The Airspace over Germany during a State of Defense (Part 3/3)

The Airspace over Germany during a State of Defense (Part 3/3)

Over decades of peace in the European Union, state sovereignty over airspace has evolved and today makes for a complex picture. That may be a cause for specific disruption if times were ever to become less peaceful. Here is part 3 of 3 describing some relevant legal aspects.

Part 1 describes the complex set-up of entities that control German airspace during peacetime. To put it in a nutshell, the administration of German airspace is divided between different civil entities and, at some military aerodromes, includes military entities.

Part 2 describes the emergency provisions of the German constitution (the “Grundgesetz”) and points to the 1965 German Act to Ensure Traffic (the “Verkehrssicherstellungsgesetz”) and the 1965 German Regulation to Ensure Air Traffic (the “Verordnung zur Sicherstellung des Luftverkehrs”) for more details.

With these statutory laws, there are rules and regulations already in place that give the German government further administrative powers during a state of defense, and the specific rules may allow heightened restrictions and control of air traffic. Most importantly, the German constitution provides that the German air force would have the power to control all air traffic, including civil air traffic.

Legislative Acts in Place – Fit For Reality?

In a 1989 policy statement (“Rahmenrichtlinien für die Gesamtverteidigung”), the German government summarized their policy position as to what would happen in a state of defense. With a view to civil aviation in German airspace, the German government states that during a state of defense, civil air traffic ought to be curtailed and controlled as prescribed by the 1965 Regulation to Ensure Air Traffic, and that, if necessary, the airspace over the territory of Germany ought to be declared restricted. The policy statement includes further details concerning possible obligations on the part of air carriers and airports to assist in the defense effort. Finally, the German government states clearly that air traffic control would be transferred to the armed forces and, additionally, that civil air navigation services would need to be adapted to the exceptional circumstances of a state of defense and that preparations to that effect would need to be made during peacetime.

However, the German Verkehrssicherstellungsgesetz and the German Verordnung zur Sicherstellung des Luftverkehrs hark back to 1965, and the German Rahmenrichtlinien für die Gesamtverteidigung were written in 1989. One could easily argue that in aviation, every relevant aspect has changed since 1989, and certainly since 1965. Although the statutory rules remain in force from a legal perspective, they almost certainly are a bad fit for reality. Furthermore, many aspects may fall under EU rules which enjoy superiority. It is therefore not even easy to delineate to what extent exactly the details of these German “emergency laws” remain applicable.

Further Legislative Acts May Follow

Nontheless, it is probably more likely than not that, if things were to go awry, German government and administration entities would rely on the German Verkehrssicherstellungsgesetz and the German Verordnung zur Sicherstellung des Luftverkehrs, at least during the first weeks or months. Events during the SARS-CoV-2/COVID-19 pandemic have shown that what many have perceived as decades of enlightened evolution may quickly crumble, with state authorities seizing the moment to reinvent control over many aspects of private life and of business. It would therefore hardly come as a surprise if, regardless of the many changes that aviation has seen since 1989 (let alone 1965), something similar were to occur during a “state of defense” with regard to German airspace.

Again learning from recent experience, it appears likely that the next step would be to enhance and expand government and administrative control through new legislation. During a “state of defense”, Articles 115a to 115l of the Grundgesetz provide special procedures for legislation, basically allowing for “speedy lawmaking”. As a precautionary rule, any legislation made under these exceptional rules expires once the “state of defense” is over (Article 115k of the Grundgesetz) – but the underlying problem is obvious.

What Can You Do?

As of now, it is certainly too early for any predictions as to what new legislative acts or implementing rules would look like exactly, especially given that parallel dynamics at the European Union level and within the international community would be unfolding at the same time. However, working from what there is today, it is possible to think of some cautious rules of thumb for what to expect in the early days in a “state of defense” scenario.

First, the obvious: Prepare now! Get your team of operational and legal experts together and get them to work on this. Secondly, it is useful to get a basic understanding of the German Verkehrssicherstellungsgesetz and the German Verordnung zur Sicherstellung des Luftverkehrs.

For any business in aviation, these “emergency rules” will cause both worry and hope. There is reason to worry that aviation may be severely restricted, causing business to be disrupted or lost. Then there is reason for hope because the statutory rules make it very clear that aviation fulfills a vital function in society: On many routes, nothing makes for faster transport than aviation, and on many more routes, nothing works as reliably and smoothly.

