The Aviation Law Review: Belgium

Introduction

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 airport 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 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 that 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 ratified 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,2 this has not entailed the Convention being directly applicable in the EU Member States (subject to a few exceptions and save, of course, for the Member States that did ratify the Convention). Aircraft are considered 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 can be registered as such. A set of rules relating to securities on movable assets, adopted by the Belgian parliament in 2013 and that 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 2003.3

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 of the laws and regulations applicable to the aviation sector in Belgium.

Legal framework for liability

i International carriage

Belgium is a party to the following agreements relating to international carriage:

  1. 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
  2. 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 '[t]he 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:
a    air services performed by non-power-driven aircraft or ultralight power-driven aircraft; and
b    local flights.

In the view of some authoritative authors, the consequences of incidents involving this type of aircraft or flight 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 has been 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 as 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 exists surrounding time limits on lodging a judicial action in Belgium. Although in the past the Belgian Court of Cassation has applied a one-year time limit applicable to transport contracts for cases based on Regulation (EC) No. 261/2004,4 legal discussion are still ongoing in the courts. A final ruling by the Belgian Court of Cassation on this question may be expected in the coming months.

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 Law Code, which lays down specific provisions regarding market practices and consumer protection.

The above-mentioned regulations on passenger rights will all remain in place in their current form for the foreseeable future. However, certain temporary measures, which deviate from the rules set out in the current regulations, have been taken in light of the covid-19 pandemic.

In relation to the Belgian Act of 21 November 2017 regulating tour operators and agency contracts, the government took action with the Ministerial Decree of 19 March 2020 concerning the refund of cancelled package travels. This was subsequently amended following recommendations by the European Commission under a Ministerial Decree of 3 April 2020. These instruments allow the travel organiser, in the event of a cancellation of the arrangement due to the covid-19 pandemic, to issue a travel voucher, valid for a period of at least one year, to the traveller rather than having to refund the paid booking in money. Travellers are not allowed to refuse a refund by voucher. Nonetheless, if the voucher has not been used within one year, the traveller retains the right to request a refund in money. The travel organiser will in this case be obligated to provide the refund within a period of six months. This softens the economic impact of the covid-19 pandemic on the travel sector as it allows travel organisers to spread out or avoid monetary refunds. As mentioned, this system deviates from the Belgian Act of 21 November 2017 regulating tour operators and agency contracts and is, therefore, a temporary measure. This system was valid for cancellations due to the covid-19 pandemic between 20 March and 19 June 2020. The government has decided not to extend the period of applicability thereof after this date.

With regard to Regulation (EC) No. 261/2004, national states do not have the option to implement deviations in their national law as it concerns a binding regulation. Hence, passengers retain the choice between a monetary refund and a voucher. For more detail, see the European Union chapter.

iv Other legislation

See the European Union chapter of this publication and Section VI.

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 that the Belgian Civil Aviation Authority is in charge of delivering, suspending and withdrawing operating licences; 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 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 intra-Community routes. Although not required by law, the Belgian Civil Aviation Authority requests that they 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 operations between Belgium and non-EU countries sets forth the applicable procedure to be granted the necessary traffic rights and to operate such flights. This Royal Decree also 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, such as:

  1. guarantees in terms of long-term continuity of operations;
  2. consistency with the airline's business plan;
  3. optimisation of the use of the traffic rights;
  4. operation of the carrier's own aircraft;
  5. interests of all categories of users;
  6. opening of new markets and routes;
  7. maintaining of a satisfactory level of competition;
  8. effects on employment; and
  9. date of the first request to obtain traffic rights.

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 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 authorisation 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 it 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 obligations, are subject to other specific requirements and procedures.

Additional information and relevant application forms may be obtained on the Belgian civil aviation website.5

Safety

The majority of safety issues are regulated at 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 can be found on the website of the Belgian Civil Aviation Authority.6

Most notably, the Royal Decree of 9 January 2005 regulates 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. Finally, 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.

Insurance

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 takeoff weight is equal to or lower than 2,700 kilogrammes.

Competition

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, the Belgian Competition Authority investigates and decides upon infringements of competition law that affect a Belgian market or a substantial portion thereof. Decision-making powers are entrusted to a college of competition law experts (college). The college is an administrative body and, as such, is able to appear as a party in appeal procedures before the Court of Appeal. The college is 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 will 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 make 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.

Wrongful death

Compensation for wrongful death, as for any other loss, is traditionally computed in Belgium according to 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 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 spouse is approximately €15,000.

