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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?

A strong increase in air traffic in recent years has resulted in a capacity crunch in relation to slots at airports in the Netherlands. For environmental reasons, the maximum number of aircraft movements is capped – this maximum environmental capacity has been reached at Amsterdam Airport Schiphol. An increase in airport capacity is not expected until after 2020. Meanwhile, the government is struggling with various initiatives to increase airport capacity at regional airports. Further, various policies to promote a fair distribution of both traffic and capacity at Amsterdam Airport Schiphol and regional airports are under consideration. A notable effect of the capacity crunch is that air cargo operators will have fewer slots as from the International Air Transport Association winter season 2017-2018. Therefore, cargo airlines may have to move part of their operations to regional airports and airports in neighbouring countries.

Regulatory framework

Domestic law

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

Dutch legislation is based on international conventions and strongly influenced by European aviation regulations. The primary domestic legislation consists of:

  • the Aviation Act ‒ regulates permits for air transport, air operator certificates and the safety and security of civil aviation;
  • the Act on Aviation ‒ regulates crew, nationality and registration of aircraft, aircraft airworthiness, air traffic control, airports, military aviation and oversight and enforcement;
  • the Working Hours Decree Transport ‒ regulates the working and rest periods of crew members; and
  • the Safety Investigation Board Kingdom Act ‒ establishes the Dutch Safety Board and regulates its operations.

International law

What international aviation agreements has your jurisdiction concluded?

The Netherlands has concluded the following agreements:

  • the Montreal Convention 1999, which entered into force on June 28 2004;
  • the Warsaw Convention 1929, which entered into force on September 29 1933 ‒ the Netherlands is also party to the Hague Protocol and the Montreal Protocol 4;
  • the Geneva Convention 1948, which entered into force on November 30 1959; and
  • the Chicago Convention, which entered into force on April 5 1947.

The above agreements apply to the Kingdom of the Netherlands within Europe. Different rules may apply in other parts of the kingdom, including Aruba, Curacao and Sint Maarten, as well as the special municipalities of the Dutch Caribbean (Bonaire, Sint Eustatius and Saba). The most notable difference is the Cape Town Convention on International Interests in Mobile Equipment and the Aircraft Protocol, which entered into force on September 1 2010 and applies to only Aruba, Curacao, Sint Maarten and the Dutch Caribbean.

Regulatory authorities

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

Civil aviation falls under the responsibility of the Ministry of Infrastructure and Environment. The main regulatory body is the Directorate General for Mobility and Transport. Supervision and enforcement is carried out by the Human Environment and Transport Inspectorate (the Dutch civil aviation authority). Air traffic control is carried out by Air Traffic Control Netherlands. Investigations on incidents and accidents are carried out by the Dutch Safety Board.

Air carrier operations

Operating authorisation

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

Air carriers require a valid air operator’s certificate and an operating licence. The requirements for obtaining an air operator’s certificate are set out by EU Regulation 965/2012 and the Air Carriage Decree. Foreign carriers operating passenger and cargo flights in the Netherlands also require route permission, either under EU Regulation 1008/2008, through designation under bilateral air service agreements or through special permission for scheduled or unscheduled flights.

In order to obtain an operating licence in the Netherlands, an airline must:

  • be established in the Netherlands;
  • hold an air operator’s certificate issued by the Dutch authorities;
  • own or (dry) lease one or more aircraft;
  • have as its main activity the operation of air services;
  • have a transparent company structure;
  • be majority owned and controlled by EU member states or residents thereof; and
  • comply with financial, insurance and good governance requirements.

The application process takes up to three months.

Ownership and control

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

Under EU Regulation 1008/2008 an air carrier is eligible for a Dutch operating licence only in the event that nationals of EU member states own more than 50% of the undertaking and effectively control it. For foreign airlines, ownership and control may affect eligibility for route permission.

Financial requirements

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

Article 5 of EU Regulation 1008/2008 sets out the financial conditions for obtaining an operating licence. The applicant should demonstrate that:

  • it can meet its obligations for a period of 24 months from the start of operations; and
  • it can meet its fixed and operational costs for a period of three months from the start of operations.

