Iordache Partners’ Adrian Iordache & Raluca Danciu (nee Danes) publish the Romania Chapter of the Aviation Law Reviewthe (7th Edition).
Here’s a link to the entire volume, which is a must read for any global aviation user.
If you have any questions on aviation law, feel free to write to Raluca Danciu at raluca[at]iordache.partners.
Published: September 2019
Located at the crossroads of central, eastern and south-eastern Europe, Romania is a member of the European Union and has 16 commercial airports.
The biggest and busiest airport in Romania is Henri Coanda International Airport, which serves approximately 70 international destinations and nine internal destinations. Henri Coandă International Airport is located in the north of Bucharest and has two terminals and two runways, both 3,500 metres long, with over 7.5 million passengers transported annually. It is named after Romanian flight pioneer Henri Coandă, builder of the Coandă-1910 aircraft and discoverer of the Coandă effect of fluids.
The national authorities in Romania are the Ministry of Transportation and the Romanian Civil Aeronautic Authority. The Ministry of Transportation has delegated some of its duties to the Romanian Civil Aeronautic Authority.
The Romanian Civil Aeronautic Authority, as it now stands, was established in 1993 and acts as the safety regulator and oversight authority for civil aviation in Romania. The goals are aligned with those established by the International Civil Aviation Organization (ICAO) and the European Civil Aviation Conference and the European Aviation Safety Agency, to maintain and increase aviation safety by effective and efficient processes and measures in the areas of safety regulation and oversight.2
II LEGAL FRAMEWORK FOR LIABILITY
The principal legislation in Romania in a combination of international, European and national.
i International carriage
Romania is party to the Warsaw Convention (ratified on 8 July 1931 and entered into force on 13 February 1933), the Hague Protocol (ratified on 3 December 1958 and entered into force on 1 August 1963) and the Montreal Convention. Romania ratified the Montreal Convention by Government Ordinance No. 107/2000, approved by Law No. 14/2001.
The provisions of the Montreal Convention are binding on all carriage, international or internal, by EU operators, pursuant to Regulation No. 2027/97, as amended by Regulation No. 889/2002.
ii Internal and other non-convention carriage
The Montreal Convention, through Government Ordinance No. 107/2000 and Regulation (EC) No. 2027/97, as amended, is directly applicable to carriage in Romania. The national law regulating air carrier liability on internal carriage and the national law regulating passengers’ right to compensation were abolished by Law No. 234/2007 following Romania’s accession to the European Union.
iii General aviation regulation
The most important regulation is the Romanian Civil Air Code (the Air Code), which sets the general rules applicable in civil aviation. The Air Code expressly provides that civil aeronautical activities within the territory and in the national airspace of Romania are governed by the Code and other relevant legislation, by the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 (the Chicago Convention), and by the bilateral and multilateral treaties to which Romania is a party.
The Air Code regulates all civil aeronautical activities carried out in the national airspace and in the territory of Romania, including any activities that disturb flight safety and aeronautical security.
The Air Code provides that secondary regulation can be issued by the Ministry of Transport and by the Romanian Civil Aeronautic Authority.
iv Passenger rights
Passenger rights are covered by Regulation (EC) No. 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Regulation No. 261/2004 has direct effect in Romania.
The National Authority for Consumer Protection is the body responsible for enforcement of passenger rights.3
Non-compliance with the provisions of Regulation No. 261/2004, regarding the right to compensation, the right to reimbursement or rerouting, the right to care and the obligation to inform can result in a fine of up to €520 for each passenger.
The rights of the disabled persons or persons with reduced mobility are covered by Regulation No. 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air. This Regulation is directly applicable in Romania and the responsible body for enforcing its provisions is the National Authority for Disabled Persons. The responsible body can apply fines to the air carriers, tour operators and managing bodies of the airports for up to €520 for failure to comply with the obligations to accept reservations, with the obligation to designate points of arrival and departure within the airport, the obligation to provide assistance, the obligation to compensate for lost or damaged wheelchairs, other mobility equipment and assistive devices, etc.
v Other legislation
The aviation sector is ruled by the same general liability provisions applicable in Romania to other activities, which include, in addition to the Civil Code, the Competition Act (Law No. 21/1996), Emergency Ordinance No. 77/2014 regulating state aid and the Environment Protection Regulations.
