Belgium is located in the heart of Europe and hosts most of the major institutions of the European Union. It is a federal country with competence lying in the federal state but also at the level of regions (Flanders, Wallonia and Brussels) and communities (Flemish, French and German-speaking communities). Although most of the aviation law and liability regulations are addressed by laws and regulations adopted at a federal level, the regions are also vested with important competence, notably in regional airports management and environmental issues such as aircraft noise-related regulations.
The milestone of Belgian air legislation is the 27 June 1937 Act amending the 16 November 1919 Act regarding the air navigation regulation, and its Royal Decree of 15 March 1954 regulating the air navigation. The 1937 Act (as amended from time to time) provides, inter alia, that any infringement of European Union air regulations will be considered as a criminal offence and those breaching the regulations will be prosecuted.
Next to its inclusion in the European legislation as a founding Member State, Belgium has ratified several international conventions in the field of aviation.
The country did ratify the 1948 Geneva Convention on the International Recognition of Rights in Aircraft, but has not yet ratified the 2001 Cape Town Convention on International Interests in Mobile Equipment. While it is worth mentioning that the European Union approved the Cape Town Convention and its Protocol in April 2009 with respect to matters specific to aircraft equipment (Decision 2009/370/EC), this has not entailed that the Convention is directly applicable in the Member States (subject to a few exceptions and save, of course, for the Member States that did ratify the Convention). Aircraft are considered as movable goods under Belgian law and as such may not benefit from the mortgage-related rules. Although there is no specific registry with the Belgian Civil Aviation Authority, liens on aircraft can be created through classical pledges and be registered as such. A new set of rules relating to securities on movable assets, adopted by the Belgian parliament in 2013 and which came into force on 1 January 2018, allows both the constitution of pledges on aircraft without dispossession and their registration in a national and electronic pledge register. The country is also a party to the 1933 Rome Convention for the Unification of Certain Rules Relating to the Preventive Seizure of Aircraft.
As regards criminal air law, Belgium has ratified the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft and the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and its related Protocol of 1988.
As far as liability regimes are concerned, Belgium has ratified the 1929 Warsaw Convention and the related Hague Protocol of 1955. The country has also ratified the 1961 Guadalajara Convention and the Montreal Protocol No. 4 of 1975. The 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air entered into force in Belgium on 28 May 2004 further to the Ratification Act of 13 May 2003.2
The surface damage liability regime in Belgium is essentially laid down in the 1952 Rome Convention.
In light of the number and importance of European Union laws and regulations that are directly applicable in Belgium in the field of aviation, this chapter shall only deal with national aspects. A specific chapter is devoted to European Union law and should be read in conjunction with this chapter for a comprehensive overview on the laws and regulations applicable to the aviation sector in Belgium.
II LEGAL FRAMEWORK FOR LIABILITY
i International carriage
Belgium is a party to the following agreements relating to international carriage:
- the 1929 Warsaw Convention for the unification of certain rules relating to international carriage by air, and the related Hague Protocol of 1955. The country has also ratified the 1961 Guadalajara Convention and the Montreal Protocol No. 4 of 1975; and
- the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air.
In addition, Regulation (EC) No. 2027/97 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No. 889/2002, also applies in Belgium.
ii Internal and other non-convention carriage
Given the size of the country there are no scheduled domestic flights in Belgium.
Regulation (EC) No. 2027/97 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No. 889/2002 implements 'the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air and lays down certain supplementary provisions. It also extends the application of these provisions to carriage by air within a single Member State'. It also provides that: 'The liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.'
Although this Regulation entails that the carrier operates with a valid operating licence, Article 3.3 of Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community provides that:
Without prejudice to any other applicable provisions of Community, national or international law, the following categories of air services shall not be subject to the requirement to hold a valid operating licence:
- air services performed by non-power-driven aircraft or ultralight power-driven aircraft; and
- local flights.
In the view of some authoritative authors, the consequences of incidents involving this type of aircraft or flights would not fall within the Montreal Convention liability regime, but would rather be governed, depending on the circumstances, by the Warsaw Convention regime (whose scope has been extended to intra-Belgium flights by the Belgian Ratification Act), the domestic law on contract of transport or tort law.
iii Passenger rights
Passenger rights in relation to compensation for delay, cancellation of flights and carriage of disabled passengers are essentially detailed in the European Union chapter dedicated to these questions.
