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Repatriation Flights

Repatriation Flights

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The height of the COVID-19 pandemic and the travel bans related thereto forced numerous airlines to cancel their flights and left passengers stranded far away from their homes. In many cases, these passengers were only able to return home by using special flights organised by their states – so-called repatriation flights.

In its ruling regarding case C-49/22 the European Court of Justice (ECJ) answered key questions raised by the Austrian Regional Court Korneuburg in connection with repatriation flights.

In the case at hand, the claimant booked (as part of a package holiday) the flights OS 17, scheduled for 7 March 2020 from VIE to MRU, and OS 18, scheduled for 20 March 2020 from MRU to VIE, both to be operated by Austrian Airlines. While flight OS 17 went ahead as scheduled, flight OS 18 was cancelled due to the measures taken by the Austrian government due to the COVID-19 pandemic.

On 19 March the claimant was informed about the cancellation and the possibility to return to VIE by using a repatriation flight organised by the Austrian Ministry of Foreign Affairs, which was scheduled for 20 March at the flight time originally reserved for OS 18 and operated by Austrian Airlines under OS 1024. The claimant and his wife registered for this repatriation flight and had to pay an obligatory contribution of EUR 500 per person.

The claimant eventually filed a lawsuit against Austrian Airlines, demanding compensation of the obligatory contribution amounting to EUR 1,000 while referring to Regulation 261/2004. The District Court Schwechat decided in the claimant´s favour, which led to an appeal by Austrian Airlines and a request for a preliminary ruling of the ECJ.

The ECJ decided that a repatriation flight does not constitute a “re-routing, under comparable transport conditions, to [the] final destination” within the meaning of Article 8(1)(b) of Regulation 261/2004. Therefore, operating air carriers are not obliged to offer repatriation flights to passengers whose flights have been cancelled.

The ECJ further ruled that passengers do not have a right to reimbursement of obligatory contributions to repatriation flights at the expense of the operating air carrier on the basis of Regulation 261/2004.

Don´t hesitate to contact our Aviation Team to learn more about passenger claims in Austria.

Unexpected absence of a crew member

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In its ruling in joined cases C-156/22 to C-158/22 the European Court of Justice (ECJ) decided that the unexpected absence of a crew member does not constitute extraordinary circumstances and can, therefore, not release an operating air carrier from its obligation to pay compensation to passengers in case of cancellations or great delays.

The case at hand concerns a flight that should have been operated by TAP from Stuttgart (Germany) to Lisbon (Portugal), on 17 July 2019 with a departure scheduled at 6.05. However, on the morning of this day, at 4.15, the co-pilot that should have operated the flight concerned was found dead in his hotel bed. Shocked by this event, the whole crew declared itself unfit to fly. As there was also no replacement staff available in Stuttgart (outside TAP’s base), the flight was cancelled. The passengers were transported to Lisbon on a replacement flight scheduled at 16.40 on the same day.

The ECJ decided that the unexpected absence – due to illness or death of a crew member whose presence is essential to the operation of a flight – which occurred shortly before the scheduled departure of that flight, does not fall within the concept of extraordinary circumstances.

This is in line with the ECJ´s prior court practice that declared that measures relating to the staff of the operating air carrier fall within the normal exercise of the air carrier´s activities and, therefore, are not suitable for constituting extraordinary circumstances that could relieve an air carrier from its obligation to pay compensation to its passengers.

Don´t hesitate to contact our Aviation Team to learn more about passenger claims in Austria.

Lexology GTDT Air Transport Austria

Lexology GTDT: Air Transport in Austria

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Our Aviation Team was chosen to author the chapter on Air Transport in Austria in Lexology´s Getting the Deal Through (GTDT).

The GTDT´s aim is to give readers quick access to country specific insights to a variety of topics. Thus, it is crucial for contributors to have a wide range of expertise while also being able to deliver relevant information in a compact, but still comprehensive way.

Luckily, our aviation team was perfectly prepared for this challenge. With our partner, Martina Flitsch, leading the way with her over 25 years of experience in the aviation field assisted by our two associates, Dominik Weiß and Aleksander Makal, who were, despite their young age, already able to gather several years of experience in advising many players on a variety of aviation related topics.

We invite you to check out the GTDT on Air Transport in Austria by clicking here (pdf) and to reach out to us for further information.

Reproduced with permission from Law Business Research Ltd. This article was first published in Lexology GTDT – Air Transport 2023. For further information, please visit: https://www.lexology.com/gtdt

Aviation Fuel Tax in Austria

Aviation Fuel Tax in Austria

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The Aviation Team of Weisenheimer Legal has recently secured a business jet operator’s right to tax-free use of aviation fuel in Austria.

According to Article 14 Energy Products Directive (2003/96/EC), energy products supplied for use as fuel for the purpose of commercial air navigation (“other than in private pleasure-flying”) are exempt from EU Energy Tax. In order to benefit from this tax exemption, an operator must obtain a refueling certificate. To obtain such a refueling certificate, an “exclusively commercial use of the aircraft by the operator” must be shown and supported by appropriate evidence.

