Information day on EUROCONTROL Guidance Material on the application of Common Requirements for Service Provision LIABILITY AND INSURANCE ISSUES Nathalie LE CAM, EUROCONTROL Legal Service European Organisation for the Safety of Air Navigation

2. SES legal framework Regulation 2096/2005 on common requirements for the provision of air navigation services Regulation 2096/2005 on common requirements for the provision of air navigation services Generic provisions Granting of certificates, Derogations, Demonstration of compliance Ongoing compliance, Peer review Annex I - General requirements for the provision of ANS Organisational structure and management, Safety and quality management Security, Human resources, Financial strength, Liability and insurance, Quality of services, Reporting Annex II Specific requirements for the provision of ATS Annex III Specific requirements for the provision of MET Annex IV Specific requirements for the provision of AIS Annex V Specific requirements for the provision of CNS

1. Overview of liability aspects Annex 1, paragraph 7 of Regulation on Common requirements: « An air navigation service provider shall have in place arrangements to cover its liabilities arising from applicable law. The method employed to provide the cover shall be appropriate to the potential loss and damage in question, taking into account the legal status of the service provider and the level of commercial insurance cover available. An air navigation service provider which avails itself of services of another air navigation service provider shall ensure that the agreements cover the allocation of liability between them. »

1. Risks and liabilities Death or bodily injury to passengers Damages to aircraft Damages to third parties to third parties (death or bodily injury) Damage to third parties third parties(property) Delay Damage to baggage or cargo Potential loss and damage: examples of aviation specific liabilities

1. Risks and liabilities Applicable law (I) International Conventions :  No international treaty on the liability of air navigation service providers  Warsaw, Montreal, Rome : only liability of air carriers; (unlimited) liability + right of recourse action  Article 28 of the Chicago Convention, the provision of air navigation facilities is a State’s responsibility.

1. Risks and liabilities Applicable law (II) Community law  No European provision on the liability of air navigation service providers  Some Regulations on air carriers liability and insurance obligations: n° 2407/92 of on licensing of air carriers, + n° 785/2004 of on insurance requirements for air carriers National law  Generic provisions on contractual and non-contractual liability in civil law  Possible specific offences in criminal law  Possible specific provisions in air law

1. Risks and liabilities An air navigation service provider :  Is subject to a right of recourse action by Air Carriers, or to direct actions by victims  May be held liable for all sorts of prejudice, including death and bodily injuries, damages to property and delays,  May be held liable for unlimited amounts  Actual level of liability will depend on type of activities and on law applicable to accident

2. Coverage and insurance Coverage methods ANSP State guarantee Commercial insurance Bank guarantee Fund Cash deposit Etc..

2. Coverage and insurance Specifications for coverage  « Appropriate » to the potential loss and damage  Level of potential damage linked to activities of the ANSP  Level of potential damage determined by applicable law (firstly national law)  Analysis of risk assessment results useful  Taking into account the legal status of ANSP  Level of separation with the State may determine the type of cover  State-owned ANSPs may enjoy State guarantee  Taking into account the level of commercial insurance available  With regard to the type of risks (e.g. war and terrorism risks)  With regard to the amounts insured (currently maximum 1,5 billion $)

3. Liability in delegation of services Delegation of air traffic services and/or buy-in of air navigation services  Need for a written agreement between the two service providers  Need for a clear description of services subject of the Agreement  Need for an allocation of liability (the provider of the service ?)  Notification to the NSAs  Need for a State prior approval for ATS (and MET where applicable)

4. Conclusion Recommended actions for the ANSPs 1. Assess and document their potential liability  Qualify the type of activities  Analyse the risks (cf. risk assessment exercise)  Examine the national law and requirements (limits of liability? minimum insurance level ?) 2. Ensure appropriate coverage  Conclude a commercial insurance policy and / or  Obtain (written) guarantee by the State (and/or by any other means) 3. Ensure appropriate legal basis for delegation or buy-in of services