In terms of passenger rights in cases of delay, cancellation and overbooking, the application of Regulation (EC) No. 261/2004 is monitored by the European Commission and national enforcement bodies, which in Belgium is the Directorate-General of the Belgian Civil Aviation Authority.
As in some Member States of the European Union, there was a debate around the binding or non-binding nature of the decisions that may be taken by the Directorate-General in the context of the application of the Regulation. In an approach similar to that already taken in other Member States, the Belgian Council of State confirmed, in a ruling dated 3 June 2014, that the Directorate-General has no real power to force airlines to pay compensation to passengers under Regulation (EC) No. 261/2004.
Some controversy existed surrounding time limits on lodging a judicial action in Belgium, however, the Belgian Court of Cassation recently confirmed the applicability of the one-year time limit set out in the 1891 Act amending the Commercial Code regarding transport contracts in this matter.3
The Belgian Supreme Court, seized for the first time with respect to the Regulation, confirmed the Sturgeon ruling of the European Court of Justice on 12 October 2017.
As regards passengers with reduced mobility, the Directorate-General of the Belgian Civil Aviation Authority is also in charge of monitoring the application of Regulation (EC) No. 1107/2006 at Brussels Airport. In addition, alongside the provisions of Regulation (EC) No. 1107/2006, disabled passengers are also protected under the principles of equality and non-discrimination pursuant to the Belgian Constitution and the Belgian Act of 10 May 2007 designed to fight against certain forms of discrimination.
Passengers travelling on the basis of package tour deals may find additional protection under the Belgian Act of 21 November 2017 regulating tour operators and agency contracts, which is the Belgian implementation act of Directive (EU) 2015/2302 on package travel and linked travel arrangements. Finally, general consumer rights can also be found in the Economic Code, which lays down specific provisions regarding market practices and consumer protection.
iv Other legislation
See the European Union chapter of this publication and Section VI, below.
III LICENSING OF OPERATIONS
i Licensed activities
Specifications regarding the allocation of the operation licence can be found in Belgium in the Ministerial Decree of 3 August 1994. This Ministerial Decree notably provides (1) that the Belgian Civil Aviation Authority is in charge of delivering, suspending and withdrawing operating licences; (2) that to obtain such a licence, the applicant will need to be either the owner or the lessee of at least one aircraft registered in its name in the Belgian aircraft registry; and (3) that the operator will need to demonstrate that it is sufficiently insured up to the required limits (set forth at EU level).
For more detail, see the European Union chapter.
ii Ownership rules
In Belgium, the Ministerial Decree of 3 August 1994 provides that to determine whether an air carrier complies with the requirements of European Union majority ownership and effective control, the carrier in question will have to provide the Belgian Civil Aviation Authority with all information concerning the legal status or technical capability of the carrier (and any modification thereof), including the registered offices, the articles of association, the designation of directors and the delegations of power, any project of merger or purchase, the operated fleet and the technical services that maintain it, and the licence and qualifications of the pilots.
For more detail, see the European Union chapter.
iii Foreign carriers
Pursuant to Regulation (EC) No. 1008/2008 on common rules for the operation of air services in the European Union, Community air carriers have free access, with a few exceptions, to the intra-Community routes. Although not required by law, the Belgian Civil Aviation Authority requests them to notify their scheduled flight routes.
Scheduled air services operated by Community carriers to and from outside the European Union are subject to the requirements laid down in the air services agreements signed by Belgium or the European Union and the relevant third countries.
In the latter respect, the 18 August 2010 Royal Decree on the designation of Community air carriers and on the allocation of air traffic rights in light of scheduled air services operation between Belgium and non-EU countries sets forth the applicable procedure to be granted the necessary traffic rights and operate such flights. This Royal Decree sets forth the criteria used by the Belgian Administration for the purpose of designating carriers on routes where capacity is limited under the applicable air service agreements: guarantees in terms of long-term continuity of operations, consistency with the airline's business plan, optimisation of the use of the traffic rights, operation of the carrier's own aircraft, interests of all categories of users, opening of new markets and routes, maintaining of a satisfactory level of competition, effects on employment, date of the first request to obtain the traffic rights, etc. The Royal Decree also describes the process to challenge designation of carriers on certain routes.
