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Recent developments and trends

Recent Developments

Are there any notable recent developments or trends in the aviation sector in your jurisdiction?

Cases which have recently been referred to the European Court of Justice by German courts include:

Siegberg v TUIfly GmbH (C-276/17) – mass illness or wildcat strike at TUIfly (July 7 2017);

Becker v Hainan Airlines Co Ltd (C-447/16) – jurisdiction questions when two flight legs are operated by two different airlines (August 11 2016);

Barkan v Air Nostrum LAM SA (C-448/16) – jurisdiction questions when operating carrier does not have a contract with the passenger (August 11 2016);

Devine v Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-538/16) – jurisdiction questions when operating carrier does not have a contract with the passenger (25 October 2016); and

Heintges v German Wings GmbH (C-74/17) – questions on further rights to compensation under Article 12 of Regulation 261/2004 (February 10 2017).

Regulatory Framework

Domestic law

What is the primary domestic legislation governing the aviation industry in your jurisdiction?

In Germany, aviation law is mainly governed by international treaties and European law.

For international air carriage the legal framework for liability is based on international treaties and regulations as well as the Civil Code. Liability in respect of non-convention carriage is governed by the Air Traffic Act and the Civil Code. The Air Traffic Act is also applicable for damage on the ground (ie, damage suffered by third parties caused by the operation of an aircraft).

If domestic carriage (ie, within Germany) is carried out by an EU air carrier, it is not the Air Traffic Act but EU Regulation 889/2002 that applies.

Additional key legislation includes the Air Traffic Regulation and the Aviation Security Act.

International law

What international aviation agreements has your jurisdiction concluded?

  • Germany is a party to the main following multilateral agreements relating to international carriage:

  • the Convention on International Civil Aviation (Chicago, June 8 1956);

  • the International Air Services Transit Agreement (Chicago, June 8 1956);

  • the Convention on the international recognition of rights in aircraft (Geneva, October 5 1959);

  • the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw, December 29 1933);

  • the Hague Protocol to Amend the Warsaw Convention (The Hague, August 1 1963);

  • the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier (Guadalajara, May 31 1964);

  • the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montreal, June 28 2004); and

  • the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, March 16 1970).

Regulatory authorities

Which government bodies regulate the aviation industry and what is the extent of their powers?

The Federal Aviation Office in Braunschweig is the main government body regulating the aviation industry. It is responsible for granting certificates of airworthiness and operating licences. It is the competent authority for aircraft registrations and entry permissions. Further, it deals with environmental issues, aviation safety and security as well as aviation personnel.

Air carrier operations

Operating authorisation

What procedural and documentary requirements must air carriers meet in order to operate in your jurisdiction? 

As Germany is an EU member state, EU Regulation 1008/2008 applies to and governs licensed activities.

Under the regulation, air carriers from EEA member states are entitled to operate flights within the European Union. No special application or notification is required. This also applies to air carriers from Switzerland.

However, the regulation does not apply to the following undertakings:

  • foreign carriers based outside the European Economic Area; and

  • carriers based in Germany that operate round-trips or carry passengers or cargo by hot air balloon.

Pursuant to Article 15 of EU Regulation 1008/2008, air carriers from EEA member states and Switzerland are authorised to exercise the right to operate on routes within the European Union and are no longer required to submit a separate application.

In respect of scheduled air traffic, air carriers from non-EEA member states must obtain an operating licence from the Civil Aviation Office (LBA) before commencing scheduled air services from and to Germany. Foreign carriers must provide the following when applying for permission to operate in Germany:

  • articles of association;

  • excerpt from the Commercial Register;

  • latest annual report or details on the board of management and the composition of the capital;

  • flight schedule (code share flights only);

  • a complete list of the fleet with details of the capacity of each aircraft, including:

  • a leasing contract (if necessary);

  • a certificate of registration;

  • a certificate of airworthiness; and

  • a noise certificate;

