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 These provisions are to be incorporated in the Transport Code and the Civil Aviation Code will then be repealed; however, the government is taking its time to issue the necessary regulatory instruments to effect this change.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 nationals of EU member states.
2.3 What financial requirements must be satisfied to obtain a licence?
Pursuant to Regulation (EC) 1008/2008, an air carrier that will use aircraft of more than 10 tons maximum take-off mass, and/or with more than 20 seats, must demonstrate that:
- it can meet, at any time, its actual and potential obligations established under realistic assumptions for a period of 24 months from the start of operations; and
- it can meet its fixed and operational costs for a period of three months from the start of operations, without taking into account any income from its operations.
It follows that any applicant must submit a business plan for at least the first two years from the start of operations.
2.4 What other requirements must be satisfied to obtain a licence? Do specific requirements or restrictions apply to foreign operators?
The applicant must have one or more aircraft at its disposal through ownership or a dry lease agreement.
Non-EU carriers require prior authorisation from the minister of transport to operate scheduled and non-scheduled flights to or from France. Such authorisation will be granted only if traffic rights are available.
2.5 What is the procedure for obtaining a licence?
All applications must be filed with the DGAC. In principle, the DGAC will issue its decision within three months.
3 Safety and maintenance
3.1 What key safety requirements apply to operators in your jurisdiction?
The safety rules applicable in France mainly derive from European legislation, as follows:
- Commission Regulation (EU) 748/2012 (as amended) sets out the rules applicable to aircraft certification;
- Commission Regulation (EU) 965/2012 sets out the rules applicable to commercial air operations;
- Commission Regulation (EU) 1178/2011 applies to flight crew licensing and training; and
- Commission Regulation (EU) 2017/373 lays down common requirements for providers of air traffic management/air navigation services and other air traffic management network functions, and their oversight.
National regulations on airport safety rules are also contained in Article L 6341-1 and subsequent articles of the Transport Code and in the Civil Aviation Code.
3.2 What key maintenance requirements apply to operators in your jurisdiction?
The maintenance and continuing airworthiness of aircraft are governed by Commission Regulation (EU) 1321/2014.
3.3 Do these requirements differ depending on whether the operator is providing commercial, cargo or private services?
Specific rules apply to cargo and air mail carriage.
3.4 What are the potential consequences of breach of the safety and maintenance requirements?
The operating licence of an air carrier may be suspended or revoked in case of breach of safety and/or maintenance requirements.
Pursuant to Regulation (EC) 2111/2005, a list of air carriers which are subject to an operating ban within the European Union for failure to adhere to the applicable international safety standards ("EU Safety List") is issued by the European Commission, acting on the advice of the EU Air Safety Committee. The EU Air Safety List is divided into Annex A, which includes airlines banned from operating in Europe, and Annex B, which includes airlines that are restricted from operating under certain conditions in Europe. Both lists are updated regularly and published in the Official Journal of the European Union. They may be consulted on the Commission's website.
3.5 What best practices in relation to safety and maintenance should operators consider adopting in your jurisdiction?
Any aircraft present at a French airport – whether French, European or extra-European – may be inspected by the General Directorate for Civil Aviation to ensure compliance with French and EU regulations on civil aviation, including safety rules. In case of breach, the minister of transport may order corrective measures and, if necessary, maintain the aircraft on the ground until they have been carried out.
4 Consumer protection
4.1 What rights do passengers enjoy in your jurisdiction in relation to: (a) Flight delays or cancellations? (b) Overbooking? (c) Denied boarding for other reasons? (d) Baggage delay, damage or loss? and (e) Disabled access?
(a) Flight delays or cancellations?
The rules applicable to flight delays and cancellations are set out in Regulation (EC) 261/2004. Passengers are entitled to cash compensation if their flight is cancelled, in an amount of between €250 and €600, depending on the distance to be travelled. In case of delay, passengers are entitled to refreshments and communication. They are also entitled to accommodation if the flight is postponed until the next day. If a flight is delayed by five hours, passengers are entitled to abandon their journey and receive a refund and, if relevant, a flight back to their original point of departure at the earliest opportunity. In case of an arrival delay of more than three hours, passengers are entitled to cash compensation, unless the delay was caused by extraordinary circumstances.
Regulation (EC) 261/2004 provides that denied boarding gives rise to the following:
- a right to compensation as defined in Article 7;
- a right to choose between reimbursement, re-routing or rebooking at a later stage, under Article 8; and
- a right to care, under Article 9.
(c) Denied boarding for other reasons?
Regulation (EC) 261/2004 applies to all cases in which boarding is denied, except where there are reasonable grounds for refusing to carry passengers, such as health reasons, safety, security or inadequate travel documentation.
(d) Baggage delay, damage or loss?
Depending on the air carrier and destination, the Montreal Convention or the Warsaw Convention will apply. The Montreal Convention applies to European airlines. It provides that if checked-in luggage is lost, damaged or delayed, the passenger is entitled to compensation in an amount of approximately €1,400 (1,131 special drawing rights). However, if the damage was caused by an inherent defect in the baggage itself, no compensation is due.
