Aviation Law 2013. Україна

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The International Comparative Legal Guide to: Aviation Law 2013 in Ukraine

1 General

1.1 Please list and briefly describe the principal legislation and regulatory bodies which apply to and/or regulate aviation in Ukraine.

Ukrainian legislation regulating the aviation sector encompasses nearly a thousand enactments and consists of international conventions and treaties, which Ukraine is a party to, national laws and codes, and various rules and regulations adopted by the aviation sector regulators.

The major legislation includes: Convention on International Civil Aviation (a.k.a. Chicago Convention); EUROCONTROL International Convention relating to Cooperation for the Safety of Air Navigation; 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air; Cape Town Convention on International Interests in Mobile Equipment and the Aircraft Equipment Protocol; Air Code of Ukraine; Rules of Certification of Civil Aircrafts Operators; Rules of Aviation Staff Licensing; Rules of Civil Airfields Registration; and Rules of Transportation of Passengers and Baggage, etc.

The principal aviation regulators in Ukraine are: the Ministry of Infrastructure of Ukraine - the core governing body responsible for the formation and implementation of state policy in the aviation and Ukrainian airspace use sectors; the State Aviation Service of Ukraine - the central aviation authority, which directly governs aviation in Ukraine, in particular drafts and adopts aviation rules, issues licenses for transportation services, supervises safety of aircraft flights and airworthiness, etc. (the 'Aviation Service'); and the State Enterprise of Air Traffic Maintenance of Ukraine - a state entity responsible for the organisation of air traffic, flights navigation support, etc.

1.2 What are the steps which air carriers need to take in order to obtain an operating licence?

In order to obtain an operating licence, the following steps shall be taken:

1) submission of a Letter of Intent by an air carrier to the Aviation Service specifying the required information (the carrier details, business-plan and solvency proof, information on the carrier management, airports and aircrafts (owned or leased) to be used by the carrier, etc.);

2) consideration of the Letter of Intent, approval of a decision thereon and notification of the carrier on the decision, and appointment of an inspector responsible for further carrier certification (focal point) by the Aviation Service - within 10 business days from filing the Letter of Intent;

3) submission of the Application for Operating Licence by the carrier to the Aviation Service along with supporting documents (constituent documents, documents on flight operations maintenance, technical support, air safety and medical support, agreements on aircrafts lease, parking areas, crew insurance, etc.) - at least 3 months prior to the planned commencement of flight operations;

4) preliminary consideration of the Application by the Aviation Service and issuance of a Preliminary Consideration Act specifying identified defects, if any - within 2 months from the filing date;

5) elimination of defects by the carrier and filing with the Aviation Service of documents to this effect (if defects were identified during step 4 above) - within 2 months from obtaining the Preliminary Consideration Act;

6) certification audit of the carrier performed by the Aviation Service inspectors according to a special programme approved for each particular carrier, and preparation of the General Certification Audit Act specifying identified defects, if any - within 3 business days upon the audit completion;

7) elimination of the defects by the carrier and submission to the Aviation Service of the respective report - within 1 month of obtaining the General Certification Audit Act; and

8) approval of the resolution and issuance of the Operating Licence by the Aviation Service.

Additional information: the first Operating Licence shall be issued to the carrier for a 1-year period with a right to perform flights within Ukraine; however, the Aviation Service may decide to auhorise the carrier to perform international flights early if the latter has proper aircraft, crew, organisational structure, and experienced personnel for such flights.

1.3 What are the principal pieces of legislation in Ukraine which govern air safety, and who administers air safety?

The principal legislation governing air safety includes: Air Code of Ukraine; Law of Ukraine "On State Programme for Aviation Safety of Civil Aviation"; Criminal and Administrative Codes of Ukraine; 1971 Montreal Convention; 1970 Hague Convention; 2000 Organized Crime Convention; and 1963 Tokyo Convention, etc.

The core state authority supervising air safety is the Aviation Service, in particular, its Air Safety Department.