Further, the applicant must submit a business plan for the first three years of operation.

Insurance coverage

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

Under EU Regulation 785/2004 on insurance requirements for air carriers and aircraft operators (as amended by EU Regulation 1137/2008 and EU Regulation 285/2010) air carriers must be insured for the risk with respect to passengers, baggage, cargo and third parties for commercial and private flights. For liability with respect to passengers the minimum insurance cover is 250,000 special drawing rights (SDR). For luggage the minimum insurance cover is 1,131SDR. For liability with respect to cargo, the minimum insurance cover is 19SDR per kilogram. For liability with respect to third parties the minimum insurance cover per accident depends on the weight of the aircraft.

Safety requirements

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

The principal pieces of national legislation are the Aviation Act and the Act on Aviation (see response to “What is the primary domestic legislation governing the aviation industry in your jurisdiction?”). The following regulations and decrees also apply:

  • the Aircraft Decree 2008, regulating airworthiness;
  • the Regulation on Aircraft Maintenance;
  • the Aviation Supervision Regulation;
  • the Aviation Licences Decree; and
  • the Air Traffic Regulation.

Air safety is administered by the Human Environment and Transport Inspectorate. All certified companies are audited at least once a year. Accidents are investigated by the Dutch Safety Board.

Environmental obligations

What environmental obligations apply to air carrier operations?

Air carriers must comply with noise and emission limitation rules set out by the Aviation Act and its underlying decisions and regulations. These rules concern:

  • restricted exploitation of certain types of aircraft;
  • restricted exploitation in certain areas;
  • rules relating to engine testing;
  • designated departure and arrival routes;
  • limitation of flights during the night; and
  • slot coordination.

The minister of infrastructure and the environment may impose penalties or operating restrictions if air carriers violate these rules.

Air traffic control

How are air traffic control services regulated in your jurisdiction?

Air traffic control services are regulated by the Air Traffic Regulation. The responsibility for air traffic control of the airspace controlled by the Netherlands has been distributed to Air Traffic Control the Netherlands and the military air traffic control service provider.

Routes

Do any licensing requirements apply to specific routes?

When an air carrier obtains an operating licence in accordance with EU Regulation 1008/2008, the air carrier is entitled to operate within the European Economic Area. Non-EU operators require route permission under a bilateral agreement or special authorisation under the Decree on Non-scheduled Air Transport. The same applies to EU air carriers wishing to operate between airports in the Netherlands and airports outside the European Union.

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

EU member states may impose public service obligations in accordance with EU Regulation 1008/2008 in respect of scheduled air services between a European airport and an airport serving a peripheral or development region in its territory or on a thin route to any airport in its territory. Such route must be considered vital for the economic and social development of the region which the airport serves. The obligation should be imposed only to the extent necessary to ensure the minimum provision of scheduled air services on that route satisfying fixed standards of continuity, regularity, pricing or minimum capacity, which air carriers would not assume if they were solely considering their commercial interest. These public service obligations can be imposed only after consulting the other member states concerned and informing the European Commission. In relation to airports in the Netherlands, a public service obligation exists on the route Ostrava-Amsterdam at the initiative of the Czech Republic.

Charter services

Do any special provisions apply to charter services?

Flights of air charters are regarded as non-scheduled air transport and can be divided into intra-EU flights performed by EU operators that are permitted under EU Regulation 1008/2008 and flights that are not governed by this regulation. The latter are governed by the Decree on Non-scheduled Air Transport, which stipulates that the performance of charter flights requires permission from the minister. The assessment criteria for granting this permission are as follows:

  • the potential negative effects on the profitability of scheduled air services;
  • the interests of users in the non-scheduled air services against the lowest possible price; and
  • the application of reciprocity by the authorities of the state where the air carrier has its domicile.

Taxes

What taxes apply to the provision of air carrier services?

In addition to the general Dutch tax legislation, a number of special provisions apply to the provision of air carrier services. Aviation fuel is exempt from duties. Pursuant to the Aviation Levies Regulation a noise levy and a governmental planning compensation levy are charged in order to fund isolation and relocation projects. In September 2017 the government announced that it was considering the introduction of a new tax on flight tickets.

