Recent developments and trends
Are there any notable recent developments or trends in the aviation sector in your jurisdiction?
Third runway for Vienna International Airport In 2012 the local authorities approved a third runway at Vienna International Airport under the Environmental Impact Assessment Act 2000. The Federal Administrative Court (FAC) reversed the first-instance decision, refusing the permit for the runway. In a controversial decision, the FAC argued that the negative consequences originating from climate change (especially the high carbon dioxide emissions) possess greater weight than the public benefits of the major airport expansion. The applicants appealed the FAC’s negative ruling and in 2017 the Constitutional Court overturned the respective decision due to its violation of fundamental rights and the constitutional guarantees of the parties to the proceedings. It submitted the case back to the FAC, which approved the construction in March 2018. It remains to be seen whether the most recent decision will again be appealed.
Insolvency of NIKI The insolvency of Air Berlin and its Austrian subsidiary NIKI Luftfahrt GmbH was a major event which affected the aviation industry in Austria. Both the airline and airport sectors are expected to continue to consolidate, and M&A activity is likely to increase in the aviation sector.
What is the primary domestic legislation governing the aviation industry in your jurisdiction?
The Austrian Aviation Act is the primary domestic legislation governing the aviation industry in Austria.
However, due to Austria’s status as an EU member state, most aviation-specific legislation is based on EU law – whether in the form of directly applicable regulations or EU directives.
What international aviation agreements has your jurisdiction concluded?
Austria is a party to the following primary international aviation agreements:
- The Chicago Convention (ratiﬁed on September 26 1948);
- The Tokyo Convention (ratiﬁed on May 8 1974); and
- The Montreal Convention (ratiﬁed on June 28 2004).
Austria is not party to:
- the Rome Convention;
- the Geneva Convention; or
- the Cape Town Convention.
Which government bodies regulate the aviation industry and what is the extent of their powers?
The following two governmental institutions play a pivotal role in the regulation of the Austrian aviation sector:
- the Ministry for Transport, Innovation and Technology (BMVIT), which represents the supreme civil aviation authority; and
- Austro Control GmbH, a wholly state-owned entity responsible for air traffic control and air safety, including licensing and operational and technical matters, which may perform sovereign tasks and acts under the supervision of the BMVIT.
Air carrier operations
What procedural and documentary requirements must air carriers meet in order to operate in your jurisdiction?
Article 4 of EU Regulation 1008/2008 governs the general requirements for an undertaking to obtain an operating licence from the competent licensing authority of an EU member state. These prerequisites include:
- a valid air operator certificate (AOC);
- insurance coverage; and
- financial thresholds which must be met.
The Austrian Aviation Act authorises the Ministry for Transport, Innovation and Technology (BMVIT) to issue the operating licence.
Pursuant to the Air Operator Certiﬁcate Regulation 2008, Austro Control GmbH is the domestic authority responsible for granting an AOC in Austria. This regulation refers to EU Regulation 379/2014 (amending EU Regulation 965/2012), which lays down additional technical requirements and administrative procedures in relation to air operations.
To obtain an operating licence and transport passengers or goods by aircraft for commercial purposes in Austria, the Austrian Aviation Act stipulates requirements in a subsidiary way to EU legislation (see paragraph 104 onwards).
According to Article 15 of EU Regulation 1008/2008, member states cannot subject the operation of intra-EU air services by an EU air carrier to any permit or authorisation.
Special conditions exist for natural persons and entities with their seat in the European Economic Area or Switzerland.
Ownership and control
Do any nationality or other requirements or restrictions apply to ownership or control of air carriers operating in your jurisdiction?
According to Article 4(f) of EU Regulation 1008/2008, in order to obtain an operating licence as an EU air carrier, member states and/or nationals of member states must own more than 50% of the undertaking and effectively control it, whether directly or indirectly, through one or more intermediate undertakings, unless provided for in an agreement with a third country to which the European Union is a party.
To obtain an operating licence or transport permission under the Austrian Aviation Act, the applicant must be an individual or corporation from:
- the European Union;
- the European Economic Area; or
- Switzerland (see paragraph 106 of the act).
What financial thresholds must air carriers meet to obtain operating authorisation?
EU legislation regulates the financial thresholds which must be met by air carriers.
