Switzerland and the European Union operate separate emissions trading schemes (ETS) and have signed an agreement linking these. The agreement requires approval by the Swiss Parliament. Once approved, the agreement will offer Swiss air carriers which operate flights from Switzerland to the European Economic Area or within Switzerland the possibility of trading with the corresponding emissions throughout the European ETS system.
The Cape Town Convention ratification process is still on hold and is unlikely to be completed within the next few years.
Regulatory framework
What is the primary domestic legislation governing the aviation industry in your jurisdiction?
The framework for Swiss civil aviation law is mainly contained in the Federal Aviation Act (FAA). The FAA is complemented by an application ordinance and numerous ordinances dealing with specific subjects.
What international aviation agreements has your jurisdiction concluded?
The Chicago Convention on International Civil Aviation is the main act in civil aviation at international level. Complemented by technical annexes, it represents the basic agreement on aviation at international level. It also forms the basis for national civil aviation legislation.
At the European level, under the agreement between Switzerland and the European Union on air transportation, Switzerland has adopted the relevant civil aviation standards. In Switzerland, international law takes precedence over domestic law.
Which government bodies regulate the aviation industry and what is the extent of their powers?
The Federal Office of Civil Aviation (FOCA) is the primary body responsible for regulating and monitoring civil aviation in Switzerland. The FOCA aims to ensure the safest, best possible and most environmentally friendly use of the infrastructure, which includes airspace with air traffic control and aerodromes. The FOCA also supervises aviation companies, to which it issues operating licences based on a technical, operational and financial evaluation. As far as aviation personnel are concerned, the FOCA ensures that pilots, air traffic controllers and maintenance specialists receive the most comprehensive and up-to-date training or in-service training available. The FOCA inspects the technical requirements with which aircraft need to comply for safe operation. In addition to the supervisory function in the areas mentioned, the FOCA is responsible for the formulation and implementation of aviation policy decisions.
Air carrier operations
What procedural and documentary requirements must air carriers meet in order to operate in your jurisdiction?
Switzerland has implemented into national legislation EU Regulation 1008/2008 on the licensing of air carriers, which is thus directly applicable in Switzerland. In this respect, in order to be allowed to transport passengers air carriers must:
Air carriers with an EU or European Free Trade Association operating licence do not need a separate Swiss operating licence. However, they must provide the following documents:
Ownership and control
Do any nationality or other requirements or restrictions apply to ownership or control of air carriers operating in your jurisdiction?
In order to obtain and hold an air operator certificate, all Swiss air carriers must be majority owned and effectively controlled by nationals of Switzerland or European Economic Area states.
What financial thresholds must air carriers meet to obtain operating authorisation?
The economic viability of an airline company is a condition to obtain and maintain a Swiss operating licence for performing commercial flights according to the Federal Aviation Act. Therefore, the FOCA applies an initial financial audit when awarding or renewing an operating licence. Following the initial application, the FOCA monitors the financial and economic state of licensed air carriers according to a regular financial reporting system in order to assess that air carriers satisfy the financial requirements set by the law. There are no numerical thresholds. However, an air carrier applying for an operating licence must demonstrate:
An exception applies to small companies: if, in accordance with the submitted application, such company does not operate and does not plan to operate flying aircraft with a maximum take-off weight of more than 10 tons or a capacity of at least 20 passenger seats and an expected turnover not exceeding €3 million, it suffices to provide proof that the company's liquidities amount to €100,000.
What is the required level of insurance coverage for air carrier operations?
Switzerland has implemented in national legislation EU Regulation 285/2010 (amending Regulation 785/2004) on insurance requirements for air carriers and aircraft operators. Cover is as follows:
In respect of liability for third parties, the minimum insurance cover per accident for each aircraft depends on the maximum take-off weight. For instance, the minimum insurance for an aircraft with a maximum take-off weight of less than 500,000kg would be 500 million SDR; for an aircraft of 500,000kg or more, the minimum insurance would be 700 million SDR.