1.4 Is air safety regulated separately for commercial, cargo and private carriers?

No, it is not.

1.5 Are air charters regulated separately for commercial, cargo and private carriers?

Generally, no.

However, air charters are regulated separately for: (i) hazardous cargo; and (ii) military cargo. To perform such charter flights, an air carrier shall ensure special training of its crew and escort personnel, submit additional documents/information to the aviation authorities and receive a special permit for the transportation of such cargo.

1.6 As regard to international air carriers operating in

Ukraine, are there any particular limitations to be aware of, in particular when compared with 'domestic* or local operators? By way of example only, restrictions and taxes which apply to international but not domestic carriers.

International air carriers may be allowed to perform flights to/from/inside Ukraine upon obtaining a right to operate certain air line(s) from the Aviation Service based on an operating licence issued by the state of the carrier registration and provided that: this complies with Ukrainian law; Ukrainian air carriers enjoy the same rights in the country of the foreign carrier registration or may obtain other rights on a reciprocity basis; Ukrainian airports are able to maintain such flights and air transportation; and regarding irregular transportation - (i) such transportation, including charters with commercial purposes, cannot be performed by Ukrainian carriers, or (ii) such transportation cannot be performed within regular flights between the same airports or cities, if a city has two or more airports.

Additionally to the right to operate certain airline(s), if provided by international treaties signed by Ukraine, or by law of a particular state, the Aviation Service may designate an international air carrier to perform flights under a particular airline to, or between, respective states.

Subject to the above, there are no other significant restrictions applicable to international air carriers. Taxation of international air carriers is regulated by Double Taxation Treaties concluded between Ukraine and the countries of the carriers' registration. As a rule, air carriers are taxed in their country of registration.

1.7 Are airports state or privately owned?

Basically, most of the airports are state or municipally owned.

1.8 Do the airports impose requirements on carriers flying to and from the airports in Ukraine?

There are no statutory requirements. Relationships between carriers and airports are governed by Services Agreements concluded on international standards, including IATA standard agreements.

1.9 What legislative and/or regulatory regime applies to air accidents? For example, are there any particular rules, regulations, systems and procedures in place which need to be adhered to?

Principal legislation applying to air accidents includes: Air Code of Ukraine; Law of Ukraine "On State Programme for Aviation Safety of Civil Aviation"; and Rules of Investigation of Aviation Incidents and Accidents with Civil Aircrafts in Ukraine.

Major regulatory agencies on air accidents are: the Aviation Service (stipulates air safety criteria, supervises and controls the observance of air safety rules by air carriers); and the National Bureau of Investigation of Aviation Incidents and Accidents with Civil Aircrafts (performs investigations of air accidents occurred in Ukrainian territory, develops recommendations on raising air safety levels) (the 'Accidents Bureau').

In relation to air safety, air carriers are subject to: the Aviation Services inspections with regard to compliance with the air safety requirements; any defects, which may influence air safety, identified during such inspections may serve as a ground for termination of an Operating Licence in full or in part; the system of obligatory notifications on aviation safety, which establishes the obligation of air carriers to notify the Aviation Service/Accidents Bureau on any event/information specified by the Aviation Service as obligatory for notifying; compliance with the State Programme of Aviation Safety; internal air safety programmes to be developed by the carriers in accordance with the State Programme of Aviation Safety and to be agreed with the Aviation Service; and aviation insurance requirements.

2 Aircraft Trading, Finance and Leasing

2.1 Does registration of ownership in the aircraft register constitute proof of ownership?

No. Upon registration in the aircraft register, the aircraft shall be deemed under the jurisdiction of Ukraine. Generally, the title to the aircraft is evidenced by the Sale and Purchase Agreement or Ownership Certificate.

2.2 Is there a register of aircraft mortgages and charges? Broadly speaking, what are the rules around the operation of this register?