According to Article 5 of EU Regulation 1008/2008, the competent licensing authority will closely assess whether an undertaking applying for an operating licence for the first time can demonstrate that it can:
- at any time meet its actual and potential obligations established under realistic assumptions for a period of 24 months from the start of operations; and
- meet the fixed and operational costs incurred by operations according to its business plan and established under realistic assumptions for a period of three months from the start of operations, without accounting for any income from its operations.
For the purposes of the assessment, each applicant must submit a business plan for at least the first three years of operation.
Different requirements apply for certain smaller ventures and aircraft (see Section 3, Article 5 of the regulation).
What is the required level of insurance coverage for air carrier operations?
Pursuant to EU Regulation 785/2004 (amended by EU Regulation 1137/2008 and EU Regulation 285/2010), air carrier operations must insure risks in connection with baggage, cargo, passengers and third parties for commercial and private endeavours.
The minimum insurance cover must be:
- for liability in respect of passengers – 250,000 special drawing rights (SDR) per passenger;
- for liability in respect of baggage – 1,131 SDR per passenger in commercial operations; and
- for liability in respect of cargo – 19 SDR per kg in commercial operation.
The minimum insurance cover per accident for an aircraft in connection with liability for third parties depends on the maximum take-off weight (MTOM). For example, the minimum insurance for an aircraft with a MOTM of less than 500,000kg is 500 million SDR. For an aircraft with a MOTM of 500,000kg or more, the minimum insurance cover is 700 million SDR.
With respect to overflights or non-traffic-related stops in an EU member state by non-EU air carriers which operate aircraft registered outside the European Union, the member state may demand evidence of compliance with the above-mentioned insurance covers.
What safety requirements apply to air carrier operations, including with regard to professional and technical certifications?
Safety requirements for air carrier operations are regulated by both EU legislation and domestic Austrian law.
The following EU regulations cover air safety:
In September 2002 the European Aviation Safety Agency was established. Its responsibilities include the approval of:
- type certificates;
- supplemental type certificates; and
- modifications and repairs.
The principal Austrian domestic acts which govern air safety obligations are as follows:
- The Austrian Aviation Act – the act stipulates that an air carrier can issue crew identification cards to its employees only if they pass a reliability check (based on certain EU regulations).
- The Civil Aircraft and Aeronautical Equipment Regulation 2010 – this regulates aircraft maintenance and application requirements, as well as the application process for a certificate of airworthiness for an aircraft, among other things.
- The Transport of Dangerous Goods Act, based on the International Civil Aviation Organisation’s Annex 18 – The Safe Transport of Dangerous Goods by Air and the Technical Instructions for the Safe Transport of Dangerous Goods by Air (Doc 9284).
Air safety regulations are generally enforced by Austro Control GmbH.
What environmental obligations apply to air carrier operations?
Registration of an aircraft in Austria requires the submission of evidence that the aircraft complies with the Civil Aircraft Noise Admissibility Regulation 2005.
Austria, Austrian aircraft operators and foreign air carriers operating in Austria via landings and take-offs from Austrian airports are subject to EU Directive 2003/87/EC, which establishes a scheme for greenhouse gas emission allowance trading in the European Union. Therefore, air carriers must report their respective flights and emissions to the competent domestic authority. In Austria, this is the Austrian Federal Ministry of Sustainability and Tourism.
Annex 16, Volume II of the Chicago Convention imposes additional rules with respect to the procedures for the emissions certification of aircraft engines.
Air traffic control
How are air traffic control services regulated in your jurisdiction?
Since January 1 1994 Austro Control GmbH, a wholly state-owned entity, has been responsible for air safety and air traffic control in relation to Austrian airspace. On busy days, around 3,000 flights are controlled and monitored by the company.
Austro Control GmbH performs sovereign tasks and acts under the supervision of the BMVIT.
Do any licensing requirements apply to specific routes?
According to Article 15 of EU Regulation 1008/2008, member states cannot subject the operation of intra-EU air services by an EU air carrier to any permit or authorisation.
Non-EU air carrier operators must request entry and route permission under bilateral air service agreements.
Austria is party to approximately 100 bilateral air service agreements with other countries, which regulate the timeframe for applications for prior approval of non-scheduled and scheduled services, among other things.