What safety requirements apply to air carrier operations, including with regard to professional and technical certifications?
Switzerland has adopted EU Regulation 216/2008 on common rules in the field of civil aviation and establishing the European Aviation Safety Agency (EASA). This is the main source of Swiss aviation safety legislation. The EASA Rules on Air Operations and Implementing Rules are applicable in Switzerland. Further, Switzerland has implemented safety management systems as provided for in International Civil Aviation Organisation Annexes 6, 11 and 14. The FOCA administers air safety in Switzerland.
What environmental obligations apply to air carrier operations?
Environmental obligations for air carriers are regulated by the EASA. They mainly relate to aircraft noise and engine emissions by means of rules relating to airworthiness and environmental certification of aircraft and related products, and certification standards for emissions and noise. A majority of the aircraft licensed to fly in Switzerland are certified in accordance with EASA rules. The EASA website contains details of the corresponding registrations together with the noise certification data. Propeller-driven aircraft and motorised gliders of up to 8,618kg maximum take-off mass, which cannot be certified in accordance with the EASA rules (Non-EASA (Annex II) – Aircraft), are subject to a national certification in accordance with the Ordinance Governing Aircraft Emissions.
Air traffic control
How are air traffic control services regulated in your jurisdiction?
In Switzerland, Skyguide SA is responsible for air traffic control. Skyguide SA is a non-profit, public limited company with a mixed economy that provides civil and military air navigation services in Switzerland on behalf of the Swiss confederation. The Swiss confederation has a majority of the votes and shares in the company. The interests of the Swiss confederation as a shareholder are represented by the Department of Environment, Transport, Energy and Communications (DETEC) and the Department of Defence, Civil Protection and Sport (DDPS). The Federal Council appoints the board of directors through the general assembly and approves the annual management reports. It sets Skyguide SA strategic objectives for four years and allows the company to implement them as it sees fit. The DETEC and the DDPS check annually, in conjunction with the board of directors, whether Skyguide SA complies with the instructions given.
Do any licensing requirements apply to specific routes?
Routes which do not fall within the scope of the free access to the EU market require a permit from the FOCA.
Are any public service obligations in place with respect to remote destinations?
Do any special provisions apply to charter services?
What taxes apply to the provision of air carrier services?
At various airports in Switzerland, the landing charges payable include a component dependent on the noise generated by the aircraft. To this end, aircraft are broken down into noise classes:
In addition, Switzerland was one of the first countries in the world to introduce charges directly related to gaseous emissions from aircraft. The charge primarily depends on the absolute amount of nitrogen oxide emissions. Charging rates per one emission value are as follows:
The Swiss Parliament recently rejected the introduction of a tax on aircraft tickets to protect the environment.
Consumer protection and liability
Are airfares regulated in your jurisdiction?
Air carriers are free to establish their own fares for commercial flights. Airfares must indicate all fare components such as charges, airport taxes, security taxes and fuel surcharges in the price. This principle applies to all advertising by airlines, tour operators and travel agencies on Swiss territory.
Passenger protection What rules and liabilities are air carriers subject to in respect of:
(a) Flight delays and cancellations?
Swiss carriers and any other carrier operating flights from Swiss airports are subject to Regulation 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. The Federal Office of Civil Aviation (FOCA) monitors compliance with Regulation 261/2004.
CancellationIf a flight is cancelled, passengers are entitled to receive assistance and, depending on the circumstances, compensation. In this respect, the airline is required to offer the passengers:
If the onward flight is delayed until the next day (a change of date), the airline is required to offer hotel accommodation (including transport) if necessary. It must also offer passengers telecommunications facilities.
In addition, the passengers may be entitled to compensation as follows:
This compensation may be halved if the journey is not delayed by more than two, three or four hours, depending on the flight distance.
