The aviation sector is one of the Netherlands' key industries. Despite its relatively small size, the Netherlands boasts 18 aerodromes for mainport, military and civilian air services, 25 other types aerodromes (gliders, micro-light aeroplanes, etc.) and 170 helicopter platforms.2 Schiphol Airport in Amsterdam is one of Europe's largest airports and an important hub for international flights, with more than 68 million passengers passing through annually.3 In 2017 Schiphol Airport saw 496,748 aircraft movements (take-offs and landings) and this number is expected to continue to increase in the coming years.4 Servicing more than 2.5 million controlled flights each year, and providing employment to an estimated 175,000 people,5 the aviation sector is of primary importance to the Dutch economy.
Domestically, the institute charged with monitoring and control of compliance with aviation law, aviation safety requirements and relevant environmental legislation is the Human Environment and Transport Inspectorate (ILT). The ILT's activities involve, inter alia, the following:
- supervision of airlines and airports;
- issuing permits for operators, aircraft, manufacturers of (parts of) aircraft and maintenance organisations;
- registration, qualification and recognition of aviation training institutes;
- supervision and certification of air traffic control; and
- collecting and analysing information on aviation-related incidents.6
Air traffic control in the Netherlands is the responsibility of Air Traffic Control Netherlands, Eurocontrol Maastricht Upper Area Control (MUAC) and Air Operations Control Centre Nieuw Milligen (military air traffic control). In its capacity as the Dutch national supervisory authority, the ILT is charged with the supervision of Air Traffic Control Netherlands and MUAC. The ILT also supervises air traffic control for the islands Bonaire, St Eustatius and Saba.7
With regard to safety and accident investigation, in 2005 the Dutch Safety Board was established. This is an independent organisation dealing with, inter alia, aviation accident investigation.8
In addition to these domestic regulators, the Netherlands is involved in a number of international and European aviation organisations and regulators, such as the International Civil Aviation Organization (ICAO), the European Civil Aviation Conference, the European Aviation Safety Agency (EASA) and Eurocontrol.
In addition to the existing international treaties to which the Netherlands is a party, aviation-related issues are increasingly regulated at EU level. The implications of these developments for issues such as passenger rights, safety, insurance and competition regulation will be discussed in more detail later in the chapter.
iii Access to the market and regulation of slots
In accordance with the Aviation Act 1992, the airport operator must provide access to the airport. Further regulations based on the Aviation Act 1959 and 1992 set limits with a view to, for example, safety, noise pollution and air pollution. Furthermore, on the basis of Regulation (EC) No. 95/93 and the Decree on Slot Allocation, Schiphol Airport, Eindhoven Airport and Rotterdam The Hague Airport are designated as coordinated airports and the slots at these airports are allocated by the Dutch slot coordinator SACN.
II LEGAL FRAMEWORK FOR LIABILITY
i International carriage
The Netherlands is party to the Warsaw Convention9 and the Montreal Convention. The Montreal Convention came into effect in the Netherlands on 28 June 2004. Pursuant to Regulation (EC) No. 2027/97, as amended by Regulation (EC) No. 889/2002 of 13 May 2002, the provisions of the Montreal Convention have been declared binding on all carriage, international or internal, by EU operators.
ii Internal and other non-convention carriage
The Montreal Convention is directly applicable to carriage in the Netherlands. However, because it was deemed desirable to have one consolidated system of rules for internal carriage that would not deviate unnecessarily from the rules for international carriage, the provisions of the Montreal Convention have also been incorporated into Book 8, Title 16 of the Dutch Civil Code (DCC) for internal carriage. Title 16 contains a number of supplementary provisions to the Montreal regime. These supplementary provisions relate, for example, to certain aspects of luggage claims and to the equal treatment of air-cushion vehicles with aircraft for transportation of persons or goods.
iii General aviation regulation
The primary legal framework of Dutch Aviation law is found in the 1959 Aviation Act and the Aviation Act 1992. The 1959 Aviation Act has been gradually integrated into the Aviation Act 1992. In 2010, those parts of the Aviation Act 1992 that relate to personnel, airworthiness and safe aircraft operation have also been declared applicable to Bonaire, St Eustatius and Saba pursuant to the Aviation Act BES. The Aviation Act 1992 provides general rules, which have been further elaborated in specific implementing regulations and ministerial orders.
In addition to these specific aviation laws, the DCC also provides certain aviation-related rules. Most important are Book 8, Title 15 DCC, which deals with rights in rem and privileges in relation to aircraft, and Book 8, Title 16 DCC, which deals with operation and exploitation and includes, as set out above, liability regimes for the carriage of persons and goods.
iv Passenger rights
Consumer rights legislation dealing with transport rights, compensation for delay and cancellation of flights and carriage of disabled passengers are primarily regulated at a European level.
v Other legislation
Other legislation that may impose liability on airlines includes, inter alia, the various implementing regulations under the Aviation Act 1992 (such as, for example, the 'Decree establishing some rules limiting the noise by aircraft', which deals with a number of environmental aspects), competition rules,10 the general rules for civil liability following from the DCC11 and product liability rules.12
III LICENSING OF OPERATIONS
i Licensed activities
To operate as an airline in the Netherlands and commercially transport persons, goods and mail through Dutch airspace, an operator needs to have an air operator certificate and an operating permit. In addition, for aircraft that wish to land at Schiphol Airport at night, the operator will need a P-RNAV operations approval.
