The Aviation Law Review: Serbia
The early years of the 20th century created development in the field of aviation, and in that regard several countries adopted national regulations governing civil aviation, including Serbia.2 The disintegration of SFR Yugoslavia and the beginning of civil wars brought discontinuity to the development of civil aviation in former Yugoslavia. After difficult years in the 1990s, the civil aviation sector began to take a more positive direction following the political changes that occurred in the Federal Republic of Yugoslavia (FRY)3 in 2000. Following political changes in the FRY in 2000, the civil aviation sector decided to go in a new, positive direction. With its gradual integration with international aviation and air traffic, civil aviation in Serbia is slowly starting to return to its previous level.
Following the UN sanctions that took place in the 1990s, the FRY could not automatically continue its membership of the International Civil Aviation Organization (ICAO), although it continued to implement ICAO regulations. The ICAO Assembly adopted Resolution A29-2 precluding the FRY's further participation in the work of the Assembly of ICAO and ordering it to apply for full membership, on the basis of UN resolutions.4 A formal return to the work of ICAO continued in 2000,5 and after the dissolution of FRY, as a successor, Serbia in 2006 became an independent ICAO member.
At the end of 2003 and early 2004, the Civil Aviation Directorate (CAD), as the civil aviation authority (CAA), and Serbia and Montenegro Air Traffic Services Agency (SMATSA),6 as an air navigation service provider (ANSP), were created. These were key steps in an effort to create a modern, competent and efficient aviation authority that would regulate the field of civil aviation and preserve the secure and safe conduct of civil aviation.
Legal regulation of air traffic in 2006 brought the Serbian aviation legislation in line with EU regulations with the signing of the European Common Aviation Area (ECAA) Multilateral Agreement. On 29 June 2006 in Brussels, Serbia signed the multilateral agreement between the European Community and its Member States with the countries of the Western Balkans, Norway and Iceland on the establishment of an ECAA, which was the first international treaty signed by Serbia since its re-proclamation of independence in 2006.7 Subsequently, civil aviation regulation in Serbia became harmonised with international regulation, primarily from the EU.
From July 2015, after the adoption of a special law on the investigation of accidents in air, rail and water transport,8 the investigation of accidents and serious accidents in air traffic falls within this regulated area. For that purpose, a special centre has been established, whose competence is the activities required for the investigation of air traffic accidents over the territory of competence in accordance with international standards and recommended practice. The obligation of this institution includes the development and proposal of policies, programmes, documents, measures and procedures for the improvement of accident research within its competences. The experts of the centre are independent of criminal investigations conducted by judicial bodies for the purpose of determining criminal, economic criminal, misdemeanour, disciplinary, civil or other responsibilities in the performance of professional tasks of conducting air traffic accident investigations.
In recent years, positive changes have been interrupted due to covid-19, and the Serbian air transport market has experienced a steep decline. Although Serbia has 23 airports, there are only three international airports: Belgrade Nikola Tesla Airport (Belgrade Airport), Niš Constantine the Great Airport (Niš Airport) and Kraljevo (Morava) Airport. Based on the number of passengers, almost the entire air transport market belongs to Belgrade Airport.9
In 2016, the government established the company Aerodromi Srbije, and in 2019 the company become vested with two airports: Niš Airport10 and Kraljevo Airport. Serbia's flag carrier, Air Serbia, a partner with the UAE's Etihad Airways, currently operates in 45 destinations, mainly covering Euro–Mediterranean traffic, with one long-haul route to New York. Five airlines have an operating licence to transport air taxi passengers in Serbia. Unfortunately, Serbia does not possess domestic scheduled airline operations.
Legal framework for liability
i International carriage
The importance of regulating contractual legal relationships and damage caused by air traffic was recognised, and the Kingdom of Yugoslavia was one of the high contracting parties to the Warsaw Convention.11 Serbia, as a successor of the FRY, accepted the Montreal Convention (1999) a decade later, on 4 April 2010. By doing this, Serbia replaced the old Warsaw Convention and subsequent protocols with far more sophisticated and internationally uniform legal resolutions related to international air transport for determining the liability of air carriers and the corresponding compensation for damage to passengers, luggage and cargo. These changes have led to a different approach to carriers' liability; the air carrier becomes liable for death or bodily injury of passengers (two instances), and thus gets a system that is far more equitable. Fairness is reflected in the quicker compensation of damage, which avoids unnecessary and expensive court processes and improves the protection of passengers. All this leads to a balance of the interests of carriers and passengers.
The amendments made to the Law on Amendments to the Obligations and Property and Legal Relations in Air Transport in accordance with the provisions of the 1999 Montreal Convention made concrete improvements in the field of passenger rights, prescribing a procedure on how travellers can enforce their rights. This was also done to comply with the regulations that apply in the EU, including Regulation 261/2004 on common rules in respect of damages and assistance to passengers in the event of denied boarding and flight cancellations or delays of flights, and Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility in air transport.
ii Internal and other non-convention carriage
For many years, Serbia has had two basic laws that regulate legal relations concerning aviation and air traffic. They are the Air Transport Law12 and the Law on Obligations and Basic Property Relations in Air Transport Law on Obligations and the Basics of Property Relations in Air Transport.13 The Air Transport Law regulates the public air transport sector. It is based on the provisions of the Chicago Convention and prescribes the jurisdiction of the Serbian authorities to act in aviation matters. It also empowers the CAD to issue by-laws and other documents that fully regulate air transport. From its first issuing, the Air Transport Law has had five amendments. The last one was at the beginning of 2020 and amended the chapter on aviation security in relation of security staff and security oversight.
The Law on Obligations and Basic Property Relations in Air Transport has, since 2011, dealt with private law matters in aviation, and includes a number of original provisions as well as mirroring provisions found in foreign legislation and in the Montreal Convention 1999.