The requirement to pay compensation does not apply in the following circumstances:
DelayIf a departure is delayed by two, three or four hours (depending on the flight distance), the airline is required to provide assistance to the passengers. In this respect, pursuant to Regulation 261/2004, a flight is deemed to be delayed if it meets the following criteria:
In case of delay, the airline is required to offer the passengers meals and beverages in relation to the waiting time. If the onward flight is delayed until the next day (a change of date), the airline is required to offer hotel accommodation (including transport) if necessary. It must also offer passengers telecommunications facilities. If the flight is delayed by five hours or longer, and passengers decide not to wait for the flight, the airline must also offer a refund of their ticket price.
In accordance with Regulation 261/2004, airlines are not required to make compensation payments in the event of a delay. However, the European Court of Justice has ruled that entitlement to compensation may apply in the case of delayed arrival at the destination by at least three hours. If the delay is attributable to extraordinary circumstances, passengers are not entitled to compensation. Due to the lack of a legal basis, the FOCA cannot fine an airline for failure to pay compensation in the event of a delay.
(b) Oversold flights?
Where a passenger is unable to travel because a flight is oversold, this falls within the scope of denied boarding.
(c) Denied boarding?
In case of denied boarding (eg, an overbooked flight), the airline must provide assistance and pay the following compensation:
This compensation may be halved if the journey is not delayed by more than two, three or four hours, depending on the flight distance. However, the airline is not required to pay compensation if, for example, a passenger arrives late at check-in or the departure gate or does not possess all the necessary travel documents, or if the airline can cite other legitimate grounds for not permitting the passenger to board the aircraft.
The airline is also required to offer:
If an onward flight is delayed until the next day (a change of date), the airline is required to offer hotel accommodation (including transport) if necessary and telecommunications facilities.
(d) Access for disabled passengers?
Regulation 1107/2006 applies to all Swiss airports and to any air carriers operating flights from Switzerland. Hence, people with disabilities or reduced mobility travelling by air have the same rights as in the European Union. In this respect, Regulation 1107/2006 protects their rights as follows:
In the event of failure to comply with the rights established by Regulation 1107/2006, the injured parties must first take action against the relevant air carrier or airport. If satisfaction is not obtained, they can then refer the matter to the FOCA, which will examine the complaint and determine whether the carrier or airport has failed to fulfil its obligations. The FOCA may impose penalties on airports and air carriers. On the other hand, actions for damages fall within the jurisdiction of civil courts. The FOCA is not competent to compel carriers or airports to pay compensation.
(e) Lost, damaged or destroyed luggage?
Switzerland is a signatory to the Montreal Convention and applies it to claims for lost, damaged or destroyed baggage. This applies to domestic and international flights. In this respect, passengers are entitled to compensation of up to 1,131 special drawing rights, which can be increased if the incident was caused intentionally by the carrier or as a result of gross negligence on its part.
(f) Retention and protection of passenger data?
The Federal Act on Data Protection (FADP) is the main legislation on the retention and protection of passenger data. The FADP lays down the fundamental rules concerning the processing of personal data. As a general rule, the data subject has the right to inspect and correct false, incomplete or erroneous data. The collection of the data and the purpose for which it is processed must be readily identifiable by the person concerned. There exists a duty to actively inform the person concerned if particularly sensitive personal data is involved. The data subject disposes of all remedies generally available under civil procedure rules (including injunctions, right to restitution and right to claim damages). Some specific rules applicable to air carriers have been are incorporated in the Federal Act on Foreign Nationals. These rules mainly relate to the obligation for air carriers to communicate passenger data. The Federal Office of Migration is responsible for determining the flights for which the air carriers are required to transmit personal data of the passengers. The affected carriers are obliged to transmit the advance passenger information of all passengers to the Swiss authorities.
What rules and liabilities apply to the air carriage of cargo?
Switzerland is a signatory of the Montreal Convention and applies it to claims for lost, damaged or destroyed cargo.
Marketing and advertising
Do any special rules apply to the marketing and advertising of aviation services?
