REGULATIONS ON NON‑SCHEDULED INTERNATIONAL AIR TRANSPORT

Decree‑Law Nr. 274/77 of JULY 4th, 1977

CHAPTER I

General

Article 1

(Definitions)

1. For the purpose of these regulations, where the following terms are used they have the following meaning:

Technical stop ‑ the use of an airport for purposes other than taking on or putting down passengers, mail or cargo;

Group of operators ‑ two or more operators performing flights of the same category between a given country and each of the parts of the Portuguese territory on behalf of the same charterer;

Parts of the Portuguese territory ‑ Continental Portugal, Madeira and Açores;

Non‑scheduled air services ‑ a flight or series of flights not subject to govern-mental rules concerning regularity, continuity and frequency of operation and in-tended to meet specific needs of transportation of passengers and luggage or of cargo in aircraft used for the operator’s own account or for one or more persons under a charter contract;

Operator ‑ a national or foreign air carrier authorized to perform air transport services;

Non‑scheduled operator ‑ an operator authorized to perform only Non­scheduled air services;

Intra‑european flights - Flights conducted between the European territories of States members of the European Civil Aviation Conference, including the archipelagos of Madeira, the Açores and the Canarias.

1. For the simplification of the text:

1956 Multilateral Agreement stands for: Multilateral Agreement on Commercial Rights of Non­scheduled Air Services in Europe, signed in Paris on 30th April 1956 and approved by Decreto‑Lei Nr. 41815 of 9 August, 1958.

ECAC stands for: EUropean Civil Aviation Conference;

ICAO stands for: International Civil Aviation, Organization,.

Article 2

(Applicability)

1. These regulations apply to Non­scheduled international air services in respect of flights across Portuguese territory and of the use of Portuguese air-ports by foreign scheduled or Non­scheduled operators of States parties to the Convention on International Civil Aviation.
2. Non‑scheduled flights by other foreign operators shall be treated on a case‑by‑case basis in accordance with their merits.
3. These regulations also apply to Non­scheduled international air services of national scheduled or Non­scheduled operators, subject however to the obligations and rights specified in the concessions or licenses of such operators.

Article 3

(Cabotage)

1. Except by special permission of the Portuguese aeronautical authorities, no aircraft registered in a foreign country may take traffic from one to another point in Portuguese territory, even through there is an intermediate stop in foreign territory.
2. If permitted, the carriage of traffic contemplated in the foregoing paragraph shall be subject to the provisions of these regulations.

CHAPTER II

Categorization and authorization

Article 4

(Categorization of flights)

1. As regards their frequency, Non­scheduled flights fall into one of the following categories:

1. Single flights ‑ when performed in a number not exceeding one per month and per operator, regardless of the category, between the same country and each of the parts of the Portuguese territory. The transportation of the same group of passengers or of the same freight in both directions shall be considered as one flight, provided that there is no change of operator;
2. Short series ‑ when the flights, regardless of their category, are performed in a number not exceeding four per period of two successive calendar months and per operator or group of operators, between the same country and each of the parts of the Portuguese territory;
3. Long series ‑ when the flights are performed in a number exceeding the maximum established for the short series and in accordance with the remaining elements of the short series definition.

1. As regards their purpose, Non­scheduled flights fall into one of the following categories:

1. Emergency flights ‑ when performed for the purpose of meeting humanitarian and emergency needs;
2. Taxi flights ‑ when of occasional character, performed on request to a destination chosen by the hirer or hirers, provided the aircraft does not have a seating capacity of more than 10 passengers and no part of the capacity, is resold to the public;
3. Own use flights ‑ when performed either for a person (individual, firm, corporation or institution) who charters the entire capacity of the aircraft or for the operator himself for the carriage of:

1. his or its staff or goods, or
2. persons associated with the charterer, provided the flights are of occasional character; no part of capacity is resold, the charter price is not shared by the passengers; no commercial arrangements are made for the total or partial, direct or indirect payment of the flight cost by persons other than the charterer or the owner of the aircraft; except that, as regards cargo flights, the charterer may recover the whole or part of the transportation cost from the person or persons to whom the goods are truly destined as an integral part of the price of the goods;

1. Tour flights ‑ when performed for one or more persons (individual(s), firm(s), corporation(s) or institution(s), acting as organizers, who charter the entire capacity of the aircraft for tours

• either open to general public
• or reserved to individuals linked by association affinities

organized, in both cases, in accordance with special requirements and intended for individually tickted or ground travel, either for pleasure or for participation in cultural, religious, professional, sports or other events.