Are any public service obligations in place with respect to remote destinations?
Pursuant to Article 16 of EU Regulation 1008/2008, an EU member state – following consultations with the other member states concerned and having informed the European Union, the airports concerned and air carriers operating on the route – may impose a public service obligation in regard to scheduled air services:
- between an EU airport and an airport serving a peripheral or development region in its territory; or
- on a thin route to any airport on its territory where the route is considered vital for the economic and social development of the region in which the airport operates.
Subject to Section 3 of the article, the member states must assess the necessity and adequacy of an envisaged public service obligation in regard to:
- the proportionality between the envisaged obligation and the economic development needs of the region concerned;
- the possibility of having recourse to other modes of transport and the ability of such modes to meet the transport needs under consideration, particularly when existing rail services serve the envisaged route with:
- a travel time of less than three hours;
- sufficient frequencies and connections; and
- suitable timings;
- the air fares and conditions quotable to users; and
- the combined effect of all air carriers operating or intending to operate on the route.
Regarding aviation traffic, there are no public service obligations in place with respect to remote destinations in Austria.
Do any special provisions apply to charter services?
Charter services constitute commercial air transport activity and are not governed by any special provisions in Austria. However, on the obtainment of route licences, the domestic legislature differentiates between:
- scheduled services (charter flights);
- non-scheduled charter flights;
- intra-EU air services; and
- third-country traffic.
What taxes apply to the provision of air carrier services?
On April 1 2011 Austria introduced an air transport levy (see Air Transport Levy Act) for every passenger departing from an Austrian airport. The tariffs range from €3.50 to €17.50 depending on the length of the route. As the tax debtors, aircraft operators must assess the levy and submit the respective tax statement to the tax authority. Airport operators are jointly liable with the aircraft operator for payment of the air transport levy.
According to Sections 6 and 9 of the Austrian Value Added Tax Act 1994, the delivery of aircraft and specific services with respect to aircraft are exempt from value added tax under certain conditions, including the cross-border transport of passengers or goods.
Consumer protection and liability
Are airfares regulated in your jurisdiction?
Article 22 of EU Regulation 1008/2008 states that air carriers are free to set air fares.
What rules and liabilities are air carriers subject to in respect of:
(a) Flight delays and cancellations?
EU Regulation 261/2004 governs transport services of air carriers departing from an airport located in the territory of an EU member state. The regulation also applies to air carriers with a valid operating licence granted by an EU member state departing from a non-EU airport and arriving at an EU airport, unless passengers have already received benefits in that third country. The regulation establishes common rules on compensation and assistance to passengers in the event of denied boarding or the cancellation or long delay of flights.
Flight cancellation In case of flight cancellation, Article 5 of the regulation applies, under which the operating air carrier must offer the passenger concerned a choice between:
- reimbursement of the full cost of the ticket within seven days together with (when relevant) a return flight to the first point of departure; or
- re-routing to his or her final destination.
Additionally, passengers have the right to care (eg free meals and refreshments, as well as facilities to contact people via telephone or email).
The right to care includes hotel accommodation free of charge and transport between the airport and place of accommodation where the passenger chooses to re-route and an unscheduled stay of one or more nights becomes necessary.
Further, operating air carriers have to pay compensation between €250 and €600 to each passenger depending on the flight distance (Article 7 of EU Regulation 261/2004), unless they can prove that the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. It is settled case law that in this context the term ‘extraordinary circumstances’ refers to an event which is not inherent in the normal exercise of an air carrier’s activity (Wallentin-Hermann v Alitalia (2008) CJEU, Case C-549/07). A common technical problem does not constitute an extraordinary circumstance, even if it occurs unexpectedly (van der Lans v KLM (2015) CJEU, Case C-257/14).
Passengers are not entitled to compensation payment if they are informed of the cancellation at least two weeks before the scheduled time of departure.
Long delay In the event of long delay, Article 6 of EU Regulation 261/2004 applies. Concerned passengers are entitled to compensation payments and have the right to care. Both claims depend on the distance of the cancelled flight in conjunction with the length of the delay.
Compensation payments range from €250 to €600. If departure is delayed by at least five hours, passengers are also entitled to request:
- reimbursement of the full ticket cost within seven days; and
- a return flight to the first point of departure when relevant.
