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1. Will the Single European Sky
require a new legal framework for air transport?
Alias Conference
June, 14-15, 2012
Anna Masutti
University of Bologna

2. The Single European Sky: current framework
The European air traffic management (ATM) system currently
handles around 26,000 flights daily.
Air traffic levels are likely to double by 2020.
As a response to the dramatic growth in air transport, the
European Commission passed the two Single European Sky
packages to create a legislative framework for European
Aviation.
The SES framework establishes a harmonised regulatory
framework in conjunction with airspace, service provision and
interoperability regulations.

3. The Single European Sky: current framework
However, the regulatory framework of SES is still mainly public-law
related:
 the designation of Air Traffic Services Providers (ATSP) is a
unilateral administrative decision of each designating State;
 the competence of the State extends to the supervision of ATS
activities: it is however difficult to monitor these activities
across national boundaries;
 there are practical constraints imposed by national political issues;
 the framework for the provision and supervision of cross-border
services is not yet properly established in a number of Member
States.

4. The Single European Sky: current framework
 There are no liability provisions in the SES regulatory
framework: unless there are specific arrangements between
States, liability dispositions are generally regulated by the
national provisions of the State over the territory of which
services are provided.
This leads to fragmentation of regulation with reference to
liability amongt all air transport operators.
Do we need a private-law regulation on civil liability in
the SES framework?

5. The Single European Sky: current framework
If there are accidents within the SES framework, the only private-law
discipline, set up in order to protect the victims of those accidents, is the
one which provides for the liability of the air carriers and aircraft
operators.

6. The Single European Sky: current framework
While for ATMs or airports, as well as for all the other operators (e.g.
satellite services providers), there are no regulations which define their
liability.
[Except for Product Liability for Manufacturers, Importers, Distributors
And Installers]

7. The Single European Sky: current framework
What happens in absence of a regulation of liability on a
private-law basis?
• conflicts of laws and jurisdictions due to different
nationalities of the parties involved, and State immunity
problems;
• impossibility to identify the liable party;
• risk of not indemnifying the victims of accidents;
• difficulties in exercising the right of recourse against
the effective liable party and in recovering the due sums
of money.

8. The Single European Sky: current framework
For instance, one of the regulations existing in the air transport
framework provides for a detailed legislative discipline for the
protection of the passengers:
Montreal Convention 1999 for the Unification of Certain Rules
for International Carriage by Air and the Regulation n.
889/2002/EC on air carrier liability in the event of accidents.
They ensure a proper level of compensation for passengers
involved in air accidents.
Moreover, the liability of the air carrier is becoming more and
more severe: EU Regulation n.261/2004/EC applies to
compensate delays.

9. The Single European Sky: current framework
But…
Art. 37 of Montreal Convention establishes that:
“Nothing in this Convention shall prejudice the question whether a
person liable for damage in accordance with its provisions has a right
of recourse against any other person”.
However, in absence of a specific regulatory framework for the
liabilities of operators other than the carriers, such as airports, ATMs etc,
this Article is hardly applicable in the future SES.

10. The Single European Sky: current framework
Another example of regulatory
discipline for liability is the
Convention on Damage Caused by
Foreign Aircraft to Third Parties
on the Surface, signed at Rome,
on 7.10.1952.
It introduces a strict and limited
liability regime for the aircraft
operator in case of damage caused by
an aircraft in flight.

11. The Single European Sky: current framework
Art. 10 of Rome Convention also establishes that:
“Nothing in this Convention shall prejudice the question whether
a person liable for damage in accordance with its provisions has
a right of recourse against any other person”,
Art. 16 par. 7 of Rome Convention, which introduces a
compulsory TPL insurance regime, establishes that:
“The provisions of this Article shall not prejudice the question
whether the insurer or guarantor has a right of recourse
against any other person”.

12. The Single European Sky: current framework
In the light of the above, it is clear
that the current framework lacks a
uniform regulation on liability,
and that in this context it is difficult
for the air carrier to recover the
amounts paid to the victims
from the liable subjects.
More difficulties will certainly arise due to the fact that SES will
be characterized by automation and interoperability
among all the operators.

