession based on the same grounds as the unpaid debt occurred.
If, however, a third party has rights in rem with respect to such
object, the creditor may not use his right of detention against such
third party. The question whether, in such case, a right of detention
might possibly be acquired by a creditor against such third party in
good faith is controversial. Generally speaking, such right might be
acquired in good faith, if the debt secured by the retention has in
some way benefited that third party and can be considered
implicitly consented to by that third party (e.g. an aircraft owner
(lessor) with respect to debts relating to repair works on his aircraft
not paid by its aircraft operator).
The unpaid debt must not necessarily be contractual (e.g. the
respective unpaid debt may therefore also be one in tort).
Rights of detention may be modified and/or extended contractually.
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?
There is no particular legal regime of self-help for repossession of
aircraft.
However, a lessor, as the owner of the aircraft, generally has the
legal right to repossess his property and may do so without
intervention of the court, unless the possessor of the aircraft has a
right in rem or a right of detention, which is also enforceable against
the lessor as owner. Subject to the principle of proportionality, an
owner may resort to self-help if the possessor of the aircraft refuses
to hand over the aircraft.
A financier, who is not the owner of the aircraft, would need a right
in rem, e.g. a pledge on the aircraft, in order to have a title for
repossession of an aircraft.
In order to facilitate repossession of a lessor or a financier in case
of a default under the respective finance agreement, aircraft
operation agreements are generally drafted so as to either include
the lessor or financier in the agreement or contain certain provisions
to terminate the agreement with the operator in events of default
under the finance agreements.
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 Austria regarding the courts in which
civil and criminal cases are brought?
Aviation disputes are handled by the general civil and/or criminal
courts in Austria.
In civil matters, the competent court generally depends on the value
of the dispute. If the value of the dispute is less than EUR 10,000,
the competent court of first instance is the district court
(Bezirksgericht). If the value of the dispute is higher than EUR
10,000, the regional court (Landesgericht) is the competent firstinstance
court. There are currently 141 district courts and 20
regional courts in Austria.
In Vienna, there is a special commercial district court
(Bezirksgericht für Handelssachen Wien) and a commercial
regional court (Handelsgericht Wien) for commercial matters. In
all other federal states, the normal district and regional courts are
also competent for commercial cases.
Criminal cases are also tried before the same district and regional
cases. The competence of the court depends on the possible
sentence for an offence. Offences where a sentence of a fine or
imprisonment of up to one year may be issued, are dealt with by the
district courts. Other offences are tried before the regional courts.
In Vienna, there is a special criminal regional court (Landesgericht
für Strafsachen Wien). In all other federal states, there are no
special criminal courts.
3.4 What type of remedies are available from the courts or
arbitral tribunals in Austria, both on an i) interim and a ii)
final basis?
In court proceedings, there is the possibility of an injunction as an
interim measure. The measures of injunctions are used to ensure
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that the judicial protection, which cannot be reached in time by
regular civil proceedings or enforcement proceedings, can be
temporarily secured.
In arbitral proceedings, the parties also have the possibility to
request an interim or securing measure against the other party after
their hearing in order to secure the enforcement of a claim (Art 593
ZPO).
On a final basis, the main remedies are those of restitution in kind,
specific performance, damages or a declarative statement.
3.5 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?
Yes, any decision from a court of first instance can be appealed
against.
In civil matters, if the subject matter is below the value of EUR
2,700, one can generally only raise a so-called “bagatelle appeal”
(Bagatellberufung) on the grounds of nullity of the proceedings or
a misconceived legal assessment by the court. If the value in
dispute is higher than EUR 2,700, one can raise an appeal against a
first-instance decision on the grounds of nullity of the proceedings,
other procedural deficiencies, incorrect factual finding, factual
finding due to wrong consideration of evidence, non-conformity
with matters on the record or misconceived legal assessment. The
time limit for an appeal is four weeks from service of the written
decision.
The competent courts for civil matter appeals are the regional courts
for first-instance decisions of the district courts and the higher
regional courts (Oberlandesgerichte) for first-instance decisions of
the regional courts.