III LICENSING OF OPERATIONS
i Licensed activities
The licensing of air carriers, the right of air carriers to operate in Romania, the air services and the pricing of Romanian air services is regulated under Regulation (EC) No. 1008/2008 on common rules for the operation of air services in the Community (Recast).
In Romania, the procedure for the issuance, suspension and revoking of the operating licence was approved through Government Order No. 808/2011.
All air services require an operating licence, except (1) those performed by non-power-driven aircraft or ultralight power-driven aircraft, and (2) local flights.
The request for the issuance of an operating licence shall be submitted to the Aviation Division of the Ministry of Transport, together with the following documents:
- air operator certificate (AOC);
- certificate of incorporation of the air operator;
- insurance policies, in accordance with Regulation (EC) No. 785/2004;
- articles of incorporation of the air operator;
- shareholders’ structure and details of the shareholders;
- description of the previous activity of the company;
- balance sheet for the previous year;
- three-year business plan, which includes an indication of the geographical areas where the air carrier will operate, an indication of the aviation activities to be performed, any potential commercial collaborations and information on the sales system;
- analyses of the envisioned costs for the activities and of the financing methods; and
- proof of good standing for the persons who will continuously and effectively manage the operations.
The Aviation Division has the power to request further documents before issuing the operating licence. Usually the licence is issued in 60 days, from the date that the documentation is complete. If the Aviation Division decides not to issue the operating licence, the air carrier can oppose the decision.
An operating licence shall be valid as long as the air carrier complies with the requirements imposed by Regulation No. 1008/2008.
ii Ownership rules
In addition to the restrictions provided in Article 4 of Regulation No. 1008/2008, which state that Member States or nationals of Member States shall own more than 50 per cent of the undertaking and effectively control it, whether directly or indirectly, through one or more intermediate undertakings, there are no other restrictions imposed on air carriers.
However, in accordance with the provisions of the Chicago Convention, civil aircraft must hold a registration certificate to operate in national airspace, as stipulated in the Air Code. The Ministry of Transportation may establish, by specific regulations, categories of civil aircraft that can operate in the National Mining Area without holding a registration certificate. If a civil aircraft is registered in Romania, it cannot be registered in another state.
The ownership rights or the transfer of the ownership and any other rights related to civil aircraft are governed by the national law and entered in the Civil Aircraft Register. Though registration alone does not give effect to the right, it allows the right to be enforced against third parties.
iii Foreign carriers
Pursuant to Article 15 of Regulation No. 1008/2008, EU air carriers that have been granted an operating licence by another Member State are entitled to operate intra-Community services.
Non-EU air services are governed by the Chicago Convention and other bilateral treaties.
The rights for the conduct of international air transportation by non-EU carriers to and from Romanian airports is governed by the air transport agreements entered into by Romania and certain non-EU states, or as the case may be, with other Member States. According to Article 50 of the Air Code, foreigner carriers can perform air services in Romanian national air only in accordance with the traffic rights that are granted by the Ministry of Transport.
Flight safety is a mandatory requirement and also a fundamental performance criterion for any civil aeronautical activity. In Romania, in accordance with the Air Code, flight safety includes issuing specific regulations, including the setting of safety targets and minimum acceptable levels of safety; providing the framework for the implementation of regulations, objectives and safety levels; and also supervision of the flight safety.
The Romanian Civil Aeronautical Authority was designated as the national supervisory authority and specialised technical body for performing the civil aviation safety oversight function at national level. Its main responsibilities include (1) certification of civil aeronautical agents, civil aviation personnel and aeronautical techniques in accordance with the applicable national and Community regulations; (2) certification of civil aerodromes; (3) approval of works in areas subject to civil aviation servitude; (4) flight safety inspection; and (5) the exercise of registry activities in civil aviation.