(e) Disabled access?
Regulation (EC) 1107/2006 provides that an air carrier cannot refuse a reservation on the grounds of the passenger's disability/reduced mobility, or refuse to board a disabled person/person with reduced mobility. The same regulation specifies that airport operators must provide assistance to disabled persons/persons with reduced mobility. Complaints for breach of these must be sent to the General Directorate for Civil Aviation (DGAC).
4.2 Are airfares regulated in your jurisdiction? What other requirements apply to the pricing and sale of flights?
Air carriers can freely set their fares for intra-EU air services (Article 22 of Regulation (EC) 1008/2008). Regulation 1008/2008 provides that passengers should be able to effectively compare the prices of different airlines. This means that they have the right to access all airfares and air rates, regardless of their nationality or their place of residence in the European Union. The price paid by passengers for air services originating in the European Union must be inclusive of all taxes, charges and fees.
All carriers operating scheduled passenger flights within, from or to France must provide the DGAC with their general terms and conditions of carriage, including customer benefits, if any.
4.3 What other marketing and advertising requirements apply to operators in your jurisdiction?
There are no specific rules applicable to marketing and advertising in the aviation sector.
4.4 What requirements apply in relation to the retention and protection of passenger data in your jurisdiction?
European airlines are subject to the rules set out in the General Data Protection Regulation (GDPR) of 27 April 2016 (2016/679). These rules also apply to companies based outside the European Union which have an office within the European Union or which offer goods or services in the European Union or to individuals based in the European Union.
The GDPR provides that passengers have a range of rights in respect of their personal data, including the right to access information that the airline holds on them and the right to erasure. Airlines must facilitate the exercise of these rights within a set timeframe of one month and may not charge a fee. Airlines must notify the competent supervisory authority (in France, the Commission nationale de l'informatique et des libertés) of security breaches involving personal data without undue delay, and where feasible within 72 hours of becoming aware of the breach. They must also communicate data breaches to affected individuals if the breach is likely to result in high risk.
4.5 What other general consumer protection requirements are of relevance for operators in your jurisdiction?
Pursuant to the Toubon Law (no. 94-665), it is mandatory for commercial advertisements and public announcements to be in French. This does not prohibit advertisements made in a foreign language, but a French translation must be provided.
4.6 How are consumer complaints in relation to aviation services handled in your jurisdiction?
Regulation (EC) 261/2004 provides that all member states must have a national enforcement body to ensure that all air carriers treat passengers in accordance with their rights. The DGAC is the French enforcement body. Complaints may be sent to the DGAC by post or through an online form.
5 Accidents and liability
5.1 What is the applicable aviation liability regime in your jurisdiction?
France applies the Warsaw Convention and the Hague Protocol of the Warsaw Convention. The Guadalajara Supplementary Convention of 18 September 1961 also applies regarding international carriage by air performed by a person other than the contracting carrier. France also signed and ratified the Guatemala City Protocol of 8 March 1971.
The Tokyo Convention of 14 September 1963 on offences and certain other acts committed on board aircraft is further applicable.
France ratified two of the four protocols (1 and 2) of the Montreal Convention on 11 February 1982, and further ratified the Montreal Convention of 28 May 1999 for international carriage by air, which regulates the liability of air carriers regarding the death or injury of passengers, damage to baggage and cargo, and delays.
On 15 December 2016 France ratified the Beijing Convention on the suppression of unlawful acts relating to international civil aviation, which entered into force on 1 July 2018.
French courts always apply the Montreal Convention and the Warsaw Convention when air carrier liability is triggered by passengers in case of injury or death occurring on board, or while boarding or disembarking. The provisions of these conventions supersede ordinary contract law. The French supreme court for civil matters (Court of Cassation) ensures that claimants do not rely both on the provisions set out in the conventions and on French contract law.
If an accident does not occur on board or while boarding or disembarking, ordinary French law applies. Pursuant to French contract law, a carrier has an obligation of safety towards its passengers. The courts tend to interpret this safety obligation very broadly.
5.2 What insurance requirements apply to operators in your jurisdiction?
Air carriers must demonstrate compliance with insurance requirements by providing the competent authorities of the relevant EU member state with an insurance certificate or other evidence of valid insurance.
The insurance requirements for air carriers are set out in the Montreal Convention and in Regulation (EC) 785/2004. This regulation requires both commercial air carriers and general aviation aircraft operators to be insured – in particular, in respect of passengers, baggage, cargo and third parties – to cover the risks associated with aviation-specific liability (including acts of war, terrorism, hijacking, acts of sabotage, unlawful seizure of aircraft and civil commotion).
For liability in respect of passengers, the minimum insurance cover is 250,000 special drawing rights (SDR) per passenger. However, in respect of non-commercial operations by aircraft with a maximum take-off weight (MTOM) of 2,700 kilograms or less, EU member states may set a lower level of minimum insurance cover, but not below 100,000 SDR per passenger.
For liability in respect of baggage, the minimum insurance cover has been increased to 1,288 SDR per passenger as per the revised limits of the Montreal Convention, which came into force on 28 December 2019.