An arbitrator’s award can be challenged on the grounds that the
decided matter had not been arbitrable or for ordre public reasons.
It must be raised within three months from service of the award (Art
611 ZPO).
In line with Article 3 of EC Regulation No. 139/2004, the creation
of a full function joint venture is subject to merger control.
However, the creation of a non-full function joint venture could
constitute a cartel. The merger control rules catch both
concentrative and cooperative full function joint ventures.
4.2 How do the competition authorities in Austria determine
the “relevant market” for the purposes of mergers and
acquisitions?
The respective relevant markets are the flight routes. In order to
determine whether or not a transaction has an effect on competition,
the respective relevant markets (flight routes) are compared; it
might suffice to determine whether or not the transaction has the
capacity to have an effect on competition. Certain effects of a
transaction, for example, consumer benefits or positive welfare
effects, may justify a competitive effect. Overlapping markets
(routes) are generally considered to have an effect on the relevant
market; non-overlapping markets are eligible to have such an effect.
As concerns airports, the relevant geographic market usually
comprises an ambit of about 100km for regional and 300km for
international airports. The relevant product market may be split
into airport infrastructure services, ground handling services and
non-aviation services (parking, restaurants, etc.).
4.3 Does Austria have a notification system whereby parties
to an agreement can obtain regulatory clearance/anti-trust
immunity from regulatory agencies?
The Austrian cartel law does not provide such a system. Each
undertaking has to assess its agreements and concerted practices by
itself and bears the risk of its own correct judgment.
4.4 How does Austria approach mergers, acquisition mergers
and full function joint ventures?
Austria
4 Commercial and Regulatory
4.1 How does Austria approach and regulate joint ventures
between airline competitors?
Competition between airlines is regulated by the competition law.
Austrian competition law is mainly set out in the Austrian Act
Against Unfair Competition (Gesetz gegen den Unlauteren
Wettbewerb - UWG) and the Austrian Cartel Act 2005
(Kartellgesetz 2005 - KartG). In addition to the national legal
framework, European competition law is applicable. The basis of
the European competition rules (as far as procedural aspects are
concerned) is EC Regulation No. 1/2003 on the implementation of
the rules on competition laid down in Articles 81 and 82 of the EC
Treaty and EC Regulation No. 139/2004 on merger control (now
Articles 101 and 102 TFEU). EC Regulation No. 411/2004 relates
explicitly to the aviation sector, extending the applicability of
European competition law to air transport between the EU and third
countries.
The applicable competition rules are applied by the regular national
and European competition authorities. The main national
competition authority in Austria is the independent Federal
Competition Agency (Bundeswettbewerbsbehörde - BWB). The
BWB is also responsible for merger control. Next to the BWB,
there is the federal antitrust prosecutor who is directly controlled by
the federal minister of justice.
Article 7 KartG describes all types of merger transaction, from the
acquisition of an undertaking or a major part thereof to the (direct
or indirect) acquisition of shares, if thereby a shareholding of 25%
or 50% is attained or exceeded until the establishment of a fullfunction
joint venture. It is worth mentioning that the acquisition of
a shareholding of 25% or more is also covered by the KartG,
regardless of whether or not control is conferred by the transaction.
A concentration has to be notified to the BWB if the following
thresholds are fulfilled (based on the revenues of the previous
business year):
1. the combined worldwide turnover of all undertakings
concerned exceeds EUR 300 million;
2. the combined Austrian turnover of all undertakings
concerned exceeds EUR 30 million; and
3. the individual worldwide turnover of each of at least two of
the undertakings concerned exceeds EUR 5 million.
However, even if the above thresholds are satisfied, no obligation to
notifiy exists if:
the Austrian turnover of only one of the undertakings
concerned exceeds EUR 5 million; and
the combined worldwide turnover of all other undertakings
concerned does not exceed EUR 30 million.
These thresholds may be overridden by the “one-stop-shopprinciple”
under EC Regulation No. 139/2004.
