Preferred Areas of Practice
Andreas Fankhauser has some twelve years of experience in resolving disputes through litigation, arbitration and mediation. He frequently acts as criminal defense counsel for individual and corporate clients. His practice is devoted to providing advice and to the resolution of disputes concerning Swiss and International Business Law, Aviation Law, Criminal and White-Collar Crime Law. A particular focus of his practice are Chinese-European business relations. Andreas Fankhauser is recommended by Who’s Who Legal (Aviation) and the Expert Guides to the World’s Leading Lawyers (Aviation, International Trade, China)
Legal Education and Professional Experience
German, English, French
While many legal issues surrounding the recent JU-Air Junkers Ju-52 crash have yet to be determined by the Swiss Transportation Safety Investigation Board, claims for passenger deaths will be governed by the EU-Swiss Air Transport Agreement. The agreement extends the scope of the liability provisions of the Montreal Convention for passenger deaths to domestic carriage by Community air carriers and requires advance payments to cover the victims' families' immediate economic needs after an accident.
The General Court recently annulled the European Commission's rejection of a request by Lufthansa and Swiss International Air Lines to waive their fare commitments. The judgment clarifies the standard of review regarding assessments of requests for a waiver of merger commitments and is a reminder that, by virtue of the 1999 EU-Switzerland Air Transport Agreement, EU institutions have jurisdiction to assess competition concerns on air routes relating to the non-EU member state Switzerland.
In order for Switzerland and the European Union to recognise each other's emission allowances through a bilateral agreement, Switzerland is planning to include aviation in its existing emissions trading scheme (ETS) and to link the Swiss and EU ETS. The agreement is scheduled to be signed by the end of 2017, provided that ratification is agreed by the EU and Swiss Parliaments. Once the link between the EU and Swiss ETS is operational, prices for emission allowances should converge.
As part of its ambitious aviation strategy, the European Commission has proposed harmonising European drone rules. The Single European Sky Air Traffic Management Research Joint Undertaking recently unveiled U-Space – a blueprint on the use of drones in low-level airspace. The European Aviation Safety Agency is seeing to it that U-Space has rules that ensure the safe integration of drones into the airspace.
In a recent case, the European Court of Justice (ECJ) found that the 'stop the clock' decision does not infringe the EU principle of equal treatment. According to the ECJ, European law imposes no obligation on the European Union to the effect that all third countries, including Switzerland, must be treated equally. It follows that the principle of equal treatment does not apply to the moratorium on the requirements to surrender emissions allowances.
The Bulach District Court recently held that the European Court of Justice (ECJ) Sturgeon decision does not apply in Switzerland. While the Bulach court noted that Switzerland adopted the Air Passenger Rights Regulation by virtue of the 1999 EU-Switzerland Agreement on Air Transport, it had doubts over whether Swiss courts must also follow ECJ case law regarding the regulation.
The Supreme Court recently dismissed a pilot's petition to set aside the Bern Appellate Court judgment that he was liable for a trainee pilot's death in an aircraft accident on the basis of negligence or recklessness. The judgment is a reminder that, despite widespread criticism against the criminalisation of aircraft accidents, aviation is far from immune from criminal prosecutions. However, the judgment is not entirely persuasive.
Switzerland recently adopted EU Regulation 376/2014, which aims to prevent accidents through the reporting of occurrences in civil aviation. The regulation seeks to encourage reporting by recognising the 'just culture' concept, which establishes that aviation professionals should not be punished for actions that are commensurate with their experience and training, but under which gross negligence, wilful violations and destructive acts are not tolerated.
Swiss law governs the issue of third-party liability for damage caused by drones. Where, due to the operation of an aircraft in flight, a person on the ground is killed or injured or surface property is damaged, the Aviation Act obliges the aircraft operator to compensate the victim. The act applies to both manned and unmanned aircraft. The Federal Office of Civil Aviation believes that Swiss insurance requirements are adequate for the time being.