The issuance of both the air operator certificate and the operating permit is regulated by the ILT.13 In 2014, the Ministry for Infrastructure and Environment published a Policy Document on Aviation, which sets out the policies for granting aviation (operational) permits and the applicable technical requirements,14 as well as a Policy Regulation on Licences for Air Transport, which provides a further discussion of the applicable policies.15
Air operator certificate
The air operator certificate serves to establish that the operator has sufficient professional competence and is duly organised to ensure the safety of its activities. To apply for an air operator certificate, the operator also needs to have the following permits (or, at least, needs to have applications for those permits outstanding):
- a status of continuing airworthiness management organisation (CAMO), or a (contractual) relationship with a CAMO pursuant to which duties of continuing airworthiness management have been contracted out to that CAMO;
- if maintenance is not done internally, a contract with a recognised maintenance company;
- a certificate of airworthiness and a certificate of registration of the aircraft; and
- a Dutch operating permit.
However, certain activities are exempt from the requirement to have an air operator certificate, or are subject to a lighter regime. These include, for example, air balloon flights and sightseeing flights (except by helicopter). Special rules also apply to private flights, transport for own business (i.e., where a company owns or leases an aircraft that is used to transport persons or goods for no consideration in the course of its business) or flights by aircraft or helicopter for special services, for example for agricultural purposes, research and observation or rescue missions ('air business' activities).
Once obtained, the air operator certificate remains valid as long as the requirements for operation are being met. The ILT checks this through a system of audits and inspections of operators' activities and management, which may also include checks of, for example, flight operation and pilot training. In addition, the operator may be subject to unannounced inspections on the basis of the European Safety Assessment of Foreign Aircraft programme or on the basis of the Safety Assessment of National Aircraft programme.
An operating permit confirms that the operator is capable of providing air transportation services in a commercial capacity. No operating permit is required for air balloon flights, sightseeing flights, non-commercial transport or air business activities as described above.
To be eligible for an operating permit, it is required that:
- the operator is established in the Netherlands;
- the operator has a Dutch air operator certificate;
- the operator has one or more aircraft available, either in ownership or through dry lease;
- the main activity of the operator is to provide air services, possibly in combination with other commercial exploitation of aircraft, maintenance or repair of aircraft;
- the corporate structure of the operator is transparent, particularly in relation to ownership and control;
- the operator is owned by EU Member States or nationals of EU Member States that have effective control over the operator; and
- the operator meets the required financial conditions, insurance conditions and corporate governance conditions.
However, less stringent requirements apply for transport by aircraft that have a starting mass of less than 10 tonnes or have fewer than 20 seats.
The operating permit remains valid as long as the relevant requirements are met, but will become invalid if activities are ceased for more than six months. The operator must submit its financial accounts to ILT for review, and ILT may request to inspect a licensed operator's financial situation at any time. ILT will test whether the operator continues to meet the necessary requirements on the basis of Regulations (EC) Nos. 1008/200816 and 785/2004.17
The ILT intensively monitors the operator's financial situation. If the ILT is no longer convinced that an operator is financially sound, it must suspend or withdraw the operating permit (although under certain circumstances, a temporary permit may be granted to allow the operator to reorganise itself financially). Insolvency of the operator leads to termination of the operating permit, as will a withdrawal of the air operator certificate.
ii Ownership rules
The requirements for (the financial and technical capability of) owners of aircraft are primarily governed by Regulation (EC) No. 1008/2008 of 24 September 2008 on common rules for the operation of air services in the Community.
iii Foreign carriers
The primary framework for international aviation regulation is set out in the Chicago Convention and the Annexes thereto, and in the associated International Air Services Transit Agreement and the International Air Transport Agreement.
With regard to foreign (non-EU) operators, air traffic to, through or from the Netherlands is not allowed unless such an operator has received an operating permit or has received an authorisation to operate on the basis of a bilateral treaty. Such bilateral treaties deal with, for example, the applicable ICAO rules, safety standards and environmental standards. The Netherlands is currently party to such bilateral treaties with approximately 130 countries.
In 1992 the EU Member States agreed to create an internal open market for air transport (the Single European Sky (SES)), allowing operators from EU Member States to transport passengers and goods throughout the EU. This means that an operator from an EU country is entitled to operate under the same conditions as domestic operators. Part of the creation of the SES is the organisation of functional airspace blocks, which are based on operational requirements rather than state boundaries.18 The Netherlands is part of the Functional Airspace Block Europe Central, which also includes Belgium, France, Germany, Luxembourg and Switzerland.19
In addition to the bilateral treaties giving access to Dutch airspace mentioned above in relation to international operators, the Netherlands is also subject to a number of such 'bilateral' arrangements between the EU and other states.20
Aircraft and aviation services in the Netherlands are subject to the applicable European rules as set out in the chapter on the European Union.
i Airworthiness and maintenance of aircraft
Chapter 3 of the Aviation Act 1992 sets out various requirements for aircraft, dealing with registration requirements, airworthiness and maintenance. It also deals with a number of related issues such as certification, proof of airworthiness and recognition of, for example, maintenance providers. The substance of these requirements is set out more elaborately in the 2008 Aircraft Decree, which deals with the nationality and registration of aircraft, additional type certificates, proof of airworthiness and noise certificates and regulations.