Merger control also applies in the absence of a substantive overlap.
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4.5 Please give an outline of the procedure, including time
frames for clearance and details of any costs of
notifications.
Concentrations that meet the turnover thresholds must be notified to
the BWB (unless the transaction has Community dimension
pursuant to EC Regulation No. 139/2004). There is no formal filing
deadline; however, a transaction must be implemented prior to
obtaining clearance.
A transaction is cleared in phase I if the statutory four-week period
expires and neither of the Official Parties (as defined in the KartG)
has lodged an appeal for phase II proceedings (the Official Parties
have to issue a declarative clearance notice to confirm that no
application has been lodged). In addition, a transaction is also
cleared if both Official Parties waive their right to apply for an indepth
investigation.
Every undertaking concerned is entitled to file the notification. In
addition, the seller is generally deemed to be entitled to submit a
filing. The filing fee is EUR 1,500 and has to be paid in cash to a
specific account of the BWB. The original deposit slip has to be
submitted with the filing in order to trigger the statutory four-week
period.
Should phase II proceedings be opened, the Cartel Court may
impose an (additional) lump sum on the undertakings concerned of
up to EUR 30,000. No additional fees have to be paid for
proceedings before the Supreme Cartel Court (i.e. if a decision of
the Cartel Court is challenged).
4.6 Are there any sector specific rules which govern the
aviation sector in relation to financial support for air
operators, including (without limitation) state aid?
Subsidies are governed in Austria by the rules laid down in the EC
Treaty. The basis of this financial support and state aid system is to
be found in Article 107 and following of the EC Treaty. The core
of these general rules is that any kind of financial support to
individual companies by the government or government-controlled
agencies or companies is forbidden, if such financial support causes
distortion of competition by advantaging one company over the
other. These general rules also apply to the aviation sector.
In addition, the EU has issued sector-specific guidelines for the
aviation sector on financing of airports and start-up aid to airlines
departing from regional airports (OJ 2005 C 312) supplementing
the Aviation Guidelines of 1994 (OJ 1994 C 350). These guidelines
reflect the main case law principles elaborated by the European
courts. Although they are not formally binding, they are taken into
consideration by the relevant European institutions and national
authorities.
4.7 Are state subsidies available in respect of particular
routes? What criteria apply to obtaining these subsidies?
The legal basis for the grant of state subsidies in respect of
particular routes is Regulation (EC) No. 1008/2008 on common
rules for the operation of air services in the Community. This
Regulation provides that Member States may, after consulting other
concerned Member States and informing the European Commission
and the respective airports and air carriers operating such routes,
impose a public service obligation to ensure operation of services to
peripheral or development regions or on a thin route, if any such
route is considered vital for the economic and social development
of the region which the airport serves.
That obligation has to be imposed by the Member States only to the
extent necessary to ensure on that route the minimum provision of
scheduled air services satisfying fixed standards of continuity,
regularity, pricing or minimum capacity, which air carriers would
not assume if they were solely considering their commercial
interest. The right to operate such services shall be offered by
public tender to any Community air carrier entitled to operate such
air services.
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 instruments governing the acquisition,
retention and use of passenger data are the Austrian Data Privacy
Act 2000 (Datenschutzgesetz 2000 - DSG), the International Data
Privacy Convention, the Passenger Data Agreement EU-USA and
the Passenger Data Agreement EU-Canada.
According to Austrian Law, personal data (as collected in PNR)
principally may only be collected and used for distinct and lawful
purposes. Special focus is set on the transfer and (permanent)
retention of personal data.
As far as the personal data is neither required for the vital interest
of the person concerned, nor obtained with the explicit approval of
the person concerned, restrictions of the right of non-disclosure
may only be effected in order to obtain the justifiably predominant
interests of the data applying party (Art 1 DSG).
In some cases, the data transfer to foreign countries (outside the
EU) has to be approved by the Austrian Data Protection
Commission (Datenschutzkommission). This authorisation may be
required in the event of the transfer to countries that do not provide
a similar level of data protection, and if the above-mentioned
criteria for the use of personal data are not fulfilled (Art 13 DSG).