The arrival time, which is used to determine the length of the delay, is the time at which at least one of the doors of the aircraft is opened (Germanwings GmbH v Henning (2014) CJEU, Case C-452/13).
The passengers’ right to free meals and refreshments, as well as facilities to contact people via telephone or email, depends on the distance of the cancelled flight in conjunction with the length of the delay.
(b) Oversold flights?
In case of an oversold flight, Article 4 of EU Regulation 261/2004 applies.
First, the operating air carrier will call for volunteers to give up their seats in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier.
Second, if there is an insufficient number of volunteers, passengers will be involuntarily denied boarding. These passengers have the right to compensation of between €250 and €600 depending on the flight distance (Article 7 of EU Regulation 261/2004). Further, they can choose between reimbursement and re-routing, and have the right to care (eg free meals and refreshments, hotel accommodation and telephone calls).
(c) Denied boarding?
In case of denied boarding, Article 4 of EU Regulation 261/2004 applies.
Denied boarding can be caused by an overbooked flight or any other circumstances in which passengers are refused carriage despite presenting themselves in time for boarding while holding a confirmed reservation.
First, the operating air carrier will call for volunteers to give up their seats in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier.
Second, if there is an insufficient number of volunteers, passengers will be involuntarily denied boarding. These passengers have the right to compensation of between €250 and €600 depending on the flight distance (Article 7 of the regulation). Further, they can choose between reimbursement and re-routing, and have the right to care (eg free meals and refreshments, hotel accommodation and telephone calls).
Where extraordinary circumstances (eg a strike) have caused passengers to be involuntarily denied boarding, the air carrier must still provide compensation (Finnair Oyj v Lassooy (2012) CJEU, Case C-22/11).
However, Article 4 of EU Regulation 261/2004 does not apply if operating air carriers deny boarding because of reasonable grounds such as health, safety or security, or due to inadequate travel documentation.
(d) Access for disabled passengers?
The transport of disabled persons and persons with reduced mobility is governed by EU Regulation 1107/2006. This regulation applies to disabled passengers using air services on departure from, on transit through or on arrival at an EU airport. Some articles also apply to passengers departing from a non-EU airport and arriving at an EU airport if they use the service of an air carrier with a valid operating licence granted by an EU member state.
The regulation aims to protect these passengers against discrimination and to ensure that they receive assistance.
Disabled persons and persons with reduced mobility cannot be denied boarding on the grounds of their disability or lack of mobility, unless there are security concerns or the aircraft is too small.
Article 12 of EU Regulation 261/2004 states that operating air carriers must give priority to carrying persons with reduced mobility and any persons or certified service dogs accompanying them.
(e) Lost, damaged or destroyed luggage?
The Montreal Convention (which replaced the Warsaw Convention) and EU Regulation 889/2002 apply to lost, damaged or destroyed luggage.
The air carrier is responsible for such luggage if the damage-causing event occurred on board the aircraft or while the checked baggage was in charge of the carrier.
If the baggage is lost, damaged or destroyed, the passenger must notify the air carrier as soon as possible but no later than seven days from the date on which it was placed at the passengers’ disposal.
The air carrier is liable for destruction, loss or damage to baggage of up to 1,131 special drawing rights. In case of checked baggage, the air carrier is liable even if not at fault, unless the baggage was already defective. In case of unchecked baggage, the carrier is liable only if at fault.
(f) Retention and protection of passenger data?
The Protection of Personal Data Act (DSG 2000) applies to the retention and protection of passenger data. This act will be amended once the EU General Data Protection Regulation (2016/679) comes into effect on May 25, 2018.
The United States and Canada require by law that Austrian air carriers pass on passengers’ personal data from their reservations systems to the responsible government authority on the basis of agreements between the European Union and the Canadian and US governments.
What rules and liabilities apply to the air carriage of cargo?
The Montreal Convention applies to the air carriage of cargo.
The air carrier must deliver an air waybill to the passenger.
In general, the air carrier is liable for damage resulting from lost, damaged or destroyed cargo if the damage-causing event occurred during carriage by air. However, the carrier is not liable if and to the extent that it proves the loss of or damage to the cargo resulted from one or more of the following:
- an inherent defect, quality or vice of the cargo;
- defective packing of the cargo performed by a person other than the carrier or its agents;
- an act of war or an armed conflict; or
- an act of public authority carried out in connection with the entry, exit or transit of the cargo.
