FdR – Publicaties niet-programma gebonde

Leclerc, T.

Stewart, M.E.

Leiden University Scholary Publications

‘The 27th Annual Conference of theEuropean Air Law Association’ Brief Reportof a Conference Held in Edinburgh on 6November 2015Thomas LECLERC & Merinda STEWART*On 6 November 2015, the 27th Annual Conference of the European Air LawAssociation (EALA) was held at the Signet Library, Parliament Square, inEdinburgh, Scotland.The agenda was divided into seven overarching topics:(1) The Lockerbie case: legal and practical implications.(2) Accidents and incidents: crimes?(3) Aviation security.(4) Reducing aviation’s CO2 emissions: will 2016 mark a globalbreakthrough?(5) Drones/Remotely-Piloted Aircraft Systems (RPAS).(6) Airport/airline relations: conjoint twins – how airlines and airports canimprove the legal framework of their relationship.(7) Regulation 261 developments.The topics were explored by expert speakers from across the world from legal,policy, and regulatory perspectives.Welcoming addresses were delivered by Prof Pablo Mendes de Leon, Presidentof EALA, professor of air and space law, University of Leiden, and Mr JonathonCounsell, group head of sustainability, International Airlines Group, London.The first topic was addressed by the Hon Lord Turnbull, Senator of theCollege of Justice, Court of Session, Edinburgh. In September 1998, Lord Turnbullwas engaged as one of the two senior counsel leading the Crown team in the* Thomas Leclerc holds a Master’s degree in International Law from Montesquieu – Bordeaux IVUniversity (2012) and is currently a PhD student under a co-tutelage agreement between the ‘Centrede Recherche et de Documentation Européennes et Internationales’ (CRDEI – Bordeaux University)and the International Institute of Air and Space Law (IIASL – Leiden University, The Netherlands);Merinda Stewart holds a Master’s degree in Air and Space Law from the International Institute of Airand Space Law (IIASL – Leiden University,The Netherlands) (2015) and is currently a PhD student atthe IIASL.Leclerc, Thomas & Stewart, Merinda. ‘“The 27th Annual Conference of the European Air LawAssociation” Brief Report of a Conference Held in Edinburgh on 6 November 2015 ’. Air & Space Law41, no. 2 (2016): 157–162.© 2016 Kluwer Law International BV, The NetherlandsLockerbie bombing trial and gave a fascinating account of the collection ofevidence in the trial and of how it was used to piece together the prosecution’scase.The second session, dealing with accidents and incidents, was introduced bymoderator, Dr Francis Schubert, chief corporate officer and deputy CEO, Skyguide,Swiss Air Navigation Services Ltd., Geneva. He introduced the concept of ‘justculture’ and raised the issue of the potential negative impact of media technologiesand public disclosure on the relationship between judicial proceedings and safetyinvestigation.Ms Ann Frédérique Pothier, head of section, CRCO, Eurocontrol, Brussels,elaborated on the topic of ‘just culture’ and suggested the need for an expertcourse designed for prosecutors to help bridge the gap between safety and theadministration of justice.Mr Pietro Antonio Sirena, president of the fourth division, Supreme Court ofCassation, Rome, examined the influence of the media on the prosecution andjudges and highlighted that the media are not restricted by the same proceduralfactors that apply to legal proceedings.Mr Kenneth P. Quinn, partner, Pillsbury Winthrop Shaw Pittman LLP,Washington, addressed the increasing criminalization of aviation accidents and theneed for a more comprehensive international framework for accident and incidentinvestigation. He discussed the new Standards and Recommended Practices(SARPs) proposed for Annex 19 to the Chicago Convention by the ICAO SafetyInformation Protection Task Force and, in particular, the need to employexceptions to the principle of protection, a pillar of just culture, where there isevidence of criminal intent.After addressing recent advancements relating to safetyinvestigations in France, the UK and Spain, he also pointed out the recentnon-binding European Corporate Just Culture Declaration, signed by theEuropean Commissioner for Transport and aviation industry stakeholders on 1October 2015, and specifically expressed the need for this Declaration to befollowed by enabling legislation.Mr Andreas Spaeth, freelance aviation journalist, Hamburg, provided aninteresting change of perspective based on his personal experience as a journalistspecializing in aviation-related matters. He discussed the ethical considerations indeciding whether or not to release information, with specific reference to the2015 Germanwings crash. He also spoke of the difficulty faced in findingjournalists who are knowledgeable, independent and willing to talk on issues ofaviation in a world of fast-paced media where journalists are required to report ona range of topics.AIR AND SPACE LAW158The third panel addressed aviation security matters and