Mostly, personal data acquired and held by airlines is usually a)
needed in the predominant interest of the carrier, b) needed in the
predominant interest of an authority for the prevention or
prosecution of crimes, or c) used with the approval of the person.
Concerned persons (passengers) have the right to be informed about
the respectively held data, to request rectification and to claim the
obligatory erasure of data that is no longer held for the predominant
interest of the data applying party.
Particular regulations to the retention of data apply according to the
Passenger Data Agreements with the USA and Canada.
Passengers have the right to claim violations of data privacy before
the Austrian Data Protection Commission. Furthermore, they may
legally enforce indemnification at civil courts.
Article 52 DSG regulates sanctions for the unlawful acquisition,
retention and use of personal data, as well as for the violation of
mandatory disclosure or erasure. Particularly severe sanctions
apply on the unlawful use of data with malice or profit gaining
purpose (Article 51).
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?
Principally there is no particular regulation that applies in the event
of data loss by an air carrier.
In case data loss caused by the carrier causes damage for the
concerned passenger, e.g. resulting in refused entry admission or
delayed transportation, the carrier may, however, be held liable
according to general principles of tort and/or liability law.
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Jarolim Flitsch Rechtsanwälte GmbH
Austria
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?
Trademarks can be registered under the Austrian Trademark Act
(Markenschutzgesetz - MSchG) in the Austrian Trademark Register;
however, there is also protection available for unregistered marks
and labels, if proof can be provided of their existence and use.
Patents can be registered in the Austrian Patent Register under the
Austrian Patent Act (Patentgesetz - PatG); designs and utility
models (Geschmacks- und Gebrauchsmuster) can be registered
with the Austrian Patent Office under the Model Protection Act
(Musterschutzgesetz - MSchG).
There is no registry of proprietary rights. Protection is available for
interference with possession (Besitzstörung) in simplified
proceedings before the district courts. Further remedies are
available under Austrian law for violation and interference with
proprietary rights.
4.11 Is there any legislation governing the denial of boarding
rights?
As a Member State of the EU, EC Regulation No. 261/2004
establishing common rules on compensation and assistance to
passengers in the event of denied boarding and of cancellation or
long delay of flights is the relevant legislation for denial of
boarding.
4.12 What powers do the relevant authorities have in relation
to the late arrival and departure of flights?
In commercial aviation, the flight slots must be allocated, in
facilitated airports by the airports itself, in coordinated airports by
the Schedule Coordination Austria GmbH (SCA) pursuant to the
procedure set out in the EEC Regulation No. 95/93 on common
rules for the allocation of slots at Community Airports, as amended
by EEC Regulation No. 793/2004 and EC Regulation No.
545/2009, and the Austrian Slot Coordination Regulation 2008.
The authority may deny landing and/or departure if requirements
outlined in the applicable rules are not complied with.
4.13 Are the airport authorities governed by particular
legislation? If so, what obligations, broadly speaking, are
imposed on the airport authorities?
The prime legislation for airport authorities is the LFG, which
requires every airport operator to issue and publish Conditions of
Use (Zivilflugplatzbenützungsbedingungen), which shall guarantee
the non-discriminatory access to, and safe and economic operation
of the airport. These must be approved by the BMVIT. The
Conditions of Use must contain the Tariff Regulations
(Tarifordnung). The airport charges must be calculated according
to the Airport Charges Act (Flughafenentgeltegesetz - FEG), which
entered into force on 1 July 2012 and implemented Directive
2009/12/EC on airport charges.
Ground handling services and requirements for the access to ground
handling services are governed by the Airport Groundhandling Act
(Flughafen-Bodenabfertigungsgesetz - FBG). The FBG
implemented Directive 96/67/EC on access to the ground handling
market at Community airports, which ensures the liberalisation of
the ground handling services in the EU.
Austria
The relevant authority for determination and approval of flight
schedules in Austria is the ACG. The rules set out for flight
schedules are found in the LVR.