For liability in respect of cargo, the minimum insurance cover has been increased to 22 SDR per kilogram in commercial operations as per the revised limits of the Montreal Convention, which came into force on 28 December 2019.
The minimum insurance cover per accident and per aircraft depends on the MTOM of the aircraft. It can vary between 750,000 SDR and 7 million SDR.
5.3 What body is responsible for investigating accidents in your jurisdiction and what procedure will it follow in doing so?
Pursuant to Regulation (EU) 996/2010, investigations must be fully independent, and must aim only to determine the causes of accidents and to prevent future accidents, rather than to seek to apportion blame or responsibility.
Investigations are carried out by the Bureau of Enquiry and Analysis for Civil Aviation Safety (BEA).
In the case of an accident with fatal consequences and involving French authorities, two investigations are undertaken in parallel:
- the judicial investigation, which is usually conducted by the Air Transport Gendarmerie under the direction of a magistrate; and
- the safety investigation, which is undertaken by the BEA.
These two investigations have different purposes:
- the judicial investigation aims to determine whether punishable misconduct or negligence has occurred;
- the BEA investigation follows international rules, based on International Civil Aviation Organisation regulations and standards. It aims to improve aviation safety for the benefit of passengers and crew; it neither implies nor excludes criminal liability.
In France, these investigations are independent of each other. However, in accordance with the requirements of European regulations, coordination between the judicial investigation and the safety investigation is ensured. Both investigating authorities must be able to access the same data and evidence without restriction, while remaining independent of each other.
The BEA leads the technical research and determines the causes of the accident, with the sole objective of improving air safety. The BEA usually issues a first preliminary report within 30 days of the start of its investigation and then sends its recommendations to the authorities, companies and manufacturers. It has no coercive powers.
5.4 What reporting requirements apply to accidents and incidents in your jurisdiction?
Regulation (EU) 376/2014 sets out the rules governing occurrence reporting in civil aviation. Any problem identified in the air transport system must be reported to the DGAC, which in turn must report it to the European Aviation Safety Agency. The relevant reports will then be stored and disseminated (through a central repository managed by the European Commission) for the purpose of analysis.
6 General operation
6.1 What requirements apply to charter services in your jurisdiction?
Charters within the European Union (including air taxi and general aviation services for transport of passengers and cargo) are subject to the same Regulation (EC) 1008/2008 as scheduled flights. They must notify their flights to the General Directorate for Civil Aviation at least 10 days in advance.
Non-scheduled routes outside the European Union must be authorised by the minister of transport.
6.2 What requirements apply to the carriage of cargo in your jurisdiction?
Cargo services are subject to the same rules as passenger transport services (scheduled and charters). See question 6.1.
6.3 What environmental requirements apply to operators in your jurisdiction?
Regulation (EU) 598/2014 sets out rules and procedures relating to noise restrictions at EU airports. National regulations impose strict rules relating to noise emissions by aircraft. Infringement of these rules may give rise to financial sanctions, in particular as regards:
- night flights without a slot;
- the use of aircraft that are non-compliant with acoustic standards; or
- breach of approach and take-off procedures (eg, failure to observe environmental safety distances or mandatory overflight points).
In 2019, 529 breaches were recorded at French airports and 334 fines were imposed, totalling €6.9 million; the average fine was €20,645. At present, the maximum fine that may be imposed is €40,000 or €20,000 per breach (depending on the type of breach). The Airport Nuisance Control Authority – the independent body responsible for enforcing airport noise regulations – has recommended that Parliament amend the law to increase these maximum fines to €200,000 and €100,000, respectively.
6.4 How are aviation services taxed in your jurisdiction? Do any special tax regimes apply to this sector? What indirect taxes are of relevance to operators?
Civil aviation tax (TAC): TAC applies to all commercial flights departing from an airport located in France (including French overseas territories). The tax is charged per passenger and the rate depends on the passenger's final destination. The tax for flights to destinations in the European Economic Area (EEA) and Switzerland is currently €4.58, and for flights to all other destinations €8.24. The tax rates are reviewed every year to account for changes in the consumer price index
Solidarity tax on air tickets (TSBA): The TSBA applies as a surcharge on the TAC. It was initially destined to finance Unitaid, but as from January 2020 the rate has increased and the additional revenue will finance the French Agency for the Financing of Transport Infrastructure. The combined tax rate (TAC + TSBA) depends on the class of travel and the passenger's final destination. Business jet passengers and airline passengers travelling in the lowest class of travel pay the lower rate, whereas all other airline passengers pay the higher rate. Passengers travelling to destinations in the EEA and Switzerland are currently charged at €2.63 (lower rate) or €20.27 (higher rate) per passenger. Passengers travelling to all other destinations pay €7.51 (lower rate) or €63.07 (higher rate) per passenger. Non-commercial, privately operated flights are exempt from the TSBA. Exemptions are also in place for transfer passengers and passengers travelling from mainland France to Corsica or French overseas territories. These two last exemptions are pending approval by the European Commission.