Consumer protection and liability

Airfares

Are airfares regulated in your jurisdiction?

Under EU Regulation 1008/2008 EU air carriers and carriers of third countries, on the basis of reciprocity, are free to determine air fares and air rates for air services in the Netherlands and the European Union. EU member states may not discriminate on grounds of nationality or identity of air carriers in allowing European air carriers to set fares and rates for air services between their territory and a third country.

Air fares available to the general public should mention all applicable conditions when offered or published. Prices should be inclusive of the applicable air fare, taxes, (airport) charges, surcharges and unavoidable and foreseeable fees.

Pursuant to the Tariff Decree on Scheduled Air Transport the minister for infrastructure and the environment must give prior consent for airfares for scheduled air transport services between the Netherlands and non-EU destinations when this is required under a restrictive bilateral agreement.

Passenger protection

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

(a) Flight delays and cancellations?

EU Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights is directly applicable in the Netherlands. Under this regulation air passengers are protected in the event of denied boarding, delays and cancellations. Air carriers are obliged to either reimburse or re-route passengers in case of long delays and cancellations. Further, air carriers are obliged to offer passengers meals and refreshments; and in some cases, hotel accommodation and transport between the airport and the place of accommodation. Passengers may be entitled to the following compensation:

  • €250 for all flights of 1,500 kilometres (km) or less;
  • €400 for all intra-EU flights of more than 1,500km and other flights between 1,500km and 3,500km; and
  • €600 for all other flights.

(b) Oversold flights?

Under EU Regulation 261/2004 passengers of an oversold flight should be asked to voluntarily surrender their seat in exchange for benefits agreed between the air carrier and the passenger. In case there are not enough volunteers, the air carrier must deny boarding to passengers.

(c) Denied boarding?

Under EU Regulation 261/2004 if passengers are denied boarding, air carriers must pay compensation amounts (see above) and reimburse the ticket price or re-route the passengers. Further, passengers are entitled to refreshments, meals and (if necessary) accommodation. However, if a passenger is denied boarding for reasons concerning the passenger himself or herself (eg, passport or visa problems, or for reasons concerning safety or security) the passenger is not protected under EU Regulation 261/2004.

(d) Access for disabled passengers?

EU Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air prohibits air carriers from refusing reservation or embarkation to passengers on the grounds of their reduced mobility or disability. The regulation also requires air carries to provide certain assistance to disabled persons and persons with reduced mobility.

(e) Lost, damaged or destroyed luggage?

The Netherlands is a party to the Montreal Convention. Under the convention, airline liability for checked luggage is limited to 1.131 special drawing rights (SDR) for each passenger. The airline is not entitled to invoke the limitation of liability in the event that it is proven that the damage was either caused with intent or recklessly, and with knowledge that damage would probably occur.

(f) Retention and protection of passenger data?

Dutch privacy legislation is laid down in the Data Protection Act, which is based on EU Directive 1995/46/EC. The directive will be replaced with the general Data Protection Regulation as from May 25 2018. Data protection legislation is enforced in The Netherlands by the Dutch Data Protection Authority.

Under the Data Protection Act and the Dutch Data Protection Authority, data can be processed fairly and lawfully only by a controller for specified explicit and legitimate purposes, and as long as the data is relevant.

There are various grounds for legitimate data processing which do not require the consent of the data subject, such as the performance of a contract to which the data subject is a party or compliance with a legal obligation.

The data subject has the right to information regarding the processing of its personal data. Subsequently, the data subject may have the right to rectify, block or erase data.

As a controller in the sense given by the Data Protection Act, an airline has the general obligation to implement appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction, accidental loss and unauthorised access. The controller must inform the Dutch Data Protection Authority and the involved data subjects when a data breach occurs.

If loss of data has occurred while no appropriate technical and organisational measures to protect the data were in place, data subjects may be able to seek damages against the controller. However, it will normally be difficult for a data subject to prove that it has suffered substantial damages as a result of the data loss.