Accordingly, each flight schedule needs to be reported by the
respective pilot to the ACG, including place of departure, speed,
flight altitude, maximum flight time and expected landing place and
time. Actual departure needs to be reported to the authority, unless
the expected landing time will not be exceeded by 15 minutes, or it
was announced that no departure notice would be made, or if such
notice could not be made. Special notices need to be made if
scheduled landing times cannot be met by more than 30 minutes.
Approval by the authority is then required for the actual departure
time. Special rules apply for emergency landings.
4.14 What global distribution suppliers (GDS) operate in
Austria?
The two main reservations systems used by travel agencies in
Austria are Amadeus (distributed through Amadeus Austria
Marketing GmbH) and Galileo (distributed through TraviAustria
Datenservice für Reise und Touristik GmbH & Co Nfg KG).
4.15 Are there any ownership requirements pertaining to
GDS’s operating in Austria?
There is no national legal regime that governs GDS. Regulation
(EC) No. 80/2009 on a Code of Conduct for computerised
reservation systems is directly applicable in Austria.
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23

Jarolim Flitsch Rechtsanwälte GmbH
Austria
Martina Flitsch
Jarolim Flitsch Rechtsanwälte GmbH
Volksgartenstraße 3/1. OG
1010 Vienna
Austria
Irena Gogl
Jarolim Flitsch Rechtsanwälte GmbH
Volksgartenstraße 3/1. OG
1010 Vienna
Austria
Austria
Tel: +43 1 253 70 00
Fax: +43 1 253 70 00 43
Email: martina.flitsch@jarolim.at
URL: www.jarolim.at
Martina is one of the founding partners of the firm and specialises
particularly in Aviation Law, Contract Law, Anti-Trust and
Competition Law, Public Procurement Law and Labour Law.
After studying law at the universities of Graz (Austria), Trier
(Germany) and California (USA), she was admitted to the
Austrian bar in 2001.
Martina has vast experience in the field of Aviation Law as an
attorney as well as an in-house counsel of Austrian Airlines,
Austria’s (former) national carrier. She has contributed to many
major publications on Aviation Law, such as the Cologne
Commentary on Aviation Law (Kölner Kompendium des
Luftrechts) by Professor Stephan Hobe, and Nicolai von
Ruckteschell.
Tel: +43 1 253 70 00
Fax: +43 1 253 70 00 43
Email: irena.gogl@jarolim.at
URL: www.jarolim.at
Irena joined the firm as a partner in 2012, after gaining
international work experience in renowned law firms in London,
Warsaw and Vienna. Her specialisations lie primarily in Banking
& Finance, Corporate Law and M&A and Aviation Law.
Irena studied law at the university of Vienna (Austria) and Dijon
(France) and, later also obtained a master of laws in International
Banking & Finance at UCL in London. She was admitted to the
Austrian bar in 2009.
Next to being a lecturer in the masters programme on Aviation
Management at the “Fachhochschule Joanneum” in Graz
(Austria), Irena has contributed to several publications on
Aviation law, such as the Cologne Commentary on Aviation Law
or the Austrian Handbook on Transport Law, facultas.wuv, 2009,
where Irena provided the chapter on Aviation Law.
Jarolim Flitsch is a respected business law firm based in Vienna with more than 25 years of practice and experience.
Our aim is to provide top-level legal advice to our clients on the basis of a personal, prompt and reliable service. Our slogan
“Creative Thinking | Strategic Developing | Dynamic Performing” reflects the way in which our firm works to provide innovative,
flexible and tailor-made solutions for our clients.
With 5 partners and a further 6 senior and junior associates we are in a position to provide the full range of legal services,
specialising particularly in meeting the needs of 5 core sectors, in which we have meanwhile acquired vast experience as in-house
as well as outside legal counsel: Transport, Energy and Infrastructure; Banking & Finance; Real Estate; Health Services; and the
Public Sector.
With regard to Aviation, our firm has been continuously rated as one of the top firms in Austria, regularly being awarded national
and international law awards in this field.
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