Marketing and advertising
Do any special rules apply to the marketing and advertising of aviation services?
The Unfair Competition Act and the Price Marking Act apply to the marketing and advertising of aviation services.
In addition, Article 23 of EU Regulation 1008/2008 states that the final price to be paid by the customer for air services must include the applicable air fare or air rate, as well as all applicable taxes, charges, surcharges and fees which are unavoidable and foreseeable at the time of publication. This requirement enables customers to compare the price of air services by different air carriers.
Do any special rules apply to consumer complaints handling in the aviation industry?
Customers who fail to resolve disputes directly with the air carrier can take their matter to the Agency for Passenger Rights (APF), the statutory arbitration body for air transport under Article 16 of EU Regulation 261/2004. The APF handles consumer complaints free of charge. However, it is not required to take enforcement action against air carriers with a view to compelling them to pay compensation (K Ruijssenaars v Staatssecretaris van Infrastructuur en Milieu (2016) CJEU, Case C-145/15).
If both parties agree to the APF's proposed solution, they effectively accept it as an out-of-court solution. Otherwise, the proposed solution is not considered binding.
Customers are not obliged to address their matter to the APF. Rather, claims can also be directly asserted before the court.
What are the requirements for entry in the domestic aircraft register?
Domestic aircraft register applications are regulated by the Civil Aircraft and Aeronautical Equipment Regulation 2010.
Entry into the domestic aircraft register must be applied for together with the following documents:
- the name and domicile or registered seat of:
- the aircraft operator; and
- the aircraft owner;
- documents which prove:
- the ownership title;
- the nationality of the aircraft operator;
- the right to operate the aircraft in case the aircraft operator is not the aircraft owner;
- the name and domicile or registered seat of the aircraft manufacturer;
- documents which show the model, type and serial number of the aircraft;
- confirmation of the competent tax authority in case of an intra-EU acquisition of the respective aircraft;
- documents from the country where the aircraft was manufactured which prove that the aircraft has not been registered or documents from the country where the aircraft was previously registered which prove that it is no longer registered there; and
- documents which prove that the aircraft complies with the Civil Aircraft Noise Admissibility Regulation 2005.
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?
There is no domestic register for aircraft mortgages, encumbrances or any other interests.
The public part of the domestic aircraft register shows the following information about registered aircraft:
- the ordinal number;
- the nationality and registration mark;
- the manufacturer;
- the manufacturer’s designation;
- the serial number;
- the name and place of domicile or business registration of the aircraft operator; and
- the maximum permissible take-off mass.
What rules and procedures govern the detention of aircraft?
In principle, Austrian authorities will not seize an aircraft unless they are suspicious of criminal actions in relation to the aircraft or its owner.
Further, Austrian statutory laws do not permit the confiscation of an aircraft in connection with unpaid debts (eg, air navigation or airport charges). Such arrears may be pursued as civil claims.
Under civil procedural law, the courts may issue an interim injunction preventing the aircraft from taking off. A prerequisite for an injunction is that the claimant substantiates both the claim and a risk by prima facie evidence. The interim injunction proceedings must be followed by a statement of claim within a certain period (usually 14 days).
Safety and maintenance
What rules and procedures govern aircraft safety and maintenance?
EU Regulation 1321/2014 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks is the principle legislation governing aircraft maintenance in Austria.
The following Austrian laws supplement the EU regulations concerning aircraft safety and maintenance, and apply to aircraft which are not governed by EU legislation:
- The Austrian Aviation Act;
- The Air Operator Certificate Regulation 2008;
- The Civil Aircraft and Aeronautical Equipment Regulation;
- The Civil Aviation Personnel Licensing Regulation; and
- the Rules of the Air.
What is the state of regulation on unmanned aerial vehicles (drones) in your jurisdiction?
From January 1 2014 drones (remotely piloted aircraft systems) may be operated in Austria.
The Austrian Aviation Act distinguishes between class 1 and class 2 vehicles.