There are several possible penalties relating to a breach of the Data Protection Act. The penalties will become more severe under the General Data Protection Regulation.

Cargo

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

Under the Montreal Convention an air carrier is liable for damage caused during carriage by air. In some cases the air carrier can dismiss liability – for example, when the carrier can prove that the damage was caused by something inherent to the cargo or an act of war. The air carrier may also limit its liability up to an amount of 19SDR per kg. However, so far not all countries have become a party to the Montreal Convention. Hence, in certain cases the Warsaw Convention (as amended) may still apply and the application thereof may result in an unlimited liability for cargo claims.

Marketing and advertising

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

There are no special rules in this regard. However, the Authority for Consumers and Markets has stressed that the presentation of the offer and the price should be complete and consistent. Further, any additional options, as well as the costs thereof, must be made clear at the start of the booking process.

Complaints handling

Do any special rules apply to consumer complaints handling in the aviation industry?

Consumer protection legislation on aviation is mainly directed at the provider of air transport services (ie, air operators). The air operator must comply with consumer protection legislation such as EU Regulation 261/2004 and Article 23 of EU Regulation 1008/2008. The Authority for Consumers and Markets is appointed by law to enforce the relevant legislation and has the power to impose fines in case of non-compliance. There is no specific consumer protection legislation directed at the relationship between the airport operator and the passenger.

Aircraft

Aircraft register

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

There are two types of registers, each with their own function.

The Human Environment and Transport Inspectorate (ILT) maintains the nationality register in accordance with the Chicago Convention. The owner of the aircraft is registered, as well as the type of aircraft and serial number. Aircraft registration requirements include proof of ownership and proof that the aircraft is not (or no longer) registered in a foreign register. If the owner is not domiciled in the Netherlands, the owner must appoint a representative in the Netherlands.

Aircraft ownership, mortgages and charges are registered in a separate public register, which is held in Rotterdam by an independent government body (Kadaster).

This register is the official register maintained in accordance with the Geneva Convention on the International Recognition of Rights in Aircraft 1948.

In order to register an aircraft in the public register, it is required that:

  • the aircraft is registered with the Dutch nationality register;
  • the aircraft is not also registered with any foreign nationality register;
  • the aircraft has a maximum take-off weight of at least 450 kilograms (kg); and
  • the request for registration of the aircraft with the public register has been approved by the court.

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?

Similar to ownership of aircraft, mortgages and charges are registered in the public register, which is held in Rotterdam by Kadaster.

This register is the official register maintained in accordance with the Geneva Convention.

In order to register an aircraft in the public register, it is required that:

  • the aircraft is registered with the Dutch nationality register;
  • the aircraft is not also registered with any foreign nationality register;
  • the aircraft has a maximum take-off weight of at least 450kg; and
  • the request for registration of the aircraft with the public register has been approved by the court.

Unregistered aircraft may be subject to a right of pledge only. 

Mortgages require a notarial deed of mortgage created by a Dutch public law notary and subsequent registration in the public register. With regard to precautionary arrest of aircraft, registration thereof in the public register is also required.

Registration of a mortgage in the public registers generally should not take more than a few hours.  The public register in relation to aircraft is not searchable online, but extracts from the register can be obtained in an expedient manner.

A so-called negative system applies in relation to the registration of ownership, meaning that registration is necessary to effect the transfer of ownership of registered aircraft. However, the actual situation regarding ownership may differ from what is stated in the public register. In practice, the registered owner will be presumed to be the owner of a Dutch-registered aircraft, but any other party may challenge the registration through the court system and bring evidence against the registration by any means. Third parties are largely protected by law if they have relied on incomplete or incorrect registrations. Further, ownership of aircraft registered in other Geneva Convention member states will be respected in the Netherlands.

Detention

What rules and procedures govern the detention of aircraft?

The Netherlands is a signatory to the Rome Convention on Precautionary Arrest 1933. If a registered aircraft has the nationality of a state party to the Rome Convention (including Dutch nationality) then the following regime applies for a precautionary arrest.