1. For the purpose of meeting Non­scheduled air transport needs or obligations assumed by Portugal by virtue of international agreements or conventions, the Secretary of State for Transport and Communications may by order provide that the above classification of Non­scheduled flights be altered, expanded or completed with other flight categories. The said order shall establish the operating conditions and the regime of authorization for such flight categories.

Article 5

(Authorization)

1. Non‑scheduled flights require authorization except in the cases for which it is expressly stated that previous notification will suffice.
2. Subject to such constraints as may be imposed for reasons of traffic congestion, only previous notification shall be required in the case of:

1. Non­scheduled flights with purely technical stop in Portuguese territory;
2. emergency flights;
3. intra‑european taxi flights;
4. own use flights performed

1. either for the operator himself, whatever the country of registration of the aircraft and the origin or destination of the flight;
2. or as intra‑european charters by aircraft registered in States parties to the 1956 Multilateral Agreement;

1. single flights of any category (with the exception of cargo flights) when performed as intra‑european flights by aircraft registered in States parties to the 1956 Multilateral Agreement.

1. The Directorate General of Civil Aviation may require the operators to provide any additional information on the flights referred to in sub paragraphs c), d) and e) of paragraph 2 above and prohibit such flights when they impair scheduled air services.
2. Applications and notifications shall contain the particulars listed in a Form to be found in the Aeronautical Information Publication‑AIP Portugal, and they may be submitted by letter, telex or telegrams. The applications shall be addressed to the Directorate General of Civil Aviation and the notifications, when relating to single flights or short series, directly to the airports concerned. In the case of long series, the notification shall be addressed to the Directorate General of Civil Aviation.

Article 6

(Time limits)

1. Subject to such time limits as may be established under paragraph 3 of Article 4 of these regulations, notifications of and applications for Non­scheduled flights, as well as any alteration of their operating conditions, shall be sent to the Direc-torate General of Civil Aviation or to the airports concerned as far in advance as possible for reasons of safety and facilitation and also to ensure quick reply if required.
2. Applications received otherwise than at such time as may be established shall not be considered favourably except by decision of the Secretary of State for Transport and Communications after consultation with other interested parties, provided the time limit is not an essential element for the characterization of the flight.

Article 7

(Use of flights)

Cancelled.

CHAPTER III

Competence and criteria

Article 8

(Competence)

1. If required under these regulations, permission for Non­scheduled flights shall be given by:

1. the Secretary of State for Transport and Communications in the case of long series;
2. the Director General of Civil Aviation in the remaining cases.

1. The competence defined in this article may be delegated.

Article 9

(General criteria for flight approval)

1. Applications for Non­scheduled flights shall be examined having regard to observance of the provisions of these regulations; technical and financial fitness of the operator; justification in the light of market demand; and compatibility of the conditions offered with the sound and orderly development of the air transport industry.
2. Notwithstanding conformity with the above criteria, permission for non-‑scheduled flights may be subject to such maximum capacity and minimum price requirements as may be established by joint order of the Secretary of State for Foreign Trade and Tourism and the Secretary of State for Transport and Communications.
3. Permission for Non­scheduled flights by foreign operators may depend on reciprocal treatment being given to Portuguese operators.

CHAPTER IV

Protection of passengers

Article 10

(Responsibility of operators)

1. Except in the case of emergency flights, a foreign carrier wishing to start Non­scheduled operations into and out of Portuguese territory shall have to meet the following requirements:

1. to be registered in the Directorate General of Civil Aviation as an operator authorized to perform Non­scheduled international flights;
2. to have filed with the Directorate General of Civil Aviation a bank guarantee issued by a Portuguese bank institution for the purpose of insuring not only the fulfilment of his obligations as specified in these regulations or assumed towards his passengers under the charter contract, but also the payment of fees and other charges for which he is responsible;
3. to have filed a certificate of liability for damages to passengers, baggage and cargo or to third parties on the surface.

1. In order to accept the registration referred to in paragraph 1 a) above, the Directorate General of Civil Aviation may require the operator to file a certificate of competence issued by his aeronautical authorities as evidence that his operations are carried out in accordance with the laws and regulations in force in his country.
2. In addition to the requirements mentioned in paragraph 1 above, the Directorate General of Civil Aviation may require the foreign operator to satisfy it, or his applications shall be refused, that he has flying equipment of his own properly dimensioned for the operation he wishes to perform into and out of Portuguese territory.
3. Except in the case of long series of flights, the requirements mentioned in sub paragraphs b) and c) of paragraph 1 above may be waived, provided the authorities having jurisdiction over the operator or the diplomatic or consular authority representing his country in Portugal or any other person considered fit and proper for the purpose, assumes the responsibilities inherent to the flight or flights concerned.
4. Foreign operators having been designated to operate scheduled services under a bilateral agreement concluded with Portugal and being actually operating such services shall be considered as having met the requirements referred to in paragraph 1 above.