Airport tax: An airport tax is charged on the carriage of passengers from an airport located in France (including French overseas territories) on commercially operated flights. Airports with traffic below a yearly average of 5,000 units (1 unit equals 1 passenger or 100 kilograms of freight) are outside the scope of this tax. All other airports are grouped into three classes, depending on traffic volume:
- Class 1 comprises the three Parisian airports (Roissy-Charles-de-Gaulle, Orly and Le Bourget). The per passenger rate for class 1 airports amounts to €10.80.
- Class 2 airports (eg, Lyon, Marseille, Nice and Toulouse) charge between €5.70 and €7.95 per passenger.
- The rate for most Class 3 airports is €14.00 per passenger.
Regardless of the class to which an airport is assigned, an additional charge of €1.25 per passenger is added to the above rates.
Noise tax: A noise tax is levied on commercial and non-commercial aircraft taking off from any of the nine busiest French airports (ie, Roissy-Charles-de-Gaulle, Orly, Le Bourget, Beauvais-Tillé, Nice-Côte-d'Azur, Toulouse-Blagnac, Nantes-Atlantique, Marseille-Provence and Bordeaux-Mérignac). The amount of tax due per departure depends on:
- the tax rate applicable at the departure airport (ranging from €0.50 to €40);
- the aircraft's maximum take-off weight;
- the aircraft's certified noise performance (as specified in its noise certificate); and
- the time of departure.
Aircraft leasers: The General Tax Code provides for a tax scheme allowing special tax treatment for aircraft leasers, under specific conditions.
6.5 What is the applicable employment regime in your jurisdiction and what specific implications does this have for operators in the aviation sector?
Regulation (EEC) 3922/91 (as amended) contains provisions on flight and duty time limitations. Operators must ensure that total duty periods (including standby duties) do not exceed 190 duty hours in 28 consecutive days and 60 hours in any seven consecutive days. Daily flight duty period cannot exceed 13 hours (which may be exceptionally extended by one hour). ‘Block hours' (ie, the time from the moment the aircraft door closes at departure until the moment the aircraft door opens at the arrival gate upon landing) cannot exceed 900 hours in a calendar year or 100 hours in any consecutive 28 days. This regulation also provides for minimum rest hours. Operators are obliged to nominate a ‘home base' for each crew member, which is the place where the concerned crew member normally starts and ends a duty period.
National regulations (the Transport Code, the Civil Aviation Code and the Employment Code) also contain labour provisions applicable to civil personnel. Decree 2006-1425 of 21 November 2006 rendered French labour law applicable to all employees working from operational bases located in France. A recourse from Ryanair and EasyJet against this decree was dismissed by the Conseil d'Etat (11 July 2007, 299.787).
7 Ownership, financing and leasing
7.1 What body administers the aircraft register in your jurisdiction?
The French aircraft register is administered by the General Directorate for Civil Aviation (DGAC). All registration requests must be filed in writing at the following address:
DGAC - DTA/SDT/3
Bureau immatriculation des aéronefs
50 rue Henry Farman
75720 PARIS Cédex 15
7.2 What are the formal and documentary requirements for registration?
The following documents are required to register an aircraft in France:
- The applicant's identification documents: The aircraft owner must be a French national or national of another EU/EEA Member State (if he or she is a natural person) or a company registered in France/the European Union/the European Economic Area (EEA) and with its statutory office or main establishment in France/the European Union/EEA.
- Airworthiness certificate: Airworthiness documents (an airworthiness certificate and, if necessary, a nuisance limitation certificate) must be issued by the French technical services (Civil Aviation Safety Organisation, 12-14 boulevard des Frères Voisins - 92130 Issy-les-Moulineaux).
- For an aircraft from a foreign country:
- a certificate of cancellation of registration in the aircraft register kept in the state of provenance; if the aircraft has never been registered, a certificate of non-registration must be issued by the civil aviation authorities of the state of provenance; and
- a customs certificate or certificate of acquisition of a means of transport within the European Union issued by the French tax authorities.
- Ownership documentation:
- the original bill of sale between the applicant and the seller, proving that the transfer of ownership has been completed;
- the bill of sale issued by the civil aviation authorities of the state of provenance;
- a paid invoice; or
- a deed of property recognised in civil law (eg, act of succession, judgment).
In any case, the supporting documents must include a complete description of the aircraft by which it can be identified, with the category, name of manufacturer, type and serial number. They must also clearly indicate full transfer of ownership.
7.3 What is the process for registration?
The application for registration and all supporting documents must be mailed to the DGAC. A cheque for €91 for the registration duty must also be enclosed.
7.4 Is registration of real estate rights, transactions and encumbrances mandatory? What are the consequences of failure to register?
The typical form of security over an aircraft in France is the aircraft mortgage, which is governed by French law. Pursuant to Article L 6122-8 of the Transport Code, any mortgage on an aircraft must be registered in the aircraft register. Once a mortgage has been registered, it allows the creditor to seize and proceed to a judicial sale of the aircraft in case of default of payment. A mortgage which has not been registered cannot be enforced.