First, leave must be obtained from the district court. The competent court is that court where the aircraft is located or expected. Leave will not be granted if security has been provided for the total sum of the debt or for the value of the aircraft. Further, Article 3 of the Rome Convention stipulates that certain aircraft cannot be arrested.

After arresting an aircraft, the proceedings on the merits should be initiated within the period determined by the court. The precautionary arrest must be entered in the public register.

The arrest should be lifted with the provision of security. If the creditor does not lift the arrest voluntarily, the debtor should request the lifting in preliminary proceedings.

In case the aircraft does not have the nationality of a party to the Rome Convention, the regime for arrest is slightly different. The main differences are that:

  • precautionary arrest can be levied on any aircraft; and
  • leave will be granted only if fear of embezzlement is demonstrated.

Safety and maintenance

What rules and procedures govern aircraft safety and maintenance?

The principal pieces of national legislation are the Aviation Act and the Act on Aviation. The following regulations and decrees also apply:

  • the Aircraft Decree 2008, regulating airworthiness;
  • the Regulation on Aircraft Maintenance;
  • the Aviation Supervision Regulation;
  • the Aviation Licences Decree; and
  • the Air Traffic Regulation.

Air safety is administered by the Human Environment and Transport Inspectorate.

Drones

What is the state of regulation on unmanned aerial vehicles (drones) in your jurisdiction?

The applicable domestic legislation makes a distinction between professional and recreational use of remotely piloted aircraft systems. Recreational flights are governed by the Model Aircraft Regulation and are subject to many restrictions. The maximum weight should not exceed 25kg and remotely piloted aircraft systems should remain below a maximum altitude of 120 metres. Remotely piloted aircraft systems should remain visible at all times and it is prohibited to fly in the vicinity of airports and above housing or industrial areas and groups of people.

Profesional use of remotely piloted aircraft systems is governed by the Regulation on Remotely-Piloted Aircraft. Under this regulation the professional use of remotely piloted aircraft systems requires a remote operating certificate (ROC). Since 2016, the regulation makes a distinction between a regular ROC and a ROC-light. In short, the applicant for a regular ROC must comply with stricter rules. Among other things, a regular ROC requires a certificate of airworthiness for the remotely piloted aircraft system and a licence for the pilot. A ROC-light operator is limited to the use of remotely piloted aircraft systems up to a maximum weight of 4kg. Further, the use of a remotely piloted aircraft system under a ROC-light is subject to further limitations in relation to:

  • the maximum distance between the remotely piloted aircraft system and the pilot; and
  • the maximum altitude and the minimum distance between the remotely piloted aircraft system and buildings and groups of people.  

All remotely piloted aircraft system operators are required to respect privacy laws.

Accidents

Investigation

How are air accidents investigated in your jurisdiction?

In case of an accident or an incident, the captain, operator and (if relevant) air traffic control must inform the Dutch Safety Board. The board independently conducts investigations on request or on its own initiative. Investigations are performed in accordance with the provisions and principles of Annex 13 of the Chicago Convention and EU Directive 94/56/EC.

The sole objectives of the investigations are avoiding future incidents and accidents or limiting the effects thereof. The investigation is concluded with a report and recommendations. All parties involved must react on the recommendations within a year.

Liability

What liability regime governs death, injury and loss arising from air accidents?

The liability regime governing death, injury and loss arising from air accidents is established by EU Regulation 2027/97 on air carrier liability in the event of accidents, as amended by EU Regulation 889/2002, which implements the Montreal Convention. The carrier is liable for damage sustained in case of death or bodily injury of a passenger when the accident which led to the death or injury took place on board of the aircraft or in the course of any of the operations of embarking or disembarking.

Regulatory notification

What are the reporting requirements for air accidents?

In case of an accident or an incident, the captain, operator and (if relevant) air traffic control must inform the Dutch Safety Board.

Airports

Ownership

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

All major airports in the Netherlands are majority owned by the state and municipalities. Under the Aviation Act, Amsterdam Airport Schiphol should be majority owned by the state or other governmental bodies. No specific rules apply in relation to private or public ownership of other airports.

Operation

What is the authorisation procedure for the operation of airports?