There are no specific rules regarding marketing and advertising for the airline industry. However, the general requirement of price transparency applies to the airline industry based on the Ordinance on Price Indication. In this respect, all fare components such as charges, airport taxes, security taxes and fuel surcharges must be included in the airfare price. This principle also applies to all advertising by airlines, tour operators and travel agencies on Swiss territory. Specific advertising rules also apply to travel agencies under the Package Travel Act, including Section 3 of the Package Travel Act, pursuant to which a travel agency which publishes a brochure is bound by the particulars contained therein.
Do any special rules apply to consumer complaints handling in the aviation industry?
A complaint can be lodged with the FOCA. The FOCA will then ask the airline which operated the flight to respond to the complaint and to provide the necessary documentation so that it can examine the case in detail. In case of an infringement, the FOCA can impose penalties on the airline. Although the FOCA cannot enforce compensation payments, its administrative penal proceedings may motivate airlines to make payments to the passengers. However, if this is not the case, the passengers can still lodge a civil claim with the relevant court. An alternative dispute resolution scheme has been set up in Switzerland (the Ombudsman of the Swiss Travel Industry). However, this alternative mainly concerns travel agencies and tour operators and the ombudsman has limited powers to assist with problems involving airlines.
Aircraft
What are the requirements for entry in the domestic aircraft register?
All Swiss aircraft must be registered in the Swiss Aircraft Register, which is maintained by the Federal Office of Civil Aviation (FOCA). In this respect, an aircraft may be registered in the Swiss Aircraft Register only if the owner is:
As part of the above requirements, Swiss nominees do not fulfil the nationality requirement. An aircraft owned by a foreign entity or individual cannot be registered in the Swiss Aircraft Register. However, there is an exception according to which such aircraft might be registered in the Swiss Aircraft Register provided that it is operated by a Swiss commercial aircraft operator (with a Swiss air operator certificate) for a sufficient period of time and for commercial operations on the basis of a lease or operating management agreement.
In order to register an aircraft in the Swiss Aircraft Register, the applicant must pay Sfr110 to reserve the aircraft markings. The fees due to the FOCA for the registration itself vary depending on the type of aircraft (between Sfr300 to Sfr600). The process to register an aircraft in the Swiss Aircraft Register takes approximately two weeks.
Registration of an aircraft in the Swiss Aircraft Register is separate from the procedure for obtaining a certificate of airworthiness or permit to fly that allows the aircraft to be flown legally.
Mortgages and encumbrances
Is there a domestic register for aircraft mortgages, encumbrances and other interests? If so, what are the requirements and legal effects of registration?
In Switzerland, mortgages are recorded in the Swiss Aircraft Record, a different register from the Swiss Aircraft Register. The Swiss Aircraft Record is public. It is simple to apply for registration and perfection of the mortgage. The mortgage agreement must be filed together with the application for recordal, which must be approved by the FOCA.
The application for recordal of the aircraft in the Swiss Aircraft Record is published in the Swiss Official Gazette, which allows any parties that object to notify the FOCA of their objection within 30 days of publication. At the end of this period, if no objection has been raised the mortgage is registered in the Swiss Aircraft Record and is perfected.
The fees levied by the FOCA for the registration of a mortgage depend on the value of the secured amount:
The fees imposed by the FOCA for the registration of a mortgage in the Swiss Aircraft Record are between Sfr385 and Sfr17,200. In addition, a fee is due to the FOCA for the registration of the aircraft in the Swiss Aircraft Record of between Sfr195 and Sfr10,230 depending on the take-off weight of the aircraft (Sfr9 per 100kg).
What rules and procedures govern the detention of aircraft?
In the case of an enforceable right (ie, a judgment or court order), the detention of an aircraft is possible under the Debt Collection and Bankruptcy Act. In accordance with Section 272 of the act, the sequestration is authorised by a judge, provided that the creditor proves that:
The types of detention include the registration of an aircraft mortgage and the auctioning of an aircraft.
Safety and maintenance
What rules and procedures govern aircraft safety and maintenance?