  • an operating permit questionnaire, including proof of maintenance of the aircraft in compliance with the International Civil Aviation Organisation;

  • third-party legal liability insurance;

  • liability insurance covering damage to persons, baggage, cargo and damage caused by delay;

  • declaration of the authorised appointed recipient;

  • air operator certificate with a validity of at least one year;

  • designation of the air carrier by the government of the state of registry for scheduled air services between the state of registry and Germany or vice versa;

  • an estimate of expected traffic volume on the planned route for the first year of operation;

  • aviation security plan; and

  • in case of carrying cargo or mail: ACC3-designation according to EU Regulation 300/2008 for third-country airports that do not have equivalent security standards

Entry permission must be requested for commercial flights of non-EEA air carriers to and from Germany.

The permission for entry will be granted only if the state registry of the air carrier submitting the application grants entry to German air carriers in the same way (reciprocity clause).

The following documents must be provided (in German or English) together with the application form:

  • charter agreement;

  • operating licence, including air operator certificate with operation specifications (eg, aircraft listing);

  • third-party legal liability insurance;

  • liability insurance covering damage to persons, baggage, cargo and damage caused by delay;

  • certificate of registration;

  • certificate of airworthiness;

  • noise certificate;

  • operating permit questionnaire or third-country operator-approval;

  • declaration concerning an authorised recipient in Germany;

  • aviation security plan; and

  • in case of carrying cargo or mail: ACC3-designation according to EU Regulation 300/2008 for third-country airports that do not have equivalent security standards.

With regard to fifth freedom flights Proof must be brought to the LBA that German air carriers are neither prepared nor in a position to conduct the flights (declaration of non-availability). This proof is not required for cargo air services conducted by EEA air carriers. In the case of air carriers from EEA member states with an accredited branch in Germany, a declaration of non‑availability need not be submitted.

Flights on a commercial basis for other purposes (aerial work, flight with balloons, local flights) – air carriers from non-EEA Member States for these types of flight, entry is not permitted without explicit entry permission. The following documents must be provided to the LBA:

  • proof of relevant permission by the state of registry to perform the activity applied for;

  • third-party legal liability insurance;

  • liability insurance covering damage to persons, baggage, cargo and damage caused by delay;

  • certificate of registration;

  • certificate of airworthiness;

  • noise certificate; and

  • declaration of non-availability of the German companies.

Flights on a commercial basis for other purposes – air carriers from EEA Member States

According to EU Regulation 1008/2008, air carriers from EEA member states are allowed to operate traffic rights on routes in the intra-community air traffic in the European Economic Area. A separate application or notification is no longer necessary. This applies also for air carriers from Switzerland. Until an agreement between the European Union and Switzerland with regard to the approval of cabotage operations comes into force, Swiss aviation companies cannot be granted cabotage rights in Germany.

Ownership and Control

Do any nationality or other requirements or restrictions apply to ownership or control of air carriers operating in your jurisdiction?

An aircraft must be registered in the aircraft register. Registration is effected automatically by the LBA when granting the certificate of airworthiness. Therefore, obtaining of a certificate of airworthiness is a prerequisite for registration of an aircraft in the aircraft register.

As a general rule, registration in the aircraft register is possible only if the owner of the aircraft is:

  • a German national;

  • an EU or EEA member state national; or

  • a Swiss national.

Natural persons and corporate entities must normally have their place of domicile or business registration in Germany.

A person from a third-party country can be registered as an owner in the aircraft register if he or she indicates to the LBA details of a person who is authorised to accept service of documents and meets the above criteria.

If an aircraft is leased from an owner that is not domiciled or based in the European Union, the owner can be registered in the aircraft register if the following conditions are met:

  • the lessee is the operator of the aircraft and is a German air carrier with a valid operating permit;

  • the aircraft is leased for at least six months;

  • the aircraft is based and can regularly be found at an airport in Germany;

  • the owner proved its ownership of the aircraft by providing original documents or notarised copies of the originals to the LBA;

  • the owner declares in writing that:

  • it is aware of its obligations under German aviation law (especially the Regulation on Air Traffic Permission) and the Air Traffic Act;

  • the costs of registration of the aircraft can be charged on the aircraft operator; and

  • it is aware that the registration can be cancelled if the first three conditions listed above cease to apply, and that it must inform the LBA of any changes in this context.

