The Council of Ministers recently approved preliminary draft legislation amending the Passenger Data Processing Act. Among other things, the proposed changes concern the protection of individuals with regard to the processing of personal data, data exchanges and the cross-checking of passenger data following the identification of suspicious passengers. The changes aim to bring the act into line with the EU General Data Protection Regulation.
In the aftermath of the numerous terrorist attacks in the European Union, EU member states agreed that additional measures were needed regarding the use of passenger name record data. Belgium has implemented a legal framework for passenger name record data based on EU legislation. It is hoped that the framework will enable all actors to achieve the main aim of fighting terrorist threats and serious crime.
As part of the Federal Public Service for Mobility and Transport, the Belgian Civil Aviation Authority is responsible for developing and maintaining the Belgian Aviation Safety Programme (BASP) in accordance with EU and international requirements on behalf of the state. The cornerstones of the aviation safety policy set out in the BASP are safety management, continuous improvement and a risk-based approach.
A legal vacuum has been filled with a new royal decree on the use of remote controlled aircraft in Belgian airspace. All market players ‒ from manufacturers to service providers ‒ can now develop their activities within the new legal framework, under which safety is paramount. The new regulatory regime provides the required legal certainty to commercialise and operate drones in Belgium, which has been welcomed by the sector.
The Chicago Convention provides that all aircraft must be registered with a national aviation authority and must carry evidence of this registration in the form of a certificate of registration at all times when in operation. The Belgian Aircraft Registry is an operator registry, meaning that aircraft are registered under the name of the operator only. In order to register an aircraft, an operator must submit documents evidencing its title, ownership or lease over the aircraft.
Legislation governing the civil and commercial use of drones in Belgium is limited, but a recently announced draft royal decree aims to fill the legal vacuum. Under the decree, commercial operators will need to register their activity with the Belgian Civil Aviation Authority and take out specific insurance. However, the decree will not apply to toy drones used by children under 14 or to drones used solely for recreational purposes.
The exemption regime applicable to general aviation ground handling at Brussels Airport, pursuant to Article 19 of the Royal Decree of November 6 2010, regulates access to the ground handling market at Brussels Airport. The decree was recently amended by a new royal decree, which added two definitions to clarify that the exemption regime also applies to business and private charter aviation.
The applicability of the EU regulations governing passenger claims has often been the subject of intense legal debate. A Brussels court recently confirmed Article 5 of the EU Brussels I Regulation as the mandatory legal framework on jurisdiction with regard to passenger claims for compensation. The decision has increased legal certainty in an area pervaded by ample pro-consumer case law.
The Belgian Ministry of Public Health and the Brussels Airport Company have recently put several measures into place at Brussels Airport in order to reduce the Ebola infection risk, including compulsory temperature screening for passengers flying from Ebola-stricken countries. It is not unthinkable that these measures will be extended if the Ebola threat expands to other countries.
The Law of April 4 2014 on Insurance was recently published in the Official Gazette and will enter into force in November 2014. Although at first glance the new law seems to create uncertainty regarding aviation insurance – especially with regard to its effect on the direct right of action granted to an injured party against the insurer – its actual impact on aviation insurance contracts is likely to be limited.
The EU Aviation Emissions Trading Scheme Directive extends the scheme for greenhouse gas emission allowance trading to aviation activities. Enforcement of the directive has been fiercely debated in Belgium, which has faced implementation issues on a regional level. Proposed amendments to the emissions trading scheme have created only further uncertainty over the country's enforcement of the scheme.
One of the main principles introduced by EU Regulation 1008/2008 is that an EU air carrier may freely lease aircraft unless this would endanger safety. Until recently, the Belgian Civil Aviation Authority continued to apply the previous regulation, thus creating operational difficulties for Belgian air carriers. After five years of inconsistencies, the authority has amended its wet-lease regime to accord with EU reforms.
The Brussels local court recently ruled that a typhoon can be qualified as an extraordinary circumstance exonerating airlines from liability under EU Regulation 261/2004, which established common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights. The decision stressed important principles of which the courts often lose sight.
When selling flight-only tickets, travel agents enter into two separate special agency agreements, under which they undertake distinct obligations to both the customer and the air carrier. This is referred to as the 'double mandate system'. However, this system raises the question of whether travel agents act as agents for the customer, the air carrier or both, either jointly or separately.
The EU Aviation Emissions Trading Scheme Directive mandates that aircraft operators compensate for emissions from all flights that land at or take off from EU airports by using a system of allowances. Implementation of the directive in Belgium has faced several hurdles, largely due to uncertainty over whether federal or regional authorities are responsible for the implementation.
A Brussels Court of Appeal decision on the meaning of 'loss' under the Warsaw Convention follows established opinion in Belgium, according to which loss may occur not only when goods are destroyed or lost, but also when they are handed over to an unauthorised receiver. However, as the damage in this case could not be evidenced, the carrier and its agent were not ordered to pay.
One of the main principles of EU Regulation 1008/2008 is that a Community air carrier may freely lease aircraft unless this would endanger safety. Unfortunately, the Belgian Civil Aviation Authority's Circular on the Leasing of Aircraft for Commercial Air Transport was not amended further to the reforms at EU level in 2008. As a consequence, lease-in or lease-out arrangements involving Belgium raise difficult issues.