Other significant laws recently enforced are the Law on Accident Investigations for Aviation, Railways and Waterborne Transport of 201514 and the Law on Airport Management of 2016 (which is the most recent law adopted in the field of air traffic).15
iii General aviation regulation
Any air transport for commercial or non-commercial purposes is subject to the Air Transport Law, under Article 74. However, any type of flying is subject to Article 4a 'Rules of the Air' of the same Act. Serbian airspace is classified into three classes: C, D and G. As determined by the Regulation on aircraft operation (Official Gazette of the Republic of Serbia, No. 61/15), the rules of flight of airplanes carrying out general traffic in Serbian airspace are prescribed, as well as the content, manner of submission, modification and closure of the flight plan in general air traffic.
With the above-mentioned Regulation, and the amendment to the Air Transport Law, Sections 1–5, 11 and 12, and Appendices 1–3 and 5 of the Annex to Commission Regulation (EU) No. 923/2012 of 26 September 2012, were replaced.
The key subjects in Serbian air traffic such as airlines, airport operators, ANSP (SMATSA), aeronautical technical organisations and organisations designated by the CAD are primarily responsible for the safe conduct of their business and services, as well as making sure that employees perform their tasks safely.
iv Passenger rights
The provisions on the rights of passengers in the event of refusal of boarding, flight cancellation or long delay are dealt with by Article 19 of the Law on Obligations and Basic Property Relations in Air Transport. If an airline that denies boarding, cancels a flight or incurs long delays fails to comply with the legally prescribed procedure, it is necessary to address the passenger aviation authorities and the CAD. The CAD prescribes the procedure for passengers who have been denied rights to file claim forms with the air carrier or the CAD. There are additional documents that clarify the legal provisions of the Law on Obligations and Basic Property Relations in Air Transport. The CAD has issued rules on the rights of passengers in case of denied boarding, flight cancellations or delays of flights and accommodation in economy class and the rights of passengers with disabilities and reduced mobility. The CAD is competent to supervise and ensure the implementation of the provisions of the Act relating to the right of passengers in denied boarding, cancellation or flight delays or investigate when the provisions have violated the rights of persons with disabilities and reduced mobility.
The appearance of covid-19 at the beginning of March 2020 also affected air traffic in Serbia. In the circumstances of the pandemic, all the activities of airlines could not be in line with the usual ones. Following the European Commission 'Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with covid-19, Brussels 18 March 2020 C (2020) 1830 final' document, the government of Serbia decided to treat passengers' compensation claims in accordance with the circumstances of force majeure and thus exempt airlines from paying damages to passengers. In this regard, on 8 May 2020 the government issued Conclusion 343-3718 / 2020-1 recommending that airlines issue a voucher to passengers for cancelled flights due to extraordinary circumstances caused by covid-19 based on which passengers will be able to exercise their rights. The rights can be used up until 31 December 2021.
v Other legislation
In addition to the provisions governing the conditions and manner of planning and development of tourism, and tourist organisations for the promotion of tourism, the Law on Tourism16 defines the work of travel agencies and tour operators as being to protect tourists and users of services of travel agencies. The provisions governing the relationship of each airline and travel agency or operator is determined by the Law on Obligations and Basic Property Relations in Air Transport, Article 2, Paragraphs 1 and 2, and Articles 4 and 7. These Articles regulate contractual matters in air transport and general conditions of air transport.
The emergence of covid-19 was the reason for the government suspending air operations in Serbia during the spring of 2020 for all commercial flights17 and causing the complete disruption of the work of travel agencies in terms of organising air travel.
The Air Transport Law in Section 9, Articles 200 and 203 covers the question of regulating environmental protection, the duties of the airport operator, the permissible noise levels and emissions at airports, measurement of noise and the area of noise protection. In practice, rules related to this topic completely rely on provisions in Directive 2002/49/EC, as well as Recommendation 2003/613/EC. The Minister of Transport is responsible for enforcing these Directives, with the consent of the Minister of Environmental Protection.18
Serbia plans to adopt a regulation on operating restrictions related to noise emissions at airports, which would be superseded by Regulation (EU) No. 598/2014.
When it comes to specific airport operators, environmental issues related to noise in particular have been topical in recent years, and this has related primarily to Belgrade Airport. Specifically, Belgrade Airport has recently experienced a significant increase in traffic, and has acquired hub status, exceeding the limit of 50,000 operations a year.19 Regulated by European regulations that are transposed into national frameworks, it is now obligatory to measure noise at the Airport continuously and to develop strategic noise maps.20 In addition to the above, Belgrade Airport has obtained an airport carbon accreditation programme certificate by joining the Airport Carbon Accreditation programme.21
Licensing of operations
i Licensed activities
The provisions of the law that relate to the licensing of air traffic operations can be found in Chapter V of the Air Transport Law, as well as in the following legislation: the Regulation on the condition for performing air operations22 and the Regulation on operating licences for the operation of commercial air transport.23 Chapter V of the Air Transport Law defines air traffic and what it includes. Articles 77 to 86 specifically address licensing to perform commercial air transportation. The CAD is responsible for checking compliance with these legal requirements.
The performance of commercial air transport services in Serbia requires both an air operator certificate (AOC) and an operating licence. Suspension or revocation of the AOC obliges the CAD ex officio to suspend or revoke the operating licence. In addition, changes to the AOC may, depending on the circumstances, cause modification of the operating licence.
The Regulation on commercial air transport operations and non-commercial operations transposes Commission Regulation (EU) No. 965/2012 laying down technical requirements and administrative procedures in air transport related to air operations pursuant to Regulation (EC) No. 216/200824 of the European Parliament and the Council, as amended, along with Commission Regulations 800/2013, 71/2014 and 83/2014.25
The certification of operators performing public transport is carried out by the CAD when it is satisfied that the requirements are met. Therefore, the certificate containing the corresponding operational specifications is required. To start the certification process, the operator must submit an application to the CAD containing the following information:
- official and business name of the applicant, address and address for delivery of mail;
- description of the proposed activities, including the type and number of aircraft to be used;
- description of the management system, including organisational structure;
- the name of the accountable manager;
- the names of the persons who are required under ORO.AOC.135, Paragraph (a), together with their qualifications and experience;
- a copy of the operations manual required by ORO.MLR.100; and
- a statement that the applicant has checked all the documents that have been submitted to the competent authorities and it is determined that it is in compliance with the applicable requirements.