Corporate entities must provide:

  • a copy of the commercial register extract; and

  • a declaration signed by the representative bodies of the company confirming that the company fulfils the conditions of Article 3 of the Air Traffic Act (ie, that the aircraft is not registered in a foreign aircraft register, that the main percentage of the assets of the company is owned by German or EU nationals, that German or EU nationals have the control over the assets and that the majority of the representatives of the company or the majority of the personally liable partners of the company are German or EU nationals).

Financial requirements

What financial thresholds must air carriers meet to obtain operating authorisation?

N/A.

Insurance coverage

What is the required level of insurance coverage for air carrier operations?

Insurance requirements for air carriers and aircraft operators are set out in EU Regulation  285/2010 (amending EU Regulation 785/2004).

This regulation applies to all air carriers and to all aircraft operators flying within, into, out of or over the territory of a member state to which the regulation applies. Air carriers and aircraft operators must be insured in accordance with this regulation as regards their aviation-specific liability in respect of passengers, baggage, cargo and third parties. The insured risks shall include acts of war, terrorism, hijacking, acts of sabotage, unlawful seizure of aircraft and civil commotion.

For liability in respect of passengers, the minimum insurance cover must be 250,000 special drawing rights (SDR) per passenger. For liability in respect of baggage, the minimum insurance cover must be 1,131SDR per passenger in commercial operations. For liability in respect of cargo, the minimum insurance cover must be 19SDR per kilogram (kg) in commercial operation. However, these figures do not apply with respect to flights over the territory of the member states carried out by non-EU air carriers and by aircraft operators using aircraft registered outside the European Union that do not involve a landing on or take-off from such territory.

In respect of liability for third parties, the minimum insurance cover per accident for each and every aircraft depends on the maximum take-off weight. For instance, the minimum insurance for an aircraft with a maximum take-off weight of less than 500,000kg would be 500 million SDR and for an aircraft with 500,000kg or more, the minimum insurance would be 700 million SDR.

EU member states must ensure that air carriers and aircraft operators comply with this regulation. Member states may request evidence of compliance with the insurance requirements laid down in this regulation.

With regard to EU air carriers, penalties for infringing this regulation may include the withdrawal of the operating licence. With regard to non‑EU air carriers, the penalties may include refusal of the right to land on the territory of an EU member state. If the aircraft operator is not an EU carrier, the minimum insurance cover must be in accordance with Article 37 of the Air Traffic Act. The figures are the same as in Article 7 of EU Regulation 785/2004 (ie, it depends on the maximum take-off weight).

Regarding aircraft hull insurance, the interest of the owner in the maintenance of the asset value can be insured. The insurer must pay for loss or damage to the aircraft up to the agreed insurance sum.

Another (non-mandatory) type of insurance is aviation accident insurance. The insurer must pay the agreed sum to a passenger or to the employees of the air carrier on a strict basis (ie, without clarifying whether the requirements for the liability of the air carrier are fulfilled, as would be the case in mandatory liability insurance).

Safety requirements

What safety requirements apply to air carrier operations, including with regard to professional and technical certifications?

In Germany, safety issues are largely governed by EU regulations. The national rules governing air traffic safety are primarily the Air Traffic Regulation, the Regulation for the Operation of Aircraft and the Regulation on the Examination of Aircraft.

Every participant in air traffic must act in such a way that the safety of the air traffic is guaranteed and no one is endangered or harmed. In respect of safety matters, the Air Traffic Regulation determines (among other things) the rights and obligations of the pilot in command, including the right to decide in respect of the operation of the aircraft and to undertake all necessary measures during flight, take-off and landing.