Switzerland has been reluctant to approach the integration of drones into the aviation system in a comprehensive manner. The Aviation Ordinance and the Ordinance on Special Category Aircraft are the national legal instruments apply to drones operating in Swiss airspace.
The Federal Administrative Court recently handed down a decision on the determination of charges at Zurich airport. The court partly allowed an appeal and remanded the matter to the Federal Office of Civil Aviation (FOCA) for a reassessment of the charges. It remains to be seen whether the various reassessments which FOCA has yet to undertake will result in substantially lower charges.
The European Commission's 'stop the clock' decision means that the aviation emissions trading scheme now applies to flights within and from the European Economic Area (EEA) to certain third countries, including Switzerland. Swiss International has argued that this decision breaches the EU law principle of equal treatment by treating Switzerland differently from other third countries.
The liquidator of SAirGroup lodged a responsibility claim with the Zurich Commercial Court, arguing that SAirGroup former board members had breached their duties by acquiring a shareholding in Air Littoral without creating a corresponding equivalent value. Since the decision appeared reasonable at the time it was made, the court rejected the claim that the defendants had breached their duty of care towards SAirGroup.
A jet crashed near St Moritz-Samedan Airport, killing both pilots. Following the accident, the father of the deceased co-pilot brought claims for damages against the airport operator. The Federal Administrative Court dismissed the claims, stating that it is an aircraft commander's duty to undertake all necessary measures to ensure the safe conduct and completion of the flight.
Remotely piloted aircraft systems (RPAS) operate under a fragmented regulatory framework. Switzerland has so far been reluctant to approach the issue of integration of RPAS into the aviation system in a comprehensive manner. However, one change in place is a prohibition from operating civil drones beyond the visual line of sight, in which the pilot maintains unaided visual contact with the remotely controlled aircraft.
Following Etihad Airways' announcement that it intended to acquire a 33.3% stake in the Switzerland-based regional carrier Darwin Airline, the Swiss Federal Office of Civil Aviation and the European Commission have both launched investigations into the investment. As Etihad's stake does not amount to more than 50% of the ownership, the authorities may conclude that Darwin is not substantially owned by Etihad.
In a recent case the Federal Administrative Court gave guidance on claims due to excessive aircraft noise and direct flyovers. The court stated that to claim compensation for direct flyovers, aircraft must fly over the properties each day . It is not necessary that the flights continue throughout the day if the aircraft fly over residential properties during early morning hours.
Swiss voters recently approved a referendum to reintroduce quotas on the number of foreigners allowed to live and work in Switzerland. This move may have far-reaching consequences for Switzerland's relations with the European Union – and could seriously harm business in the air transport sector.
The Beijing Convention and the Beijing Protocol were drafted to criminalise terrorist attacks and improve international civil aviation security. Switzerland played a key role in the negotiations that led to the Beijing Instruments. It helped to broker a compromise solution in relation to the issue of whether the activities of military forces during an armed conflict are governed by the international criminal air law conventions.
Following an order from the Swiss Federal Office of Civil Aviation (FOCA) that Swiss International Air Lines must ensure full compliance with security requirements, the Federal Supreme Court found that FOCA's order was insufficient on a legal basis. The court stated that the carrier must decide autonomously how to train its staff in order to achieve the relevant security standards.
To reduce noise surrounding Zurich Airport, Germany adopted measures prohibiting flight at low altitude over German territory close to the Swiss border between certain times. Switzerland complained that the measures were contrary to the Air Transport Agreement, but the European Commission decided that Germany could continue to apply them. Switzerland's appeal to the European Court of Justice was later dismissed.
Occurrence reporting systems are vital tools in aviation safety. The effectiveness of any occurrence reporting system depends on the confidence that aviation professionals have in it. One concern is that individuals will be reluctant to report occurrences if they fear that criminal proceedings may be instituted against them. Aviation professionals should seek legal advice before deciding whether to report a certain occurrence.