A number of these issues fall within the scope of the rules set by EASA, as set out in the EASA Regulations.21 Taking into account the fact that these Regulations are directly applicable in the Netherlands, the substantive EASA requirements have not been incorporated in the 2008 Aircraft Decree. In terms of procedure, however, the 2008 Aircraft Decree and the ministerial orders based upon it implement the rules following from these Regulations. Where topics are not dealt with in the EASA Regulations, the 2008 Aircraft Decree provides national rules.
ii Safe aircraft operation
Chapter 4 of the Aviation Act 1992 sets out various requirements for aircraft operation. The substance of these requirements is set out in more detail in the 2006 Aircraft Operation Decree. This Decree is not only applicable to the flight itself (take-off, flight and landing) but to the entire flight process – including, for example, preparations for the flight, loading and fuel supply.
Jointly, Chapter 4 of the Aviation Act 1992 and the 2006 Aircraft Operation Decree serve to implement Annex 6, Parts I to III (OPS Operation of Aircraft) of the Chicago Convention.
Chapter 2 of the Aviation Act 1992 sets out the various requirements that have been imposed for crew members in the interest of aviation safety. These rules apply equally to crew members of all types of aircraft, as well as to personnel of air traffic services units. Chapter 2 specifies:
- the relevant requirements pertaining to qualifications and proof of competence;
- health requirements and medical declarations; and
- rules concerning the use of alcohol, drugs and certain medication.22
iv Incidents and accidents
In the Netherlands, there are two different authorities that deal with aviation-related incidents and accidents. Incidents are reported to the Aviation Incidents Analysis Bureau, which is a division of the ILT. Aviation sector employees are obliged to report any incidents to the Aviation Incidents Analysis Bureau, either directly through the ILT's website or through their employer's safety management system. Civilians who are not employed in the aviation sector can also report incidents through a special Aviation Safety Desk.23
The Aviation Incidents Analysis Bureau records and analyses all aviation incidents in the Netherlands. Its tasks involve:
- the collection, processing and registration of reported incidents and the processing of these incidents in the European Coordination Centre for Aviation Incidents Reporting Systems registration system;
- analysing and assessing incidents;
- providing general trend analyses, cause analyses and consequence analyses of incidents in the aviation sector; and
- giving recommendations to the authorities and the aviation sector to improve air safety.24
Accidents are reported to and investigated by the Dutch Safety Board, which was established on 1 February 2005 pursuant to the 2005 Safety Board Kingdom Act.
The primary purpose of the Dutch Safety Board's investigation is accident prevention; to determine the causes of the accident and to formulate recommendations to improve safety in the future. To do this effectively, it is key that people and entities involved in the accident, either directly or as witnesses, can speak freely with the Safety Board's investigators without any (legal) risk to themselves or others. To ensure that this is possible, the investigation by the Dutch Safety Board is entirely separate from any criminal investigation relating to the accident. The 2005 Safety Board Kingdom Act moreover provides several explicit safeguards in this respect.25
First, the Act provides that information provided or statements made in the context of the investigation, as well as the public reports of the Safety Board, cannot be used as evidence in criminal, civil or disciplinary proceedings, nor as a basis for administrative sanctions or orders.26
Second, the Act provides that the Dutch Safety Board, its staff and any other investigators involved in the investigation may not report any criminal offences of which they have learned through the Safety Board's investigation.27 The only exception to this rule is where the criminal offence in question concerns kidnap or hijacking, murder, culpable homicide or any criminal offence with terrorist intention. In those cases, there is a legal obligation to report.
Finally, the Act provides that everyone involved in a Safety Board investigation is bound to secrecy regarding any confidential information obtained in the context of that investigation.28
For international aviation accidents (i.e., accidents in which a foreign aircraft is involved), the rules of Article 26 of the Chicago Convention and Annex 13 of the Chicago Convention are applicable.
Regulation (EC) No. 785/2004 of 21 April 2004 on insurance requirements for air carriers and aircraft operators (as amended) defines the minimum insurance requirements to cover passengers, luggage, cargo and third parties for air carriers and aircraft operators flying within, into, out of, or over the territory of a Member State, including its territorial waters. Pursuant to Article 7.4 of the Aviation Act 1992, air carriers and aircraft operators must have insurance that meets the requirements of Articles 4, 6 and 7 of the Regulation.
Article 4 of Regulation 785/2004 sets out the applicable principles of insurance, and determines that air carriers and aircraft operators must be insured for their aviation-specific liability in respect of passengers, luggage, cargo and third parties. The insured risks shall include acts of war, terrorism, hijacking, acts of sabotage, unlawful seizure of aircraft and civil commotion. This insurance cover must exist for each and every flight, regardless of the underlying ownership or operation structures.