The operation of scheduled air services operated by non-Community air carriers is also subject to the requirements laid down in the air services agreements signed by Belgium or the European Union and the relevant third countries. However, these carriers enjoy, upon certain conditions, the first two freedoms of the air if their country of registration is a party to the 1944 Chicago Convention and the 1944 International Air Services Transit Agreement.
Non-scheduled flights may be operated without authorisations within the European Union by Community air carriers. Again, although not required by law, the Belgian Civil Aviation Authority requests Community air carriers to notify them of any of these services. Save for where this question would be specifically dealt with within an international agreement to which Belgium or the European Union would be a party, an authorisation is required for extra-EU non-scheduled flights operated by Community carriers to, from and via Belgium. The same applies to non-Community air carriers wishing to operate non-scheduled flights to, from and via Belgium. These, however, enjoy the first two freedoms of the air, with a few conditions, pursuant to Article 5 of the 1944 Chicago Convention if their country of registration is a party to the Convention.
In addition to the above, an operating ban may apply to non-Community carriers (see the European Union chapter for more information).
Non-commercial operations and notably operations involving state flights, flights for the carriage of dangerous goods, flights with noise restrictions, air tasks, special flights and public service obligation are subject to other specific requirements and procedures.
Additional information and relevant application forms may be obtained on the Belgian civil aviation website.4
The majority of safety issues are regulated on the EU level under the auspices of the European Aviation Safety Agency (EASA) and its Basic Regulation (EU) 2018/1139.
On a national level, the Belgian legal order contains several safety instruments, some standalone and some implementing European legislation on a national level. A complete list is to be found on the website of the Belgian Civil Aviation Authority.5
Most notably, there is the Royal Decree of 9 January 2005 regulating the technical requirements for aircraft of general aviation. Furthermore, the Royal Decree of 25 October 2013 is an executive implementation of Regulation (EU) 1178/2011 and Regulation (EU) 216/2008 (former EASA Basic Regulation) and lays down technical requirements and administrative procedures for civil aviation aircrew. Lastly, the Royal Decree of 10 April 2016 and the Ministerial Decree of 30 November 2016 were adopted recently in relation to the technical exploitation of drones.
The type and levels of insurance that air carriers and aircraft operators are required to have in place are detailed in Regulation (EC) No. 785/2004 on insurance requirements for air carriers and aircraft operators, as regularly amended. This Regulation applies, with few exceptions, to all air carriers and to all aircraft operators flying within, into, out of or over the territory of a Member State of the European Union.
The various legislative provisions regarding insurance in general have been enshrined in the Belgian Insurance Act dated 4 April 2014, which also refers to aviation matters.
For the rest, reference can be made to the Belgian Royal Decree of 12 November 2008 setting minimal insurance requirements concerning liability towards passengers for the non-commercial operation of aircraft of which the maximum take-off weight is equal to or lower than 2,700 kilograms.
Belgian competition law was redrafted and reorganised by the Belgian parliament in the Act of 3 April 2013, which entered into force on 6 September 2013.
This Act does not affect the substantive provisions of Belgian competition law, which reflect the provisions of Articles 101 and 102 of the Treaty on the Functioning of the European Union, except for the (new) possibility of seeking the personal liability of, and imposing administrative fines on, individuals involved in major violations of the rules (such as price-fixing practices) if they act on behalf of undertakings or associations of undertakings.
Under the Act, a single Belgian Competition Authority will investigate and decide upon infringements of competition law that affect a Belgian market or a substantial portion thereof. Decision-making powers will be entrusted to a new College of Competition Law Experts (the College). The College is an administrative body and, as such, will be able to appear as a party in appeal procedures before the Court of Appeal. The College will be headed by the President of the Belgian Competition Authority.
Investigation powers of the Competition Authority are entrusted to the College of Competition Auditors, led by the Auditor-General.
In terms of infringement proceedings, a two-step process is provided for under the Act. First, the College sends the undertaking a letter setting out its concerns: the undertaking will then have a right to access the information and documents based on which the concerns are based, for the purpose of the preparation of its reply. The undertaking will have a minimum of one month to reply after the issuance of the letter outlining the above concerns. Within one month of said reply, the College will prepare a draft decision. As from that moment (which is the second step of the process), the undertaking will have access to the entire file prepared against it and have two months to select the documents relevant to its defence, to add new documents to the file and to file written comments. One to two months after this, a hearing will take place and the College will finally take a decision within one month of the hearing. The Act introduces a settlement procedure, which may be used in the first round of the above procedure.