In exercising its duties, the Romanian Civil Aeronautical Authority can temporarily prohibit or restrict flights of foreigner air carriers if it receives information that the operation or maintenance of the aircraft does not meet the minimum safety standards established under the Chicago Convention. It can also decide to detain the civil aircraft in case of non-compliance with the minimal safety standards until the deficiencies have been remedied.
For the purposes of the air safety, certification of the aeronautical agents (air carrier, developers of the aeronautical equipment and aeronautical infrastructure, air navigation agents, etc) and of the aeronautical personnel is required by the Air Code.
Liability insurance of air carriers and aircraft operators is regulated by Regulation No. 785/2004 on insurance requirements for air carriers and aircraft operators.
This Regulation applies to all air carriers and to all aircraft operators flying within, into, out of or over the territory of an EU country. Air carriers and aircraft operators must be insured, in particular in respect of passengers, baggage, cargo and third parties, and risks associated with aviation-specific liability (including acts of war, terrorism, hijacking, acts of sabotage, unlawful seizure of aircraft and civil commotion).
Air carriers and aircraft operators registered in Romania must submit to the Romanian Civil Aeronautic Authority copies of their respective insurance policies. When registering for an operating licence, insurance for cargo and third parties must be provided.4
All aircraft that flies into or out of Romania must have on board copies of the insurance policies and upon request must provide the copies to the agents of the competent body.
Failure to present a valid insurance police when operating a flight in the Romanian air space may result in fines.
Competition between air carriers is regulated by competition law. Romanian national competition law is mainly set out in Law No. 21/1996 on competition. In addition to the national legal framework, European competition law is applicable. Regulation (EC) No. 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and Regulation (EC) No. 139/2004 on the control of concentrations between undertakings are relevant. In addition, Regulation (EC) No. 411/2004, which repealed Regulation (EEC) No. 3975/87 and amended Regulation (EEC) No. 3976/87 and Regulation No. 1/2003, in connection with air transport between the Community and third countries, extends the applicability of European Competition law to air transport between the European Union and third countries.
The applicable competition rules are applied by the Romanian Competition Council.
VII WRONGFUL DEATH
Under the Air Code, Regulation (EC) No. 2027/79 on air carrier liability in the event of accidents, and also under the Montreal Convention, the liability of the air carrier in case of wrongful death is not limited. For damages up to 100,000 special drawing rights (SDR) the air carrier cannot contest claims for compensation. Above that amount, the air carrier can defend itself against a claim by proving that it was not negligent or otherwise at fault.
In case of wrongful death, the air carrier must make an advance payment to cover immediate economic needs, within 15 days from the identification of the person entitled to compensation. In the event of death, this advance payment shall not be less than 16,000 SDR.
Generally, the liability of the air carrier for the passengers is regulated in the Civil Code, in the Transport Agreement Chapter. The carrier is responsible for the death of, or injury to, the integrity or the health of the passenger. Any provision removing or limiting the liability of the carrier for the damage shall be deemed unwritten.
In the event of a passenger’s death, under the Montreal Convention the air carrier is liable for the material and non-material damage suffered by persons entitled to claim damages. In the absence of a contractual relationship between the carrier and the heirs, liability cannot be attributed on a contractual basis. In this situation, it is the air carrier’s tort liability to the deceased’s family.
Therefore, wrongful death is a civil liability, regulated as tort in the Civil Code. The Civil Code provides that only the persons who were dependent on the deceased are entitled to compensation. In determining the compensation, the judge will take into account the needs of the entitled persons and the income normally earned by the deceased.
If entitlement to an allowance or pension is recognised in social security, the compensation is only due to the extent that the damage suffered by death exceeds the allowance or the pension.
VIII ESTABLISHING LIABILITY AND SETTLEMENT
If the Romanian courts are competent to settle the claims that have arisen from international carriage, the provisions of the Civil Procedure Code shall apply.
In the event of the death of a passenger, in accordance with the provisions of the Montreal Convention, a case for the liability of the carrier may be brought by the deceased’s heirs.