Article 11

(Publicity)

Publicity relating to Non­scheduled air services shall specify all the conditions under which such services and the travel connected therewith are offered to the public, conditions which must conform with the rules applicable to the flight category involved.

Article 12

(Charterers responsibility)

1. The charter contract for Non­scheduled flights shall be established between the operator and the person or persons individual(s), firm(s), corporation(s) or institution(s) interested in the flight (charterers), who may be required to be represented by travel agents.
2. The Directorate General of Civil Aviation may refuse permission for non-‑scheduled flights where the aircraft charterer does not meet such conditions as are deemed desirable to ensure compliance with the provisions of these regulations or the fulfilment of his responsibilities with respect to the passengers or the cargo to be carried.
3. The prescriptions to be observed by travel agents wishing to organize travel by Non­scheduled flights, especially as regards their responsibilities towards the passengers and the fulfilment of such transportation and lodging conditions as may have been offered in compliance with Article 11 of these regulations, shall be established by joint order of the Secretary of State for Foreign Trade and Tourism and the Secretary of State for Transport and Communications.

CHAPTER V

Sanctions

Article 13

(Refusals)

1. Permission for Non­scheduled flights shall be refused where it is found that the application:

1. is not supported in due time by the data considered indispensable for its examination;
2. does not meet the requirements of Chapter IV of these regulations.

1. If the facts referred to in the above sub paragraphs are found only after the permission has been granted, such permission shall be considered null and void.

Article 14

(Fines)

1. A fine of 124,70 to 2.493,99 EUROS shall be payable in respect of Non­scheduled air transport operations offered or performed:

1. by a person not authorized to engage in such operations by virtue of these regulations;
2. not in compliance with the requirements established for the flight category concerned;
3. with no regard to the scope of the permission;
4. not in conformity with the data accompanying the application;
5. if the publicity relating to such operations is done in contravention of the requirements established for the flight category concerned;
6. if the flight user is reimbursed of the whole or part of the price corresponding to hotel accommodation at his destination or to any other services in the case of flights where the travel price covers not only transportation but also lodging and other services.

1. The operator shall be liable to a fine of 24,94 to 249,40 EUROS with respect to the in observance of any provision of these regulations for which no other sanction is specified.

Article 15

(Cancellation and prohibition of flights)

Without prejudice to the imposition of sanctions as provided in the preceding paragraphs, the authorities concerned may cancel the permissions already granted to the infringing operator or prohibit him temporarily or permanently from flying into or out of Portuguese territory.

Article 16

(Civil responsibility)

Application of the penalties specified in these regulations does not exempt infringers from civil responsibility under the law.

Article 17

(Payment of fines, judicial expenses and indemnities)

Fines shall be paid into the Bank of Portugal, as Caixa Geral do Tesouro, within thirty days from the date on which the operator is notified, no submission of guias issued by the Directorate General of Civil Aviation.

If the fine is not paid at the time provided in the foregoing paragraph, the Directorate General of Civil Aviation shall have it levied by a Tribunal das Contribuições e Impostos. A statement issued by the Directorate General of Civil Aviation on the basis of books or documents showing the payable sum and fulfilment of the remaining requirements of Article 156 of the Codigo de Processos das Contribuições e Impostos shall constitute the ground for the legal proceeding.

Fines, expenses and possible indemnities shall be defrayed by means of the bank guarantee required under sub paragraph b) paragraph 1 of Article 10 of these regulations. Where such a guarantee has not been provided or is considered insufficient, the Ministerio Publico or the other interested parties may demand the seizure of the aircraft involved in the infringement.

Article 18

(Power to impose sanctions)

The Director General of Civil Aviation shall have the power to impose the sanctions referred to in these regulations, and in exercising it he shall have regard to degree and frequency of the offences committed.

There shall be the right of appeal, with no suspensive effect, to the Minister of Transport and Communications from the Director General of Civil Aviation’s decisions with respect to the imposition of sanctions under the foregoing paragraph. The appeal shall be made within the period of fifteen days from the date when the operator is notified.

Article 19

(Operators record)

For the purpose of securing compliance with the provisions of this Chapter, the Directorate General of Civil Aviation shall keep an updated record of each individual operator having organized or carried out Non­scheduled flights with origin or destination in Portuguese territory.

Article 20

(Enforcement)

The Directorate General of Civil Aviation shall be responsible for the enforcement of these regulations through officers appointed for the purpose, who shall have access to outgoing aircraft, places where tickets are sold or checked and the hotels or similar establishments.

Article 21

(Interpretation)

Doubts raised about the interpretation and application of these regulations shall be settled by decision of the Minister of Transport and Communications.