Besides certification, entities must prove to the competent authorities that they comply with the requirements contained in Annex IV of Regulation (EU) No. 216/2008 Annex IV (Part – SAT) and Annex V (Part – SPA) and also have a certificate of airworthiness (COA) in accordance with Regulation (EU) No. 748/2012.
The procedure for issuing the certificate consists of five stages:
- pre-application phase;
- request and initial compliance statement;
- review and evaluation of documentation;
- audit and demonstrations; and
The operator must make an application to the CAD at least 90 days before the planned start of operations.
The lease agreement requires prior approval by the CAD for each certified aircraft that is intended for use by the operator. If an aircraft is leased from a third-country operator, there are additional requirements, which differ depending on whether the aircraft takes either a wet lease or a dry lease.
With regard to a wet-lease aircraft from a third-country operator, the initial operator is obliged to provide the CAD with a valid AOC that is in accordance with ICAO Annex 6, stating that the safety standards of the third-country operator are the same as those in the Regulation on occurrence reporting in civil aviation,26 and that the aircraft has a COA in accordance with ICAO Annex 8. If an operator from Serbia takes a dry-lease aircraft, the operator must demonstrate to the CAD that there are operational requirements that may not be satisfied by the lease of an aircraft registered in the European Union and that the duration of the lease contract does not exceed seven months in any consecutive 12-month period.
In addition to performing commercial traffic, an AOC holder may perform non-commercial flights with aircraft used for public transport, which are listed in the operations specifications of its certificate on the condition a detailed description of such flights is kept in the operational manual (OM) with a clear indication of any differences between operating procedures that apply when conducting commercial and non-commercial flights.
The operator of public transport must determine the person accountable for the following fields of management and control:
- flight activities;
- crew training;
- ground-based activity; and
- continued airworthiness in accordance with the Regulation on occurrence reporting in civil aviation.27
There are specific requirements for using appropriate equipment on the ground, providing operational support in the main base and providing the available workspace. Through checking the OM, the check for minimum reliability of equipment is also performed.
The operator must keep manuals and other required documentation. Delivering operational instructions and other information to the CAD is mandatory. The OM is the most important manual. The competent authority will review the OM and must certify that it has all necessary information to comply with applicable regulations relevant to the performance of public air transport. The operator must maintain the OM as specified in Clause 8.b of Annex IV of Regulation (EC) No. 216/2008.
An air carrier must have an insurance policy that covers events related to the means of transport and staff, and that covers the liability of the airline with regard to third parties.
Regarding financial obligations, all of an airline's relevant financial information must be submitted to the CAD. If a change takes places regarding the airline's ownership or management structure, or that affects the business in any way, this must also be registered with the CAD.
Public transport services may not be carried out without an operating licence, in addition to an AOC. To obtain the licence, the subject must pass an initial audit, which is carried out by the CAD. This procedure determines whether the request meets the required conditions. Commercial air transport may be performed by a company that:
- has its headquarters in Serbia;
- possesses a valid AOC;
- owns or holds a dry lease over at least one aircraft;
- is registered for public air transport as a primary activity;
- is majority owned by Serbia or a citizen of Serbia and is under its actual control, direct or indirect, if a ratified international agreement provides otherwise;
- meets the financial requirements prescribed in the Air Transport Law;
- meets the requirements of the Law on Compulsory Traffic Insurance;
- has a business reputation; and
- has an internal organisation that implements the provisions above.
The financial requirements for an operating licence are based on specific periods and amounts of money. The airline must prove its ability to meet its actual and potential obligations within 24 months. In the first three months of the business, it must be able to cover all costs, regardless of operating revenues. If the air carrier performs transport services with an aircraft that has a maximum takeoff weight of less than 10 tonnes or fewer than 20 seats, it must demonstrate that its capital is at least €100,000, or the dinar equivalent to that sum, or, at the request of the CAD, provide all data necessary for assessing its financial capacity.
One of the conditions for obtaining the operating licence is that the air carrier company or other legal entity has a good reputation. As evidence that the airline has a good reputation, it must be accompanied by confirmation from the competent authorities that there has been no finding of certain criminal offences or prohibited activities, and confirmation that it is not involved in open bankruptcy proceedings or liquidation, or compulsory settlement is completed; confirmation that the entity's business account has not been blocked for six months immediately preceding the date of application; and a certificate of taxes and contributions.
The CAD issues operating licences for an indefinite time, and they remain valid provided that the air carrier meets the conditions for its issuance. Thus, the air carrier must be able at any time, at the request of the CAD, to demonstrate that it meets the requirements for the issuance of an operating licence.
By issuing the operating licence, the authority must, after 24 months, check whether the air carrier continues to meet the conditions required for its issuance when there is doubt as to the fulfilment of prescribed conditions. However, if some of the conditions regarding operating licences are no longer fulfilled, the CAD must be approached, and the licence may be suspended or even revoked. The operating licence can in some circumstances be changed at the air carrier's request.
ii Ownership rules
The CAD must carry out basic checks of the operating licence. Through this procedure, it must be established whether the requirement of majority ownership of Serbia or nationals of Serbia is met, whether it is under the actual control of Serbia or its nationals, directly or indirectly, or whether a ratified international agreement provides otherwise.
iii Foreign carriers
Based on the Air Transport Law, Article 169, Paragraph 2, inspection of foreign aircraft is carried out according to procedures and standards specified by the competent authority of the EU. The CAD developed the Regulation on safety assessment of foreign aircraft, which is in compliance with EU regulations, including Regulations Nos. 2111/2005 and 473/2006, and Directive 2004/36/EC. The CAD is authorised to publish a list of carriers that are prohibited from flying within the EU.28 The list takes over from the Commission Implementing Regulation (EU) No. 2015/2322 of 12 October 2015. There is a list of air carriers that are banned from operating or are subject to operational restrictions within the European Union.29
There had been concerns over Etihad's investment in Air Serbia, but the shared ownership of Etihad in Air Serbia was examined by the European Commission on 25 August 2016 and it decided that Etihad's investment in Air Serbia complied with EU regulations on foreign investment.