was presided over byMs Kate Staples, general counsel and secretary to the Civil Aviation Authority(CAA), London.Mr David Trembaczowski Ryder, head of aviation security, ACI, first discussedthe problem of aviation security legislation being reactive rather than proactive.Taking the comparative illustration of Tiree and Heathrow airports, he emphasizedthat for airport regulation, a ‘one-size-fits-all’ approach is not suitable, and that arisk-based approach should be adopted. He also addressed the evolving threatsfaced by aviation security, for example, cyber-attacks drones’ liquids and 3Dprinted guns.Mr Adam Borkowski, aviation security audit and capacity building officer,European Civil Aviation Conference (ECAC), Paris, described the four ECACoperational programmes that are currently underway at ECAC: (1) aviationsecurity audits, (2) capacity building, (3) vulnerability programme, and (4)common evaluation process of security equipment, and he also underlined ECAC’srole in developing and supporting aviation security. He explained that regulation isonly the start of the process, and outlined the ECAC aviation security priorities,which are: anticipation, support to implementation and international partnership.Mr Ian Shaw, aviation security strategy, planning and regulatorytransformation, UK CAA, London, discussed the challenges of the relationshipbetween the UK CAA and the wider EU, including the European Aviation SafetyAgency (EASA), insofar as aviation security is concerned. He also addressed therole of the Risk-Based Regulation (RBR), involving performance based oversight,security and risk management, security improvement, flexible resourcing andsharing knowledge. Finally, he discussed the growing challenges faced by aviationsecurity in relation to cyber-attacks.Ms Marie-Caroline Laurent, assistant director security and travel facilitation,IATA, Brussels, explored the new challenges of data protection and the sharing ofdata. She focused on the shift towards data driven security and the concern of theEU in relation to airport security in third States, which remains a diplomaticchallenge linked to the issue of extraterritoriality. According to Ms Laurent, fournew challenges need to be dealt with: data protection, data sharing, recognition ofthird countries’ security measures and, extra-territorial impact.Mr Oleg Aksamentov, director, Institute of Air and Space Law AEROHELP, StPetersburg, focused on recent aviation security cases, including MH17, from aRussian perspective and questioned whether the current international legalframework is sufficient to protect civil aircraft flying over conflict zones. In doingso, he addressed existing treaty obligations of States involved in armed conflicts,rules of customary international law, and SARPs adopted by the ICAO Council.THE 27TH ANNUAL CONFERENCE 159He then presented proposals for improvements to the international framework toenhance the protection of civil aircraft flying over conflict zones.Mr Michael Gill, director, aviation environment, IATA, Geneva, addressed thetopical issue of aviation and climate change, questioning whether 2016 will mark aglobal breakthrough. He presented the political context, including the globalframework based on the UNFCCC and the Kyoto Protocol, and the EU Protocolbased on an emissions trading scheme, as well as the importance of the ICAOResolution A38-18 which explicitly requests that ICAO ‘develop a global MBMfor international aviation’ and that the Council finalizes work on details in time forthe next Assembly. He then briefly addressed the different MBM options andhighlighted global carbon offsetting as the preferred option. Finally, he provided anupdate on the ICAO negotiations surrounding the adoption of a globalmarket-based measure, discussed several legal vehicles and argued in favour of aworldwide political deal to regulate the CO2 emissions produced by internationalcivil aviation.Mr Patrick Slomski, partner, Clyde & Co., London, moderated the fifth sessionof the day.This panel discussion stressed the need to develop the law in relation toRPAS and to raise awareness of these laws amongst the public.Mr Frank Manuhutu, chief legal advisor, the legal department of EASA,presented EASA’s proposal to create common rules for operating drones in Europeand, more specifically, the proposed Concept of Operations of drones, explainingthe three categories of risk on which the proposal is based: open, specific andcertified.The open category is characterized by a low risk and no involvement ofthe CAA, but limits the operation of RPAS to within the visual line of sight, up toa maximum altitude, and at a certain distance from airports and sensitive zones.The specific category is characterized by increased risk, operations authorizationswith an operations manual, specific qualifications of drones, and personnel andequipment based on safety assessment. The final category, the certified category,involves a regulatory regime similar