Spotlight: key liability issues for the aviation sector in Serbia

All questions

Legal framework for liability

i International carriage

The importance of regulating contractual legal relationships and damage caused by air traffic was recognized, and the Kingdom of Yugoslavia was one of the High Contracting Parties to the Warsaw Convention.9 Serbia, as a successor of the FRY, accepted the Montreal Convention (1999) a decade later, on 4 April 2010. By doing this, Serbia replaced the old Warsaw Convention and subsequent protocols with far more sophisticated and internationally uniform legal resolutions related to international air transport for determining the liability of air carriers and the corresponding compensation for damage to passengers, luggage and cargo. These changes have led to a different approach to carriers’ liability; the air carrier becomes liable for death or bodily injury of passengers (two instances) and thus gets a system that is far more equitable. Fairness is reflected in the quicker compensation of damage, which avoids unnecessary and expensive court processes and improves the protection of passengers. All this leads to a balance of the interests of carriers and passengers.

The amendments made to the Law on Amendments to the Obligations and Property and Legal Relations in Air Transport in accordance with the provisions of the 1999 Montreal Convention made concrete improvements in the field of passenger rights, prescribing a procedure on how travelers can enforce their rights. This was also done to comply with the regulations that apply in the EU, including Regulation 261/2004 on common rules in respect of damages and assistance to passengers in the event of denied boarding and flight cancellations or delays of flights, and Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility in air transport.

ii Internal and other non-convention carriage

For many years, Serbia has had two basic laws that regulate legal relations concerning aviation and air traffic. They are the Air Transport Law10 and the Law on Obligations and Basic Property Relations in Air Transport Law on Obligations and the Basics of Property Relations in Air Transport.11 The Air Transport Law regulates the public air transport sector. It is based on the provisions of the Chicago Convention and prescribes the jurisdiction of the Serbian authorities to act in aviation matters. It also empowers the CAD to issue by-laws and other documents that fully regulate air transport. Sinces its first issuance, the Air Transport Law has had five amendments, the most recent of which was at the beginning of 2020 and amended the chapter on aviation security in relation to security staff and security oversight.

The Law on Obligations and Basic Property Relations in Air Transport has, since 2011, dealt with private law matters in aviation and includes a number of original provisions as well as mirroring provisions found in foreign legislation and in the Montreal Convention 1999.

Other significant laws recently enforced are the Law on Accident Investigations for Aviation, Railways and Waterborne Transport of 201512 and the Law on Airport Management of 2016 (which is the most recent law adopted in the field of air traffic).13

iii General aviation regulation

Any air transport for commercial or non-commercial purposes is subject to the Air Transport Law, under Article 74. However, any type of flying is subject to the ‘Rules of the Air’ in Article 4a of the same Law. Serbian airspace is classified into three classes: C, D and G. As determined by the Regulation on Aircraft Operation,14 the rules of flight of airplanes carrying out general traffic in Serbian airspace are prescribed, as are the content, manner of submission, modification and closure of flight plans in general air traffic.

With the above-mentioned Regulation and the amendment to the Air Transport Law, Sections 1–5, 11 and 12, and Appendices 1–3 and 5 of the Annex to Commission Regulation (EU) No. 923/2012 of 26 September 2012, were replaced.

The key subjects in Serbian air traffic such as airlines, airport operators, SMATSA as ANSP, aeronautical technical organizations and organizations designated by the CAD are primarily responsible for the safe conduct of their business and services, as well as making sure that employees perform their tasks safely.

iv Passenger rights

The provisions on the rights of passengers in the event of refusal of boarding, flight cancellation or long delay are dealt with by Article 19 of the Law on Obligations and Basic Property Relations in Air Transport. If an airline that denies boarding, cancels a flight or incurs long delays fails to comply with the legally prescribed procedure, it is necessary to address the passenger aviation authorities and the CAD. The CAD prescribes the procedure for passengers who have been denied rights to file claim forms with the air carrier or the CAD. There are additional documents that clarify the legal provisions of the Law on Obligations and Basic Property Relations in Air Transport. The CAD has issued rules on the rights of passengers in cases of denied boarding, flight cancellations or delays of flights and accommodation in economy class and the rights of passengers with disabilities and reduced mobility. The CAD is competent to supervise and ensure the implementation of the provisions of the Act relating to the right of passengers in denied boarding, cancellation or flight delays or investigate when the provisions have violated the rights of persons with disabilities and reduced mobility.

Considering that the pandemic is not officially over, the EU recommendations from 202015 and government Regulation 343-3718 / 2020-1 recommending airlines to issue a voucher to passengers for flight cancellations due to extraordinary circumstances caused by covid-19, continue to form the basis for passengers to exercise their rights.

v Other legislation Travel

In addition to the provisions governing the conditions and manner of planning and development of tourism, and tourist organizations for the promotion of tourism, the Law on Tourism16 defines the work of travel agencies and tour operators as being to protect tourists and users of services of travel agencies. The provisions governing the relationship of each airline and travel agency or operator is determined by Article 2, Paragraphs 1 and 2, and Articles 4 and 7 of the Law on Obligations and Basic Property Relations in Air Transport. These Articles regulate contractual matters in air transport and general conditions of air transport.

The emergence of covid-19 was the reason for the government suspending air operations for all commercial flights in Serbia during the spring of 2020,17 causing complete disruption to the work of travel agencies organizing air travel.

Covid-19 has caused major disruption in the tourism and air transport sectors, and there remain epidemiological risks. Therefore, the Serbian government still recommends its citizens to check with the Ministry of Foreign Affairs before traveling to see if there are any epidemiological restrictions for the particular country to which they want to travel.

Environmental

The Air Transport Law, in Section 9, Articles 200 and 203, covers the question of regulating environmental protection, the duties of the airport operator, the permissible noise levels and emissions at airports, measurement of noise and the area of ​​noise protection. In practice, rules related to this topic completely rely on provisions in Directive 2002/49 / EC, as well as Recommendation 2003/613 / EC. The Minister of Transport is responsible for enforcing these Directives, with the consent of the Minister of Environmental Protection.18

Serbia plans to adopt a regulation on operating restrictions related to noise emissions at airports, which would be superseded by Regulation (EU) No. 598/2014.

When it comes to specific airport operators, environmental issues related to noise in particular have been topical in recent years and this has related primarily to Belgrade Airport. Specifically, Belgrade Airport has recently experienced a significant increase in traffic and has acquired hub status, exceeding the limit of 50,000 operations a year.19 As Belgrade Airport is regulated by European regulations that have been transposed into national frameworks, it is now obligatory to measure noise at the Airport continuously and to develop strategic noise maps.20 In addition to the above, Belgrade Airport has joined the Airport Carbon Accreditation (ACA) program and accordingly has obtained an ACA certificate.21

The CAD’s areas of competence include supervising environmental protection activities, especially through the supervision of aircraft airworthiness and airport-related matters. In accordance with the prescribed environmental standards, the CAD has the obligation to provide information within 48 hours if there is a threat to environmental protection in relation to civil aviation.22

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