The Regulation for the Operation of Aircraft applies only as far as EU regulations do not apply and to the following:

  • aircraft that are registered in the German aircraft register;

  • aircraft for which the Federal Republic of Germany has assumed responsibility; and

  • aircraft that are registered in a different country but have German approval for round-trip flights without intermediate stops or hot-air balloon flights.

The Regulation for the Operation of Aircraft and its third implementation regulation stipulate the equipment that must be carried on board an aircraft – including safety belts, signals, oxygen systems, life vests, an airspeed indicator, two barometric altimeters, a variometer, a gyro, a magnetic compass, a first-aid kit and a fire extinguisher – depending on the intended flight type (eg, visual flight or instrumental flight, flights over water or land).

The Regulation on the Examination of Aircraft regulates the requirements and the procedure of the examination of aircraft concerning their airworthiness in terms of development, manufacturing and maintenance as far as EU Regulations 216/2008, 748/2012 and 2042/2003 are not applicable. The examination is made by way of a type inspection (in the case of the development and manufacture of the aircraft) and by control of maintenance measures or verified maintenance checks. In most cases, the LBA is the authority which is competent to issue the certificate of airworthiness.

Environmental obligations

What environmental obligations apply to air carrier operations?

The certification and registration of aircraft requires written documentation confirming that the noise level does not exceed the requirements on the basis of the current state of technology.The noise thresholds are indicated in the International Civil Aviation Organsiation Annex 16, Volume I and the Noise Regulations for Aircraft.The European Aviation Safety Agency (EASA) publishes the noise thresholds as per Article 4.1 of EU Regulation 216/2008 in the EASA’s type-certificate data sheet for noise database.Regarding aircraft that are subject to EU member state regulations as per Article 1.2 (“State Aircraft”) and Article 4.4 (“Annex II Aircraft”) of EU Regulation 216/2008 , the LBA noise threshold publications apply.

Germany and German operators as well as aircraft operators landing in and departing from Germany are subject to the EU Emission Trading Scheme. The relevant carriers must report their flights as well as their emissions to the relevant authority, which in Germany is the German Emissions Trading Authority (DEHSt), an authority within the Ministry of Environment. Reports are due by March 31 of the relevant year and, based on the amount of emssions, DEHSt then determines the number of allowances that must be returned.

For the type certification of jet engines and turbo fans for civil subsonic aircraft, documentation is required confirming that the emissions of soot, carbon monoxide, unburned hydrocarbons and nitrogen oxide do not exceed the not exceed the requirements on the basis of the current state of technology. The thresholds are determined in the International Civil Aviation Organsiation rules in Annex 16 Volume II.

Air traffic control

How are air traffic control services regulated in your jurisdiction?

The German air traffic control authority is Deutsche Flugsicherung based in Langen. Its responsibilities, which are determined in the Air Traffic Act, are as follows:

  • air traffic control of air traffic in Germany;

  • establishing and maintaining technical devices and radio navigation systems;

  • planning and testing procedures and devices for air-traffic management;

  • preparing expert reports;

  • monitoring obstacles in restricted airport areas as well as beyond such areas 100 metres above ground;

  • collecting and publishing aviation information, data and maps; and

  • regional military air traffic control in Germany.

Air traffic control is effected by way of aerodrome control (tower), approach control (terminal control) and area control surveillance (area control centre).

Routes

Do any licensing requirements apply to specific routes?

N/A.

Are any public service obligations in place with respect to remote destinations?

N/A.

Charter Services

Do any special provisions apply to charter services?

Non-EEA charter carriers must apply for entry permission if they wish to fly to Germany. The permit can be obtained for a single flight or for several flights. The permit is granted only if the home country of the charter carrier grants entry permissions to German charter carriers in the same way (reciprocity principle).

Taxes

What taxes apply to the provision of air carrier services?