With regard to air carrier liability, the Montreal Convention provides that the time limit for bringing a claim is two years from the date of arrival of the aircraft at the destination or from the date on which the aircraft should have arrived at the destination. If the two-year period is exceeded, the right to compensation is lapsed. The method of calculating this period is set by the law governing transport contracts. The two-year term is a term from which states signatories to the Montreal Convention cannot derogate because it was set up to establish uniform rules on airline liability issues. In international jurisprudence, the two-year period is not considered to be susceptible to interruption or suspension, although in France it was considered to be a limitation period that can be interrupted and suspended on the grounds of common law.
Where Regulation No. 261/2004 is applicable, the passenger should first submit a complaint to the air carrier operating the flight concerned. Should the air carrier fail to provide with a reply within six weeks of receipt or if the response is not satisfactory, a request should be sent to the National Authority for Consumer Protection.
ii Carriers’ liability towards passengers and third parties
The liability of the air carrier is primarily regulated by the provisions of the Montreal Convention, which provides maximum liability limits. The air carrier is primarily held accountable.
The liability of the air carrier results from the contract of carriage concluded with each passenger at the time of purchase and payment of the flight ticket. Under this contract, the air carrier has the obligation to carry the passenger in maximum security, guaranteeing the protection of the health and life of the passenger in question, who is benefiting from transport services under a contract. Injury or death of the passenger is a breach by the air carrier of the contractual obligations mentioned above. As a result, airline liability to the passenger for the damage suffered by him or her as a result of injury is a contractual liability.
In accordance with the provisions of Regulation No. 593/2008, the contract of passenger transport is governed by the law of the country of residence of the passenger provided that the place of departure or arrival is also located in that country and only if the parties have not chosen another applicable law. If these requirements are not met, the law of the country of the habitual residence of the carrier shall apply.
In the event of passenger death under both the Warsaw Convention and the Montreal Convention, the airline is liable for the material and non-material damages suffered by persons entitled to claim damages. In the absence of a contractual relationship between the carrier and the heirs, liability cannot be attributed on a contractual basis. In this case, it is the airline’s tort liability to the deceased’s family.
The Civil Code states that the carrier shall be liable for the death of, or injury to, the integrity or the health of the passenger and for all direct and immediate damage resulting (1) from the non-performance of the carriage, (2) from its performance under conditions other than those laid down or (3) from the delay in its performance. If the contract is no longer of interest to the passenger owing to the delay in the execution of the carriage, the latter may denounce it, requesting the reimbursement of the price.
The carrier shall not be liable if the damage was caused by the passenger, intentionally or by gross negligence (the burden of proof is on the carrier).
In addition, the carrier is not liable when it proves that the damage was caused by the passenger’s health, by the action of a third party for whom it is not held responsible or by force majeure. However, the carrier remains liable for the damage caused by the aircraft as a result of a technical fault or the actions of crew members.
The carrier is liable for the loss or damage of the luggage or other property of the passenger unless it is proved that the damage was caused by a defect of the carrier, an action of the passenger or force majeure. The carrier shall be liable for the luggage or other property of the passenger within the limit of its declared value or, if the value has not been declared, by what would be considered the normal contents according to the circumstances.
An air carrier can make a recourse claim against a third party. A recourse claim may be considered, for example, if the damage is caused by several injuring parties that are liable in solidarity with the injured party. If the injured party only takes action against the airline, the airline has to pay the full amount, but may recover the corresponding shares of damages from the other injuring parties.
iii Product liability
Council Directive No. 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products was implemented in Romania by Law No. 240/2004 on the liability of the producers. The national law stipulates that the producer is liable for the current and future damage caused by the defect of its product, if the injured party can prove the damage, the defect and the causal relationship between the defect and the damage. In certain situations, the producer will not be held liable, if it proves the following:
- that it did not put the product into circulation;
- that, having regard to the circumstances, it is probable that the defect that caused the damage did not exist at the time the product was put into circulation by it or that this defect came into being afterwards;
- that the product was neither manufactured by it for sale or any form of distribution for economic purposes nor manufactured or distributed by it in the course of its business;
- that the defect is owing to compliance of the product with mandatory regulations issued by the public authorities;
- that the state of scientific and technical knowledge at the time when it put the product into circulation did not allow the defect to be discovered; or
- in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.