Starting from 1 January 2013, the encumbrances over the aircraft will be registered in the State Register of Pledges over Movable Property, maintained by the Ministry of Justice of Ukraine (as of November 2012, such encumbrances are registered in the State

Register of Mortgages). According to the new rules, the pledge over the aircraft is registered at the pledgee's request on the date of submission of relevant application, provided that an insignificant administrative fee (approximately USD 10) has been paid.

Seizing the aircraft in Ukraine, however, may be a challenging procedure pending the adoption of implementing administrative (procedural) regulations. As of November 2012, Ukraine does not record IDERAs.

2.3 Are there any particular regulatory requirements which a lessor or a financier need to be aware of as regards aircraft operation?

Ukrainian law restricts a Ukrainian resident's ability to make a payment abroad and, unless such a payment falls under a statutory exemption from the licensing regime of the National Bank of Ukraine, the resident should only be permitted to make such a payment after having obtained an individual license for such payment. Transfer of funds from Ukraine under a cross-border lease agreement in excess of EUR 100,000 (or equivalent of this amount in other currencies) is subject to obtaining a Price Evaluation Act from the State Information and Analytical Centre of Monitoring of Foreign Commodity Markets. The act being absent, the lease payments transfer may be banned by a Ukrainian bank of the lessee.

2.4 Is Ukraine a signatory to the main international conventions (Montreal, Geneva and Cape Town)?

Ukraine is a signatory of, and has ratified, the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air and the 2001 Cape Town Convention on International Interests in Mobile Equipment (together with relevant Aircraft Equipment Protocol).

Ukraine is not a signatory of the 1948 Geneva Convention on the International Recognition of Rights in Aircraft.

2.5 How are the Conventions applied in Ukraine?

They are applied in the ordinary course through Ukrainian courts. International conventions ratified by the Ukrainian Parliament constitute a part of Ukrainian legislation, prevail over other laws, except for the Constitution of Ukraine, and do not need to be 'transformed' or 'incorporated into' national law by a legislative (or executive) act (beyond the act of ratification of or accession to the convention).

3 Litigation and Dispute Resolution

3.1 What rights of detention are available in relation to aircraft and unpaid debts?

A creditor may seize the aircraft based on a court ruling or using the self-help remedies provided by the Cape Town Convention (please see the answer to question 3.2 below). The fulfilment of due monetary obligations is normally secured by the arrest of funds on the debtor's bank account.

3.2 Is there a regime of self-help available to a lessor or a financier of aircraft if it needs to reacquire possession of the aircraft or enforce any of its rights under the lease/finance agreement?

Yes, Ukraine made a declaration under Article 54(2) of the Cape Town Convention allowing the repossessing creditor or lessor to proceed against an aircraft object without permission of a court.

3.3 Which courts are appropriate for aviation disputes? Does this depend on the value of the dispute? For example, is there a distinction in Ukraine regarding the courts in which civil and criminal cases are brought?

Aviation disputes can be considered by common, commercial or administrative courts depending on the nature of the case and the identity of the claimant(s) and the respondent(s). The selection of a competent court does not depend on the dispute value.

3.4 What type of remedies are available from the courts or arbitral tribunals in Ukraine, both on an i) interim and a ii) final basis?

Most common interim remedies are: sequestration of property or funds of the defendant; a restraining order prohibiting the defendant to perform certain acts; a restraining order on third parties to prohibit certain acts in respect of the subject-matter of the dispute; the suspension of enforcement actions carried out unilaterally on the basis of an execution document; and the suspension of disposal of the sequestered property. Depending on a remedy sought by a claimant, a final decision may: affirm the claimant's right; invalidate the agreement; enjoin the act violating the claimant's right; restore the position, which existed prior to the violation of the claimant's right; order the performance of an obligation in kind; change or terminate a legal relationship; award a fine, penalty interest, damages for direct losses or lost profits; award damages for the moral distress; and/or annul an act of a public authority. Also, a form of relief stipulated in the contract can be granted.

3.5 Are there any rights of appeal to the courts from the decision of a court or arbitral tribunal, and, if so, in what circumstances do these rights arise?

