Aviation Regulation Comparative Guide

• Published date: 21 September 2020
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Transport, Insolvency/Bankruptcy/Re-structuring, Financial Services, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Aviation, Leasing
• Law Firm: Pamina Avocats
• Author: Mr David Epaud and Rémi Sermier

1 Legal framework

1.1 Which legislative and regulatory provisions govern the aviation sector in your jurisdiction?

The applicable legislative provisions are set out in the Transport Code (Part VII - Civil Aviation (Articles 6100-1 to L 6795-1); and Articles L 1261-1 to L 1264-1 as regards the Regulatory Authority for Transport).

The regulatory provisions are mainly set out in the Civil Aviation Code. These provisions are to be incorporated in the Transport Code and the Civil Aviation Code will then be repealed; however, the government is taking its time to issue the necessary regulatory instruments to effect this change.

The regulatory provisions on the Regulatory Authority for Transport are set out in the Transport Code (Articles R 1261-1 to R 1264-1).

The relevant EU regulations also apply directly in France:

• Regulation (EEC) 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (as amended by Regulations 894/2002 of 27 May 2002, 1554/2003 of 22 July 2003, 793/2004 of 21 April 2004 and 545/2009 of 18 June 2009);
• Regulation (EC) 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) 2027/97 on air carrier liability in the event of accidents;
• Regulation (EC) 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) 295/91;
• Regulation (EC) 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries;
• Regulation (EC) 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC (as amended by Regulations 596/2009 of 18 June 2009, 2018/1139 of 4 July 2018 and 2019/1243 of 20 June 2019);
• Regulation (EC) 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air;
• Regulation (EC) 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 (as amended by Regulations 2018/1139 of 4 July 2018 and 2019/2 of 11 December 2018);
• Regulation (EC) 80/2009 of the European Parliament and of the Council of 14 January 2009 on a Code of Conduct for computerised reservation systems and repealing Council Regulation (EEC) 2299/89;
• Regulation (EU) 598/2014 of the European Parliament and of the Council of 16 April 2014 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Union airports within a Balanced Approach and repealing Directive 2002/30/EC;
• Regulation (EU) 1139/2018 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) 2111/2005, (EC) 1008/2008, (EU) 996/2010, (EU) 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) 552/2004 and (EC) 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) 3922/91;
• Regulation (EU) 2019/712 of the European Parliament and of the Council of 17 April 2019 on safeguarding competition in air transport, and repealing Regulation (EC) 868/2004;
• Commission Regulation (EU) 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) 216/2008;
• Commission Regulation (EU) 748/2012 of 3 August 2012 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations; and
• Commission Regulation (EU) 965/2012 of 5 October 2012 laying down technical, requirements and administrative procedures related to air operations pursuant to Regulation (EC) 216/2008.

1.2 Which bilateral and multilateral instruments on aviation have effect in your jurisdiction?

France is a member of the International Civil Aviation Organisation (ICAO).

The main multilateral instruments to which France is a party include:

• the Warsaw Convention for the unification of certain rules relating to international carriage by air of 12 October 1929;
• the Chicago Convention on International Civil Aviation of 7 December 1944;
• the Geneva Convention on the international recognition of rights in aircraft of 19 June 1948;
• the Tokyo Convention on offences and certain other acts committed on board aircraft of 14 September 1963;
• the Hague Convention for the suppression of unlawful seizure of aircraft of 16 December 1970; and
• the Montreal Convention for the unification of certain rules for international carriage by air of 28 May 1999.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

The Ministry of Transport - General Directorate for Civil Aviation (DGAC) is the main public authority in charge of:

• issuing regulations applicable to air transport, airlines and airports;
• implementing these regulations and supervising players in the sector;
• supervising air safety and air traffic control; and
• issuing airworthiness certificates.

Some competences of the DGAC in the field of airworthiness, air operations and air traffic management are shared with, or supervised by, the European Aviation Safety Agency (EASA).

The Organisation for Civil Aviation Safety (OSAC), an external private contractor, is mandated by the DGAC to carry out inspections and reviews which are required in order for airlines, operators and organisations to obtain certificates and approvals issued on behalf of the DGAC.

The Regulatory Authority for Transport, which is an independent body, is responsible only for supervising airport charges which fall within the scope of the EU Airport Charge Directive (2009/12/EC) (ie, airports open to commercial traffic with more than 5 million passenger movements annually). It has no jurisdiction over airlines.

The Airport Nuisance Control Authority (ACNUSA), which is also an independent body, supervises environmental issues relating to major airports (noise and pollution). It may impose fines on airlines which are in breach of the rules on noise restriction.

The Authority for Transport Quality of Service is a small administration, without enforcement powers, which collects data on the quality of service in terrestrial, maritime and air transport.

1.4 What is the regulators' general approach in regulating the aviation sector?

According to an official report on the competitiveness of air transport issued in 2016 by the French National Audit Office: "In France, the economic players and the State want to be proactive, but their action has sometimes been confused, the overall consistency of air transport policies is not always ensured, coordination with other transport modes is deficient, commitment to implement European policies is sometime insufficient."

The French State retains a significant economic interest in airports (in particular the Paris airports). The government is therefore generally sensitive to the concerns expressed by airport operators.

It can be expected that the impact of the covid-19 epidemic on airlines will lead the French authorities to revise their approach. Air France-KLM will probably benefit from measures to overcome this crisis. According to press information, at the beginning of April 2020 Air France-KLM was in talks to receive up to 6 billion euros in loans guaranteed by the French and Dutch governments.

2 Licensing and market access

2.1 What licences are required to provide aviation services in your jurisdiction? Does this vary depending on route?

Regulation (EC) 1008/2008 sets out the common rules for the operation of air services in the European Union. Different licences are required to operate public transport by air, as follows:

• An air operator's certificate (AOC) is required to allow an operator to use aircraft for commercial purposes. The operator must have personnel, assets and systems in place to ensure the safety of employees and the general public. The AOC will list the aircraft types and registrations to be used, the purpose for which they will be used and the areas in which they will be used (ie, specific airports or geographic region). The AOC will be granted by the General Directorate for Civil Aviation (DGAC) if the operator demonstrates that it will be able to comply with all applicable technical regulations and provides sufficient technical guarantees. When an AOC is delivered for the first time, it is valid for one year. When it is renewed, it is valid for two or three years.
• An operating licence is issued by the DGAC where the operator complies with certain legal and financial conditions: for example, its principal place of business must be in France and the provision of air services must be its main business. The operator must also comply with ownership and financial conditions and with insurance requirements.
• According to Regulation (EC) 1008/2008, intra-EU air services may be provided by European air carriers without any further permit or authorisation. For extra-EU air services and non-European carriers, additional authorisation is required, which is granted by the minister of transport.

2.2 What nationality requirements must be satisfied to obtain a licence?

Air carriers must be majority held and effectively controlled, directly or indirectly, by...