Legal provisions of COM(2003)454 - Insurance requirements for air carriers and aircraft operators (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)

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dossier COM(2003)454 - Insurance requirements for air carriers and aircraft operators (presented by the Commission pursuant to Article 250 (2) of ...
document COM(2003)454 EN
date July 23, 2003

Contents

Article 1 - Objective

The objective of this Regulation is to define minimum insurance requirements in respect of insurance regarding passengers, others on board, baggage, mail, cargo and third parties, that air carriers and aircraft operators have to respect to be allowed to operate services within, into or out of the Community or to fly over the territory of Member States to which the Treaty applies.

Article 2 - Scope This Regulation shall apply

a) to all air carriers flying to or from an airport situated in the Community and/or flying over the territory of a Member State operating a scheduled or non-scheduled flight;

b) to all aircraft operators flying to or from an airport situated in the Community or flying over the territory of a Member State carrying passengers and their baggage, mail and/or cargo with or without remuneration or hire;

c) This Regulation shall not apply to carriage by air of passengers, mail and/or cargo, performed by non-power driven aircraft and/or ultra-light power driven aircraft . In respect of these operations, national law concerning insurance requirements in the event of accidents shall apply.

Article 3 - Definitions

For the purposes of this Regulation:

(a) 'air carrier' shall mean an air transport undertaking with a valid operating licence;

(b) 'Community air carrier' shall mean an air carrier with a valid operating licence granted by a Member State in accordance with the provisions of Council Regulation (EEC) 2407/92 of 23 July 1992 of licensing of air carriers;

(c) 'aircraft operator' shall mean a natural person residing in a Member State or a legal person established in a Member State using one or more aircraft in accordance with the regulations applicable in that Member State, as provided for in Council Regulation (EEC) No 3922/91 , or a natural person residing outside the Community or a legal person established outside the Community using one or more aircraft in accordance with the regulations of the country of residence or establishment;

Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation, OJ L 373 , 31/12/199, p.4 - 8

(d) 'insurer' shall mean an undertaking, which has received official authorisation in accordance with Article 6 of Council Directive 73/239/EEC , or a non-member-country undertaking, which would require authorisation in accordance with Article 6 of Directive 73/239/EEC or Article 6 of Directive 79/267/EEC if it had its registered office in the Community;

OJ L 228, 16.08.1973,p. 3

(e) 'insurance''shall mean the policy contract setting the conditions whereby the insurer agrees to indemnify the insured for all insured loss up to the limit of liability for all insured perils, in respect of incidents which occur during the policy period; insurance shall also mean the policy contract where the insured perils are acts of war, terrorism, hijacking, act of sabotage, unlawful seizure of aircraft, civil commotion or labour disturbances;

(f) "insurer's principal place of business" shall mean the location of the insurer's headquarters or, alternatively, the place from which the majority of the undertaking's operations are managed on a day to day basis;

(g) 'incident' shall mean the occurrence or series of occurrences having the same origin, in which an aircraft causes damage to passengers, baggage, cargo, mail and/or third parties on the surface and/or in the air. Where an incident consists of a series of occurrences, it shall be treated as having occurred on the date of the first such occurrence. Incidents shall be understood to cause accidentally damage to passengers, baggage, cargo, mail and/or third parties on the surface and/or in the air, or because of acts of war, terrorism, hijacking, act of sabotage, unlawful seizure of aircraft, civil commotion or labour disturbances;

(h) 'flight' shall mean the beginning of the operations of departure including the boarding or loading onto the aircraft of the passenger and/or baggage until the end of the operations of arrival including the disembarkation or unloading of baggage from the aircraft and where the aircraft has come to a complete stop;

(i) 'air service' shall mean a flight or a series of flights carrying passengers, cargo, and/or mail irrespective of remuneration and/or hire;

(j) 'scheduling period' shall mean either the summer or the winter season as used in the schedules of air carriers;

(k) 'SDR' shall mean a Special Drawing Right as defined by the International Monetary Fund in 1969, as an international reserve asset, to supplement members' existing reserve assets (official holdings of gold, foreign exchange, and reserve positions in the International Monetary Fund) ;

SDRs are determined daily by the International Monetary Fund. The SDR rate on 5 September 2002 was set at: SDR/Euro 0.747385 -- Euro/SDR 1.338000

(l) 'MTOW' shall mean the Maximum Take Off Weight, which corresponds to a certified amount specific to each aircraft type as stated in the certificate of airworthiness of the aircraft;

(m) 'passenger' shall mean any person, excluding on-duty members of the flight and cabin crew, who makes a journey by air.