Switzerland has adopted EU Regulation 216/2008 on common rules in the field of civil aviation and establishing the European Aviation Safety Agency (EASA). This is the main source of Swiss aviation safety legislation. The EASA Rules on Air Operations and Implementing Rules are applicable in Switzerland. Further, Switzerland has implemented safety management systems as provided for in International Civil Aviation Organisation Annexes 6, 11 and 14. The FOCA administers air safety in Switzerland.
What is the state of regulation on unmanned aerial vehicles (drones) in your jurisdiction?
Unmanned aerial vehicles (drones) are subject to the Department of Environment, Transport, Energy and Communications (DETEC) Ordinance on Special Categories of Aircraft. In this respect, for the operation of drones with a weight of more than 30kg a permit must be obtained from the FOCA. There is no need to obtain a permit for drones whose weight is below 30kg. However, the DETEC Ordinance on Special Categories of Aircraft imposes certain restrictions on their operation (eg, prior authorisation is required to operate a drone within 5km of landing fields and heliports or to operate the drones in a control zone (ie, a zone in which aircraft are taking off and landing)).
Accidents
How are air accidents investigated in your jurisdiction?
The Department of Environment, Transport, Energy and Communications (DETEC) Swiss Transportation Safety Investigation Board conducts investigations to clarify the circumstances and causes of aircraft accidents and to prevent similar accidents in the future. The investigation is concluded by a report that may contain safety recommendations and measures intended to improve flight safety. The DETEC safety officer subsequently decides in collaboration with the Federal Office of Civil Aviation and the aviation community whether and to what extent the safety recommendations should be implemented.
What liability regime governs death, injury and loss arising from air accidents?
Switzerland is a signatory to the Montreal Convention and applies the liability rules of the convention to domestic and international air accidents. In the event of the death or personal injury of a passenger during a flight on board an aircraft operated by a Swiss airline, the airline’s liability in respect of passengers who are killed or injured in an accident is unlimited, unless it proves that the damage was not caused by its negligence or that a third party was liable for the damage. If such proof is provided, the carrier's liability is limited to 113,100 special drawing rights per passenger.
What are the reporting requirements for air accidents?
Aircraft accidents must be reported to the DETEC as soon as possible. This obligation is incumbent on the relevant members of the aviation staff, air police bodies and local authorities.
Airports
What rules govern the ownership of airports (both public and private)?
Airports can be owned publicly or privately, or in a public-private joint venture. For example, Zurich Airport is owned by a publicly traded company and Geneva Airport is owned by public corporations.
What is the authorisation procedure for the operation of airports?
Pursuant to the Federal Aviation Act (FAA), a concession is required for the operation of any airport open to public aviation. This concession is granted by the Department of Environment, Transport, Energy and Communications (DETEC). For airports which are not open to public aviation (airfields), an operating permit is required. These are issued by the Federal Office of Civil Aviation (FOCA). In addition, each construction or installation used exclusively or mainly for the operation of an airport may be implemented or modified only if the project plans have been approved by the competent authority (ie, the DETEC for airports with a concession or the FOCA). The procedure for approving plans is governed by Sections 37 and following of the Federal Aviation Act. In addition, every airport operator is required to issue an operating regulation which must be approved by the FOCA. These regulations lay down the specific terms and conditions of operation resulting from the aeronautical infrastructure sectoral plan, the concession or operating authorisation and, where applicable, the decision to approve the plans. The operating regulations must define:
In practice, for any project, the aerodrome operator (with or without a licence) is required to send the approval files for plans or operating regulations to the FOCA.
What ongoing operating requirements apply (including obligations relating to safety, security and facilities maintenance)?
The airport operator must maintain an infrastructure guaranteeing safe operations. The operation of the airport must be in line with the aeronautical infrastructure sectoral plan, and the applicant must have the management skills, technical knowledge and funds necessary for the operation of the airport, as provided for in the operational regulations.
What airport charges apply and how are they regulated?