Appeals against the College's decision before the Court of Appeal (of Brussels) remain possible.
Finally, in a much criticised move, the Act now also provides that the Belgian Competition Authority will be involved in price-control matters, by being entitled, in certain cases and under certain conditions, to adopt interim measures where there is an urgent need to avoid a situation likely to cause serious, imminent and irreparable damage to undertakings or consumers or likely to harm the general economic interest.
VII WRONGFUL DEATH
Compensation for wrongful death, as for any other loss, is traditionally computed in Belgium according the Indicative Chart published and regularly amended by the Royal Unions of First Instance Judges. The computation system takes into account several criteria to assess the quantum of the loss. Some criteria take into account the revenue of the deceased person, while others are more standardised. For example, the moral damages for the loss of a husband is approximately €15,000.
VIII ESTABLISHING LIABILITY AND SETTLEMENT
Claims may be settled in Belgium in or out of court. However, claims may be time-barred after a certain period as described below and if brought to court, should respect the forum provided by international conventions or domestic law if applicable.
The claimant is allowed to bring to court any party it considers may be liable for the damage claimed. However, the admissibility and the scope of their liability remain subject to the interpretation of the laws by the court. As an example, the possibility to directly sue an airline's insurer may not be accepted in Belgium.
ii Carriers' liability towards passengers and third parties
If the applicable liability regime is established by an international convention, the scope of damage that can be recovered and the applicable time limit are generally explicitly addressed. In Belgium, the two-year limitation period under the Montreal and Warsaw Conventions is generally considered as not likely to be suspended or interrupted. In addition, Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents provides that Community air carriers will, without delay, and in any event not later than 15 days after the identity of the natural person entitled to compensation has been established, make him or her an advance payment, as may be required, to meet his or her immediate economic needs on a basis proportional to the hardship suffered. The Regulation also provides that such an advance payment cannot be less than 16,000 special drawing rights per passenger in the event of death.
With regard to the liability regime under Belgian law, and without consideration to specific liability regimes, the scope of the indemnification of damage should be distinguished depending on the legal ground of the action. If the action is based on tort, the whole prejudice should in principle be indemnified; whereas in the event of breach of contractual duty, and unless as otherwise agreed, only the foreseeable damage will be compensated. Belgian legislation does not accept penalty damages but provides that, up to a certain amount, legal counsel fees spent in court may be compensated.
The time limitation to lodge a claim equally varies according to the way the action is grounded. For a breach of contractual duty, the Belgian Civil Code generally provides that claims are time-barred after 10 years. It is generally admitted that this limit starts running from the day the damage occurred. By contrast, actions based on tort are time-barred within the five years following the next day where the victim has had knowledge of the damage, or its aggravation, and of the identity of the liable person. It is, however, required that action should in any case be initiated within 20 years following the next day where the fact that led to the damage occurred.
iii Product liability
The regime governing manufacturer's liability is particularly complex in Belgium. The relations between the manufacturer and the buyer will generally be governed by the contractual liability regime; whereas actions introduced by a passenger against the manufacturer will essentially be grounded on tort. Next to this rather classical distinction, the 25 February 1991 Act concerning liability for defective products establishes an additional liability regime. Pursuant to this Act, the manufacturer is liable for the damage resulting from a defect of the product. The burden of the proof of such a defect, of the damage and of the link between these two is, however, to be borne by the claimant. This Act provides that when several parties are liable for the same damage, they remain severally liable in relation to the victim. Besides, the manufacturer's liability cannot be limited towards the victim in situations where the damage occurred jointly as a defect of the product and as a result of a third-party action or omission. Actions initiated on the basis of this Act are time-barred 10 years following the day the product was put into circulation.
For the main features of the compensation system, see Section VII.ii. However, personal injury will generally be indemnified pursuant to non-binding indicative tables regularly published and updated by professionals and used by the Belgian courts.
In addition, state-funded social security may intervene in the indemnification of a victim of an air accident. The institution, such as any additional third party indemnifying the victim, may be subrogated in some of the rights of the claimants and try to recover the monies paid from the liable party.