Pilots operating class 1 vehicles require an aviation permit which is categorised according to use and mass. Class 2 vehicles (no line of sight) are treated in the same manner as regular aircraft and operate for testing purposes only.
Drone operators must comply with other applicable legislation, including legislation relating to environmental protection or safety.
How are air accidents investigated in your jurisdiction?
The Federal Safety Investigation Authority (SUB) is responsible for the investigation of accidents involving civil aircraft in Austria. The SUB is an office exempt from directives and subordinate to the Federal Ministry of Transport, Innovation and Technology. SUB investigations aim to assess the probable causes of an accident and develop suggestions for improvement in order to avoid similar occurrences. A safety investigation does not aim to clarify questions of guilt or liability. The SUB is functionally and organisationally independent of all authorities and public and private offices whose interests may interfere with its tasks.
The legal foundation for SUB investigation is the Independent Safety Investigation of Accidents and Incidents Law (the Accident Investigation Act 2005). Under EU law, the basis for SUB investigation is EU Regulation 996/2010 on the investigation and prevention of accidents and incidents in civil aviation.
The SUB designates an investigator on a case-by-case basis, who is responsible for the management, organisation, implementation and supervision of the safety investigation, as well as the decision to involve safety investigation authorities from other EU member states. Suitable parties can also report to the SUB as part of this activity.
The investigator-in-charge is entitled to:
- receive instant, unrestricted and unimpeded access to the site of the accident or serious incident, as well as to the aircraft, its cargo and wreckage;
- ensure the immediate collection of evidence and controlled removal of debris and components for examination or analysis;
- receive immediate access to and surveillance of flight recorders, their contents and any other pertinent recordings;
- request and contribute to a complete autopsy of the bodies of fatally injured persons and receive immediate access to the results of those investigations or inquiries into the samples obtained from them;
- request the medical examination of persons involved in the operation of the aircraft or inquire into the samples taken by these persons and receive immediate access to the results of those investigations or inquiries;
- invite and interview witnesses and request them to provide information or evidence relevant to the investigation;
- receive unimpeded access to all relevant information or records of:
- the owner;
- the holder of the type certificate;
- the enterprise responsible for maintenance;
- the educational institution;
- the aircraft operator or manufacturer;
- the authorities responsible for civil aviation;
- the European Aviation Safety Agency; and
- the air navigation service provider or the aerodrome operator.
Depending on the state of the case, entire aircraft or parts thereof are seized and brought to an investigation hall for a detailed technical investigation. The components are documented in the SUB’s investigation hall, cleaned and examined according to the instructions of the manufacturer, possibly even in its presence.
There are comprehensive regulations on the understanding and involvement of other domestic authorities (eg, law enforcement authorities and third countries).
In an official investigation report, the findings, conclusions, probable causes of the accident and safety recommendations are recorded.
What liability regime governs death, injury and loss arising from air accidents?
The Austrian Aviation Act’s regulations regarding the civil liability and liability insurance for damage caused by aircraft have only limited significance. In Austria, the Montreal Convention predominantly applies, implemented by EU Regulation 2027/97 on the liability of airlines for the carriage of airline passengers and their luggage in air traffic, as amended by EU Regulation 889/2002. The liability regime of the Montreal Convention also applies to transport in Austria.
An air carrier must compensate for the damages which arise in the case of a traveller’s death or bodily injury when the aircraft accident through which the death or bodily injury was caused occurred on board the aircraft or when boarding or alighting. In addition, a typical aviation risk must have materialised. Strict liability exists for up to a maximum of 113,100 special drawing rights (SDRs) per passenger. For damages exceeding 113,100 SDRs, the air carrier is subject to unlimited liability for presumed fault. The air carrier may avoid unlimited liability if it proves that its conduct did not contribute to the occurrence of the damage.
If a passenger is killed or injured, the air carrier must make an advance payment within 15 days of the identification of the person entitled to compensation.
For the destruction, loss or damage of checked baggage, the air carrier is liable for up to 1,131 SDR per passenger, regardless of fault. The liability limit for baggage lapses if the passenger can prove that the damage was brought about by the intent or negligence of the air carrier.
Claims for damages must be made within two years from:
- the date of the arrival of the aircraft at the destination; or
- the day on which the aircraft should have arrived or the transportation was cancelled.
What are the reporting requirements for air accidents?