Upon a petition of any party to the dispute, the decision of a local (first instance) court may be reviewed by the courts of appeal (courts of the second instance) and further reviewed by the cassation courts (the High Court for Civil and Criminal Cases, the High Administrative Court of Ukraine, and the High Commercial Court of Ukraine) and the Supreme Court of Ukraine. Under the procedural rules, the High Court as a court of second appeal examines the validity of the decisions of lower courts only in matters of substantive and procedural law rather than in matters of fact and proof. The Supreme Court of Ukraine is nominally the highest judicial body in the system of courts of general jurisdiction. However, the ability of the Supreme Court to hear appeals in particular cases is limited and most appeals end at the High Court level.

A foreign arbitral award is binding in Ukraine and shall be enforced upon its recognition by a competent Ukrainian court. Recognition and enforcement of foreign arbitral awards may be denied only in cases stipulated by the 1958 New York Convention.

4 Commercial and Regulatory

4.1 How does Ukraine approach and regulate joint ventures between airline competitors?

Joint ventures between airline competitors are not subject to any special regulation other than under antitrust laws.

Generally, Ukrainian competition laws provide that a joint venture may be considered a concentration or concerted practices (arrangement).

The joint venture is considered a concentration if it meets the following criteria: it is established by two or more independent undertakings; it can independently pursue business activity on a lasting basis; and its establishment does not result in co-ordination of competitive behaviour of the joint venture's parents or the joint venture, on the one hand, and its parents, on the other.

The establishment of such a joint venture requires a prior merger clearance if the parties meet or exceed certain financial or market share thresholds.

A joint venture may be considered a concerted practice if it is established with an objective or result to co-ordinate competitive behaviour of the joint venture's parents or the joint venture, on the one hand, and its parents, on the other. Establishment of such a joint venture requires a prior antitrust clearance if it results or may result in the prevention, elimination or restriction of competition. Joint ventures between airline competitors may certainly qualify as such unless exempt under general block exemptions.

4.2 How do the competition authorities in Ukraine determine the "relevant market" for the purposes of mergers and acquisitions?

The "relevant market" is defined according to a special regulation adopted by the Antimonopoly Committee of Ukraine ('AMC') and encompasses all goods and/or services, which are perceived as interchangeable or substitutable and which are on offer and in demand on a certain territory and over a certain period of time. The AMC is quite receptive to the parties' arguments regarding a case-specific definition of the relevant market as well as the practice of the European Commission. In the past the AMC defined the relevant market for the airline services as individual routes between cities (including international routes).

4.3 Does Ukraine have a notification system whereby parties to an agreement can obtain regulatory clearance/anti-trust immunity from regulatory agencies?

Yes, if an agreement qualifies as the potentially anti-competitive concerted practices and does not enjoy a special treatment under general block exemptions, the parties must obtain clearance from the AMC. As regards immunity, where parties believe that the agreement does not constitute the potentially anti-competitive concerted practices, they may seek and obtain from the competition authority a comfort letter to that effect, which is called 'preliminary opinion'.

4.4How does Ukraine approach mergers, acquisition mergers and full function joint ventures?

Under Ukrainian competition laws, the mergers, acquisition mergers, and full function joint ventures are subject to merger control. The law sets out an exhaustive list of the transactions/events that require a prior merger clearance subject to certain financial or market share thresholds being met or exceeded by the parties.

4.5 Please give an outline of the procedure, including time frames for clearance and details of any costs of notifications.

The merger review procedure includes the following steps: Preview period. The AMC previews the notification and decides whether it is complete and can be passed for the review on the substance. If the AMC considers the notification is incomplete, it is rejected and should be resubmitted. The AMC has 15 calendar days to take a decision. Phase I review. This stage involves an assessment by the AMC of whether the concentration can be approved or if there are grounds to prohibit the concentration or carry out an in-depth investigation (Phase II). The assessment must be completed within 30 calendar days following the lapse of the 15-day preview period. Phase II review. Phase II review involves a closer analysis of the competition concerns raised by the concentration, examination of expert opinions and other relevant information. Although the review period is limited to 3 months from the AMC's decision to initiate a Phase II review, in practice it may take longer if additional documents, information and/or expert evidence are required.

