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On the 1st of August 2023, Bill No. 63 entitled the Air Navigation Act (hereinafter referred to as the “Act”) was published in the Supplement to the Government Gazette. The proposed Act has reached the stage of the Third Reading and shall repeal the Civil Aviation (Air Operators’ Certificates) Act (Chapter 218 of the Laws of Malta), the Air Navigation Order (Subsidiary Legislation 499.09), and the Civil Aviation Subsidiary (Air Transport Licensing) (Fees) Regulations (Subsidiary Legislation 499.33).

Objective and Scope of the Proposed Act

The primary objective of the proposed Act is to govern aircraft navigation within the Maltese airspace and establish technical compliance standards. The Act applies to aircraft registered in Malta and the accompanying crew together with aircraft present in Malta, irrelevant of where this has been registered. However, the Act does not apply to state aircraft.

According to the Act, the competent authority responsible is the Civil Aviation Directorate of the Authority for Transport in Malta (hereinafter referred to as the “Competent Authority”), established under the Authority for Transport in Malta Act (Chapter 499 of the Laws of Malta). This authority exclusively oversees aircraft navigation over the Maltese airspace and ensures compliance with technical standards for Malta-registered aircraft and their operations.

The Act mandates that the Competent Authority shall fulfil those obligations under the Chicago Convention and European Union Regulations concerning aviation safety. One such obligation is to ensure that aircraft and related components such as engines and propellers comply with the environmental protection requirements outlined in Annex 16 of the Chicago Convention, the Carbon Offsetting and Reduction Scheme for International Aviation.

Regulatory Framework

The Competent Authority is also tasked with establishing a reporting system for compiling incident reports. Additionally, the Authority may issue regulatory instruments with the Minister’s approval to enforce safety standards within the aviation industry and fulfil its functions. These instruments may include administrative penalties for violations of the Act, regulatory instruments made under the proposed Act, or European Union legislation. The Act emphasizes that the penalties provided for in the Act should be commensurate to the gravity of the violation. Such penalties are subject to the possibility of an appeal before the Aviation Appeals Board, which the Act has established.

Moreover, these regulatory instruments which will now be published on the Directorate’s online portal shall have the force of law and are binding in their entirety. Non-compliance with a regulatory instrument issued under the Act shall constitute an offence, except in cases where it imposes administrative penalties for non-compliance.

Occurrence Reporting

The proposed Act incorporates Regulation (EU) No 376/2014, which relates to the reporting, analysis, and follow-up of occurrences in civil aviation (hereinafter referred to as the “Reporting Regulation”). This regulation, among various EU regulations, outlines requirements for incident reporting to enhance aviation safety by collecting, analysing, and disseminating safety information, with an emphasis on prevention rather than assigning blame or liability.

The Competent Authority is responsible for collecting, analysing, and following up on safety occurrence reports. A Just Culture has been fostered in relation to occurrence reporting, to ensure that the Act is in line with Malta’s international obligations. The Act requires the Director General of the Competent Authority to establish a Just Culture Monitoring Group by way of regulatory instrument to comply with the Reporting Regulation (EU 376/2014).

The introduction of occurrence reporting within the Act would mean that the Bureau of Air Traffic Accident Investigation (BAAI) is no longer the responsible entity for collecting information, investigating accidents and incidents, and issuing recommendations.

Just Culture

The concept of a Just Culture, a recent development in aviation safety, has been incorporated into the proposed Act. This stipulates that individuals in aviation should not be disproportionately punished for their actions, decisions, or omissions. Their actions should be considered in light of their experience and training, and punishment should only be awarded in cases of reportable events, gross negligence, wilful violations, or destructive acts.

Establishment of the Board and Appeals to the Aviation Appeals Board

Article 89 of the proposed Act establishes the Aviation Appeals Board (hereinafter referred to as the “Board”). The Board shall be composed of three members appointed by the Prime Minister, including a Chairman with at least twelve years of legal experience, or being a retired magistrate or judge, and two technical assessors who shall serve three-year terms. The Board is empowered to hear appeals against decisions made by the Directorate of Civil Aviation or the Director General, within the 20-day time limit which has been established for filing appeals. The grounds for appeal are limited to the unreasonableness of the decision and procedural unfairness.

This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Nicholas Valenzia