to manned aviation.This proposal is currentlyunder review by the agency and will soon be submitted to the EU Commission.Ms Alison Slater, legal advisor, CAA, UK, discussed the regulatory approachtaken, and the enforcement challenges faced, by the UK CAA, including the needto raise awareness of the regulations amongst drone users. She addressed thesechallenges through examples, by considering who, what, when, where and howthe regulations will be enforced.Prof Brian Havel, distinguished research professor of law and director of theInternational Aviation Law Institute, DePaul University College of Law, began bynoting the different philosophy taken by the US Federal Aviation Administration(FAA) and EASA in terms of drone regulation.Turning to the international level,he provided an overview of the applicability of the Chicago Convention to RPAS.AIR AND SPACE LAW160Ms Regula Dettling-Ott,VP European affairs, Lufthansa Group, Brussels, guidedthe sixth session of the day, which explored airport-airline relations. She presentedthe current legal framework at the EU and national levels, applying the metaphorof ‘conjoint twins’ – born ‘physically connected to each other’, they ‘develop toform two “individuals”’ but they ‘remain physically connected’ – in order todemonstrate how airlines and airports can improve the legal framework of theirrelationship. She specifically raised four shared issues: customer satisfaction,operational efficiency, connectivity (traffic rights) and financial efficiency(commercial success).Prof Laura Pierallini, partner, Studio Pierallini, Rome, presented herobservations on the effect of low-cost carriers on airport-airline relations from anItalian perspective. She raised three main areas of discussion, namely, airportcharges, traffic rights and incentives to low-cost carriers. In order to improveairport-airline relations in Italy, she recommended less bureaucracy, moretransparency, and fair competition leading to specialization of airports.Mr Guillaume Hecketsweiler, general counsel of Air France-KLM, Paris,discussed the relationship of Aéroport de Paris (ADP) with its airlines, in particularAir France-KLM. He first addressed the issue of airport charges at French airports.He explained how they are determined, underlining the importance of theDirective 2009/12/CE in providing for a common framework and he discussedthe relevant provisions of the French Aviation Code and the specificimplementation of airport charges between the French State and ADP via afive-year economic regulations agreement (CRE). He also addressed the recentdesignation of the Directorate General for Civil Aviation (DGAC) as anIndependent Safeguarding Authority (ISA), which was invalidated by the FrenchSupreme Court on 29 April 2015. This led to a complaint to DG MOVE fromairline associations on the same legal grounds, as well as a complaint to the samecourt from the French federation of airlines against the new five-year CRE.Ms Noura Rouissi, legal officer, DG Move, European Commission, Brussels,gave an interesting insight into the current perspective of EU regulations onairport/airline relations, and outlined the goal of the Commission to bring airlinesand airports to the same negotiating table.The day of sessions was concluded by a discussion between Mr Morten L.Jakobsen, partner, Gorrissen Federspiel, Copenhagen, and Mr Jochem Croon, partner,Croon & Co., Amsterdam on Regulation 261/2004. Mr Croon examined theliability of carriers in light of the CJEU decisions of van der Lans andWallentin-Herman, discussing the nature of events which are inherent in the normalexercise of the activity of the air carrier and are beyond its actual control. In thatsense, the remaining defences of airlines seem to be manufacturing defects, birdstrikes, crew illness, strikes, weather conditions and air traffic managementTHE 27TH ANNUAL CONFERENCE 161decisions. Finally, they recalled the importance of the next European AviationSummit, which will be held at Schiphol on 20–21 January 2016, under the DutchEU Presidency.The formal part of the conference was concluded by the announcement ofthis year’s winners of the EALA Prize (best paper) competition, which was madeby Prof Vincent Correia, chairman of EALA’s Academic Committee. Mr RidhaAditya Nugraha, a recent graduate of the Advanced LL.M. in Air & Space Law atthe IIASL, Leiden University, was awarded first prize for his paper on passengerdata protection in the EU.The audience was fortunate enough to be given a briefinsight into the paper by Mr Aditya Nugraha. Ms Deepika Jeyakodi, also a recentgraduate of the IIASL, received the second prize for her paper on cyber security incivil aviation.The slides of the above presentations are available on the EALA website atwww.eala.aero.AIR AND SPACE LAW162

'The 27th Annual Conference of the European Air Law Association’ Brief Report of a Conference Held in Edinburgh on 6 November 2015

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