Regulating aviation safety remains a major focus of the CAD. Basic provisions on aviation safety are defined in the Air Transport Law, Chapter II, which determines what constitutes safety in aviation and aerospace, and which are the primary entities responsible for the safe conduct of their business or services. To achieve an acceptable level of safety in accordance with the standards and recommended practices in international civil aviation, the government adopted the national safety programme in civil aviation on the proposal of the relevant ministry. The CAD is responsible for the implementation of the national safety programme. For the purposes of organisation and coordination of, and recommendations to improve, the safety regime, the government has taken steps towards establishing the National Committee for Safety in Air Transport.30
Every aviation entity must establish a safety management system (SMS). The CAD is responsible for establishing the conditions of the SMS, and a part of these responsibilities is the development of a manual on safety management. In accordance with the SMS, it is mandatory for aviation entities and accountable persons to report every occurrence in civil aviation: accidents, serious incidents and serious accidents. The CAA must apply the personal data protection rules to the data collected from such occurrences. Article 17a of the Air Transport Law provides something new regarding reporting events and perceived mistakes without fear that the perpetrators be punished. This should be the basis for the concept of just culture.
Each aviation operator, when planning the introduction of functional changes that affect the safe performance of the activity or the provision of services, must notify and get permission from the CAD. To systematically spot the danger and reduce the risk, aviation operators must work to ensure that acceptable levels of safety are met.
Safety in Serbian aviation is controlled both internally and externally. The European Aviation Safety Agency (EASA), the EU institution responsible for safety in EU air transport, also checks the safety compliance of the CAD and the aviation entities in Serbia. Serbia is not a full member of EASA, but has had observer status since 2007. In 2009, EASA began carrying out air traffic checks and overseeing whether regulation is harmonised with EU rules. In 2014, the CAD was rated Category I by the US Federal Aviation Authority's international aviation safety assessment programme.
According to the data provided by the Centre for Investigation of Traffic Accidents, from 2006 to the end of 2020 it investigated 72 accidents and 30 serious incidents. Six accidents that involved aircraft from the Serbian registry were investigated in cooperation with the civil aviation authorities of other countries through an authorised representative.
During 2020, three safety orders were issued for the purpose of performing changes to the functional system in order to improve security and reduce the risk of transmission of the covid -19 virus.
The CAD was audited by ICAO between 19 and 26 March 2019 (ICAO coordinated validation mission). After the verification, ICAO gave an assessment of the civil aviation of Serbia whereby it found the degree of compliance of the system to be 93.71 per cent.
The Law on Insurance,31 Article 9, Paragraph 1, Items 5 and 11, refers to non-life insurance, including the insurance of aircraft, insurance covering damage to or loss of aircraft and liability insurance resulting from use of aircraft, which includes responsibility for transport. The Law on Compulsory Insurance in traffic, through Official Gazette of the Republic of Serbia, Nos. 51/2009, 78/2011, 101/2011, 93/2012 and 7/2013 – decision of the Constitutional Court Article 2, Paragraph 1, Item 3, stipulates compulsory insurance for aircraft owners against liability for damage caused to third parties and passengers. The Special Law on Obligations and Basic Property Relations in Air Transport is engaged with insurance in air traffic in a more specific way.
Serbia has acceded to the provisions of the Montreal Convention of 1999 and adopted the Law on Ratification of the Convention for the Unification of Certain Rules for International Carriage by Air of 13 May 2009, which entered into force on 4 April 2010. For this reason, the former Law on Obligations Relations and Basic Property Relations in Air Transport of 1998 was amended in 2011 and 2015. The changes that the Montreal Convention adopted in 1999 in relation to the old Warsaw Convention inevitably affected the provisions concerning insurance of aircraft.
As previously determined, air carriers with a valid operating licence must have adequate insurance in air transport covering liability for damages in accordance with the provisions of the Montreal Convention. The conditions for the issuance of operating licences, Article 4, Paragraph 1, are subject to the fulfilment of the requirements relating to insurance provided for in Article 9 of the Regulation on operating licences for the operation of commercial air transport and Regulation (EC) No. 785/2004.
According to the provisions of Article 27 of the Law on Obligations and Basic Property Relations in Air Transport, airlines must be insured up to a level that is adequate so that all persons entitled to compensation receive the full amount. That obligation of insurance is required by Article 4, Paragraph 1, Sub-item 1(h) of European Parliament and Council Regulation (EC) No. 1008/2008 of 24 September 2008 on common rules for the operation of air transport in the Community. Therefore, unless the law governing compulsory traffic insurance provides otherwise, insurance in air transport under the provisions of this law covers the following: aircraft and its equipment, as well as goods to be transported by aircraft; passengers and baggage from the accident; and the owner or user of the aircraft from liability for damage caused to third parties' aircraft on the ground.
In addition to the above, insurance can provide for freight, insurance costs, the expected gain, lien and other rights and material benefits that are available or can reasonably be expected related to air transport and that can be estimated in money.
The contract of insurance in air transport is concluded for a definite period of time, but it can be concluded for a specific flight. Liability for damage caused by operation of an aircraft on a specific flight can arise when the engine starts for takeoff in departure specified in the contract of insurance, up to the moment of stopping the aircraft shortly after landing and shutdown of the engine in the place of destination specified in the contract of insurance.
