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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.
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