The filing fee is UAH 5,100 (approximately EUR 510 as of5 November 2012).

The statutory review period (in Phase I) of a potentially anti­competitive concerted practices clearance is 2 months longer than that of the merger review. The filing fee is UAH 2,550 (approximately EUR 255 as of 5 November 2012).

4.6 Are there any sector specific rules which govern the aviation sector in relation to financial support for air operators, including (without limitation) state aid?

Currently, the following principal measures/rules are in place to support the aviation sector: airport fees discounts - the state allows airports to provide discounts to air carriers on statutory airport fees of up to 30% (for Kharkiv International Airport - up to 70%) in order to motivate air carriers to become the commercial partners of airports; further airport fees decrease - the Ministry of Infrastructure of Ukraine officially published the draft regulation aimed to authorise the airports to provide air carriers with discounts on statutory airport fees of up to 80%, and intends to adopt this regulation upon completing statutory approval procedures; 0% VAT - services of international passenger, luggage and cargo transportation are subject to 0% VAT (domestic ones are subject to 20% VAT); introduction of the interest rebate subsidy - during the period from 1 January 2013 till 1 January 2017 Ukrainian aircraft operators will be entitled to receive partial reimbursement of interest payments on bank loans extended in national currency attracted for procurement of domestically-manufactured aircraft and spare parts; interest will be refunded in the amount of the Ukrainian National Bank's discount rate, which is currently equal to 7.5%; and deregulation of the Ukrainian aviation industry - in June 2012 the amendments to the Law of Ukraine "On the List of Licensing Documents in the Commercial Activity Sphere" abolishing: (a) permit for irregular international flights; (b) permit for performing aviation works by foreign operators, joint ventures and enterprises wholly owned by foreign investors; and (c) permit for conducting construction works and other activities on the aerodrome area entered into force; the amendments are apparently directed at the liberalisation of the state control in Ukraine's aviation market.

4.7 Are state subsidies available in respect of particular routes? What criteria apply to obtaining these subsidies?

No, they are not.

4.8 What are the main regulatory instruments governing the acquisition, retention and use of passenger data, and what rights do passengers have in respect of their data which is held by airlines?

Principal legislation regulating passenger data protection includes: Rules of Air Transportation of Passengers and Baggage (the 'Transportation Rules'); and Law of Ukraine "On Personal Data Protection" (the 'Personal Data Law').

According to the Rules: while booking a ticket, a passenger shall provide a carrier or its agent with the necessary information regarding his/her personal data and special transportation terms; thereby the passenger authorises the carrier to keep his/her personal data and to provide such data to state authorities on their request or to the carrier's officials, agents, other carriers, additional services providers for the purposes of booking transportation, obtaining additional services, organisation of luggage search systems, etc.; and the air carrier/its agent shall keep the passenger data confidential.

According to the Personal Data Law, the passenger has the following rights in relation to his/her data held by the air carrier: to be aware of the location, designation and name of the database containing his/her personal data, and of the location/residence place of the personal database holder; to receive information on terms of providing access to his/her personal data, in particular on third parties obtaining his/her personal data; to access his/her personal data contained in the respective database; to ask and to receive an answer on whether his/her personal data is held by an air carrier/its agent and on such data content; to reasonably demand to change or delete his/her personal data processed by the air carrier/its agent, if such a processing is unlawful or invalid; to protect his/her personal data against unlawful processing or accidental loss, deletion, damage in connection with wilful concealment, non-provision or late provision, as well as against provision of information, which is invalid or defames his/her honour, dignity and business reputation; to apply to respective state and local authorities with regard to his/her rights for personal data protection; and to use remedies in case of a breach of legislation on personal data protection.