Article 4 - Principles of insurance

1. Community air carriers and aircraft operators operating aircraft registered in the Community, as well as other air carriers and aircraft operators operating air services into the Community and/or flying over Community territory, shall be insured in respect to their liability for damage sustained on the territory of a Member State and for which a right to compensation exists.

Article 5 - Compliance

1. The insurance shall be effected by an insurer authorised to effect such insurance under Community law or the laws of:

- the country which has delivered an operating licence to the air carrier concerned, or

- the country where the aircraft is registered, or

- the country where the insurer has its residence or principal place of business.

This paragraph shall not affect the rights of Member States to define the prudential conditions under which an insurer non-authorised according to Article 6 of Council Directive 73/239/EEC may conduct business in its territory.

2. Air carriers and aircraft operators registered in a third country, shall provide alternatively to the insurance requirements referred to in paragraph 1, any of the following securities:

A cash deposit in a depository maintained in the country having granted a valid operating licence to the air carrier concerned, or having delivered the air operator's certificate to the aircraft operator concerned;

A guarantee issued by a bank authorised to do so by the country of registration of the aircraft and whose financial responsibility has been verified by that country;

A guarantee issued by a bank authorised to do so by the country of registration of the aircraft, if that country undertakes that it will not claim immunity from suit in respect of that guarantee.

3. Air carriers and aircraft operators shall deposit an insurance certificate issued in accordance with paragraph 1 or any of the securities provided for in paragraph 2 with the competent authorities of Member State(s) concerned before the beginning of each scheduling period. Depositing evidence of insurance in one Member State shall suffice for all Member States.

For the purpose of application of the present paragraph, Member State concerned shall mean the Member State(s) which has issued an operating licence to an air carrier or the Member State where an aircraft has been registered and the Member State responsible for the airport to and from an air service is operated.

Member States overflown shall also require that air carriers and aircraft operators produce evidence that insurance has been effected in accordance with the present regulation.

4. Where an air service consists of series of flights, all air carriers or aircraft operators concerned shall meet the requirements stipulated in the present Regulation.

5. Where the insurance or the guarantee or the security expires during a flight, air carriers shall ensure that it shall continue to be in force until the next safe landing of the aircraft specified in the flight plan.

Article 6 - Passenger, baggage, mail and cargo liability

1. Where passengers are carried by air, all air carriers shall be insured to cover their liability for death, wounding or any other bodily injury sustained by a passenger for the minimum amount of 250 000 SDRs per passenger. Such insurance shall be understood to also cover damage sustained in the case of destruction or loss of, or damage to checked baggage of a passenger, upon condition only that the event causing the damage took place in the period during which the checked baggage was in the charge of the carrier, or its servants or agents.

This provision shall apply mutatis mutandis to aircraft operators.

2. In case of aircraft operated under short term lease agreements with or without crew minimum insurance requirements have to be met by the air carrier actually performing the flight.

3. Where cargo is carried by air, air carriers and aircraft operators shall be insured to cover their liability for damage sustained in the event of the destruction or loss of, or damage to cargo carried for the minimum amount of 17 SDRs per kilogram upon condition that the event, which caused the damage so sustained, took place during the flight.

4. Where mail is carried by air Member States shall set the minimum insurance requirements in value for the carriage of mail by air carriers and/or aircraft operators without discrimination on grounds of nationality or identity of the air carrier or the aircraft operator.

5. The values referred to in this Article may be amended as appropriate including where changes in international law indicate the necessity of such decision, in accordance with the procedure laid down in Article 9 (2).