Establishing liability and settlement

i Procedure

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 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 damages 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 of 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. Nonetheless, claims arising out of a contract for transport of passengers are already time-barred after one year. 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 the 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 from 10 years following the day the product was put into circulation.

iv Compensation

For the main features of the compensation system, see Section VIII.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 may try to recover the monies paid from the liable party.

Drones

Subject to a transitional period for unmanned aircraft systems (UAS) in the 'open' category (during which the Belgian Royal Decree of 10 April 2016 concerning the use of remotely controlled aircraft in Belgian airspace can remain applicable), all European legislation on UAS became applicable from 31 December 2020.

Hence, the legislative framework is mainly governed by EASA Basic Regulation (EU) 2018/1139, Delegated Regulation (EU) 2019/945 and Implementing Regulation (EU) 2019/947. For more details, see the European Union chapter of this publication.

Several national royal and ministerial decrees have been adopted to be able to properly execute these Regulations on a national level.

To this effect, the Royal Decree of 8 November 2020 implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft was adopted. This Decree sets out the Belgian-specific rules concerning the operation of UAS in the categories described in Regulation (EU) 2019/947 as well as the transitional period of the previous Royal Decree of 10 April 2016.

A Ministerial Decree of 21 December 2020 establishing fixed geographic UAS zones and access conditions for fixed geographic UAS zones has also been adopted.

Finally, the Ministerial Decree of 29 December 2020 determining a national standard scenario was adopted to give a Belgian interpretation of the concept of a 'standard scenario' under EU law.

Voluntary reporting

In pursuit of the concept of 'just culture', two new royal decrees were introduced to implement Regulation (EU) No. 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation. The Royal Decree of 9 August 2020 designates the Belgian Civil Aviation Authority as the competent authority to establish a mechanism to independently collect, evaluate, process, analyse and store details of occurrences. It also establishes a new independent just culture body within the Federal Government Service of Mobility and Transport in order to exercise and implement the provisions of the Regulation. Furthermore, the Royal Decree contains certain provisions on the protection of employees. A second Royal Decree of 9 August 2020 concerns the establishment of a just culture platform, which monitors the execution of just culture in Belgium and proposes good practices thereon.

The year in review

Given the covid-19 pandemic and its detrimental economic consequences, several aviation actors have applied for financial support from the Belgian federal or regional governments. Currently, three monetary aid packages have been approved by the European Commission. First, after negotiations between Brussels Airlines, Lufthansa (as the parent company of Brussels Airlines) and the Belgian state, a financial package of €290 million has been approved to facilitate the continuance of Brussels Airlines. This approval has, however, been contested before the General Court (see Section XII). Secondly, a loan of around €25 million from the federal State to Aviapartner, one of the two licensed groundhandlers at Brussels Airport, was approved. The Commission also approved a loan for an estimated amount of €2.7 million from the Flemish region to the regional airports of Antwerp, Ostend and Kortrijk.

Several minor regulatory changes have been introduced in the course of the past year.

In regard to aircraft navigation services, a Royal Decree of 22 December 2020 came into force that contains detailed rules for financing the costs of local air navigation services at Belgian airports in 2021. In relation thereto, the management contract between the state and Skeyes, which authorises the latter to perform air navigation services on Belgian territory, was also amended by a Royal Decree of 28 December 2020.

Finally, a new Royal Decree of 21 February 2021 was introduced establishing the conditions for the issuing and use of an authorisation for test flights.

Outlook

As mentioned above, Brussels Airlines received a financial aid package of €290 million from the state, as approved by the European Commission (published in the Official Journal on 20 November 2020). The approval decision has, however, been appealed by Ryanair before the General Court on the grounds that, among other things, the amount of the loan would be disproportionate and that the aid would cause a serious disturbance in the Belgian economy.7 The case is currently ongoing.

Due to the dramatic decrease in air traffic over the past year, the Belgian air navigation service provider, Skeyes, has applied to the state for a loan of €110 million to ensure the continuance of its operations. No final decision on this aid has been made to date.

Finally, the impact and reduction of aircraft noise emissions around Brussels Airport are still on the political agenda.

Footnotes

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 this chapter.

2 Decision 2009/370/EC.

3 Belgian Official Gazette, 18 May 2004.

4 Hof van Cassatie, C.18.0327.N/1, 8 February 2019.

7 Case T-14/21.

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