The insurer will be liable for damage caused directly or indirectly owing to an aircraft fault that affects safe air transport if the insurer knew or should have known about the fault having conducted due diligence and failed to prevent the damage, although it could have done so. A claim under the contract of carriage and recourse claims related to this contract expire within two years.
The law applicable to the contract of insurance in air transport and relations resulting therefrom will be that of the seat (head office) of the insurer under the conditions that:
- the parties have not expressly determined which law must be applied to the contract, and their intentions on the implementation of a right cannot be determined from the circumstances of the case; and
- the law whose application the parties have determined not be applied to part of that contract or any relationship for that contract, or just that part of the contract, relatively on the legal relationship of the contract.
The applicable law for insurance contracts relates to the head office of the insurer, granted that the parties did not explicitly determine the right that must be applied to the contract, and their intention to apply a certain right cannot be determined even from the circumstances of the case. This comes with the exception of the relations of insurance contracts in air transport, which shall apply the national law only if all stakeholders in that contract are Serbian nationals with permanent residence in Serbia or legal persons whose seat is in Serbia, and it insures coverage of the objects that are exposed to risks in the territory of Serbia.
The signing of the ECAA Agreement introduced a legal framework for further integration in the field of aviation, free access to the European aviation market without any discrimination, and common rules in the fields of safety, security, air traffic management and environmental protection, and also increased the competitiveness of domestic aviation operators and simplified procedures in international air transport.
This allowed a greater occurrence of low-cost companies in the market, which has increased competition among carriers. Belgrade Airport has followed this trend, with an increase from 2.2 million passengers in 2006 to over 6.15 million in 2019. Covid-19 stopped this trend in 2020, and reduced it to 1.9 million passengers. After a change in business model and the introduction of many new routes in 2019, Niš Constantine the Great Airport in 2020 lost almost two-thirds of whole air traffic. Unfortunately, the negative consequences of covid-19 have also affected the business of Air Serbia and SMATSA.
EU regulations do not apply directly in Serbia, but are additionally transposed into national legislation. According to a European Commission report on Serbia's progress towards becoming a member of the EU, it is moderately prepared in the field of competition. Serbian legislation dealing with issues of competitiveness largely corresponds to Article 101 of the Treaty on the Functioning of the European Union on restrictive agreements and Article 102 TFEU on the abuse of a dominant position. The Law on Protection of Competition32 regulates the protection of competition in the Serbian market to achieve economic progress and improve the welfare of society, and especially benefit consumers. This law is based on the EU acquis communautaire.
The Commission for Protection of Competition established by this law as a regulatory body must, in accordance with Article 73 of the Stabilisation and Association Agreement with the EU, apply the appropriate criteria resulting from the rules governing competition in the market in the European Union. Merger control rules governing the content and manner of submitting notifications on concentration of previous control of the impact on competition beyond a certain threshold of turnover has also been introduced. By-laws also provide guidance on how to apply the rule of competition, which is also in accordance with current regulations and instructions of the Commission.
Much has been done to the legal framework when it comes to bringing competitiveness into line with the regulations that apply in the EU. Certain shortcomings still exist in the procedural rules. Even certain sectors of the economy are covered here, such as transport and insurance.
Competitiveness in air transport was increased with two key decisions of the government concerning Belgrade Airport and Air Serbia. On 22 March 2018, VINCI Airports and the government signed a 25-year concession contract for Belgrade Airport. The concession agreement covers financing, development, maintenance and management of infrastructure. After the establishment of Air Serbia 2013 by the government of Serbia and Etihad Airways and the initial ownership share of 51:49 at the end of 2020, there has been a change. According to the agreement between these two founders, the ownership share was changed, with the Serbian government becoming the owner of 82 per cent and Etihad Airways 18 per cent.33
The regulations that regulate wrongful death in aviation matters are the Law of Contract and Torts,34 which applies generally, and the specific Law on Obligations and Basic Property Relations in Air Transport.
Under Article 200 of the Law of Contract and Torts, compensation can be awarded for the death of a close person if the court finds that the circumstances of the case, particularly the intensity and duration of suffering, make it just to award it, irrespective of any material damage caused by the person's absence.
The deceased person's closest relatives (i.e., spouse, children and parents) are entitled to compensation for mental anguish. This compensation may be also awarded to siblings if they shared the same household as the deceased person on a permanent basis. In addition, compensation can be awarded to an extramarital partner if he or she and the deceased shared a household on a permanent basis.
Article 26 of the Law on Obligations and Basic Property Relations in Air Transport incorporates the relevant provisions of the Montreal Convention with respect to air carrier liability. Article 28 of the same Act sets forth that the amount of compensation for damage caused by passenger death complies with Articles 21 and 22 of the Montreal Convention.
The Act does not define the third parties that can make a claim. Under Article 1, Paragraph 3 of the Law on Obligations and Basic Property Relations in Air Transport, the general regulations governing contractual relations (Article 201 of the Law of Contract and Torts) will determine which third parties may seek damages.
Establishing liability and settlement
Disputes regarding civil aviation contracts in the Serbian judicial system are heard by the civil courts using the standard civil procedures. On the basis of claims submitted in the proceedings, the court has jurisdiction to decide the limits of the request. The parties may waive their claims, recognise the claim of the opposing party and settle.
ii Carriers' liability towards passengers and third parties
In the period after Serbia signed the Montreal Convention, the Law on Obligations and the Basics of Property Relations in Air Transport was amended and supplemented by regulations in 2011 and 2015. The 2015 amendments, based on the ECAA Agreement, established rules guaranteeing certain minimum rights of passengers relating to denied boarding, flight cancellation and flight delays.