Article 7 - Third Party Liability

1. Insurance to cover liability vis-à-vis third parties shall be understood to cover any damage caused by an aircraft in flight or on the ground or by any person or thing falling therefrom to third parties, for each aircraft and incident, only if the damage is a direct consequence of the incident giving rise thereto, and

a) for which the air carrier or aircraft operator concerned is held liable according to national laws of the Member State where the incident has occurred, or

b) was due to an act of war, or hijacking, or sabotage, or terrorism, or civil commotion or social disturbance intended to affect the operation of the aircraft and was due to the negligence or other wrongful act or omission of the air carrier or its servants or agents or the aircraft operator.

This provision shall apply mutatis mutandis to aircraft operators, where the aircraft is registered in a third country.

2. All air carriers shall be insured for damages sustained by third parties in the event of accidents as well as acts of war and acts of terrorism. The minimum insurance requirements shall be understood to cover the following categories of aircraft:

Category 1: aircraft with a MTOW < 2 000 kg 1,5 million SDRs

Category 2: aircraft with a MTOW < 6 000 kg4,5 million SDRs

Category 3: aircraft with a MTOW < 14 000 kg 9million SDRs

Category 4: aircraft with a MTOW < 25 000 kg 80 million SDRs

Category 5: aircraft with a MTOW < 50 000 kg 270 million SDRs

Category 6: aircraft with a MTOW < 200 000 kg 400 million SDRs

Category 7: aircraft with a MTOW > 200 000 kg 600 million SDRs

This provision shall apply mutatis mutandis to aircraft operators, where the aircraft is registered in the Community.

3. Air carriers operating flights to and from any airport situated on the territory of a Member State or flying over the territory of a Member State shall produce evidence that they observe at all times the minimum insurance requirements referred to in paragraph 2.

This provision shall apply mutatis mutandis to all aircraft operators.

The values referred to in paragraph (2) as applied to paragraph (1) (b), shall be limited in the aggregate to amounts available in the commercial insurance market from time to time.

4. In case of aircraft operated under short term lease agreement with or without crew, minimum insurance requirements have to be met by the air carrier bearing the operating risk of the flight.

5. The values referred to in this Article may be amended as appropriate including where changes in international law indicate the necessity of such decision, in accordance with the procedure laid down in Article 9 (2).

Article 8 - Enforcement

1. Member States shall perform regular and, where appropriate, additional unannounced inspections to verify that air carriers using airports in their territory, or Community air carriers to which they have delivered an operating licence, or aircraft operators to which they have issued an aircraft operator's certificate according to Council Regulation (EEC) N° 2407/92 comply with the provisions of the present Regulation.

This provision shall apply mutatis mutandis to aircraft operators whichever the place of registration of the aircraft.

2. Where appropriate Member States concerned may request additional evidence from the air carrier, the aircraft operator or the insurer concerned.

3. Where Member States concerned are not satisfied that the conditions of the present Regulation are met, they shall refuse the air carrier or aircraft operator from a third country access to routes into or within the Community or the right to overfly their territory.

4. Where Member States concerned are not satisfied that the conditions of the present Regulation are met before or after an aircraft has landed at an airport in their territory, they shall not allow the aircraft to take-off, before the air carrier or aircraft operator concerned has produced a valid insurance certificate according to the present Regulation.

Article 9 - Committee

1. The Commission shall be assisted by the committee instituted by Article 11 of Regulation (EEC) N° 2408/92.

2. Where reference is made to decisions taken pursuant to paragraph 1, the regulatory procedure laid down in Article 5 of Decision 1999/468/EC shall apply, in compliance with Article 7 and Article 8 thereof.

3. The period provided for in Article 5(6) of Decision 1999/468/EC shall be three months.

4. The committee referred to in this Article may furthermore be consulted by the Commission on any other matter concerning the application of this Regulation.

Article 10 - Report and cooperation

1. The Commission shall submit a report to the European Parliament and the Council on the operation of this Regulation at least three years after its entry into force. The report shall address in particular the functioning of articles 5, 6, 7 and 8.

2. Member States shall upon request submit information on the application of this Regulation to the Commission.

Article 11 - Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.