An air traffic tax is stipulated in the Air Traffic Tax Act. The amount of the tax depends on the route, whereas the relevant routes and countries are listed in an annex of the act:

  • Distance Category 1 (short distance) – the tax is €7.38 per passenger;

  • Distance Category 2 (middle distance) – the tax is €23.05; and

  • Distance Category 3 (long distance) – the tax is € 41.49 per passenger.

Further, for flights within Germany, the air carrier must pay value added tax on each ticket sold.

Consumer protection and liability airfares

Are airfares regulated in your jurisdiction?

EU Regulation 1008/2008 obliges air carriers and travel agents to maintain a high-transparency standard in respect of airfares.

Further, it is outlined in the Unfair Practices Act as well as in the Regulation on the Indication of Prices that the price of a product or service must be indicated in a clear and transparent way.

Passenger protection

Passenger rights are mainly governed by EU regulations, especially EU Regulation 261/2004 and the Montreal Convention, as well as EU Regulation 1107/2006.

What rules and liabilities are air carriers subject to in respect of:

(a)Flight delay and cancellations

EU Regulation 261/2004 and the Montreal Convention apply.

(b) Oversold flights

EU Regulation 261/2004 applies.

(c) Denied boarding

EU Regulation 261/2004 applies.

(d) Access for disabled passengers

EU Regulation 1107/2006 applies.

(e) Lost, damaged or destroyed luggage

The Montreal Convention applies.

(f) Retention and protection of passenger data

The Federal Data Protection Act is applicable, and applies to the protection of personal data of an individual, thus also passenger data. Personal data may be collected, saved and used only to fulfill a legal obligation or quasi-legal obligation with the data subject. Apart from this, the collection, saving and usage of personal data is allowed only if the data subject has expressly provided its unambiguous consent.

Cargo

What rules and liabilities apply to the air carriage of cargo?

Germany is a party to:

  • the Amended Warsaw Convention (The Hague); and

  • the Montreal Convention.

Therefore, the provisions in these conventions apply to the air carriage of cargo.

For air transport within Germany, national rules apply (ie, the Commercial Code).

Basically, the carrier is strictly liable for damage, loss and delay to cargo but liability is limited to 19 special drawing rights (SDR) per kilogram (kg) under the Montreal Convention or 8.33SDRs under the Commercial Code.

Marketing and advertising

Do any special rules apply to the marketing and advertising of aviation services?

Under the Unfair Practices Act, amongst others, the following acts and approaches are considered unfair and illegal:

  • non-transparent, unclear descriptions of products and services;

  • incorrect and misleading descriptions of products and services;

  • incorrect indications of consumer rights;

  • disparaging the product, service, brand, name or business situation  of a competitor; and

  • advertising via telephone, fax or electronic messages (eg, SMS, email) without the prior written consent of the consumer (opt in is mandatory). Email or other electronic advertisement is permissible only if:

  • the company has obtained the e-mail address directly from the consumer during the purchase of a similar product or service;

  • the advertisement concerns the same type of product or service;

  • the consumer has expressly consented to obtaining advertisements from the company regarding this type of product or service (opt-in is mandatory); and

  • the consumer is informed in every email how to withdraw consent to obtain advertisements from the company.

Complaints handling

If a passenger is unsuccessful regarding his or her complaint when addressing the airline directly, the following options are available:

  • Alternative dispute resolution (ADR) –  on November 1 2013 the conciliation instrument of ADR came into force in Germany to avoid court proceedings in the case of delays, cancellations and denied boarding, as well as baggage claims. A framework for voluntary conciliation has been created that passengers can use if an airline does not satisfy their claims within two months. Claims of up to €5,000 will be handled by the conciliation institutions. There are private law ADR bodies that have been certified by the German authorities and which airlines can join. If an airline has not joined an ADR body, the passenger can turn to the ADR authority within the Ministry of Justice. The conciliation proceedings are free of charge for the passenger.

