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

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Jarolim Flitsch Rechtsanwälte GmbH Austria (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. ICLG TO: AVIATION LAW 2013 © Published and reproduced with kind permission by Global Legal Group Ltd, London WWW.ICLG.CO.UK 19
Jarolim Flitsch Rechtsanwälte GmbH Austria 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 20 WWW.ICLG.CO.UK ICLG TO: AVIATION LAW 2013 © Published and reproduced with kind permission by Global Legal Group Ltd, London
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