A limitation period of three years is applicable to proceedings for the recovery of damages as a result of a defective product. The limitation period runs from the day on which the injured party became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.
The rights conferred upon the injured party pursuant to the law on the liability of the products shall be extinguished 10 years after the date on which the producer put into circulation the actual product that caused the damage.
The injured parties and their beneficiaries must take necessary action to identify the liable persons or entities and their insurers in order to negotiate the compensation (except for the mandatory payment imposed on European air carriers).
Under Romanian civil law, all damage suffered has to be fully compensated. This compensation will always be recoverable, provided that the cause of the accident is proved. Moral and material damage can be compensated.
If the damage is of a continuous nature, the compensation is granted in the form of periodic benefits.
In the case of future damage, compensation, regardless of the form in which it was granted, may be increased, reduced or suppressed if, after it is determined, the damage has increased, diminished or ceased.
In the case of injury to the physical integrity or health of a person, the compensation must account for loss of earnings (wages) as a result of the injured person being unable to work or as a result of reduction of the ability to work. The compensation must also include the cost of medical care and, if appropriate, the cost of increasing the life needs of the injured party, as well as any other material damage.
Compensation for loss of earnings (wages) shall be determined by the judge on the basis of:
- the average net monthly work income of the injured person in the last year before the loss or reduction of his or her working capacity; or
- the net monthly income the injured person could have earned, taking into account the professional qualifications he or she would have had.
If the injured party is a minor, the compensation shall be determined as mentioned above, but it shall be calculated as due from the date when the minor has reached the age prescribed by law to be part of a work relationship.
Moreover, in case of injury to the physical integrity or health of a person, compensation may be granted for damage as a result of the restriction of family and social life.
In the event of death, the persons who were dependent on the deceased are entitled to compensation. In determining the compensation, the judge will take into account the needs of the entitled persons and the income normally earned by the deceased. The parents, siblings, spouse and children of the deceased can request compensation for the pain suffered as a result of the victim’s death. This right can be exercised by any other person who could prove the existence of such an injury.
The person who has incurred expenses for the care of the victim’s health or, in the event of his or her death, for the funeral, has the right to be reimbursed for the expenses by the person responsible for the act that caused these costs.
However, if entitlement to an allowance or pension is recognised in the social security system, the compensation is due only to the extent that the damage exceeds the allowance or the pension.
According to the national stipulations regarding drones (unmanned aerial vehicles), to operate a drone an operator needs the following documents:
i A registration certificate
In order for an unmanned-on-board motorised aircraft to be operated in the national airspace it must hold an identification/registration document. This certificate can be obtained by submitting the request together with the relevant documents to the Romanian Civil Aeronautic Authority, in accordance with the Airworthiness Directive No. DN: 14-02-001.5 The fee for obtaining the registration certificate is €90 plus VAT per aircraft (according to OMTI 1305/2012).
In the event the unmanned-on-board motorised aircraft already holds a registration certificate or an equivalent document issued by another country, the RCAA may recognise such document.
ii National flight permit for aircraft with a maximum takeoff mass of more than 15 kilograms
The requirements for the national flight permit are contained in the Romanian Civil Aeronautical Regulation RCAR-FACA ‘Flight Admissibility of Certain Civil Aircraft Categories’ Chapter VI ‘Unmanned Aerial Vehicles (UAV)’. The fee for obtaining the national flight licence is €540 plus VAT per aircraft, (according to OMTI 1305/2012).
iii Third-party liability insurance
The insurance for unmanned-on-board motorised aircraft with a maximum takeoff mass greater than 20 kilograms is mandatory and it shall be issued in accordance with Regulation (EC) No. 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators.
