Aviation

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

The main regulatory bodies which apply to and/or regulate aviation in Morocco are the Minister of Equipment and Transport, the Direction de l’Aviation Civile (DAC), International Conventions and National legislation.

 The latest is mainly based on a Decree on Civil Aviation dated July 10, 1962, as amended on July 4, 2012.

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

The operating licence is granted by the Minister of Equipment and Transport.

In order to obtain it, an air carrier needs to provide technical and financial guarantees.

 Also, the air carrier should comply with the « Specifications » established by the Direction de l’Aviation Civile.

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

Morocco is a signatory to the Chicago Convention and must ensure that air navigation equipment and operations comply with International Civil Aviation standards.

The Minister of Equipment and Transport and the Direction de l’Aviation Civile (DAC) are the authorities in charge of air safety.

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

There is no particular separate regulation for air safety.

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

No, except the fact that operation of a private carrier does not need a particular authorization from the Minister of Equipment and Transport, unlike for public air transportation.

1.6 As regard to international air carriers operating in Morocco, are there any particular limitations to be aware of, in particular when compared with 'domestic' or local operators?

 No, in particular.

1.7 Are airports state or privately owned? Airports are owned either by the state or by a public authority.

Aiports are state/publicly owned.

They can either be owned by the State or by Public Authorities.

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

There may be some specific regulations depending on the concerned airport.

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?

In case of air accident, notification should be made immediately to the Direction de l’Aviation Civile and to the competent Judicial Authority.

An inquiry shall promptly be conducted and a report shall be issued for the Direction de l’Aviation Civile within six (6) days following the accident.

2 Aircraft Trading, Finance and Leasing

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

Registration of ownership before the aircraft register is necessary and will constitute proof of ownership.

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

Aircraft mortgages and charges must be registered before the Direction de l’Aviation Civile’s register.

They shall be in writing and specify each element on which the mortgage applies.

The mortgage can be extended to spare parts, provided that they are individually identified.

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

The lessor or the financier will need to register the lease or the financing contract, including mortgages in order to be effective against third parties.

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

Morocco is signatory to the main International Conventions and more particularly the Montreal Convention and the Geneva Convention.

2.5 How are the Conventions applied in Morocco?

International Convention duly ratified by Morocco, through specific internal Laws enacting the approval of such Conventions, are enforceable.

3 Litigation and Dispute Resolution

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

Preventive seizure cannot be sought on an aircraft dedicated to public transportation.

However, preventive seizure of an aircraft dedicated to private transportation can be sought before Court on the basis of documents evidencing the debt.

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?

The lessor or the financer of an aircraft can file a judicial pocedure before Court asking for enforcement of an executor title under the lease/financing agreement, which would entitle him to take possession of the aircraft.

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 Morocco regarding the courts in which civil and criminal cases are brought?

The competent jurisdiction is the one in which the aviation company’s headquarter is located.

Generally, Commercial Courts have competence in aviation disputes.

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

 There are no specific provisions related to aviation disputes in particular.

 General remedies can be found in Moroccan Civil Procedure Code : seizure, enforcement of a title…

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?

An appeal is indeed possible before Court, within fifteen (15) days from the notification of the first instance judgment to the sentenced party.

An arbitration award can only be subject to a claim for annulment, on a limited number of grounds.

However, an exequatur judgment of a foreign judicial decision or an arbitration award can be subject to an appeal.

4 Commercial and Regulatory

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

There are no specific competition rules that apply in particular to aviation sector.

The general rules are governed by Moroccan Competition law and more particularly those relating to  merger control/concentration, certain categories of agreements and abuse of a dominant position.

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

The relevant market comprises all the goods and services which can be regarded as substitutable.

They are determined by analysing the relevant product market and the relevant geographic market.

As regards to the relevant product market, both supply and demand should be taken into account, which implies looking closely at the good or service provided by the competitors.

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

The obligation to notify is not framed within any particular time limit.

 Filing may be made at any time once the parties are in a position to give notification of a project that is sufficiently well advanced.

Filing has a suspensive effect. A concentration may not be completed before approval has been obtained from the Prime Minister.

However, in the absence of any notification of the Prime minister’s decision to the parties, during a period of two (2) months, or six (6) months if the Prime minister submits the case to the Competition Council, the decision is deemed to have been tacitly approved.

The substantive test for clearance is whether the transaction significantly lessens competition, especially by creating or strenghtening a dominant position and whether it makes a sufficient contribution to economic progress to offset the damage to competition.

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

Mergers, Acquisitions and Joint Ventures can be treated as a concentration or an abuse of a dominant position.

Regarding concentration, thresholds are determined by the importance/holding of market shares : more than 40% of the market shares.

A concentration shall be notified and cannot be implemented before it is authorised.

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

A Concentration shall be notified to the Moroccan Competition Authority : the Prime Minister prior to its implementation. As stated above in point 4.3, in the absence of any notification of the Prime Minister’s decision to the parties during a period of two (2) months, or six (6) months if the Prime Minister submits the case to the Competition Council, the decision is deemed to have been tacitly approved.

The Prime Minister can authorise the agreement or order a further in-depth examination and ask the Competition Counsel to provide an opinion.

There are no legal costs for filing.

 Filing must include : a copy of the draft act and a memorandum on the likely impact of such act, the identity of the undertakings’managers and the main shareholders or concerned parties in the transaction, annual reports including the balance sheets of the last four years, any commitments given by the undertakings with regard to the transaction.

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?

There are no particular local rules regulating financial support to aviation companies.

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

There may be some State subsidies which can be granted in respect of particular rules.

The criteria would be defined on the particular decision to be taken for this purpose.

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?

Moroccan Law on Protection of Personal Data Treatment, as enacted by Dahir dated February 18, 2009, provides that collection, registration and organization of personal data is subject to:

- the consent of the concerned person and, 

- a prior statement made before the National Commission of Control of Protection of Data Base, as soon as the used means are located in Morocco.

Such statement shall be replaced by a prior authorization in case personal ID numbers of the concerned persons are communicated to the responsible of the treatment.

The non respect of these provisions is punished by a fine up to 9.000 EUR, without prejudice to a civil liability claim. 

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?

The person responsible of a data treatment must protect personal data against loss, alteration and unauthorised disclosure or access.

 Even if there are no express rules governing loss, we can imagine that the responsible of treatment should reconstitute the data base and inform the National Commission of Control of Protection of Data Base of the loss.

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?

There are no specific provisions related to intellectual property rights in relation to aircraft.

 All the mechanisms available are provided by the Moroccan Intellectual Property Code.

As regards to jurisdictions, Commercial Courts are competent to deal with intellectual property issues.

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

In case of denia of boarding, the passengers would have the possibility to file a claim against the airline company asking for damages.

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

In case of late arrival and departure, passengers would also have the possibility to file a claim against the airline company and ask for damages.

4.13 Are the airport authorities governed by particular legislation? If so, what obligations, broadly speaking, are imposed on the airport authorities?

Airports are subject to specific laws defining their statute, generally as « Etablissements Publics ».

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

Amadeus is the GDS used in Morocco.

 

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

No, in particular.

Contributor:

Rachid Benzakour

Avocat

Benzakour Law Firm

Casablanca,Morocco

Tel: + 212 661 09 05 79

URL: http:// www.cbllawfirm.com