An aircraft mortgage is valid for 10 years from the date of registration. It expires at the end of this period, unless the registration is renewed. When a mortgage is terminated by agreement between the parties or by court decision, this must be recorded in the register.
Pledges over spare engines may be taken and registered in the national register of pledges, and are perfected once registered.
7.5 What operational requirements are of relevance for aircraft lessors and financiers in your jurisdiction?
A lessor need not be licensed or otherwise qualified in France to do business with a French company. All kinds of aircraft leases and engine leases may be entered into. Foreign law may apply to an asset located in France if the lease agreement is concluded between a foreign party and a French party.
The transfer of ownership of French-registered aircraft must be executed in writing and registered with the aircraft register. The registration is proof of valid title and includes all installed parts. There is no separate register for aircraft engines.
The French aircraft register is an owner's register. The legal owner, not the beneficial owner, is registered as the aircraft owner. Only dry leases may be registered. When a lease is registered, the aircraft's registered owner will no longer be jointly liable with the lessee for damage caused by the leased aircraft. The lessee alone will be liable, unless it can be proved that the owner has been negligent.
The sale of an ownership interest in an entity which owns an aircraft is not recognised as an aircraft sale.
7.6 What rules govern the detention and seizure of aircraft
Article L 6123-1 of the Transport Code provides that state-managed aircraft and aircraft used for public transport may be seized only in respect of:
- unpaid amounts due by the aircraft owner for its purchase; or
- unpaid amounts under training or maintenance contracts relating to the aircraft.
Other aircraft may be seized pursuant to the common rules applicable to enforcement measures available to unpaid creditors.
Article L 6123-2 of the Transport Code provides that the seizure of any aircraft may be allowed by court order in the event of unpaid airport or air navigation charges. The seized aircraft is released upon payment of the amounts due by the aircraft owner or operator.
8.1 How are airports owned and regulated in your jurisdiction?
French airports open to commercial flights fall into three categories:
- Paris Aéroports is a publicly listed company that owns and runs all airports located in the Ile-de-France region (including Roissy-Charles-De Gaulle, Orly and Le Bourget). Around 52% of its share capital is owned by the French State. Law 2019/486 of 22 May 2019 allowed the state to sell its shares to the private sector, but this has not yet happened due to political opposition.
- Major regional airports of national interest are operated by commercial companies holding a concession granted by the French state for a specified period. Most of these companies are owned by the state (which controls 60% of their share capital), together with local authorities. However, the State has been authorised by Article 191 of Law 2015/990 of 6 August 2015 to sell its stake in three of these companies, which operate Toulouse airport, Nice and Cannes airports and the Lyon airports (Saint-Exupéry and Bron). Toulouse airport is now controlled by Eiffage. The Lyon airports are controlled by Vinci Airport; and Nice and Cannes airports are controlled by a consortium called Azzura (including Atlantia and EDF Invest).
- Other regional airports have been transferred by the State to local authorities (Law 2004/809 of 13 August 2004).
Basel-Mulhouse Euro-Airport (which is based in the French territory) is a bi-national entity whose governance and operating rules are specified by a Franco-Swiss Convention of 4 July 1949.
8.2 What requirements must be satisfied to obtain airport authorisation in your jurisdiction? What is the procedure for obtaining authorisation?
Article L 6331-3 of the Transport Code provides that an airport safety certificate is required to operate a civil airport with commercial traffic above a certain number of passengers (which varies from 10,000 to 30,000 passengers on commercial flights per annum, depending on the location of the airport).
An operator applying for an airport safety certificate must submit a manual including all provisions and measures taken by the applicant to ensure security and compliance with applicable airport regulations. This certificate may be suspended or removed if the airport operator is in breach of its obligations.
In addition to this airport safety certificate, the infrastructure of all major regional airports is owned by the French state and the right to operate them is granted to airport operators through concession deeds.
8.3 What key safety and maintenance requirements apply to airports in your jurisdiction?
Operators must comply with International Civil Aviation Organisation and European Union safety requirements.
8.4 What requirements can airports impose on operators that use their facilities?
Airports may impose conditions of use on air carriers and service providers that use their facilities, relating for instance to safety concerns, efficiency of use, etc.
8.5 How are the following regulated in your jurisdiction: (a) Airport charges? (b) Slot allocation? (c) Air traffic control? and (d) Ground handling?
(a) Airport charges
For all major airports, an economic advisory committee (CoCoEco) – composed of representatives of airlines, professional organisations and airport management – is responsible for issuing a non-binding opinion on the annual rate of airport charges.
Major airports may enter into a multi-year economic regulation agreement (CRE) with the minister of transport. This agreement establishes a cap on increases in airport charges in light of the planned investment programme, and sets quality of service objectives as well as a related system of financial incentives. The airport operator must submit the draft content of the CRE for user consultation. In light of the opinions expressed by users, the operator will negotiate the content of the CRE with the Ministry of Transport. The final content, negotiated between the parties, must be approved by the Regulatory Authority for Transport (ART) before being signed.
