1.1 Please list and briefly describe the principal legislation and regulatory bodies which apply to and/or regulate aviation in your jurisdiction.
The Department of Transport, Tourism and Sport ("DOTTS"), is the Government department responsible for aviation policy in Ireland. It is assisted in carrying out its functions by the following public bodies:
- The Commission for Aviation Regulation ("CAR").
- The Irish Aviation Authority ("IAA").
- The Air Accident Investigation Unit ("AAIU"), which is responsible for air accidents that take place in Ireland and air accidents that occur outside Ireland involving Irish registered aircraft.
- The Environmental Protection Agency ("EPA"), which is responsible for the implementation of the EU emissions trading scheme.
The key functions performed by CAR are:
- regulation of airport charges at Dublin airport and air traffic control charges at airports with more than 1 million passengers per year;
- licensing of air carriers under EU Regulations;
- regulation of tour operators and travel agents;
- approval of ground handlers;
- overseeing slot allocation at Dublin airport in accordance with EU law; and
- overseeing consumer protection in the aviation sector, including the application of EU Air Passenger Rights and Rights of Persons with Reduced Mobility.
The key functions performed by the IAA are:
- provision of air traffic management and related services in Irish controlled airspace and on the North Atlantic;
- the safety regulation of the civil aviation industry in Ireland;
- the oversight of civil aviation security in Ireland; and
- the registration of aircraft in Ireland.
The principal aviation legislation applicable in Ireland is as follows:
- the Air Navigation and Transport Acts 1936–1998;
- the Irish Aviation Authority Act 1993 (as amended);
- the Package Holidays and Travel Trade Act 1995 (as amended);
- the Aviation Regulation Act 2001 (as amended);
- the Air Navigation and Transport (International Conventions) Act 2004 (as amended);
- the International Interests in Mobile Equipment (Cape Town Convention) Act 2005 (as amended);
- the Aviation Act 2006;
- the Air Navigation (Notification and Investigation of Accidents, Serious Incidents and Incidents) Regulations 2009;
- the State Airports Act 2004 (as amended);
- the State Airports (Shannon Group) Act 2014;
- EC (Access to the Ground Handling Market at Community Airports) Regulations 1998 (S.I.505/1998);
- EC (Common Rules for the Operation of Air Services in the Community) Regulations 2008 (S.I.426/2008);
- EC (Rights of Disabled Persons and Persons with Reduced Mobility when Travelling by Air) Regulations 2008 (S.I.299/2008);
- Regulation EC/95/93 (as amended by Regulation (EC) No 793/2004) on common rules for the allocation of slots at community airports;
- Regulation EC/261/2004 establishes common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights;
- Regulation EC/1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air;
- Regulation EC/1008/2008 (as amended by Regulations (EU) 2018/1139, 2019/2 and 2020/696) on common rules for the operation of air services in the community;
- Regulation EU/373/2017 (as amended by Regulation (EU) 2020/469) – the Air Traffic Management Common Requirements Implementing Regulation (ATM/IR);
- Commission Delegated Regulation (EU) 2019/945 (as amended by Commission Delegated Regulation (EU) 2020/1058) on unmanned aircraft systems and on third-country operators of unmanned aircraft systems, and Commission Implementing Regulation (EU) 2019/947 (as amended by Commission Implementing Regulations (EU) 2020/639 and 2020/746) on the rules and procedures for the operation of unmanned aircraft; and
- Irish Aviation Authority (Standardised Rules of the Air) Order 2019 (S.I.266/2019).
1.2 What are the steps which air carriers need to take in order to obtain an operating licence?
An aircraft operator involved in commercial air transport must be the holder of a valid Air Operator Certificate ("AOC") issued by the IAA and a valid Air Carrier Operating Licence ("ACOL") issued by CAR.
In order to qualify for an ACOL, an applicant must satisfy all of the conditions for granting an operating licence set out in Article 4 of principal regulation EC1008/2008.
The applicant must, among other things, have its principal place of business and registered office (if any) in Ireland, and its main occupation must be air transport, in isolation or combined with any other commercial operation of aircraft or repair and maintenance of aircraft.
The applicant must also meet the ownership and control requirements of the legislation (i.e. Member States and/or nationals of Member States own more than 50% of the undertaking and effectively control it).
In addition, applicants must meet requirements regarding financial fitness and insurance cover.
1.3 What are the principal pieces of legislation in your jurisdiction which govern air safety, and who administers air safety?
The IAA is responsible for administrating Ireland's international aviation safety obligations and agreements in accordance with standards set by the International Civil Aviation Organisation ("ICAO") and the European Aviation Safety Agency ("EASA").
The Safety Regulation Division of the IAA ensures specific compliance with safety objectives set down under section 14 of the Irish Aviation Authority Act 1993 and the annexes to the Chicago Convention, which are implemented through a combination of EU and domestic Irish legislation.