  • National enforcement body – the Civil Aviation Authority (LBA) is the national enforcement body regarding EU Regulation 261/2004 and EU Regulation 1107/2006. It handles passenger complaints free of charge for the passenger. However, the LBA does not have the power to order an airline to pay compensation or to undertake certain measures towards the passenger; it can only impose a fine on an airline for not paying compensation or for not providing certain assistance.

Legal assistance through lawyers and claim companies – passengers may turn to law firms and claim companies to seek assistance.

Court proceedings – passengers can file a lawsuit with the competent courts to pursue their rights. Representation by a lawyer is optional for claims not exceeding €5,000.

Aircraft

Aircraft register

What are the requirements for entry in the domestic aircraft register?

An aircraft must be registered in the aircraft register as per the Regulation on Air Traffic Permission. The competent authority is the LBA. Registration is effected automatically by the LBA when granting the certificate of airworthiness. Therefore, obtaining a certificate of airworthiness is a prerequisite for registration of an aircraft in the aircraft register.

Mortgages and encumbrances

Is there a domestic register for aircraft mortgages, encumbrances and other interests? If so, what are the requirements and legal effects of registration?

Aircraft mortgages are registered in the aircraft mortgage register at the local court in Braunschweig.

An application for registration of an aircraft mortgage can be filed only after the aircraft is registered on the aircraft register. The application for registration of an aircraft mortgage must indicate the aircraft register number for the relevant aircraft be drafted and filed by a German notary by way of a notarial deed in German.

  • The notarial deed must be filed with the local court in Braunschweig and include the following documents and information:

  • the application for registration of the mortgage, which indicates the mortgage amount and the interest specifications;

  • general information on the aircraft, including:

  • the page number of the aircraft register on which the aircraft is registered;

  • the nationality and registry mark of the aircraft;

  • the aircraft type;

  • the serial number of the airframe; and

  • the name and place of residence of the aircraft owner;

  • an affidavit confirming that the mortgagor is the sole owner of the aircraft and that the aircraft is not mortgaged to another person or entity;

  • an affidavit confirming the value of the aircraft;

  • confirmation that the mortgagor owes the secured obligations to the mortgagee;

  • a declaration subjecting the aircraft to immediate enforcement proceedings in the case of default under the mortgage, which includes enforcement measures against the mortgagor;

  • confirmation that the mortgagee can obtain an enforceable copy of the notarial deed; and

  • confirmation that the mortgagor must bear the cost of the notarial deed and of registering the mortgage in the aircraft mortgage register.

The aircraft mortgage is registered after the payment of the registration fees is made and after the court has reviewed and approved the required documents. Registration of an aircraft mortgage takes about two to three days from receipt of payment by the court.

There is no separate mortgage register for aircraft engines and spare parts in Germany. An aircraft mortgage can be registered only over the whole aircraft. Spare parts or engines attached to the aircraft are not identified separately in the aircraft mortgage register. The engines and spare parts are considered parts of the aircraft. A registered aircraft mortgage will also cover spare parts and engines if:

  • the aircraft owner is also the owner of the spare parts and engines; and

  • the engines and spare parts are attached to the aircraft.

The parties can agree that an aircraft mortgage extends to engines and spare parts that are located elsewhere and are not attached to the aircraft. However, mortgage cannot be granted solely over the engines or spare parts.

To perfect an aircraft mortgage, the mortgage must be registered in the aircraft mortgage register. A registered aircraft mortgage takes priority over any subsequently registered mortgage. An aircraft buyer will become the owner subject to any previously registered mortgage and free of any mortgage that was unregistered at the time of the purchase.

Detention

In the case of an enforceable right (ie, a judgment or court order), the detention of an aircraft is possible under the Civil Procedure Code. The types of detention include the registration of an aircraft mortgage or even the auctioning of an aircraft.

Safety and maintenance

Safety issues are largely governed by EU regulations.

The national rules governing air traffic safety are primarily the Air Traffic Regulation, the Regulation for the Operation of Aircraft and the Regulation on the Examination of Aircraft.