Article 6 of Regulation 785/2004 sets out the applicable minimum insurance cover for passengers (250,000 special drawing rights (SDR) per passenger, which may be lowered to 100,000 SDR for non-commercial flights with a maximum starting mass of 2,700 kilograms), luggage (1,131 SDR per passenger) and cargo (19 SDR per kilogram for commercial exploitation).29
Finally, Article 7 of Regulation 785/2004 determines the minimum insurance cover in respect of liability for third parties.
The general Dutch and European competition rules apply directly to operators active on the Dutch market. There is no sector-specific competition regime for airlines. The only sector-specific competition rules relate to Schiphol Airport, given its dominant position on the Dutch market.
i Anticompetitive agreements
European competition law has been implemented in the Dutch Competition Act. Article 6 of the Competition Act prohibits agreements, decisions by associations of undertakings and concerted practices between two or more undertakings that have as their object or effect the restriction of competition.30 The provision covers both horizontal agreements (between actual or potential competitors operating at the same level of the supply chain, e.g., two airlines) and vertical agreements (between firms operating at different levels, e.g., an airline and an airport). These agreements can be covert, for example through a secret cartel, but can also take the form of an arrangement for collaboration on research and development.
ii Abuse of dominance
Article 24 of the Competition Act prohibits any abuse of a dominant position by one or more undertakings. In line with European case law, a dominant position under the Competition Act is defined as a position of economic strength enjoyed by an undertaking that gives it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers, and thus enables it to prevent effective competition being maintained on the Dutch market.
iii Application of Dutch competition law to airlines
The Dutch competition rules are applicable to any conduct having a restrictive effect on competition in the Netherlands and may therefore apply to both Dutch and foreign airlines. The Dutch Competition Authority (ACM) focuses on anticompetitive agreements (e.g., cartels) as well as on abuse of dominance by airlines and airports. Because of the international nature of the aviation sector, however, restrictive agreements between airlines tend to exceed the national level and will often be investigated and prosecuted by the European Commission.
In general, and in line with the European Guidelines on horizontal cooperation agreements, the ACM has a positive stance towards cooperation agreements if the collaboration allows the companies to improve efficiency and increase innovation, the cost benefits of which are passed on to the consumers, while not unnecessarily restricting competition.
iv Schiphol Airport
Schiphol Airport is subject to a specific competition regime because of its dominant position on the Dutch market. As part of this regime, the ACM monitors the airport charges and checks whether they reflect actual costs made for the performance of the regulated tasks of the airport (i.e., aviation and security).31 This ensures that airlines are not contributing to the costs of any commercial activities of the airport. For instance, the ACM decided in 2015 that the costs related to the check-in gates for Schiphol's train station may not be passed on to the airlines as these costs are not directly related to Schiphol's regulated activities.32 In this respect, Schiphol is obliged to use an allocation system to provide insight into the components of its charges. The ACM assesses this allocation system and requires Schiphol to provide financial accountability for the previous financial year.
Complaints relating to Schiphol's dominant position and the airport charges have also been brought by low-cost air carriers such as easyJet. In 2008, easyJet lodged complaints with the ACM submitting that the passenger-related charges as set by Schiphol were discriminatory, since it distinguished between transfer passengers and origin/destination passengers. EasyJet held that such differentiation would, inter alia, translate into a preferential treatment for airlines mainly catering to transfer passengers (most notably: AirFrance/KLM). The complaints were, however, rejected, as the competition authority concluded that the different charges were not contrary to the rules laid down in the Aviation Act 1992.33 EasyJet went on to lodge a complaint with the European Commission. In early 2015, the European Court of Justice confirmed that the European Commission was allowed to reject this complaint by easyJet on the basis that it was allowed to rely on the decision of the national authorities, which had already properly investigated the matter.34
Part of the obligations of Schiphol as a dominant undertaking is a requirement to consult airlines on any changes in respect of the airport conditions applicable to them. In this regard, Schiphol was fined in 2017 by the ACM for not consulting airlines on new conditions for the transport of passengers by bus between gates and the terminal building.35 The fine was set at €25,000, which was a relatively low fine reflecting the fact that no harm was caused and airlines were informed.
v Enforcement of competition law
The ACM is solely responsible for the public enforcement of the general competition rules and the specific competition regime applicable to Schiphol. In cases of an infringement of the Dutch Competition Act, or Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), the ACM has the power to impose fines on companies and individuals. The maximum fines have been increased from 1 July 2016 to up to a maximum of €900,000 (previously €450,000) for individuals, and up to €900,000 (previously €450,000) or 10 per cent of overall annual turnover for companies (whichever is higher).36 In case of an infringement of Article 6 of the Dutch Competition Act (i.e., the cartel prohibition) the maximum fine can be increased, depending on the duration of the infringement, up to €3.6 million or 40 per cent of the overall annual turnover of a company (whichever is higher). The maximum fine can also be doubled in case of a repeated offence, meaning that the maximum fine could be as high as €7.2 million or 80 per cent of the annual turnover (whichever is higher).