13. The Single European Sky: current framework
In the SES system there are different entities – ATMs, airports,
services providers are involve

14. The Single European Sky: current framework
It is difficult to provide a single solution regarding the need for
regulation relating to different operators, which act with
different roles and in different fields.
An acceptable solution thus implies the existence of different
legal provisions based on well recognized principles of
private law.
They should be adequate to the role of each party involved,
within all the specific instruments which form the entire
infrastructure and the functioning of the SES system

15. The Single European Sky: current framework
Further to the observations raised by the parties involved in this
field, we can examine various different SES component
programmes to which the said principles could be applied, e.g.:
1) a regulatory system for interoperability between all
the parties involved in the air transport service;
2) a regulatory system for new technologies framework liability,
e.g. for GNSS;
3) a regulatory framework for the use of unmanned
aircraft.

16. 1) A legal framework for interoperability system
The ATM community has identified interoperability needs
which involve transforming the ATM system from an essentially
distributed network of independent units to an efficient
network of integrated co-operators able to cope with
significantly increased traffic.
The early introduction of System-Wide Information Management
(SWIM) capability is necessary to facilitate this co-operation.
How can we design a
Governance system for
SWIM?

17. 1) A legal framework for interoperability system
Possible solution for the Governance of SWIM:
• The first step could be a “code of conduct”.
• To ensure the functionality of the System a regulatory
framework compulsory for all actors is needed.

18. 1) A legal framework for interoperability system
a) A code of conduct for SWIM needs to contain compulsory rules
which ensure the stability and security of the system and
traceability and
b) a system of administrative sanctions for infringement of the
above rules.
c) As an infringement could cause damage to third parties
and/or their properties, a third party liability regime
should be set up.

19. 1) A legal framework for interoperability system
When damage is caused to the user by wrong or incomplete
information, a liability system including a compensation
system for damage of properties and personal injury to
the victims should be designed.
Normally, principles of private law quite common to Member
States for compensation of damage comprise the loss of profit
and accruing damage, and these principles will be taken into due
consideration.
When damage is caused also to a third party not linked to a
liable party by any contract, a Third Party Liability System must
be established, according to international principles.

20. 2) A regulatory system for the liability
for the use of GNSS
Satellite technology increases efficiency, safety, security and
environment.
Legal considerations:
• Accidents caused by malfunctioning of a GNSS signal will involve
various actors (GNSS operator, Air Navigation Service Providers, air
carriers) of different countries (and some countries will not provide
GNSS signal directly and will receive the service from other countries).
• The major utilisation of GNSS are the Air navigation services (ANS).
• ANS activity is mainly ruled by domestic legislation.
• Since the beginning experts noticed the absence of EU regulation.

21. 2) A regulatory system for the liability
for the use of GNSS
Same problems arise from lack of regulation for the GNSS:
Identification of the applicable law and jurisdiction;
State immunity (ANSP);
definition of the notion of ‘damage compensation’ if an
accident occurs;
identification of the liable party;
 civil liability regime for catastrophic events as a
consequence of the use of the systems.

22. 2) A regulatory system for the liability
for the use of GNSS
Main principles of the TPL regulation can be useful for a new
regulation:
the channelling of liability to a single liable party (LP);
• strict liability of the liable party;
• limited liability of the liable party (first tier);
• compulsory insurance of the liable party, up to the limit of the
first tier, and direct claim against the insurer;
• supplementary compensation if the damage exceeds the first tier
(entering the second tier);

23. 3) A legal framework for unmanned aircraft
Also with regards to the UAS/RPA, the absence of regulation is
commonly seen as a hindrance.
We need a civil and public law
framework for a safe
introduction of UASs into
common airspace and remove
some barriers.

24. 3) A legal framework for unconventional aircraft
Europe needs UAS public law that incorporates all the elements
required for manned aircraft such as airworthiness, certification,
pilot training and licensing, but …
also civil law that clearly defines responsibility and consequently
establishing a civil liability regime for third party damage.
It is clear that a compulsory insurance system should be provided.

25. 3) A legal framework for unconventional aircraft
Today there are important reasons for integrating UASs for civil
use in civil airspace.
The European Commission
within the general aviation
framework (SES, SESAR, GNSS
etc.) has the capacity to design
a regulatory framework to
integrate UASs for civil use in
civil airspace.

26. Conclusions
 SES has no uniform provisions on liability based on principles
of private law.
A global answer cannot be offered.
In addition, the future features characterizing SES will require a
liability legal framework in case of damage caused to persons
and properties.
This framework should also allow a right of recourse for the few
subjects for which a TPL regulation has been already provided.
We certainly need more than one new legal framework in the SES
structure, in order to fulfil the different needs of the different
operators in the air transport sector.

27. Thank you
a.masutti@lslex.com