Drones

The private use of drones requires permission from the competent local aviation authority if the drones:

  • have a maximum take-off weight of 5kg or more;

  • are operated within a distance of less than 1.5 kilometres of an airport; or

  • are operated at night.

Since October 1 2017, at the local aviation authority’s request, the operators of drones with a maximum take-off weight of more than 2kg must provide evidence of the following capabilities:

  • operating and navigating the drone;

  • knowledge of relevant air law rules; and

  • local airspace rules.

Such evidence can be provided through:

  • a valid pilot’s licence;

  • a certificate confirming the successful passing of an examination with an entity accredited by the LBA; or

  • a certificate confirming the instruction by an accredited air sport association.

Among others, the following types of drone operation are prohibited:

  • beyond the sight of the operator if the maximum take-off weight of the drone is 5kg or less;

  • at a height and lateral distance of 100 metres of crowds, accident scenes, disaster areas and other operation sites of authorities and organisations with safety or security missions as well as mobile establishments and army troops;

  • at a height and lateral distance of 100 metres of the outer boundaries of industrial, prison, military or energy production facilities;

  • at a height and lateral distance of 100 metres of governmental authorities, embassies and consulates, as well as police facilities;

  • at a height and lateral distance of 100 metres of federal highways and railway facilities;

  • over certain nature reserves;

  • over residential estates if the maximum take-off weight of the drone exceeds 0.25kg or if the device or its equipment can receive, transfer or record optical, acoustic or radio signals, unless the owner of the premises or the resident has expressly consented to the overflight; and

  • at a height and lateral distance of 100 metres of the boundaries of a hospital.

Accidents

Investigation

Under German law, civil aircraft accidents must be reported immediately to the authority for the investigation of accidents and disruptions, the Federal Bureau of Aircraft Accident Investigation (BFU) by the pilot, a crew member or the owner of the aircraft. Incidents that endanger or could endanger an aircraft, its passengers or third parties must be reported to the LBA.

Any danger to the air traffic must be immediately reported by the pilot to the competent air traffic control.

Under German law, accident investigation and reporting is governed by the Law on the Investigation of Accidents and Disruptions in the Operation of Civil Aircraft, which is the transposition of EU Directive 94/56/EC into German law.

The Law on the Investigation of Accidents and Disturbances in the Operation of Civil Aircraft applies to accidents and disruptions that occur in Germany and applies to accidents in which:

  • a person suffers a fatal or severe injury on board or in connection with an aircraft;

  • an aircraft has suffered damage which impairs the aircraft’s performance, structural strength or flight characteristics and the reparation of which would involve considerable effort or a replacement of the damaged part;

  • disruptions that impair or could impair the safe operation of a flight; and

  • fatal and severe injuries.

The BFU compiles a report on every investigation indicating the following details:

  • the accident or disruption;

  • the aircraft concerned;

  • the external circumstances;

  • the results of the investigations; and

  • the discovery of the potential cause of the accident or disruption.

For its report, the BFU may contact the aircraft’s operator, manufacturer or crew, representatives of foreign states, air traffic control and the German Meteorological Office. The BFU may also request assistance, information, documents and equipment from other states for conducting their investigation.

Airports

Ownership

What rules govern the ownership of airports (both public and private)?

Airports can be owned publicly or privately or partly public and partly private.

Operation

(What is the authorization procedure for the operation of airports?)

What ongoing operating requirements apply (including obligations relating to safety, security and facilities maintenance?

Under the Air Traffic Act, the construction and operation of an airport is subject to the permission of the relevant authority. Environmental law and construction law requirements must be taken into account.

Airport charges

What airport charges apply and how are they regulated?

Airport charges for the use of airport equipment and services are determined by the relevant airport operator in a schedule of charges. Under the Air Traffic Act, the schedule must be approved by the competent authority.

Approval is granted if the charges in the schedule are ruled in a transparent, appropriate and non-discriminatory way.