Reporting obligations in regard to aviation incidents are regulated by:
- the Austrian Aviation Act;
- the Civil Aviation Reporting Ordinance; and
- the pertinent EU regulations.
Subsequently, reporting obligations extend to perceived accidents, serious incidents and other safety-related occurrences which could endanger an aircraft, its occupants or third parties. A comprehensive list of reportable events can be found in EU Implementing Regulation 2015/1018. The responsible reporting office is Austro Control GmbH.
What rules govern the ownership of airports (both public and private)?
Few aviation-specific pieces of legislation specifically concern the position of an aerodrome owner. According to the Austrian Aviation Act, applicants for a civil aerodrome permit must be reliable and suited to operational management. Further, they must prove that their financial resources are sufficient to fulfil all legal obligations.
A civil aerodrome permit may be granted only if the applicant is a citizen of an EU member state or a state treated as equivalent under intergovernmental agreement. A legal person or registered partnership can obtain such a certificate if it:
- has been established in accordance with the legislation of an EU member state or a state treated as equivalent under intergovernmental agreement; and
- has its registered office, headquarters or central office in the European Union or in a state treated as equivalent under intergovernmental agreement.
The primary regulations governing the operation of public and private aerodromes are:
- the Austrian Aviation Act;
- national ordinances; and
- EU Regulation 139/2014, which stipulates requirements and administrative procedures relating to aerodromes set out in EU Regulation 216/2008.
What is the authorisation procedure for the operation of airports?
Before operating an aerodrome, the aerodrome operator must have a certificate in accordance with EU Regulation 139/2014. For airports, the Federal Ministry of Transport, Innovation and Technology is responsible for granting the permit; for aerodromes, the district administrative authority is responsible.
On receipt of an application for the first issue of a certificate, the competent authority must examine the application and the fulfilment of the relevant requirements. In the case of an existing aerodrome, the competent authority stipulates the conditions under which the aerodrome operator may operate for the duration of the approval procedure, unless the authority concludes that operation of the aerodrome must be suspended. The authority must inform the aerodrome operator of the expected schedule for the approval procedure and implement the approval within the shortest possible timeframe. The basis for approval is determined by the competent authority and communicated to the applicants. The authority can demand any inspections, tests, safety assessments or exercises that it deems necessary before issuing the certificate. Applicants must provide extensive evidence.
What ongoing operating requirements apply (including obligations relating to safety, security and facilities maintenance)?
There are a range of requirements regarding the ongoing operation of airports, which can be mentioned only by way of example.
Aerodrome operators must:
- undertake the necessary measures, inspections, tests, safety assessments and exercises; and
- prove to the competent authority that:
- the basis of the granted permit is being adhered to; and
- the aerodrome, obstacle-free zones, protection zones and other areas connected to the aerodrome exhibit no features or characteristics that render its operation unsafe.
Aerodrome operators are responsible for the safe operation and maintenance of the aerodrome. They must adhere to:
- the requirements of EU Regulation 216/2008;
- the terms of the granted permit; and
- the contents of the aerodrome manual and other manuals for existing equipment.
They must ensure the performance of appropriate air navigation services and other operational procedures. They must also:
- maintain a comprehensive management system of processes, competences and responsibilities;
- compile programmes promoting safety; and
- integrate aerodrome service providers into these programmes.
Additionally, there are extensive requirements for the inclusion of services and institutions, particularly:
- ramp-handling services;
- ground-handling services;
- rescue services; and
- fire-fighting facilities.
What airport charges apply and how are they regulated?
Airport charges are determined on an annual basis by the managing body of the airport in accordance with the Airport Charges Act. The corresponding charges regulation must be approved by the Federal Ministry of Transport, Innovation and Technology. This includes various types of fees, including:
- landing charges;
- passenger charges;
- parking fees for the use of a parking area by aircraft;
- various infrastructure charges; and
- noise charges.
Further charges are levied by Austro Control GmbH.
What regulations govern access to airports?
What regime governs the allocation of airport slots (including slot transfer, revocation and disputes)?
In Austria, Vienna International Airport was declared to be a coordinated airport under EU Regulation 95/93 on the common rules for the allocation of time slots at community airports for its entire operating time. Innsbruck Airport is coordinated for certain times and is otherwise schedules-facilitated. The remaining airports in Graz, Klagenfurt, Linz and Salzburg are schedules-facilitated for the entire operating time.