For airports that have signed a CRE with the minister of transport, this agreement determines the conditions of charge increases over a five-year period. Rates are set annually thereafter by the operator in accordance with the ceiling specified in the CRE, after consultation with the CoCoEco. These rates are then tacitly or explicitly approved by the relevant supervisory authorities (ART for airports falling within the scope of EU Directive 2009/12/EC of 11 March 2009 on airport charges; and the General Directorate for Civil Aviation (DGAC) for other major airports).
For all other major airports in France that have not entered into a CRE, the airport operator submits a yearly tariff proposal to the CoCoEco, which issues a non-binding opinion. The proposal is then submitted to the relevant supervisory authority (ART for airports falling within the scope of EU Directive 2009/12/EC; and the DGAC for other major airports), which approves it or reject it. If the supervisory authority refuses the tariffs proposed, the airport can make a new tariff proposal within one month. If this new proposal is refused a second time, the tariffs remain unchanged for one year. After two years without approved tariffs on an airport, the supervisory authority may impose its tariffs on the concerned operator. To date, this has occurred for Nice airport.
Small airports are free to fix their tariffs as they wish (but may be constrained by the provisions of concession agreements).
(b) Slot allocation
Council Regulation (EEC) 95/93 sets out the principles of the slot coordination mechanism which applies in France. This mechanism is administered in each Member State by a coordinator, which must be an independent entity acting in a neutral, transparent and non-discriminatory way. In France, the Association for the Coordination of Schedules (COHOR), which is a non-profit organisation, has been designated as coordinator for the following airports: Roissy Charles-De-Gaulle, Orly, Lyon Saint-Exupéry and Nice-Côte d'Azur.
Air carriers that have operated their allocated slots for at least 80% of a scheduled period in the previous year are entitled to the same slots in the equivalent scheduling period of the following year. Slots that were operated for less than 80% are reallocated to other applying airlines. When slots become available, the coordinator must allocate half of them to new entrants, defined as companies holding less than 5% of the existing slots.
Due to the coronavirus epidemic the European Council and the European Parliament agreed to suspend from 1 March to 24 October 2020 the airport slot requirements which oblige airlines to use at least 80% of their take-off and landing slots in order to keep them the following year (Regulation (EU) 2020/459 of 30 March 2020). The European Commission is allowed by this Regulation to extend the waiver period if necessary.
Regulation (EEC) 95/93 also provides for a lighter mechanism, called ‘schedule facilitation', whereby a schedule facilitator is appointed to facilitate the operations of air carriers by recommending them relevant times to operate their air services. COHOR acts as schedule facilitator for the airports of Nantes Atlantique, Chambéry Savoie, Annecy Mont-Blanc and Figari Sud Corse.
COHOR is financed by coordination or schedule facilitation fees which were established by Decree 2017/60 of 23 January 2017. Its payment is split between air carriers and airport operators. Each must pay €2.10 per landing.
Infringement of slot regulation requirement may be financially sanctioned by a fine which is decided by the minister of transport. By exception, the Airport Nuisance Control Authority decides the fines for take-offs at Paris-Charles-de-Gaulle between 00:00 and 04:59 without an appropriate allocated slot.
(c) Air traffic control?
In France, air traffic control is operated by a service of the DGAC called Direction des Services de la Navigation Aérienne (DSNA).
Pursuant to Regulation (EC) 550/2004 and its implementing regulations, the provision of air navigation services is subject to certification. To obtain or retain certification, the DSNA must comply with the regulation's requirements relating to:
- technical and operational competence and suitability;
- systems and processes for safety and quality management;
- reporting systems;
- quality of services;
- financial soundness;
- liability and insurance cover;
- ownership and organisational structure;
- security; and
- human resources.
Implementing Regulation (EU) 391/2013 also establishes a common charging scheme for air navigation services.
(d) Ground handling?
In order to provide ground handling services at an airport, a company must obtain a licence which is granted by the local state representative with the airport operator's agreement.
The minister of transport may, at the request of an airport operator and under certain conditions, limit the number of companies providing ground handling services at the airport.
9.1 What specific challenges or concerns does the aviation sector present from a competition perspective? Are there any pro-competition measures that are targeted specifically at operators?
In May 2019 the International Air Transport Association (IATA) issued a report on French air transport competitiveness. This report benchmarked France against the rest of Europe across five key areas:
- Passenger facilitation: France has successfully implemented automated border control systems, but visa application processes are lengthy.
- Cargo facilitation: Adoption of digital cargo processes such as e-Air Waybill is low, but initiatives to improve cargo movement facilitation are underway.
- Supply chain management: France has among the highest passenger charges and taxes in Europe, increasing the cost of travelling by air and hampering connectivity.
- Infrastructure management: France could improve its capacity use of existing terminals and runways, to allow costs to be reduced in the short term, and create sufficient capacity for future longer-term growth.
- Regulatory environment: Many regulations that apply in France are inconsistent with smarter regulation principles – in particular, adopting a more systematic approach to consultation.
The report makes three key recommendations for France:
- Reform economic regulation, such as by strengthening the independent economic regulator, to ensure that charges are cost related and efficient.