For several years, it was unclear in Austria what constitutes an “exclusively commercial use of the aircraft” and what evidence the authorities may reasonably demand from the operator to prove it.

With the majority of business aviation flights booked with operators not by passengers but rather via charter brokers, the Austrian authorities insisting on the disclosure of “end-customer invoices” (i.e. invoices issued by brokers to passengers), many operators could not discharge the burden of proof and were thus denied refueling certificates necessary for tax-free use of aviation fuel in Austria. Furthermore, Austrian Customs (Zollamt Österreich) insisted that the sale of flights via charter brokers meant that it were the brokers and not the operator who exercised the effective control and enjoyed the use of the aircraft for the duration of the flight booked.

Following the intervention by Weisenheimer Legal and the support of Austrian Business Aviation Association (ABAA), the Federal Finance Court decided that the mere fact that flights are sold via charter brokers does not effect a transfer of control and use of the aircraft to third parties (brokers). Therefore, it was decided that invoices issued to brokers by an operator with a valid Air Operator Certificate (AOC) were sufficient evidence of “exclusively commercial use of the aircraft by the operator”.

The decision is available here (in German).

This decision is the next positive development in a chain of court decisions issued after the Austrian Supreme Administrative Court decided in September 2022 that flights operated by business jet operators for the aircraft owners satisfied the requirement of commercial operation and thus qualified for tax-free use of Aviation fuel as long as they were operated “for a fee”, which could also take the form of a (monthly) management fee (case number Ra 2019/16/0104).

The Hague Court of Arbitration for Aviation

The Hague Court of Arbitration for Aviation

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In many cases, commercial disputes among members of the aviation sector are still resolved by litigation rather than arbitration, even though arbitration may offer several advantages for the parties involved in the dispute. The recently established Hague Court of Arbitration for Aviation (Hague CAA) could contribute to change this by offering specialized arbitration in aviation related matters.

Especially in the context of international commercial disputes within the aviation sector, arbitration offers several advantages compared to litigation. For instance, the possibility to appoint an arbitrator with special knowledge of the aviation sector, aviation law and the technology used instead of having the dispute decided by a judge with no link to the aviation sector, who is often heavily depending on the opinion of expert witnesses. Another practical advantage is that due to the widely ratified New York Convention, the international enforcement of arbitration awards is often much easier than enforcing rulings of national courts.

Further, by choosing arbitration in a country, in which none of the involved parties is based, a possible “homefield advantage” of one party is eliminated. The new Hague CAA is not affiliated with particular parts of the aviation industry and administered by the widely respected Netherlands Arbitration Institute (NAI), which further ensures the court´s neutrality.

Similar to other industry specific courts like the Court of Arbitration for Art (CAfA), the Chambre Arbitrage Maritime de Paris (CAMP) or the Court of Arbitration for Sport (CAS), the Hague CAA´s main selling point is its specialization. By choosing the Hague CAA, parties have access to the court´s pool of aviation law and technology specialists, who can act as arbitrators, mediators, or experts in the proceedings.

As a consequence of its aviation specialization, the Hague CAA´s procedural rules were designed to meet the particular needs of the aviation sector, especially for speed and flexibility. For instance, the parties have the possibility to appoint an emergency arbitrator to decide urgent measures within a maximum of 15 days after his or her appointment. The Hague CAA is also offering more flexibility regarding the location of hearings and the possibility of their virtual attendance compared to litigation in most countries. Additionally, the procedural rules set forth expedited proceedings for amounts in dispute of less than € 10 million or when the parties consent thereto.

Another important way of dispute resolution and valid alternative to litigation is mediation. By choosing this way and finding an amicable solution, parties are often able to avoid high procedural costs and to continue their business relationship relatively unharmed. Mediation is also offered by the Hague CAA.

Overall, many parties are well advised to seriously consider resolving their disputes by mediation or arbitration rather than litigation. For members of the aviation sector, the newly established Hague Court of Arbitration for Aviation is a promising new venue for this purpose. Don´t hesitate to contact our Aviation Team to learn more about different ways of dispute resolution.

Lexology GTDT Air Transport Austria

Lexology GTDT: Air Transport in Austria

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We are happy to share that our Aviation Team was chosen to author the chapter on Air Transport in Austria in the latest edition of Lexology´s Getting the Deal Through (GTDT).

The GTDT´s aim is to give readers quick access to country specific insights to a variety of topics. Thus, it is crucial for contributors to have a wide range of expertise while also being able to deliver relevant information in a compact, but still comprehensive way.

Luckily, our aviation team was perfectly prepared for this challenge. With our partner, Martina Flitsch, leading the way with her over 25 years of experience in the aviation field assisted by our two associates, Dominik Weiß and Aleksander Makal, who were, despite their young age, already able to gather several years of experience in advising many players on a variety of aviation related topics.

We invite you to check out the GTDT on Air Transport in Austria by clicking here (pdf) and to reach out to us for further information.

Reproduced with permission from Law Business Research Ltd. This article was first published in Lexology GTDT – Air Transport 2023. For further information, please visit: https://www.lexology.com/gtdt