The IAA's remit with respect to safety includes certification and registration of aircraft airworthiness, licensing personnel and organisations involved in aircraft maintenance, incident reporting and management, the protection, storage and collection of information, licensing pilots, air traffic controllers and aerodromes and approving and monitoring air carrier operating standards.
There are EU safety regulations relating to initial and continuing aircraft airworthiness that are directly effective in the EU (including Ireland), for example: Regulation (EU) 2018/1139 on common rules in the field of civil aviation and establishing a European Union Safety Agency; Regulation (EU) No 748/2012 regarding the implementation of essential requirements for airworthiness and environmental protection; and Regulation (EU) No 1321/2014 (as amended and updated by EU Commission Implementing Regulations 2019/1383, 2019/1384, 2020/270 and 2020/1559), relating to the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks.
In April 2019, the European Commission adopted performance targets for air navigation services for the period 2020–2024. (Commission Implementing Decision (EU) 2019/903 of 29 May 2019.)
1.4 Is air safety regulated separately for commercial, cargo and private carriers?
No, the IAA regulates commercial cargo and private carriers.
1.5 Are air charters regulated separately for commercial, cargo and private carriers?
No, the IAA and CAR regulate the sector.
1.6 As regards international air carriers operating in your jurisdiction, are there any particular limitations to be aware of, in particular when compared with 'domestic' or local operators? By way of example only, restrictions and taxes which apply to international but not domestic carriers.
The creation of the EU single market for aviation in the 1990s removed all commercial restrictions on airlines flying within the EU. Under the single market, all EU carriers can operate services on any intra-EU route.
Outside the EU single market, access to the air transport market is still heavily regulated under the framework set down in the Chicago Convention. Under the Chicago Convention, Ireland has negotiated bilaterally with a wide range of States to agree market access rights for both passenger and cargo services. A list of States with which Ireland has a bilateral air transport agreement is available on DOTTS' website: (Hyperlink) . Following the "Open Skies" judgment in the European Court of Justice in 2002, all market access rights negotiated by each of the EU Member States in their bilateral agreements must be equally available to all EU carriers.
Furthermore, under the EU's external aviation policy, the European Commission has been mandated to negotiate air transport agreements on behalf of the EU and its Member States with certain third countries. Under this process, so-called "Open Skies" agreements have been negotiated, removing restrictions on capacity, routing and other limits, creating a free market for services between the parties to that agreement.
Most bilateral air transport agreements require that substantial ownership and effective control be maintained by nationals of each party to the agreement. Within the EU, community airlines are required to be at least 50% owned by EU nationals. The EU has indicated its willingness to negotiate these current ownership and control limitations with States prepared to similarly waive the requirement on a reciprocal basis. However, progress on this matter has been slow.
1.7 Are airports state or privately owned?
The three main airports (Dublin, Cork and Shannon) are publicly owned commercial airports. These airports are owned by state-owned commercial companies, with Dublin and Cork airports owned by daa plc and Shannon Airport owned by Shannon Airport Authority DAC.
1.8 Do the airports impose requirements on carriers flying to and from the airports in your jurisdiction?
Aviation terminal services charges are levied by the IAA on users at Dublin, Shannon and Cork airports. Dublin Airport is the only Irish airport currently subject to economic regulation of the charges it imposes on airlines. Economic regulation of charges at Dublin Airport is based on the Aviation Regulation Act 2001 and is implemented by CAR.
1.9 What legislative and/or regulatory regime applies to air accidents? For example, are there any particular rules, regulations, systems and procedures in place which need to be adhered to?
The AAIU is responsible for conducting technical investigations into air accidents in Ireland, as well as incidents outside of Ireland involving Irish-registered aircraft.
The Air Navigation (notification and investigation of accidents, serious incidents and incidents) Regulations 2009 ("2009 Regulations") give effect to the requirements of Annex 13 of the Chicago Convention and give the AAIU the powers it needs to carry out full and detailed technical investigations.
EU Regulation 996/2010 on the Investigation and Prevention of Accidents and Incidents in Civil Aviation (as amended by Regulation (EU) 376/2014 and 2018/1139) is directly applicable in Ireland.
Following an investigation, the AAIU will issue safety recommendations to the appropriate aviation authority. The AAIU does not purport to apportion blame or liability in respect of an accident.
Impact of Brexit on EU Aviation
While much mention has been made in the press regarding the default application of World Trade Organization ("WTO") rules to the UK in the event of a no-deal exit from the European Union, it should be noted that WTO rules do not apply to the aviation industry. There is no safety net. In this context, and in light of the growing possibility of a no-deal Brexit, the Commission in March 2019 rushed out rudimentary measures to temporarily govern traffic rights and regulation. While these measures were designed to mitigate the effects of the UK leaving without a withdrawal agreement, commentators have noted it appears reasonable to assume that the measures would govern air transport from 1 January 2021 if the transition period ends without a new agreement being entered into.