The German Verordnung zur Sicherstellung des Luftverkehrs therefore states in its Section 1 that it aims at ensuring that, during a “state of defence” or at a time when Germany needs to heighten its readiness to defend itself, the necessary vital traffic functions remain intact, particularly in order to provide for the civil population and for the armed forces. Section 2 stipulates that, in general, air traffic is restricted to licensed air carriers. Consequently, during a “state of defense”, licensed air carriers would be allowed to continue their business, although customer demand and further requirements would certainly change.

Since the German Verordnung zur Sicherstellung des Luftverkehrs was enacted in 1965, Section 2 refers to Section 20 of the German Luftverkehrsgesetz. However, said Section 20 today refers to Regulation (EC) No. 1008/2008, which is directly applicable and takes priority over German national law. Consequently, any EU air carrier may have to be allowed to fly in German airspace. On the other hand, Regulation (EC) 549/2004 includes safeguards reserving EU member states’ right to close their airspace in times of war or similar situations. Therefore, amendments to Regulation (EC) No. 1008/2008 are to be expected, similar to Article 21a which was introduced during the SARS-CoV-2/COVID-19 pandemic.

Business Continuity for Air Carriers or Others in the Aviation Industry?

At the same time, the restriction for air traffic by any operator which is not a licensed air carrier could possibly infringe on Regulation (EU) No. 2018/1139 and its implementing regulations. The EU rules allow for a variety of commercial and of noncommercial air operations by operators without the requirement of an operating license granted under Regulation (EC) No. 1008/2008, which may easily be understood as an implied right on the part of these operators to be allowed to fly. Again, the safeguards under Regulation (EC) 549/2004 may give the grounds for airspace restrictions. The legal questions may not be easy to resolve (and any administrative court case takes time). Nontheless, there could be a strong incentive for the German Ministry of Transport to make good use of its powers to allow for further exceptions under Section 2 of the German Verordnung zur Sicherstellung des Luftverkehrs. For anyone looking to argue for such an exception, they would also need to be able to lay out in detail why their air service is vital for the civil population or the armed forces.

Furthermore, Section 3 of the German Verordnung zur Sicherstellung des Luftverkehrs empowers the German Ministry of Transport to lift transport obligations under Section 21 of the German Luftverkehrsgesetz, or to set rules of priority for certain transports that are made in order to fulfill such transport obligations. Again, the legal context for this has changed profoundly. In 1965, Section 21 of the German Luftverkehrsgesetz stated that a special license was required for scheduled air services, both on national and on international routes. Today, Section 21 of the Luftverkehrsgesetz still states the same requirement, but its application is really restricted to air carriers from third states and routes from and to such third states; within the EU, Regulation (EC) No. 1008/2008 takes precedence. Before that background, the application of Section 3 of the German Verordnung zur Sicherstellung des Luftverkehrs may be expected to concentrate on scheduled air service on international routes. For air carriers that operate these flights, it may therefore be wise to prepare for scenarios where they would need to give priority to certain transports, or to have ready a set of criteria for prioritizing which, if the time ever comes, they can then suggest to the German Ministry of Transport.

Specific Obligations and Orders Are Allowed

Airport operators should expect that they would be obliged under Section 4 of the German Verordnung zur Sicherstellung des Luftverkehrs to report air traffic at their premises. Further, they may be required to report their traffic facilities and capabilities as they evolve over time.

Furthermore, the German Act to Ensure Traffic (the “Verkehrssicherstellungsgesetz”) allows for many more restrictions and exceptional obligations to be place on anyone, including businesses, who owns or operates transport facilities or vehicles of any type. For example, the German Ministry of Transport is given legislative power to stipulate requirements for the storage of parts and fuel (Section 4 of the German Verkehrssicherstellungsgesetz), and anyone who owns or operates a vehicle or aircraft can be ordered to bring these to a specific shelter place (Section 14 of the German Verkehrssicherstellungsgesetz).

Finally, air carriers, airport operators, and the many other businesses in the aviation industry will need to take a closer look at the other parts of the German “emergency acts”. Most of the legislative acts were introduced between 1965 and 1968, causing significant upheaval at the time, with many people taking to the streets who feared that the rules bear too much resemblance to the Nazi regime. While that may have been motivated by many of the other prevalent political issues of the time, it is certainly true that the emergency measures which are provided for, e.g. in the German Provisioning Act (the “Bereitstellungsgesetz”), are quite the opposite of what, over many decades of peace, we have learned to take for granted. For any business in the aviation industry, this entails specific risks and opportunities.

For those who are well prepared, there would probably be quite a heavy workload considering that the 1989 policy statement by the German government, the “Rahmenrichtlinien für die Gesamtverteidigung”, state that air transport for goods that are vital for survival or for defense must be ensured by civil air carriers and airports.