- Implement a French air traffic management strategy to maximise capacity and efficiency of air traffic management.
- Adopt smarter regulation principles – for example, promoting offsetting rather than taxation to tackle carbon impacts from aviation.
On 29 September 2019 the French minister of economy declared that the insolvency of French airline XL Airways was due "in part" to the fact that Norwegian Air Shuttle – the third-largest European low-cost airline behind Ryanair and EasyJet – was "breaking prices" with the support of the Norwegian government. He announced his intention to file a complaint with the European Commission about the public aid that benefits Norwegian Air Shuttle.
9.2 How are forms of industry cooperation such as pooling, code-sharing, alliances and joint ventures treated from a competition perspective?
No sector-specific competition rules apply to pooling, code sharing, alliances and air carrier joint ventures. The aviation sector is governed by European and French competition law, like any other economic sector. At European level, the European Commission acts as competition authority and applies the rules set out in Article 101 of the Treaty on the Functioning of the European Union (TFEU), which prohibits anti-competitive agreements; and Article 102 TFEU, which prohibits abuse of dominant position. The commission also controls mergers which fall within the EU rules.
Regulation (EU) 2019/712 lays down rules on the conduct of investigations by the European Commission and on the adoption of redressive measures, relating to practices that distort competition between EU air carriers and third-country air carriers and cause or threaten to cause injury to EU air carriers.
The French Competition Authority also applies European competition law; if the case does not fall within the scope of European law, it will apply the similar rules which are set out in Section IV of the Commercial Code.
9.3 Does the aviation sector in your jurisdiction benefit from state aid? What forms does this typically take and what rules apply in this regard?
In February 2014 the European Commission adopted guidelines on state aid to airports and airlines.
These guidelines allow public authorities to support investments into airport infrastructure and equipment as well as, for a transitional period of 10 years, the operating losses of small airports (below 3 million passengers), before they become profitable. Since very small airports with annual traffic of less than 700,000 passengers may face specific difficulties, they may benefit from operating aid to cover losses without such a transitional period.
These guidelines also allow public authorities or publicly owned regional airports to grant, under certain conditions, "start-up aid" to airlines may as an incentive to create new routes. The criteria for granting start-up aid for routes from airports located in remote regions are more flexible.
In recent years the European Commission has concluded a number of cases regarding aid granted to airlines by French local authorities and airport operators controlled by local authorities, aimed at attracting or maintaining aircraft capacity at certain airports. The commission found that such aid was not in line with state aid rules – in particular, at the airports of Montpellier, Nîmes, Pau and Angoulême.
On 31 March 2020 the European Commission allowed France to defer some aeronautical taxes (the civil aviation tax and the solidarity tax) up to two years in order to help airlines affected by the coronavirus crisis. These taxes, which would normally be due between March and December 2020, will be postponed to 2021 and be payable over a 24-months period. This scheme was the first state aid measure notified by an EU Member State in order to mitigate the impact the coronavirus outbreak had on the airline sector. Its approval was based on Article 107 (2) (b) of the Treaty on the Functioning of the EU, which allows the Commission to declare compatible with the internal market measures aimed at "making good the damages caused by natural disasters or exceptional occurrences".
9.4 Are there any applicable obligations or incentives to ensure service on routes that are socially desirable, but not commercially viable (eg, to remote areas)?
Pursuant to European Regulation 1008/2008, Member States may impose public service obligations (PSO) in order to maintain appropriate scheduled air services on routes which are vital for the economic development of the region they serve. They must comply with the conditions and the requirements set out in Articles 16-18 of Regulation 1008/2008. There are limitations in the number of passengers which can be carried where the route can remain eligible for PSO.
In case no air carrier is interested in operating the route on which the obligations have been imposed, the Member State concerned may restrict the access to the route to a single air carrier and compensate its operational losses resulting from the PSO. The selection of the operator must be made by public tender at European level. The winning tenderer usually receives a monopoly on the route, but may have to conform to one or more conditions of service, such as the type and size of airplane, the timing of services, the maximum fare paid for a portion or all of the seats offered, quality of service measured by a maximum percentage of cancelled services, etc.
All impositions, modifications and abolitions of PSO as well as the corresponding calls for tenders must be announced in the Official Journal of the European Union.
In France around 40 routes are subject to PSO. The routes between mainland France and overseas territory (Guadeloupe, Martinique, Guyana, Réunion) are subject to PSO but are not subsidized. Routes to Corsica and to disadvantaged areas of mainland France are subsidized.
10.1 In which forums are aviation disputes typically heard in your jurisdiction?
Regulations and individual decisions (eg, decisions granting or denying a licence) issued by the minister of transport, the General Directorate for Civil Aviation and other public bodies may be challenged before the French administrative courts.
Other disputes are decided by the ordinary civil and commercial courts.