So, what does the Commission's plan entail and what are the potential issues that may arise?
Two measures have been adopted:
- to ensure temporarily (for 12 months) the provision of certain air services between the UK and EU; and
- to extend temporarily (for nine months) the validity of certain aviation safety licences.
The Commission measures cover direct flights, looking to ensure that point-to-point flights by a UK airline from the UK to Europe (and vice versa) will be allowed to continue, pending implementation of new permanent arrangements. However, the measures do not provide specific guidance regarding intra-European flights (so, for example, BA flights from London to Paris will continue to be allowed but there is a question mark over the status of an onward BA flight from Paris to Rome).
Currently, in order to maintain an operating licence for intra-EU flights, EU rules require that air carriers be majority EU owned and controlled. It should be noted in this context that Ryanair and Iberia, for example, are both UK companies. Absent specific guidance in the Commission measures, there is a tangible possibility that a Ryanair flight from Dublin to Prague, or an Iberia flight from Madrid to Berlin, will not be permitted following a no-deal Brexit.
Ryanair and Iberia each point to their ability to restrict voting rights for non-EU shareholders as sufficient qualification under the EU ownership rules. It is important to note, however, that while Michael O'Leary, Willie Walsh, the Spanish government (Iberia, Vueling) and the Irish Commission for Aviation Regulation (Aer Lingus) have all made reassuring noises on these lines, the drawing of a distinction between economic and voting rights as a basis for ownership qualification is not something that has ever been countenanced by the EU. Even in a best-case scenario, i.e. that the Commission is minded to allow this, it would require specific EU dispensation, and it remains to be seen what quid pro quo the EU may ask for in return.
The measures, in addition, state that flights will be capped at 2018 numbers, and there is no provision to allow the opening of new routes or the expansion, constriction or scrapping of existing routes. So, even on a liberal interpretation, the temporary rules will be extremely limiting for certain airlines and routes.
All of this is quite apart from the burden that the UK faces in negotiating multiple individual air services agreements to regulate bilateral travel access rights once the transitional period is over.
Over the past 50 years, a complex layer of aviation legislation has developed governing manifold areas around air safety and security (much of which the UK was at the forefront in formulating, developing and implementing, perhaps somewhat ironically). The European Union Aviation Safety Agency ("EASA") is the organisation tasked with certifying, regulating, standardising, investigating and monitoring European aviation safety.
With a no-deal Brexit, the UK immediately ceases to be a member of EASA. The Commission measures provide a bare-bones, short-term arrangement for continued recognition of certain licences, pending implementation of permanent arrangements.
The UK Government has confirmed that the UK will leave EASA once the transition period comes to an end on 31 December 2020. Prior to the announcement, various aviation industry bodies had noted the huge task it would be for the UK to build an independent regulatory framework and voiced concerns on how this could be done within the nine-month transitional period provided for by the Commission measures (even the most optimistic analysis estimates that it would take five to 10 years for the UK Civil Aviation Authority to rebuild its safety regulation capability). It had previously been anticipated that the UK would seek third-country membership (there is precedent for this – Switzerland currently occupies a third-country position); however, the UK has decided against this option in favour of leaving EASA.
1.10 Have there been any recent cases of note or other notable developments in your jurisdiction involving air operators and/or airports?
COVID-19 has had particularly severe economic consequences for the airline industry. We have already seen and expect to continue to see a significant amount of restructuring and/or enforcement in relation to the airline industry.
In April 2020, Cityjet successfully applied to the Irish High Court for the appointment of an examiner, and the associated protections. The examiner successfully formulated a scheme of arrangement which received the necessary level of support from creditors and was approved by the High Court in August 2020, thereby allowing the business to emerge from examinership.
In July 2020, the High Court approved a scheme of arrangement which was put together by Nordic Aviation Capital (under Part 9 of the Companies Act 2014 (the "CA2014"), as distinct from a scheme formulated by an examiner where one is appointed). The scheme involved the restructuring of the terms of debt owed to Nordic's secured and unsecured creditors. Nordic's total level of debt exceeded US$5 billion. In September 2020, the High Court published a detailed written judgment in which it addressed a number of important issues, such as: (i) the jurisdiction of the Irish courts to hear schemes where creditors are located in various jurisdictions; (ii) ancillary releases of the obligations of sureties within a corporate group; and (iii) the possible impact of the Cape Town Convention on this type of restructuring. The Nordic decision should lead to an increased use of Ireland as a venue of choice for international restructuring, particularly in the aviation sector, and even though it involved a scheme of arrangement, the judgment goes towards clarifying the approach of the Irish courts as regards the potential impact of the Cape Town Convention and, in particular, the Aircraft Protocol (Alternative A) on restructurings carried out under Part 9, albeit that the Court in Nordic did not ultimately have to decide the potential issues arising.
Originally published by International Comparative Legal Guide to Aviation Law 2021.
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