Before the amendments, there were certain inconsistencies with the Regulation of the European Parliament and the Council (EC) No. 261/2004, specifically as to the number of passengers' claims being dependent on the length of the flight. The amendment brought the Serbian rules into line with the European Regulation so that the amount of passenger claims relates to flight delay. The amendments also offered passengers a choice between reimbursement and new flights.
Passenger complaints should be submitted to the airline carrier in writing along with supporting evidence. The deadline for submission of claims is no later than 90 days after the flight was scheduled. If the carrier does not accept or fails to respond to the claim, the injured party may report a procedural violation to the CAD. Passengers who file complaints with the CAD are not precluded from filing a concurrent complaint with the competent court. The CAD has begun providing advisory opinions to air passengers, either in writing or by receiving passengers in person at the CAD's offices. According to official data, during 2019 the CAD carried out 61 inspections on nine airline operators and 17 oversight procedures regarding airport and airline operators.35 These were part of its regular activities and prescribed responsibilities regarding the implementation of laws and relevant international regulations relating to respect for the rights guaranteed to passengers and persons with disabilities and reduced mobility.
Part II of the Law on Obligations and Basic Property Relations in Air Transport deals with liability. The owner or user of the aircraft (the responsible person) is responsible for the damage an aircraft in flight causes to third parties and things on the ground, including death or bodily injury, except if it proves that there was no direct causation.
Under Article 120 of the Law on Obligations and the Basics of Property Relations in Air Transport, the responsible person is exonerated from liability if it can be proved that the damage resulted from:
- an action of the injured party or other person who has worked by order of or on behalf of the injured party;
- an act of a third party; or
- some circumstances that are outside of the aircraft, but that could not be predicted in advance, avoided or eliminated.
The responsible person will be partly and proportionately exonerated from liability on proving that the injured party or another acting at the request or on behalf of the injured party contributed to the damage. In the event of illegal use of aircraft for which the responsible person is not to blame, the person who unlawfully seized the aircraft is wholly liable.
In a collision or other air safety-related occurrence involving two or more aircraft, liability is joint and several.
Liability of the responsible person is limited to the value (price) of a new aircraft at the time of the accident, up to the amount of actual damage caused. There are also cases where the responsible person cannot limit liability, primarily when it is proved that the damage was caused intentionally or by gross negligence. The above liability provisions apply to foreign aircraft on the basis of reciprocity.
iii Product liability
In recent years, efforts have been made to improve overall consumer rights. The law regarding this matter is the Consumer Protection Act.36 The provisions of this Act are in line with EU legislation and it contains provisions from 12 EU Directives.37 Further, five regulations have been issued under the Consumer Protection Act.
Product safety is provided for in the Law on General Product Safety,38 and through its related regulations, which mirror the provisions of Directive 2001/95/EC.
The Air Transport Law makes general provisions for aeronautical products, including provisions relating to the design and manufacture of aeronautical products, parts, appliances and equipment, testing of aviation products and error in their design. The Air Transport Law also gives the CAD jurisdiction over control and inspection of these products. Notwithstanding, pursuant to the terms set forth in ratified international agreements, EASA can perform checks and issue certificates. Article 258, Item 91 of the Air Transport Law provides for penalties for operators who design or produce aeronautical products, parts, appliances and equipment contrary to the conditions prescribed by the CAD in Article 152, Paragraph 5 of the same law.
Rules are also laid out on the certification of aircraft and other aeronautical products, parts and appliances in the field of airworthiness and environmental protection, and on the issuance of licences to conduct activities of aviation technical organisations for production and design.39
According to the provisions of the Law of Contract and Torts, regardless of the material damage caused, the court may, if it considers it just, award monetary compensation for non-material damage. Persons entitled to financial compensation in the event of death or severe disability include the closest relatives.
In practice, Serbian civil court judgments have on rare occasions have awarded compensation for material and non-material damage. Typically, claims for non-material damage are approximately up to €5,000, and in some cases higher. In practice, Serbian courts tend not to favour parties that submit claims for non-material damage.
The popularity gained by drones all over the world has not bypassed Serbia. Every year there is a growing number of registered drones and number of people who have passed the exam to use unmanned aircraft.40 Their use for government, commercial, educational or recreational purposes has significantly increased, and therefore so did the number of requests for allocation of airspace where unmanned aircraft can be used. According to Air Transport Law, Article 10, unmanned aircraft, aero-models, missiles and other flying objects can be used for economic, scientific, educational, sports and other purposes provided they do not jeopardise the safety of air traffic. Provisions for the safe use of drones are prescribed by the Regulation on Unmanned Aircraft.41 The beginning of the regulation of unmanned aerial vehicles is related to the Law on Amendments to the Law on Air Traffic,42 where Article 10 defines the term unmanned aircraft for the first time, which was replaced by the Regulation on unmanned aircraft.43 In addition, it was passed through other regulations in the form of regulations, decrees, orders, plans and collections.
To fly a drone, it is necessary to pass an exam set by the CAD to obtain a certificate. For each use of the drone, the operator shall submit a request for the allocation of airspace to the Airspace Military Cell Unit, and this request shall be filed no later than five working days before the intended flight of the drone.
Pursuant to the Regulation on Unmanned Aircraft,44 Article 16, Paragraph 1, the unmanned aircraft can fly only during the day, and must be within the sight of the person who manages it at all times, and it also provides that flight at night requires the prior approval of the CAD. The maximum permitted flight altitude of an unmanned aircraft is 100 metres above ground level unless the CAD has approved a flight at a higher altitude, and the maximum permissible horizontal distance the unmanned aircraft will be from the person who manages it will be 500 metres. Greater distances require CAD approval by risk assessment.
Overall, the most common use of unmanned aircraft refers to the needs of aerial photography. This is not a provision regulated by the Regulation on Unmanned Aircraft, but under the provisions of some other regulations, it is stated that the ministry in charge of the Ministry of Defence must give prior consent for filming.