VII WRONGFUL DEATH
Wrongful death is a civil liability under Dutch law. Liability for wrongful death claims derives from the Montreal Convention and the DCC.
On the basis of Article 6:108 of the DCC, a person liable for someone's death must compensate certain relatives and relations of the deceased for loss of dependency. This includes any reasonable funeral costs, loss of financial support, care costs and the costs of raising children. On 1 January 2019, a new law will enter into force introducing statutory rights for the compensation of certain types of emotional loss.37
VIIi ESTABLISHING LIABILITY AND SETTLEMENT
Operators' liability towards passengers and third parties is primarily a civil matter, and claims are therefore generally brought before the (regular) courts. Claims are initially submitted to the District Court. Generally speaking, litigating a civil liability case in first instance will take one to two years (depending, of course, on the complexity of the case and whether, for example, witnesses need to be heard), after which the judgment may be appealed before a Court of Appeal and (although more rarely) reviewed by the Supreme Court. Out-of-court settlements are common, however, especially for personal injury cases.
Multiple defendants can be joined in a single action. If the Dutch courts have jurisdiction against one of the defendants they also have jurisdiction against the other parties, provided that there is a sufficiently close connection between the claims against the various defendants (where the claims relate to the same damage, however, that connection will generally be easily assumed).38
The limitation period for bringing a claim depends on the underlying legal basis. The two-year expiry period provided for in the Montreal Convention will apply to the majority of claims. For claims on the basis of an unlawful act (Clause 6:162 DCC), to the extent that the claims do not fall within the scope of the Montreal Convention, the limitation period is (1) five years starting from the day after the day on which the creditor has become aware of both the damage and the liable person; and (2) in any event, 20 years after the event that caused the damage (except for claims for damages in relation to soil, water or air pollution, in which case this term is extended to 30 years).
ii Carriers' liability towards passengers and third parties
An operator's liability is civil and derives from the Montreal Convention, Regulation (EC) No. 899/2002 and the DCC. For damage claims not falling under the scope of the Montreal Convention, the general basis is Article 6:162 of the DCC, which provides that whosoever commits an unlawful act towards another must compensate that other for the damage resulting from that unlawful act. In addition, Sections 15 and 16 of Book 8, DCC contain aviation-specific rules and obligations.39
iii Product liability
Product liability under Dutch law is a civil liability, which is dealt with by the DCC. The general basis for product liability claims is the unlawful act rule in Article 6:162 of the DCC, as discussed in subsection ii. In addition, Articles 6:185–193 of the DCC provide specific product liability rules. These articles were introduced to incorporate the provisions of Directive 85/374/EEC of 25 July 1985 on liability for defective products.
Article 6:185 of the DCC provides a system of qualified strict liability for the producer of a defective product. The producer of the defective product is liable for any damage caused by the defect, unless:
- it did not put the product into circulation;
- it is plausible that the defect that caused the damage did not exist at the time when the product was put into circulation;
- the product was not created for sale or any other economic purpose, nor was it created or circulated in the course of the producer's business;
- the defect is caused by aspects of design or composition of the product that were mandatorily prescribed by the authorities;
- it was impossible to discover the defect at the time the product was put into circulation; or
- the defect is linked to a specific material or item used in the product and the producer of that material or item is being held liable; the defect is caused by the general design of the product in which the material or item has been incorporated; or by the instructions of the producer of the product.
Further to the limits for liability set by the Montreal Convention, Book 8, Title 16, the DCC40 provides the following limitations on damages:
- Liability for destruction, loss, damage or delay of cargo is limited to 19 SDR per kilogram. This limit can be increased, however, if the sender has given a special declaration of the importance of delivery at the beginning of transport (for which additional fees may be payable).41
- Liability for damage caused by death or injury of a passenger cannot be limited or restricted for damages up to an amount equal to 113,100 SDR. For damages exceeding 113,100 SDR, the operator is not liable if it can prove that:
- the damage was not attributable to a fault or negligence of the operator (or of a person who assisted it in performing its obligation); or
- that the damage was entirely attributable to a fault of negligence of a third party.42
- Liability for damage caused by delay is limited to 4,694 SDR per passenger.43
- Liability for destruction loss, damage or delay of luggage is limited to 1,131 SDR per passenger. This limit can be increased, however, if the sender has given a special declaration of the importance of delivery at the beginning of transport (for which additional fees may be payable).44
Dutch law does not differentiate between direct and consequential damages as defined categories of loss. Rather, the applicable test for compensation is whether there is a sufficient causal link between the unlawful act and the damage. Damages for pain and suffering are compensable but punitive damages are not. Generally speaking, however, the level of damages awarded is relatively low compared with, for example, US standards.
Specifically for personal injury claims, several interest groups have jointly written a Code of Conduct for Personal Injury Claims, as well as several Personal Injury Guidelines to determine the applicable amount of damages. Although these are not legally binding, they are generally observed in personal injury cases.