Pursuant to the FAA, airport operators may levy charges for the use of and access to airport facilities used for flights, including security controls specific to aircraft operations. The categories of charges include the following:
Airport operators must set the charges based on the following criteria:
The income resulting from the charges must not exceed the certified costs and a reasonable return on invested capital. The FOCA is responsible for the determination and collection of charges. In the event of a dispute between the airport operator and users, it will approve charges on request.
What regulations govern access to airports?
Airports which hold a concession must grant access to all national and international airlines entitled to operate in Switzerland pursuant to the FAA. Any restrictions must be detailed in the operational regulation of the airport and must not be discriminatory. The operational regulation is subject to FOCA approval.
What regime governs the allocation of airport slots (including slot transfer, revocation and disputes)?
The Ordinance on the Facilitation of Schedules and Slot Coordination at Airports implements Regulation 95/93 in Switzerland. Slot Coordination Switzerland (SCS) is responsible for the allocation and coordination of slots at coordinated airports located in Switzerland. On the initiative of the SCS, the FOCA may temporarily or permanently withdraw slots from an air carrier that:
How are ground handling services regulated?
The Ordinance on Aeronautical Infrastructure implements Regulation 96/97 in Switzerland. Airport operators must regulate access to ground handling services in the operating regulations. In addition, they must inform the FOCA of the names of the service providers and self-handling users, specifying which categories of handling they provide. Any change must also be notified. The DETEC may make the activity of a service provider user conditional upon obtaining an authorisation within the meaning of Section 14 of Regulation 96/67.
Competition issues
Do any sector-specific competition regulatory/legal provisions apply to the aviation industry in your jurisdiction?
There are no rules specific to the aviation sector. Therefore, the aviation industry is subject to the general Federal Act on Cartels, prohibiting anti-competitive agreements and abuses of a dominant market position and instituting a merger control regime. The Federal Act on Cartels is largely based on European competition law. According to the agreement between Switzerland and the European Union on air transport (1 June 2002), the European Union and not the Swiss competition authorities are competent to control concentration between undertakings. The Swiss authorities remain competent only if the thresholds, as defined in the EU Merger Regulation, are not reached.
Code sharing and joint ventures
What (if any) competition concerns arise in relation to code sharing and air carrier joint ventures?
Code sharing and joint ventures may be problematic from a competition law point of view since they can potentially be held to constitute a merger provided that a sufficient level of integration exists between the participating air carriers. In such circumstances, prior clearance from the authorities is necessary provided that the turnover thresholds are exceeded. In addition, such arrangements might also constitute anti-competitive agreements. Hence, air carriers must ensure that the pro-competitive effects of any agreement outweigh any anti-competitive effects.
What rules govern state aid in the aviation industry? Do any exemptions apply?
The agreement between Switzerland and the European Union on air transport sets out an aviation-specific aid scheme. This scheme is equivalent to Section 107 of the Treaty on the Functioning of the European Union. As a general rule, it prohibits state aid which distorts or threatens to distort competition. The decision as to whether state aid is permissible under the aforementioned regulations lies with the Swiss authorities, which are obliged to inform the EU authorities about such aid.
Have there been any notable recent cases or rulings involving competition in the aviation industry?
In 2014 the Swiss Competition Commission (COMCO) imposed a fine on several airlines for a total amount of Sfr11 million in connection with a price cartel on air freight between 2000 and 2005. The COMCO investigation led to the conclusion that the airlines had agreed on freight rates, fuel surcharges, war risk surcharges, customs clearance surcharges for the United States and the commissioning of surcharges. All these elements are part of the price charged for air freight transport. COMCO found that the agreement constituted a horizontal price agreement case and was a serious infringement of the Federal Act on Cartels.
Dispute resolution
What aviation-related disputes typically arise in your jurisdiction and how are they usually resolved?
Aviation disputes falling within Swiss jurisdiction mainly include:
The Swiss courts tend to follow the European Court of Justice in these matters. In the Swiss aviation sector, the vast majority of cases are settled out of court. The conditions of the settlement are usually negotiated by the parties’ lawyers or between the parties themselves.