Pursuant to the Regulation on Unmanned Aircraft, Article 24, Paragraph 1, it is not possible to fly foreign drones in Serbian airspace without prior permission of the Ministry of Defence.
As drones are divided into four classes (1–4), the procedure is not the same for all types of this aircraft. The least-demanded unmanned aircraft is category 1, where the operating mass is less than 0.9 kilogrammes.
To fly in Class D Serbian airspace, which extends up to 5 kilometres away from the aerodrome reference point (ARP), the operator must have special permission from the CAD. If the distance from the ARP is greater than 5 kilometres and is located in Class D of Serbian airspace, it is permitted to fly at a height of 30 metres above the ground.
Any violation of the provisions of the Regulation on Unmanned Aircraft entails fines that vary depending on whether it is a legal person (50,000 to 2 million dinars) or a natural person (50,000 to 500,000 dinars). If the use of a drone causes harm to or the death of a person, the person who managed the drone will be held criminally liable.
Regulations regarding voluntary occurrence reporting in civil aviation in Serbia are based primarily on the provisions of Article 17, Paragraph 1 of the Air Transport Law and its implementing regulation.45 Serbia is also among the countries that introduced the system of mandatory occurrence reporting and voluntary reporting. Compared to previous years when the regulation of voluntary reporting on events in civil aviation relied on the previously transposed Directive 2003/42/EC Commission and Regulation (EC) No. 1330/2007, during 2020 there was a change, and this Regulation was repealed with the adoption of the Regulation on the occurrence of reporting in civil aviation,46 and the framework of EU Regulation No. 376/2014.
The introduction of Regulation (EU) No. 376/2014 Serbia continues to harmonise Serbian regulations governing this matter with EU rules. In addition to the primary objective of improving overall aviation safety, transposing the Regulation would better regulate the system of voluntary reporting.
The existing rules established by the CAD for voluntary reporting are based on voluntary reporting of occurrences, and voluntary reporting of occurrences related to aviation safety or potential harm in aviation safety.
The CAD may not act on a voluntary report to impose any economic, criminal, disciplinary, civil or any other liability. Information about the voluntary report applicant must be protected and can be sent to another person solely on the request of the judicial authorities of Serbia.
Work to encourage and explain the reasons for voluntary reporting and to create a just culture must remain a priority. In this sense, although a just culture has long been recognised in the Serbian aviation community, it has not adequately taken root among aviation professionals out of fear of liability or professional discredit. This will require additional work by the CAD or greater understanding of the matter among the judicial authorities.
The year in review
The EU civil aviation regulations are continuously monitored by the CAD to ensure harmonisation with Serbian law. This includes regulating air traffic (as in EU countries), which is required of an EU candidate country.
The key civil aviation law, the Air Transport Law, was amended at the end of 201947 and came into force at the beginning of 2020. Regardless of the circumstances of the pandemic and the huge decline in air transport activity, the legislative activity of adopting new regulations was equal to that seen in 2019. Further harmonisation and compliance with EU civil aviation regulations will lead to an overall improvement in the standard and safety of Serbian aviation.
Among more than 16 by-laws issued by the CAD, the Regulation on conditions for performing air operations48 and the Regulation on issuing approval to a foreign air carrier for the operation of international commercial air services with the Republic of Serbia49 are among the most important.
During 2020, the progress of the Serbian aviation authorities in the field of safety, security, safety oversight, inspection and compliance with EU regulations continued.
The trend of increasing the number of passengers and good business results of Serbian airports in 2020 has been stopped by the pandemic. After more than a decade of continuous growth, the number of passengers was reduced in 2020 by around 30 per cent compared to 2019. The national airline, Air Serbia, also experienced a huge drop in the number of transported passengers during 2020. The share in the ownership of the same company was increased by the government, which practically maintained the operational activities caused by the pandemic during the crisis. As a result of all of the above, ANSP SMATSA has also reduced the number of its operations.
Notwithstanding the aforementioned aggravated circumstances of air traffic during 2020 and 2021 in Serbia, the CAD and the Ministry in charge of air traffic continued to work on the preparation of bilateral agreements in air traffic as well as further cooperation with key international aviation organisations.
Besides the progress of the Serbian aviation authorities in the field of safety, security, safety oversight and inspection, Serbia as an EU candidate strives to keep pace in bringing national regulations in line with changes in EU regulations.
The further harmonisation and convergence with EU civil aviation regulations will lead to an overall rise in standards and safety in Serbian aviation. There has been significant effort in the application of regulations in the field related to civil aviation, which also concerns some other areas, including tourism, insurance and environmental protection.
The CAD is responsible for the implementation of the national programme for civil aviation safety, which involves different methods of gathering data. In March 2019, the CAD was subject to oversight conducted by ICAO experts through its coordinated validation mission.
Unlike the ICAO audit from 2009, which found numerous findings of non-compliance with ICAO regulations, the 2019 audit results were fairly good. Currently, in comparison with the ICAO regulations and the civil aviation system recommended practice level of compliance, Serbia is 93.3 per cent compliant, with a trend of becoming even better.
1 Goran Petrovic is a lawyer at SMATSA ANS Personnel Training Centre and SMATSA Aviation Academy.
2 On 21 February 1913, Serbia enacted the Regulation of the transportation system of devices that run in the air and became the sixth country in the world to implement a legal framework for the field of civil aviation.
3 Federal Republic of Yugoslavia (1992–2003) consisted of Serbia and Montenegro; see https://en.wikipedia.org/wiki/Serbia_and_Montenegro.
4 Security Council resolutions of the United Nations Code 777 (1992) of 19 September, the UN General Assembly of the United Nations A/47/1 of 22 September 1992.
5 14 December 2000 (A) FRY-ratified, effective from 13 January 2001 and from 13 July 2006, Serbia continued to exercise its rights and honour its commitments deriving from international treaties.
6 SMATSA ANSP is unique in Europe as a joint venture in charge of controlling air traffic in the two states, Serbia and Montenegro, established by the governments of two countries.