The procedure for slot coordination in Austria derives from EU Regulation 95/93, in conjunction with the National Slot Coordination Ordinance 2008. The Schedule Coordination Austria GmbH acts as the coordinator and schedule facilitator. This is supported by the coordination committee, which has been established for the Vienna and Innsbruck airports in relation to specific issues.
The procurement procedure is simplified as follows:
- The aerodrome operator determines the available slots for upcoming periods.
- The airlines must advise the coordinator of the scheduled flights within specified deadlines; the coordinator will determine the available slots according to specific parameters with the participation of the coordination committee.
- The international coordination of these determinations takes place as part of the biannual International Air Transport Association Scheduling Conference.
Complaints concerning the application of EU Regulation 95/93 should be addressed to the coordination committee. The committee must propose solutions to the coordinator within one month of the filing of the complaint. If a complaint cannot be settled, the EU member state may arrange for arbitration within a further period of months.
An airline can transfer an assigned time slot from one route to another. An exchange between airlines is also possible under certain circumstances. Therefore, confirmation by the coordinator is a prerequisite for effectiveness.
How are ground handling services regulated?
Reference should be made to the Airport Ground-Handling Act, which implements EU Directive 96/67/EC. This law regulates, among other things, general issues regarding:
- the legitimacy of self-handling by users of the airport;
- handling services;
- admission requirements for such service providers;
- awarding of contracts; and
- the approval procedure.
Do any sector-specific competition regulatory/legal provisions apply to the aviation industry in your jurisdiction?
No sector-specific competition regulatory provisions apply to the aviation industry in Austria.
Besides Articles 101 and 102 of the Treaty on the Functioning of the European Union, the following EU legislation applies to Austrian antitrust matters:
- EU Regulation 1/2003;
- EU Regulation 139/2004; and
- EU Regulation 411/2004, which aims to govern air transport between the European Union and third countries.
Domestic Austrian competition law is generally based on:
The Austrian Independent Federal Competition Agency is Austria’s main antitrust agency.
Code sharing and joint ventures
What (if any) competition concerns arise in relation to code sharing and air carrier joint ventures?
According to Article 101 of the Treaty on the Functioning of the European Union, cooperation between air carriers – including a joint venture or code-sharing agreement – may be examined as to whether such affiliation agreements between undertakings, decisions by associations of the undertakings and concerted practices may affect trade between EU member states and aim to or successfully prevent, restrict or distort competition in the internal market.
Moreover, pursuant to Article 102 of the treaty, any abuse by one or more undertakings of a dominant position in the internal market or in a substantial part of it must be prohibited as incompatible with the internal market, insofar as it may affect trade between member states.
The European Commission generally holds that where code-sharing occurs between airlines that do not operate on the same route, the passenger benefits, as it grants extended network coverage and improved connections, thereby failing to raise any antitrust concerns in principle. However, if the airlines operate on the same route, the European Commission holds that such practice may cause antitrust concerns, as it could lead to lower competition and higher prices.
What rules govern state aid in the aviation industry? Do any exemptions apply?
No specific domestic regulations exist in regard to state aid in the aviation industry. Nevertheless, EU legislation on financial support from governmental institutions is relevant in Austria.
Articles 107, 108 and 109 of the Treaty on the Functioning of the European Union regulate state aid. Additionally, the European Commission has provided specific guidelines on how to exercise financial support from governmental institutions with respect to airports and airlines (see Communication from the Commission — Guidelines on State aid to airports and airlines, OJ C 99).
Have there been any notable recent cases or rulings involving competition in the aviation industry?
There have been no notable recent cases or rulings involving antitrust issues in the Austrian aviation industry.
What aviation-related disputes typically arise in your jurisdiction and how are they usually resolved?
Aviation disputes in Austrian jurisdiction typically include ticket-refund and baggage claims, as well as claims on the basis of EU Regulation 261/2004 (establishing common rules on compensation and assistance to passengers in the event of denied boarding or the cancellation or long delay of flights).
Many aviation-related disputes involve legal expenses insurance.
Cases are usually resolved before the courts.