IX VOLUNTARY REPORTING
In the Netherlands, the regimes for the voluntary reporting of aviation-related incidents and accidents are derived from Regulation (EU) No. 376/2014, and the 2005 Safety Board Kingdom Act.45
Pursuant to Regulation (EU) No. 376/2014 of 3 April 2014, individual aviation companies, the ILT and EASA have to set up desks where individuals can report details of aviation safety-related occurrences. Aviation companies registered in the Netherlands can report to the ILT, and the ILT reports to the EASA.46 All information is eventually collected and stored in the European Central Repository.
x THE YEAR IN REVIEW
i MH17 investigation
On 17 July 2014, Malaysia Airlines flight MH17 crashed over Ukraine, near Hrabove, en route from Amsterdam to Kuala Lumpur. Fifteen crew members and 283 passengers, 196 of whom were of Dutch nationality, were on board.47 None survived the crash.
Apart from the significant emotional impact of this terrible accident, it has also had far-reaching social and political implications because of the political situation in Ukraine at that time and the possibility that military action caused the crash of this civilian aircraft. In this respect, Australia, Belgium, Malaysia, the Netherlands and Ukraine asked the United Nations Security Council to establish a UN tribunal to prosecute those responsible for the disaster. However, the required resolution was not adopted owing to Russia's negative vote.48
Further, in October 2015 the Dutch Safety Board issued its final report on the crash, in which it concluded that the in-flight disintegration of the aeroplane was the result of the detonation of a warhead.49 For the purposes of a criminal investigation in relation to this incident, the Dutch Public Prosecutor's Office and the National Police formed an international investigation team, the Joint Investigation Team (JIT) with the police and judicial authorities of Australia, Belgium, Malaysia and Ukraine.50
In 2016, the JIT established through forensic investigation that flight MH17 was shot down by a BUK missile from farmland near Pervomaiskyi (Ukraine). On 5 July 2017, it was announced that the JIT countries have jointly decided that potential criminal suspects will be tried in the Dutch courts under Dutch law, for which two legislative proposals have subsequently been submitted to the Dutch House of Representatives.51
On 24 May 2018, the JIT announced that the BUK missile that was used to shoot down MH17 originated from the 53rd Anti Aircraft Missile brigade, a unit of the Russian army from Kursk in Russia.52 The next day, the Netherlands and Australia announced that they hold Russia legally responsible for its part in the downing of flight MH17.53
ii Legislation and court proceedings
As in previous years, by far the majority of aviation-related cases over the past year involved claims for delays. Following the European Court of Justice's 2009 Sturgeon ruling,54 and its reconfirmation in October 2012,55 the number of passengers claiming compensation for delays and cancellations initially increased significantly. However, the ILT 2016 and ILT 2017 annual reports indicate that the number of complaints regarding delays is decreasing.56
Notably, with respect to such complaints, the European Court of Justice ruled that the relevant national public body designated to receive complaints, such as ILT, is not required to take enforcement action against the relevant carrier pursuant to such individual complaints, also taking into account the fact that passengers have access to the courts to enforce such claims.57 Notwithstanding, ILT has shown that it is prepared to take administrative action if needed. For example, on 7 January 2016, ILT imposed orders subject to penalties ranging from €60,000 to €90,000 per event of non-compliance to Vueling for its alleged systematic violation of the obligation to compensate passengers for delays, and denied boarding or cancellation of flights.58
In 2013 a group of passengers from Martinair flight MP495, which crashed during its landing at Faro Airport, Portugal on 21 December 1992, initiated legal proceedings against both Martinair and Air Traffic Control Netherlands. The passengers alleged that they had been wrongly informed about the cause of the accident. In the first instance proceedings against Martinair, before the Amsterdam District Court, the passengers' claims were rejected in full on 26 February 2014 (an appeal against this decision has been lodged by the passengers). The first instance proceedings against Air Traffic Control Netherlands, before the The Hague District Court, are still ongoing at the time of writing.
One notable legislative development that may also have an impact for parties active in the Dutch aviation sector concerns the new law introducing statutory rights for the compensation of certain types of emotional loss, which will enter into force on 1 January 2019.59 According to the new law, fixed amounts of compensation (varying between €12,500 and €20,000) are payable to a fixed group of beneficiaries (the victim's partner, children and parents).
iii Regulatory and competition law
In July 2013 the ACM started an investigation into the compatibility of certain behaviour of Schiphol and KLM with Article 6 of the Dutch Competition Act and Article 101 TFEU. KLM and Schiphol have close contacts since KLM and its SkyTeam partners operate most of the flights to and from Schiphol. The ACM investigated the relationship between the main Dutch airline and the main Dutch airport to assess whether Schiphol and KLM protected the position of KLM and its SkyTeam partners at Schiphol Airport to the detriment of other airlines. While the ACM did not establish a breach of competition law on the basis of its investigation, it did consider that certain contacts between Schiphol and KLM would entail risks to competition. To overcome these risks, both parties have committed for a period of five years not to have any contact with each other concerning the growth opportunities of other airlines. Also, they will not have any contacts regarding any requests for the establishment of airport bases, lounges or other facilities by other airlines, unless such airlines consent to the information sharing with KLM. Furthermore, Schiphol will independently determine its investment plans, airport charges and marketing policy. In February 2018 the ACM adopted a decision whereby it declared these commitments binding.60
In December 2017, a company offering tax refunds to non-EU travellers at the airport sued Schiphol for abuse of a dominant position by not offering the company a new concession contract and lease agreement. The company claimed that access to the Schiphol airport must be considered an 'essential facility' because of the services Schiphol provides.61 This claim was rejected by the relevant Dutch district court. The court ruled that Schiphol did not abuse a dominant position and that Schiphol was not obliged to offer the company a new contract since it could provide its services to travellers in other ways and at other locations.