7 The legislation of Serbia does not recognise this legal instrument. Still, the interpretation of the European Commission states that the legal basis for the administrative application of the ECAA Agreement represents the Salzburg Declaration of May 2006 under the precise Point IV of this Declaration.
8 Official Gazette of the Republic of Serbia, No. 66 of 27 July 2015, 83 of 29 October 2018.
9 Passenger traffic at Belgrade Airport in Serbia was down 69.1 per cent. After an improvement in passenger numbers in the third quarter, the rise in covid-19 infections led to a gradual fall in traffic at the end of the year. See https://beg.aero/eng/node/404.
10 In 2020, Niš Airport had 155.000 passengers (compared to 422,255 passengers in 2019), while Kraljevo Airport suspended air traffic on commercial lines in spring 2020.
11 Yugoslavia ratified the Convention on 13 February 1933, https://laws-lois.justice.gc.ca/eng/regulations/SI-85-25/FullText.html.
12 Air Transport Law (Official Gazette of the Republic of Serbia, Nos. 73/10, 57/11, 93/12, 45/15, 66/15 – other law 83/18) and 9/20)
13 Law on Obligations and Basic Property Relations in Air Transport Law on Obligations and the Basics of Property Relations in Air Transport (Official Gazette of the Republic of Serbia, Nos. 87/11 and 66/15).
14 Law on Accident Investigations for Aviation, Railways and Waterborne Transport (Official Gazette of the Republic of Serbia, Nos. 66/15 and 83/18).
15 Law on Airport Management (Official Gazette of the Republic of Serbia, No. 104/16).
16 Law on Tourism Official Gazette, No. 17/2019).
17 Under the Decision on Declaring Emergency Situation (Official Gazette of the Republic of Serbia Nos. 31/2020, 36/2020, 38/2020, 39/2020) and the Regulation on Emergency Measures (Official Gazette of the Republic of Serbia Nos. 31/2020, 36/2020, 38/2020, 39/2020), after 18 May 2020, air traffic is allowed again.
18 The Ministry performs state administration, stipulated in Article 5a of the Law on Ministries (Official Gazette of the Republic of Serbia, No. 62/2017).
19 According to the Air Transport Law, Article 203, the operator and the airport that, during the previous calendar year, conducted more than 50,000 takeoffs and landings of civil aircraft, is required to provide continuous measurements of noise at the airport and its surroundings.
20 The deadline was originally 30 June 2015, but was extended twice.
22 Regulation on condition for performing air operations (Official Gazette of the Republic of Serbia, No. 3/21).
23 Regulation on operating licence for the operation of commercial air transport (Official Gazette of the Republic of Serbia, No. 10/14, 16/15 and 50/18).
24 Serbia has not yet adopted the newer Regulation (EU) 2018/1139, which repeals Regulation (EU) 216/2008.
25 The application of provision ORO.AOC.110, Paragraph (d), Items 1 and 2, in Annex III of Regulation No. 965/2012, has been suspended pending Serbia's full membership of the EU or the fulfilment of the conditions foreseen by the ECAA Agreement.
26 By introducing the Regulation on occurrence reporting in civil aviation (Official Gazette of the Republic of Serbia, No. 142/20), Regulation EU No. 376/2014 is transposed into Serbian legislative and repealed Directive 2003/42/EC.
27 Official Gazette of the Republic of Serbia, No. 142/20.
28 The list of air carriers that are banned from operating or are subject to operational restrictions within the European Union (Official Gazette of the Republic of Serbia, No. 12/19).
29 Official Gazette of the Republic of Serbia, No. 8/18 and 1/20.
30 Decision on the establishing of the National Committee for the Safety of Aircraft (Official Gazette of the Republic of Serbia, No. 69/15).
31 The Law on Insurance (Official Gazette of the Republic of Serbia, No. 139/14 and No.44/2021).
32 The Law on Protection of Competition (Official Gazette of the Republic of Serbia, Nos. 51/2009 and 95/2013).
34 Law of Contract and Torts (Official Gazette SFRY, Nos. 29/78, 39/85, 45/89 – decision of Constitutional Court of Yugoslavia and 57/89, Official Gazette FRY, No. 31/93 and Official Gazette Serbia and Montenegro, No. 1/2003 – Constitutional Charter and Official Gazette of the Republic of Serbia, No. 18/2020).
36 Consumer Protection Act (Official Gazette of the Republic of Serbia, Nos. 62/2014 and 6/2016).
37 Directives 2011/83/EC, 2005/29/EC, 93/13/EEC, 85/374/EEC, 99/44/EC, 90/314/EEC, 2008/122/EC, 98/6/EC, 2013/11/EC, 2009/22/EC, 2002/65/EC and 2006/114/EC.
38 Law on General Product Safety (Official Gazette of the Republic of Serbia, No. 41/09).
39 Regulation on the certification of aircraft and other aviation products, parts and appliances and licensing of manufacturing and design organisations (Official Gazette of the Republic of Serbia, Nos. 5/18 and 1/19).
40 The number of registered unmanned aircraft exceeded 400, while the number of persons authorised to operate with unmanned aircraft is more than 2,000.
41 Official Gazette of the Republic of Serbia, No. 108/15.
42 Law on Amendments to the Law on Air Traffic of the Republic of Serbia, No. 108/15.
43 Official Gazette of the Republic of Serbia, No. 1/20.
44 Official Gazette of the Republic of Serbia, No. 1/20.
45 Official Gazette of the Republic of Serbia, Nos. 54/12 and 86/16.
46 Official Gazette of the Republic of Serbia, No. 142/20.
47 Official Gazette of the Republic of Serbia, No. 83/18; Official Gazette of the Republic of Serbia, No. 09/20.
48 Official Gazette of the Republic of Serbia, No. 12/19.
49 Official Gazette of the Republic of Serbia, No. 8/19.