10.2 What issues do such disputes typically involve? How are they typically resolved?
The most numerous disputes before ordinary courts concern the rights of passengers in the event of flight delay or cancellation. Before the administrative courts, they concern appeals brought by airlines against decisions imposing sanctions for non-compliance with slots and noise regulations. Decisions on airport charges tariffs are also frequently challenged before the administrative courts. Privatisation of certain airports which were previously owned by the State have also been a source of litigation.
10.3 Have there been any recent cases of note?
On 10 April 2019, the Constitutional Council authorized in spite of the government's opposition the opening of a campaign to collect the number of citizens' signatures required to submit the privatisation of Paris Airports to a people's referendum. This forced the government to put on halt this privatisation. More than one million signatures were collected during the 9-month period during specified by law, whereas the more than four million were required.
Following a tender procedure, the French government sold 49% of the capital of the company which operates Toulouse airport, in April 2015, to a consortium of investors led by the Chinese company CASIL. Several unions and individuals challenged this decision before the French administrative courts. On 16 April 2019, the Paris Administrative Court of Appeal ruled in favour of the applicants and quashed the government's decision. The government referred the case to the Supreme Administrative Court (Conseil d'Etat), which ruled very quickly and reversed the decision of the Court of Appeal by a judgment rendered on 9 October 2019 (cases nos 430538 & 431689).
On 24 October 2019, a ruling of the European Court of Justice (ECJ) on passengers' rights put an end to a debate prompted by three successive decisions of the Court of Cassation. According to the Court of Cassation, in order to claim compensation, the usual proof of reservation was not enough, and passengers had to prove that they were present at check-in, and even at boarding. As a result, some airlines refused to compensate passengers who were unable to show a boarding pass. On referral of the District Court of Aulnay-sous-Bois, the ECJ issued an order (Case C-756/18) declaring that Article 3(2)(a) of Regulation 261/2004 must be interpreted as meaning that passengers on a flight with a delay of 3 hours or more on arrival who have a confirmed reservation on that flight cannot be denied compensation under that regulation solely on the ground that, upon claiming compensation, they failed to prove that they were present for check-in for that flight, in particular by means of a boarding card, unless it can be established that those passengers were not transported on the delayed flight at issue, which is matter for the national court to determine.
On 31 December 2019, the Supreme Administrative Court (Conseil d'Etat) issued a decision closing various cases related to Nice airport, which was privatised in 2016 and is now owned by a consortium led by the Italian Azzura. The Supreme Court confirmed the decision taken in 2018 by the Minister of Transport, which allows the airport to benefit from the "dual till" system. But it also confirmed the decision taken by the (now phased-out) Independent Supervisory Authority for airport charges to impose a 33.4% drop in Nice airport charges.
The recent case which received the greatest publicity does not concern airlines or airports but plane manufacturer Airbus, which reached at the beginning of 2020 a final agreement with the French Parquet National Financier (PNF), the U.K. Serious Fraud Office (SFO), and the U.S. Department of Justice (DoJ) resolving investigations into allegations of bribery and corruption. Airbus agreed to pay penalties of € 3,598 million plus interest and costs to the French, U.K. and U.S. authorities. France received the major part of this amount (€ 2,083 million). According to this agreement Airbus must submit its compliance programme to targeted audits carried out by the Agence Française Anticorruption (AFA) over a period of three years.
11 Trends and predictions
11.1 How would you describe the current aviation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
As elsewhere the airline industry has been hit extremely hard in France by the covid-19 crisis. During the general shutdown ordered by the governments around the world Air France-KLM reduced its activity to 5% of its normal flight schedule and put more of 80% of its staff on temporary leave. In April 2020 ADP decided to close Orly Airport, which usually hosts 600 flights and 90,000 passengers per day. And traffic in Charles-De-Gaulle, which remained open, dropped from 200,000 passengers per day to 10,000. Airbus reduced the pace of its aircraft manufacturing by about 50% and announced it would review its production forecasts after the resumption of economic activity.
Even if French operators may benefit from the "partial unemployment" scheme through which the State repays to employers most of the salary paid to staff placed in temporary inactivity, recovery will be very difficult. It is expected that the State will have to take additional measures in favour of air transport operators to help them overcome this crisis. It is reported that Air France-KLM could benefit from a €6 bn loan guaranteed by the French and Dutch governments and the French Minister for the Economy has declared that the French government could resort to a temporary nationalisation if necessary.
In this context it is highly unlikely that the privatisation of Aéroports de Paris, which was delayed by a failed attempt to submit this operation to a popular referendum, could be completed in 2020 or 2021.
12 Tips and traps
12.1 What are your top tips for operators in your jurisdiction and what potential sticking points would you highlight?
EU regulations require that an air carrier with an EU operating licence is majority owned and effectively controlled by EU shareholders (ownership and control rules). The practical implementation of these rules may sometimes be difficult in the absence of detailed rules or case law.
In general, France's regulations and bureaucratic procedures can be a difficult hurdle for companies wishing to enter the French market and require special attention from foreign new entrants. Complex safety standards, sometimes rigorously applied, may complicate access to the market. Operators wishing to enter the French market would be well advised to do their homework thoroughly and make sure they know precisely which standards apply and what steps they must complete to obtain timely testing and certification.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.