Since Amsterdam Airport is highly congested and slots are scarce, there have been a number of cases relating to slot allocation at Schiphol in 2017.
In January 2017, a Dutch district court rejected a claim from TUI relating to the allocation of requested night slots.
In civil preliminary relief proceedings initiated by Corendon, a Dutch district court provisionally found that a new working procedure for non-historic slot allocation, published by SACN in March 2017, was unlawful. SACN successfully appealed this ruling. On appeal, the court ruled that it was not established that SACN had failed to timely inform Corendon of its policy change. Hence, Corendon was considered to have been able to take measures to deal with the limited availability of night slots.62
In April 2018, in civil preliminary relief proceedings initiated by Corendon, easyJet and TUI, a Dutch district court ruled that Schiphol had to transfer unused capacity (day slots) in the winter season 2017–2018 to the summer season 2018. The court had rejected Schiphol's defence that the transfer could lead to operational problems at the airport for lack of substantiation.63
Another dispute arose last year on the capacity declarations for 2017 and 2018, which had in the past been adopted following a joint decision by the key stakeholders involved. It is on the basis of this capacity declaration that the slot coordinator allocates slots to airlines. However, last year, the parties involved failed to reach an agreement on the capacity declaration, in particular given the different views on the scarcity of capacity at Schiphol. In order to emerge from the impasse, the Ministry of Infrastructure and Public Works has proposed to amend the Decree on Slot Allocation so that only Schiphol will be responsible for determining the capacity declaration, after consulting the parties involved (organised in the coordination committee for Schiphol).
Lastly, it is relevant to note the complaint filed by easyJet with the ACM in 2017 concerning the airport charges and conditions set by Schiphol. EasyJet complained about the consultation procedure, efficiency targets set by Schiphol, discrimination and competition risks. The ACM decided in April 2018 that some of the complaints did not relate to the setting of charges and conditions and found that the other complaints were unfounded.64
i Schiphol Airport
Schiphol is allowed to expand its aircraft movements to 500,000 per year until 2020,65 a number it almost reached in 2017.66 A continuing balancing act is required to allow the necessary growth but at the same time avoid unnecessary environmental nuisance and pollution. This will remain a constant topic of discussion, concerning, inter alia, noise and pollution levels and night flights. Also, slot allocation is likely to remain an interesting topic, as a result of strong growth of aircraft movements in recent years and given that the maximum number of aircraft movements allowed at Schiphol is nearly reached.
The ACM continues to monitor Schiphol's airport charges. Later in 2018, the ACM will adopt a decision on the cost allocation system for the period of 2019 to 2021, something that may well result in further litigation and complaints.
ii Lelystad Airport
While the opening of Lelystad Airport was originally scheduled for April 2019, it will now open in 2020 for flights to leisure destinations.67 The Dutch government wants to use the scarce capacity at Schiphol primarily for intercontinental traffic and feeder traffic, as the availability of (inter)continental connections from or to Schiphol is considered to create significant benefits for the Dutch economy. Lelystad Airport will, together with Eindhoven Airport, provide for the required alternative air traffic capacity. In 2018, a proposal for a new Ministerial Regulation and a Decree was published, aimed at introducing a traffic distribution rule between Schiphol Airport and Lelystad Airport. An important topic of discussion, often addressed in the media, is the potential nuisance caused by flights from and to Lelystad airport.68 This debate is expected to intensify in the coming years.
iii MH17 investigation
It is currently uncertain how and if Russia will respond to the announcement of the Netherlands and Australia that they hold Russia legally responsible for its part in the downing of flight MH17. Furthermore, whether suspects will be formally identified, and if so whether that will lead to a successful criminal prosecution, remains to be seen.
1 Hilde van der Baan is counsel, Pieter Huizing is a senior associate and Wendy Mink is an associate at Allen & Overy LLP.
3 In 2017, 68,515,425 passengers (including transit) passed through Schiphol Airport (monthly figures available at www.schiphol.nl/nl/schiphol-group/pagina/verkeer-en-vervoer-cijfers).
4 Press release on financial results 2017 of the Schiphol Group, p. 4 (available at www.schiphol.nl, monthly figures available at www.schiphol.nl/nl/schiphol-group/pagina/verkeer-en-vervoer-cijfers).
6 See also Section IV.
7 These islands were formerly part of the Netherlands Antilles. As of 10 October 2010, however, they acquired a new status as special municipalities, which means that they are now part of the Netherlands themselves (unlike Curaçao and St Martin, which became autonomous). For more information see
8 See also Section IV, where the Dutch Safety Board is discussed in more detail.
9 Including the 1995 Hague Protocol and the 1961 Guadalajara Convention.
10 See Section VI.
11 See Section VII.
12 See Section VII.iii.
13 On 12 May 2014, ILT provided a Brief on Aircraft Licensing to parliament, setting out the relevant governmental policies on air licensing. This Brief, which replaces a previous 1994 brief on licensing, can be found (in Dutch) at https://zoek.officielebekendmakingen.nl/dossier/31936/kst-31936-197.