Access

What regulations govern access to airports?

N/A

Slot allocation

What regimes govern the allocation of airport slots (including slot transfer, revocation an disputes?

  • Airport coordination is based on EU law.

  • The following airports are coordinated as per EU Regulation 95/1993:

  • Berlin (Schonefeld and Tegel);

  • Bremen;

  • Dresden;

  • Düsseldorf;

  • Erfurt;

  • Frankfurt/Main;

  • Hamburg;

  • Hannover;

  • Cologne/Bonn;

  • Leipzig/Halle;

  • Munich;

  • Munster/Osnabrück;

  • Nuremberg;

  • Saarbrucken; and

  • Stuttgart.

Slots are allocated by Airport Coordination Germany, which is an independent non-profit organisation financed by German airlines and airports.

Ground handling

How are ground handling services regulated?

Ground handling services are regulated by the Ground Handling Services Regulation, implementing EU Directive 96/67/EC.

Competition issues

Governing regime

Do any sector-specific competition regulatory/legal provisions apply to the aviation industry in your jurisdiction?

The applicable EU stipulations are Article 101 of the Treaty on the Functioning of the European Union and EU Regulation 1/2003, whereas the relevant German law is the Act Against Restraints on Competition.

However, on entry into force of EU Regulation 1/2003 on May 1 2004, German competition law was largely adapted to European competition law, except in the field of merger control.

Article 1 of the Act Against Restraints on Competition, which stipulates that ”agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade and which have as their object or effect the prevention, restriction or distortion of competition” are prohibited (prohibition of cartels), also applies to airlines within Germany. In addition, Article 18 determines the prohibition of the abuse of a dominant market position and other practices restricting competition, as does Article 102 of the Treaty on the Functioning of the European Union.

Code sharing and joint ventures

What (if any) competition concerns arise in relation to code sharing and air carrier joint ventures?

Cooperation between airlines is vetted on the basis of the aforementioned standards as to whether they lead to an illegal restriction of competition or whether they are an abuse of a dominant market position.

For example, pursuant to Article 101 of the Treaty on the Functioning of the European Union and Article 1 of the Act Against Restraints on Competition, price-fixing agreements concerning passenger tickets or cargo rates are considered to be a violation of the cartel prohibition. If the airlines come to agreements on the calculation of tariffs that then lead to the fixing of a price, this may already be considered as a violation of the cartel prohibition. Further, capacity agreements are an infringement against European and German competition law as such agreements lead to an artificial shortage of choice concerning certain routes.

However, cooperation agreements that have no or only a small influence on the market are permissible. For this reason, code-sharing agreements are not per se illegal as they do not necessarily restrict competition. Therefore, when considering the legality of a code-sharing agreement, the individual agreement and its effects on competition must be taken into account. However, even if such a code-sharing agreement leads to a restriction of competition, this does not mean that the cooperation agreement is necessarily illegal; especially since the European Commission generally finds the effect of code-sharing agreements positive. As far as the airlines are prepared to make concessions in other areas – such as the release of slots or the provision of interline offers – code-sharing agreements that restrict competition may nevertheless be permissible.

Have there been any notable recent cases or rulings involving competition in the aviation industry?

N/A

Dispute resolution

What aviation-related disputes typically arise in your jurisdiction and how are they usually resolved?

A considerable number of disputes arise based on flight cancellations and delays based on EU Regulation 261/2004, as well as baggage claims. Further, there are disputes in cases of injuries on board as well as in the case of air crashes. Ticket refund claims are also a crucial type of claim facing air carriers.

A further type of dispute concerns cargo claims (eg, damage to cargo, loss of cargo and delay of cargo).

There are also disputes regarding damage to aircraft on the ground (eg, caused by catering or other ground-handling companies or other aircraft) which lead to high damages amounts.

In the German aviation sector, the vast majority of cases are settled out of court. The conditions of the settlement are usually negotiated by the parties’ lawyers or between the parties themselves.