The insurance for unmanned-on-board motorised aircraft with a maximum takeoff mass of less than 20 kilograms is optional and the operator shall have sole responsibility.
iv Operating licence
Depending on the activity the operator will perform, the operator will seek and obtain approvals and endorsements and conclude the protocols specified in Government Decision No. 912/2010 for the approval of the procedure for the authorisation of flights in the national airspace as well as the conditions under which the takeoff and landing of civil aircraft may also be performed on other land or water surfaces than certified aerodromes (GD No. 912/2010):
- Meeting the conditions for which flights are considered to be authorised in the controlled airspace or area of airspace where no air traffic control services are provided, in accordance with the stipulations of GD No. 912/2010.
- Approval for shooting or aerial photography. Such approval is requested in accordance with GD No. 912/2010 from the Romanian Ministry of Defence.
- Approval for operation below minimum safety heights. Such approval must be requested in accordance with GD No. 912/2010 from the Romanian Ministry of Defence for operating below 3,000 metres above the area of Bucharest. For other areas, the request must be submitted to the Romanian Civil Aeronautic Authority.
- Approval for flights in the border area.
- Takeoff and landing approvals.
v Overflight authorisation for operating in the area of the Danube Delta Biosphere Reserve
According to the stipulations of Law No. 82/1993 on the establishment of the Danube Delta Biosphere Reserve, as subsequently amended and supplemented, air operators intending to conduct flights in the airspace of the Danube Delta Biosphere must request the Danube Delta Biosphere Reserve Administration to issue an overflight permit.
X VOLUNTARY REPORTING
In Romania, voluntary reporting is regulated by the Romanian Civil Aeronautical Regulation on Civil Aviation Event Reporting (RACR–REAC) of 20 July 2016 approved by Government Order No. 600/2016. The RACR–REAC is ensuring the national application of the relevant provisions of Regulation (EU) No. 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation.
The reporting system is managed by the Civil Aviation Safety Investigation and Analysis Center (CIAS). All persons are encouraged to report voluntarily any event or information perceived as a real or potential threat to aviation safety, to the internal function or structure of their organisation or directly to the CIAS.
The voluntary reporting system set up by the CIAS at the national level includes the possibility of reporting online on the CIAS website or by downloading the reporting forms from the website and submitting them using alternative means (fax, email, etc.).
The CIAS ensures the anonymity of the reporters and of the persons nominated in the reports and uses the information in compliance with the provisions of Regulation No. 376/2014.
The person who voluntarily reports a civil aviation event also has the possibility to send the report in a sealed envelope marked as confidential. Subsequently, in order to determine the treatment of the event, the CIAS reserves the right to contact the person who reported it. The original report is recorded in the database and classified as ‘Confidential, without Reporters Identification Data’.
According to the RACT–REAC, the CIAS will manage the reports to prevent the use of information for purposes other than aviation safety and to properly ensure the confidentiality of the identity of the report and of the persons mentioned in the event reports. The aim is to promote the concept of just culture (Article 4.2 of RACT–REAC).
XI THE YEAR IN REVIEW
On 1 July 2018, the Cape Town Convention and the Aircraft Protocol entered into force in Romania. They were ratified through Law No. 252/2017. Romania made the following declaration:
- In accordance with the provisions of Article 39(1)(b) of the Convention, Romania declares that nothing in this Convention shall affect its right or that of any entity thereof, intergovernmental organisation or other provider of public services in Romania, to arrest or detain an object under the laws of Romania for payment of amounts owed to such entity, organisation or provider directly relating to those services in respect of that object or another object.
- In accordance with the provisions of Article 54(2) of the Convention, Romania declares that the options available to the creditor that are not expressly outlined in the Convention can be exercised with the approval of the Romanian courts.
- In accordance with Article XXX(1) of the Protocol to the Convention on International Interests on Mobile Equipment on Matters specific to Aircraft Equipment, Romania will apply this Article.
1 Adrian Iordache is a managing partner and Raluca Danes is a senior associate at Iordache Partners.
4 Article 4(1)(d) of the Procedure on Issuance, Suspending and Revoking the Operating Licence, approved through Government Order No. 808/2011.