14 Vergunningennota Luchtvaart, available at https://zoek.officielebekendmakingen.nl/blg-327741.
16 Concerning ownership, see also Section III.iii.
17 Concerning insurance, see also Section V.
18 See also Section IX.
20 Such as, for example, the 2007 Air Transport Agreement between the European Community and its Member States on the one hand and the United States on the other.
21 Regulation (EC) No. 216/2008 of 20 February 2008, Regulation (EC) No. 748/2012 of 3 August 2012 and Regulation (EC) No. 1321/2014 of 26 November 2014.
22 Note, however, that the regulation of working hours and rest periods of crew members fall outside the scope of the Aviation Act 1992; this is dealt with separately in Chapter 4 of the 1998 Working Hours (Transport) Decree.
23 On 3 April 2014, Regulation (EU) No. 376/2014 was enacted, which is gradually replacing Regulation (EU) 2003/42. It is already possible to voluntarily report at the ILT (at https://www.ilent.nl/contact/melden/index.aspx) and EASA (at www.aviationreporting.eu). See also Section IX.i.
24 The Aviation Incidents Analysis Bureau's tasks may in due course be restated in relation to the implementation of Regulation (EU) No. 376/2014. At the time of writing no such (proposed) legislation exists.
25 See also Section IX.ii.
26 Article 69 of the 2005 Safety Board Kingdom Act.
27 Article 70 of the 2005 Safety Board Kingdom Act.
28 Article 72 of the 2005 Safety Board Kingdom Act.
29 These requirements do not apply, however, to flights over the territory of the Member States carried out by non-Community air carriers and by aircraft operators using aircraft registered outside the Community that do not involve a landing on, or take-off from, such territory.
30 This provision is in line with Article 101 of the Treaty on the Functioning of the European Union.
31 Pursuant to Article 11.14a of the Aviation Act 1992 the ACM is appointed as the competent authority to monitor the tariffs of Schiphol Airport.
32 Decision of the ACM 6 May 2015, Schiphol mag alleen kosten voor luchtvaart doorberekenen, available in Dutch at: www.acm.nl/nl/publicaties/publicatie/14232/Schiphol-mag-alleen-kosten-voor-luchtvaart-doorberekenen/.
33 Decision of the ACM of 14 July 2009, Besluit Wet Luchtvaart Tarieven en Voorwaarden Schiphol per 1 April 2009, available in Dutch and English at www.acm.nl/nl/publicaties/publicatie/2557/Besluit-
34 European Court of Justice, 21 January 2015, T-355/13 (easyJet/Commission).
35 Decision of the ACM of 15 March 2017, Boete Schiphol voor niet doorlopen consultatieprocedure, available in Dutch at https://www.acm.nl/nl/publicaties/publicatie/17088/Boete-Schiphol-voor-niet-doorlopen-consultatieprocedure/.
36 Articles 56 and 57 of the Competition Act.
37 See Section X.
38 Article 107 of the Dutch Code of Civil Procedure.
39 See also Section I.iii.
40 See also Section II.ii.
41 Article 8:1359 of the DCC.
42 Article 8:1399 of the DCC.
43 Article 8:1400, subsection 1 of the DCC.
44 Article 8:1400, subsection 2 of the DCC.
45 See also Section IV.iv.
46 https://www.ilent.nl/onderwerpen/voorvallen-luchtvaart. See also Section IV.iv.
47 Of the people on board, 193 came from the Netherlands, 43 from Malaysia, 27 from Australia,
12 from Indonesia, 10 from the United Kingdom, four from Germany, four from Belgium, three from the Philippines, one from Canada and one from New Zealand.
54 European Court of Justice, 19 November 2009, C-402/07 and C-432/07 (Sturgeon).
55 European Court of Justice, 23 October 2012, C-581/10 and C-629/10 (Nelson/TUI).
57 European Court of Justice, 17 March 2016, C-145/15 and C-145/15 (Rijssenaars c.s. and Drees-Erf/ Staatssecretaris van Infrastructuur en Milieu).
60 Decision of the ACM of 20 February 2018, Toezeggingen van KLM en Schiphol nu definitief, available at https://www.acm.nl/nl/publicaties/toezeggingsbesluit-klm-en-schiphol-over-kaders-onderling-overleg.
61 District court North Holland 20 December 2017, ECLI:NL:RBNHO:2017:10992.
62 Court of Amsterdam 24 October 2017, ECLI:NL:GHAMS:2017:4340.
63 District Court of North Holland, 5 April 2018, ECLI:NL:RBNHO:2018:2795.
64 Desicion of the ACM of 26 April 2018, available at https://www.acm.nl/nl/publicaties/besluit-op- klachten-easyjet-over-tarieven-en-voorwaarden-schiphol-2018.
66 See Annual Report of 2017 of Royal Schiphol Group NV.