Airports are regulated by the Act on Aviation and subordinate legislation. Rules apply with regard to zoning and airport planning in accordance with International Civil Aviation Organisation Annex 14. The airport operator requires a safety certificate and is responsible for the proper operation of the airport in accordance with the law.

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

The ongoing operating requirements of airports are largely regulated by EU regulations, as well as airport decrees and airport regulations. The Human Environment and Transport Inspectorate (ILT) is responsible for oversight.

Airport charges

What airport charges apply and how are they regulated?

In relation to Amsterdam Airport Schiphol, the Act on Aviation contains specific rules on the establishment of airport charges and appeal possibilities for airlines. Airport charges include charges for:

  • landing;
  • parking;
  • passengers (eg, passenger service charge, security service charge and passengers with reduced mobility);
  • air traffic control; and
  • noise levies.

In its July 15 2015 decision, the Authority for Consumers and Markets approved the cost and revenue allocation system for aviation activities at Schiphol for 2016 to 2018.

Access

What regulations govern access to airports?

Every airport with regional or national significance requires a so-called ‘airport decree’. These decrees are not adopted by the airports, but by the provinces and the central government. The decrees may stipulate rules for carriers in the fields of:

  • noise restrictions;
  • air pollution restrictions;
  • types of aircraft permitted; and
  • times of arrival and departure.

No distinction is made between local and international carriers.

Major airports in the Netherlands have a public service obligation, meaning that the airport authorities should accept all carriers, subject to the availability of traffic rights and proper slots. The aircraft should comply with the conditions of the airport decree.

Slot allocation

What regime governs the allocation of airport slots (including slot transfer, revocation and disputes)?

Several airports – including Amsterdam Airport Schiphol – are slot-coordinated airports. Use of these airports is subject to availability of slots allocated to airlines by the Dutch slot coordinator. With regard to Amsterdam Airport Schiphol, a difference exists between day and night slots (ie, between 11:00pm and 7:00am).

Slots are allocated by Stichting Airport Coordination Netherlands, an independent body. In the allocation of slots, the slot coordinator follows the rules of EU Regulation 93/95 and the International Air Transport Association Worldwide Slot Guidelines. In principle airlines cannot transfer slots, but airlines within the same group of companies may transfer slots within the group and may exchange slots with other airlines on a one-for-one basis.

Disputes on slots that have been refused are subject to the competence of administrative courts in the Netherlands. An objection should be filed within six weeks from receipt of the decision of the slot coordinator. The appearance of such decisions is in practice rather informal. Any notice containing an express or implied refusal of slots should be considered as a decision, which triggers the start of the six-week window for the objection.

The Slot Allocation Decree stipulates that the operation of air services repeatedly and intentionally at times significantly deviating from the allocated slot, and the use of a slot in a fundamentally different way than was declared at the time of allocation of the slot are considered abuses of the slots.

In the above situation, the slot coordinator and the airport authorities will start discussions with the airline to prevent further abuse of slots. If the ‘gentle hand’ approach does not work, the ILT may decide to temporarily ground an aircraft to prevent its departure outside the allocated slot time. The ILT may decide to impose penalties for future violations of the slot times. Further, slot abuse may result in slot revocation or a lower slot allocation priority in a future season.

Ground handling

How are ground handling services regulated?

Access to the ground handling market at EU airports is regulated by EU Directive 96/67/EC. The directive has opened up the ground handling services market to competition. The rules of this directive are implemented in the Regulations on Ground Handling Airports. Access to the market by suppliers of ground handling services is free, but the number of providers can be limited by the minister for infrastructure and the environment.

Competition issues

Governing regime

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

No sector-specific legal competition provisions apply to the aviation industry in the Netherlands. The regular competition rules set out in the Dutch Competition Act apply in cases concerning the field of competition law in the aviation industry. Dutch legislature decided that, due to the clarity of the national and European competition rules, there was no need for sector-specific legislation.