4.9 In the event of a data loss by a carrier, what obligations are there on the airline which has lost the data and are there any applicable sanctions?

There is no direct requirement for notification on data loss. However, there is a requirement to notify respective individuals and other related parties, which/who received the data for processing, on change or deletion of personal data within 10 business days. It appears that such a requirement may also apply to cases of data loss.

Generally, a passenger is entitled to protection of his/her data against loss and to use remedies, if such a loss resulted in illegal access of third parties to the data, and caused any damages to or otherwise harmed the passenger. Thus, the passenger may apply to the State Service on Personal Data Protection or to a court directly to protect his/her violated rights for personal data protection.

As a result, the airline may face the following negative implications: imposition of an administrative fine over its officials in the amount of 300 - 1,000 non-taxable minimal incomes (UAH 5,100 - 17,000, i.e., approx. USD 638 - 2,127 now) by a court, if the data loss resulted in third parties illegally accessing to such data; and/or obligation to compensate the passenger for damages caused by the data loss, if such damages are proven by the passenger.

The airline is allowed to appeal the court decisions both on fine imposition and damages compensation with higher courts (please see our answer to question 3.5 above).

4.10 What are the mechanisms available for the protection of intellectual property (e.g. trademarks) and other assets and data of a proprietary nature?

Trademarks are subject to registration in Ukraine. Trademark protection is valid for a ten-year period and can be extended. As a member of the Madrid Union, Ukraine honours international trademark registrations.

Copyright protection arises by virtue of the creation of a work of art without any registration requirements. Copyright legislation protects both published and unpublished works of authorship. They are protected regardless of their volume, purpose or genre, as well as their scientific, literary and artistic value.

Patents are granted for inventions and utility models which are new, involve an inventive step, and are industrially applicable. Ukraine follows the principle of 'universal novelty' in granting patents.

The intellectual property object's owner can secure its rights by recording the protected object in the customs register. Upon its record, the owner of intellectual property rights will be able to monitor the movement of goods, which contain its protected intellectual property object, in and out the country.

Information about Ukraine's intellectual property offices can be found at http://www.wipo.int/directory/urls.jsp.

4.11 Is there any legislation governing the denial of boarding rights?

The denial of boarding rights is regulated by the Air Code of Ukraine and the Rules for Air Transportation of Passengers and Baggage, which are based on the EC Regulation No. 261/2004 and EC Regulation No. 1107/2006. In case of denied boarding, certain care must be provided to passengers. This includes meals, refreshments, hotel accommodation, transport and two free telephone calls, e-mails and telefaxes. Also, passengers are entitled to compensation in the range of EUR 250 to EUR 600 depending on the length of the flight. Special rules are established for the flights within Ukraine and international flights with the arrival and departure points outside the European Union.

4.12 What powers do the relevant authorities have in relation to the late arrival and departure of flights?

In case of late arrival or departure and depending on the length of flight and delay, certain care must be provided to passengers. This normally includes meals, refreshments, hotel accommodation, transport and two free telephone calls, e-mails and telefaxes.

4.13 Are the airport authorities governed by particular legislation? If so, what obligations, broadly speaking, are imposed on the airport authorities? According to the Air Code of Ukraine, airport authorities are obliged: (i) to secure arrival and departure of the aircraft; (ii) to organise on-land handling of aircraft, passengers, aircraft crew, luggage, cargo and correspondence; (iii) to create proper conditions for disabled passengers; (iv) to provide meteorological information to aircraft operators; (v) to secure flight and aviation safety; (vi) to organise and conduct search, rescue and fire fighting works in case of accidents or emergency situations with aircraft on the airport or airdrome territory; (vii) to secure the efficient provision of services to airport visitors; and (viii) to create equal conditions for use of airport and airdrome territory/premises by interested persons, etc.

4.14 What global distribution suppliers (GDS) operate in Ukraine?

Amadeus, Travelport and Sabre.

4.15 Are there any ownership requirements pertaining to GDS's operating in Ukraine?

There are none.