An apparently unremarkable Court of Cassation ruling, in a case relating to yachts and recreational boats, may have refined the concept of aviation insurance. The ruling could be interpreted as meaning that insurance which covers risks that are not clearly aviation risks, despite being related to aviation to some extent, are subject to the Land Insurance Act 1992, which is favourable to consumers and insureds.
Two inconsistent sets of rules apply to aircraft noise at Brussels Airport. Recent rulings by the Constitutional Court and the Court of Justice of the European Union have moved the dispute over aircraft noise infringements closer to a final decision by the Council of State, attracting interest in Belgium and abroad.
The Constitutional Court has rejected a decree whereby the Flemish region sought to implement the EU Aviation Emissions Trading Scheme Directive. Although the regions have competence because the directive concerns environmental protection, the court disagreed with the criteria for attributing emissions to the Flemish region. The federal and regional authorities must now reach an agreement on implementation.
The Constitutional Court has ruled on a challenge by the consumer association Test-Achats to a provision in Brussels Airlines' general conditions of carriage. The case related to a customer's right to transfer a ticket. The court noted the differential treatment between air carriers and travel intermediaries in respect of prohibitions on ticket transfer, but held that the difference could be reasonably justified.
One of the main objectives of the EU Denied Boarding Regulation is to ensure that air carriers operate under harmonised conditions in a liberalised market. However, some aspects of carrier liability are not covered by the regulation. A Belgian court recently considered the question of the applicable limitation period for actions governed by the regulation.
The consumer association Test-Achats recently claimed that the websites and contractual conditions of three airlines - Brussels Airlines, Ryanair and EasyJet - were incompatible with Belgium's fair trading legislation. The Namur Commercial Court's judgments on a range of issues are controversial and, in places, betray a lack of understanding of industry practice; however, they are highly significant for the sector.
Passengers have begun to refer to the ruling in Sturgeon by the European Court of Justice while complaining on the basis of the EU Denied Boarding Regulation. This raises new issues for airlines, which are already facing difficult times. Some passengers have started to claim compensation for long delays, while other significant developments relate to the definition of the term 'cancellation'.
A new ministerial decree introduces stricter noise restrictions for take-off and landing at Brussels National Airport and revises the definition of time slots. However, aircraft that have been operating at the airport since 2008 are exempt from the new daytime and evening restrictions for five years, giving existing operators the opportunity to modifiy their fleets progressively.
Amendments to the Air Navigation Act have introduced a new infringement regime related to the use of slots at Brussels National airport, implementing EU Regulation 793/2004. Three forms of abuse of the slot system are now punishable by detention and criminal fines, as well as a new system of administrative fines.
The Belgian government has announced the cancellation of its widely unpopular project to impose a tax on tickets for air travel. The proposed tax had sparked a debate about its compatibility with Article 15 of the Chicago Convention, which is intended to prevent “fees, dues and other charges” from being levied by governmental authorities and which has been upheld by the Belgian courts.
A Court of Cassation ruling on the meaning of 'loss' under the Warsaw Convention confirms that loss may occur not only when goods are destroyed or lost, but also when an airline delivers goods to a third party which subsequently cannot be found. However, the ruling also usefully confirms the corollary of this principle: no loss occurs when goods are delivered to the consignee appearing on the air waybill.
The longstanding noise dispute at Brussels Airport has reached another milestone. The Supreme Court recently overturned a court of appeals decision on a controversial dispersion plan to spread the flightpaths of arriving and departing aircraft over a wider area of Brussels. Another appeal court will now have the final word on this sensitive issue.
A recent royal decree has implemented Directive 2004/82/EC in Belgium and sets out the obligations of air carriers to communicate personal data about their passengers - held in airlines' reservation and departure control databases - to the authorities.
After six years of dispute the Council of State has ruled on the legality of the noise regulations set by the Brussels-Capital region, which most aircraft must fly over when departing from or landing at Brussels-National airport. Although the council upheld the region's right to set noise limits, airlines will continue to argue that compliance depends on factors beyond their control.
EU Regulation 261/2004 establishes rules on compensation and assistance to air passengers who are denied boarding or experience the cancellation or long delay of their flight. A recent case sheds new light on the application of the regulation in cases of consecutive unexpected events that are not directly connected.
Belgium has passed legislation on aircraft noise at regional and federal levels. Its federal laws are mostly based on the Convention on International Civil Aviation, but the regional regulations use different standards and focus on the measurement of noise on the ground. Belgium has built up a large volume of air traffic over its small territory, and noise pollution has become a complex and controversial issue.
Two rulings - one by the Supreme Court of Belgium, the other by the Court of Appeals in Brussels - raise new issues about the definition of the contract of carriage and the application of the Convention on Contracts for the International Carriage of Goods by Road under Belgian law. The cases may also prompt a reassessment of the status and obligations of forwarders, shippers, carriers and delivery operators.
The main rules on the legal framework for liberalization of the Belgian rail sector have finally been adopted. Under the new structure, the state railway has been reshaped into a holding company, which owns two subsidiaries. The first is the railway undertaking carrier, while the second is vested with the management of the railway infrastructure.