There is no specific regulation for competition law assessment regarding joint ventures between airline competitors. The regular merger control rules are applicable to the acquisition of joint control in existing undertakings. In respect of newly created joint ventures, only those joint ventures performing all of the functions of an autonomous economic entity (full-function joint venture) on a lasting basis are subject to Dutch merger control rules. If a joint venture is not covered by the merger control rules, self-assessment must be carried out to ensure compliance with the rules that apply on account of the cartel prohibition and the prohibition of abuse of a dominant position.

As of May 1 2004 the European Commission no longer issues individual exemptions for agreements subject to the prohibition of cartels. Since August 1 2004, the same has applied for the Authority for Consumers and Markets (ACM). Parties themselves are held responsible for a proper self-assessment following the competition rules of proposed agreements; specifically, if they believe that their agreements conform with Article 6.3 of the Dutch Competition Act. Article 6.3 holds an exemption to the cartel prohibition.

Further, if a party discovers that it is involved in an agreement prohibited by the competition rules, it can apply for leniency to the ACM to obtain immunity from possible fines or at least a fine reduction.

Code sharing and joint ventures

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

There is no specific regulation for competition law assessment regarding joint ventures between airline competitors. The regular merger control rules apply to the acquisition of joint control in existing undertakings. In respect of newly created joint ventures, only those joint ventures performing all of the functions of an autonomous economic entity (full-function joint venture) on a lasting basis are subject to Dutch merger control rules. If a joint venture is not covered by the merger control rules, self-assessment must be carried out to ensure compliance with the rules applicable by reason of the prohibition of cartels and abuse of a dominant position.

Mergers, acquisitions and full-functional joint ventures are subject to merger filings in the Netherlands if the combined aggregate worldwide turnover of the undertakings concerned is more than €150 million and the net turnover of two or more of the undertakings concerned is at least €30 million in the Netherlands. The obligation to file and the turnover thresholds also apply to foreign-owned undertakings. It is prohibited to complete the transaction before clearance has been obtained from ACM. Penalties apply if the parties abstain from filing a notification with ACM before the transaction, and can be as high as €900,000 (or 10% of the global turnover, whichever establishes a higher amount). Individuals can also be fined up to €900,000.

State aid

What rules govern state aid in the aviation industry? Do any exemptions apply?

There are no national competition rules that specifically govern financial support to the aviation sector. However, EU state aid rules apply in the Netherlands. With regard to state aid, self-assessment should be carried out in accordance with current EU legislation for state aid issues. Beneficiaries of possible state aid may also be affected in case of unlawful state aid since governments and public bodies must recover financial benefits from those beneficiaries – for example, state aid cases may arise in relation to airport financing or in start-up situations of airlines departing from regional airports. The European Commission’s Guidelines on State Aid to Airports and Airlines provides member states with guidance on how to apply the state aid rules set out in Article 107 of the Treaty on the Functioning of the European Union in the aviation industry. Notable cases

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

On March 17 2017 the European Commission adopted a cartel decision against 11 air cargo carriers – including Air France KLM – for a price-fixing cartel.

The Court of Amsterdam recently confirmed the proper assignment of cartel claims in its August 2 2017 decision in Stichting Cartel Compensation v KLM and its September 13 2017 decision in Equilib v KLM.

Dispute resolution

Disputes

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

Passenger compensation claims arising from EU Regulation 261/2004 continue to result in a large number of disputes that are handled by the small claims sections of the civil courts. Personal injury cases are generally settled out of court, although protective proceedings may be initiated to prevent claims from becoming time-barred. Civil courts handle a large variety of claims arising from commercial contracts between airlines, their agents and service providers and other parties involved with air carriage. In the Netherlands it is relatively easy to obtain permission for a precautionary arrest of an aircraft or bank account, and this exercise of pressure appears to assist with the speedy resolution of conflicts. Further, slot scarcity at Amsterdam Airport Schiphol and denied traffic rights have led to various legal proceedings, both before the civil courts and administrative courts. Enforcement actions of the Human Environment and Transport Inspectorate may be challenged through proceedings before the administrative courts. Air carriers, freight forwarders and other parties may face prosecution before the criminal court. Typically, these cases concern negligence in relation to passport and visa checking, improper handling of dangerous goods and other compliance issues.