IX VOLUNTARY REPORTING
In pursuit of the concept of 'just culture', a Royal Decree on the reporting of incidents in the aviation sector with a view to improving safety was adopted on 22 April 2005. Within a maximum of 72 hours following the occurrence of the 'event', the latter must be communicated to the Belgian Civil Aviation Authority. The purpose of such reporting is only to improve safety and not to determine the liability that may attach to anyone. The database is anonymous and neither the public prosecutor nor the employer of the person who reported the event may use such information to initiate an action against said person.
X THE YEAR IN REVIEW
Concerning legislation, an amendment has been introduced in May 2019 to the Act of 21 March 1991 concerning the reform of some economic public companies, in order to change the name of the Belgian air navigation and traffic service provider formerly known as 'Belgocontrol' to 'Skeyes'.
Furthermore an amendment was made on 9 September 2018 to the Royal Decree of 2 December 2011, which is the national implementing act for the aviation sector of Directive 2008/114/EG of 8 December 2008 on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection and of the Belgian Act of 1 July 2011 concering the security and safety of critical infrastructures. These infrastructures are installations or systems that are critical for the preservation of vital social functions, public health, safety and security, the economic prosperity or social well-being. The Belgian Act contains the specific internal and external protection measures national critical infrastructures must adhere to. The Royal Decree mentioned focuses specifically on the aviation sector. It specifies the applicable criteria for the qualification of a certain infrastructure as 'critical', the government body responsible for the oversight (the Belgian CAA) and the procedure for the designation of a certain infrastructure as critical.
The 2013 Act on the creation and enforcement of security interests in movable assets finally also entered into force on 1 January 2018 with the consequence that pledges over aircraft can now be created without the previous need of transfer of the possession of the aircraft to a third-party holder. This is effected through registration in a national electronic registry. However, the electronic registry still needs to be adapted to meet the industry needs as it remains difficult to verify if there is any recorded pledge over an aircraft or engine with just the manufacturer serial number or engine serial number.
Lastly, social unrest at the above-mentioned Belgian air navigation and traffic service provider Skeyes caused prolonged strikes of its air traffic controllers during the first quarter of 2019. This resulted in the complete shutdown of the Belgian airspace during a couple of days, which in turn led to massive delays and cancellation of flights from and to Brussels Airport and Liège Airport. In reaction to these delays and cancellations, some air carriers decided to instigate summary proceedings before the Belgian courts against Skeyes. The judgments imposed penalty payments on Skeyes for all future flights that would be cancelled because of the strikes. An amount of €10,000 was awarded per European cancelled flight and €20,000 per long distance cancelled flight.
With regard to litigation, in February 2019, the appeal procedure against 18 suspects started with respect to the diamonds robbery that took place at Brussels Airport in February 2013. The proceedings may be of interest for the aviation sector insofar as debates might take place over the question of responsibilities of the airport in terms of security and access to its facilities.
Social unrest remains at the Belgian air traffic controller Skeyes and negotiations between the company and labour organisations have overall been unsuccessful. Politicians have been suggesting to end the current monopoly of Skeyes as air traffic service provider or to evolve the public company more to a private structure.
A new Act was adopted on 28 March 2014 to introduce a class action procedure in Belgian law. The new procedure is aimed at organising the redress of mass damage suffered by a group of consumers, as defined by the Act, in relation to a limited list of regulations, which includes Regulation (EC) No. 261/2004. The Act, which entered into force on 1 September 2014, would therefore enable the introduction of class actions against airlines for flight delays and cancellations, and the case law of the (Brussels) courts that would be seized on that basis will have to be closely watched as it could expose airlines considerably more than in the past.
On the legislative front, a consultation process took place at the level of the Belgian Civil Aviation Administration in 2013 and 2014 for the purpose of collecting the views of various stakeholders (mainly airports and airlines) over the new version of a draft royal decree on non-scheduled flights. The adoption of the text is not facilitated by the views that these stakeholders may have on the drafting of the decree, in light of their sometimes conflicting interests. It will be interesting to follow any new developments in that respect.
Finally, the impact and reduction of aircraft noise emissions around Brussels Airport is still on the political agenda.
1 Dimitri de Bournonville is a partner and Kim Verhaeghe is an associate at Kennedys Brussels LLP. The authors would like to thank Cyril-Igor Grigorieff for his contribution to the former editions of the present chapter.
2 Belgian Official Gazette, 18 May 2004.
3 Hof van Cassatie, C.18.0327.N/1, 8 February 2019.