An extract from The Aviation Law Review, 8th Edition
Legal framework for liabilityi International carriage
Belgium is a party to the following agreements relating to international carriage:
- the 1929 Warsaw Convention for the unification of certain rules relating to international carriage by air, and the related Hague Protocol of 1955. The country has also ratified the 1961 Guadalajara Convention and the Montreal Protocol No. 4 of 1975; and
- the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air.
In addition, Regulation (EC) No. 2027/97 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No. 889/2002, also applies in Belgium.ii Internal and other non-convention carriage
Given the size of the country there are no scheduled domestic flights in Belgium.
Regulation (EC) No. 2027/97 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No. 889/2002 implements 'the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air and lays down certain supplementary provisions. It also extends the application of these provisions to carriage by air within a single Member State'. It also provides that: 'The liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.'
Although this Regulation entails that the carrier operates with a valid operating licence, Article 3.3 of Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community provides that:
Without prejudice to any other applicable provisions of Community, national or international law, the following categories of air services shall not be subject to the requirement to hold a valid operating licence:
a air services performed by non-power-driven aircraft or ultralight power-driven aircraft; and
b local flights.
In the view of some authoritative authors, the consequences of incidents involving this type of aircraft or flights would not fall within the Montreal Convention liability regime, but would rather be governed, depending on the circumstances, by the Warsaw Convention regime (whose scope has been extended to intra-Belgium flights by the Belgian Ratification Act), the domestic law on contract of transport or tort law.iii Passenger rights
Passenger rights in relation to compensation for delay, cancellation of flights and carriage of disabled passengers are essentially detailed in the European Union chapter dedicated to these questions.
In terms of passenger rights in cases of delay, cancellation and overbooking, the application of Regulation (EC) No. 261/2004 is monitored by the European Commission and national enforcement bodies, which in Belgium is the Directorate-General of the Belgian Civil Aviation Authority.
As in some Member States of the European Union, there was a debate around the binding or non-binding nature of the decisions that may be taken by the Directorate-General in the context of the application of the Regulation. In an approach similar to that already taken in other Member States, the Belgian Council of State confirmed, in a ruling dated 3 June 2014, that the Directorate-General has no real power to force airlines to pay compensation to passengers under Regulation (EC) No. 261/2004.
Some controversy existed surrounding time limits on lodging a judicial action in Belgium, however, the Belgian Court of Cassation recently confirmed the applicability of the one-year time limit set out in the 1891 Act amending the Commercial Code regarding transport contracts in this matter.
The Belgian Supreme Court, seized for the first time with respect to the Regulation, confirmed the Sturgeon ruling of the European Court of Justice on 12 October 2017.
As regards passengers with reduced mobility, the Directorate-General of the Belgian Civil Aviation Authority is also in charge of monitoring the application of Regulation (EC) No. 1107/2006 at Brussels Airport. In addition, alongside the provisions of Regulation (EC) No. 1107/2006, disabled passengers are also protected under the principles of equality and non-discrimination pursuant to the Belgian Constitution and the Belgian Act of 10 May 2007 designed to fight against certain forms of discrimination.
Passengers travelling on the basis of package tour deals may find additional protection under the Belgian Act of 21 November 2017 regulating tour operators and agency contracts, which is the Belgian implementation act of Directive (EU) 2015/2302 on package travel and linked travel arrangements. Finally, general consumer rights can also be found in the Economic Code, which lays down specific provisions regarding market practices and consumer protection.
The above-mentioned Regulations on passenger rights will all remain in place in their current form for the foreseeable future. However, certain temporary measures, which deviate from the rules set out in the current regulations, have been taken in light of the covid-19 pandemic.
In relation to the Belgian Act of 21 November 2017 regulating tour operators and agency contracts, the Belgian government took action with the Ministerial Decree of 19 March 2020 concerning the refund of cancelled package travels. This was subsequently amended following the recommendations by the European Commission, by Ministerial Decree of 3 April 2020. These instruments allow the travel organiser, in the event of a cancellation of the arrangement due to the covid-19 pandemic, to issue a travel voucher, valid for a period of at least one year, to the traveller rather than having to refund the paid booking in money. Travellers are not allowed to refuse a refund by voucher. Nonetheless, if the voucher has not been used within one year, the traveller retains the right to request a refund in money. The travel organiser will in this case be obligated to provide the refund within a period of six months. This softens the economic impact of the covid-19 pandemic on the travel sector as it allows travel organisers to spread out or avoid monetary refunds. As mentioned, this system deviates from the Belgian Act of 21 November 2017 regulating tour operators and agency contracts and is, therefore, a temporary measure. This system is currently valid for cancellations due to the covid-19 pandemic between 20 March and 20 June 2020. It is expected that this arrangement might be further amended in the future following the Commission recommendations of 13 May 2020 on vouchers offered to passengers and travellers.
With regard to Regulation (EC) No. 261/2004, national states do not have the option to implement deviations in their national law as it concerns a binding Regulation. Therefore, the Belgian government, along with several other states, has sent out a communication to the European Commission requesting an amendment to Regulation 261/2004, proposing a system similar to the solution for package travels, which would allow air carriers to initially provide the passengers with a voucher for flights cancelled due to the covid-19 pandemic rather than a monetary refund. Nonetheless, at the time of writing no amendments have been made. This implies that passengers currently retain the choice between a monetary refund and a voucher. For more detail, see the European Union chapter.iv Other legislation
See the European Union chapter of this publication and Section VI