Switzerland and LiechtensteinWT/TPR/S/208 Page 125
Switzerland's GATS commitments on air transport cover aircraft repair and maintenance services. In particular, Switzerland has bound measures affecting cross-border supply, consumption abroad, and commercial presence for aircraft rented without operators, i.e. dry leasing, excluding for companies flying on regular schedule or on charter. Switzerland has also bound measures affecting commercial presence for cargo handling services. Its MFN exemptions under Article II of the GATS cover the sale and marketing of air transport services, and CRS services.79
The Swiss legal framework for civil aviation consists of domestic law and international agreements; the latter are of particular importance given the small size of the country. The main domestic law is the Federal Law on aviation80, together with its implementing ordinances.81 Policy implementation and enforcement were mainly under the responsibility of the Federal Office of Civil Aviation (OFAC); its tasks include licensing and registration, drafting legislation, and negotiating international agreements on civil aviation. The OFAC operates under the Federal Department for the Environment, Transport, Energy and Communications.
The agreement between the European Community and the Swiss Confederation on Air Transport, and the revised EFTA Convention, which both entered into force in June 2002, prohibit all discrimination based on nationality between Swiss and EC/EFTA air companies that are based and licensed in Switzerland or EC/EFTA. Accordingly, Switzerland has extended national treatment to EC and EFTA firms. Carriers incorporated in Switzerland, or in any EC/EFTA country, may supply scheduled and non-scheduled services corresponding to third and fourth freedom rights between the respective country and Switzerland. Since June 2004, Swiss carriers have also been allowed to collect passengers or cargo between any points in different countries within the EC (i.e. seventh freedom). However, the agreement does not allow cabotage (eighth freedom); negotiations on these additional rights are expected to start by mid-2009, taking into account the results of an ongoing impact study on the consequences of the liberalization. The agreement prohibits, on a reciprocal basis, anti-competitive practices, including abuse of dominant positions, except those that affect only the internal territory of one party and are covered by domestic law.
All companies that provide commercial air transport services to, from, or within Switzerland must have an operating permit and an Air Operator Certificate (AOC), both granted by the OFAC. Based on EC technical regulations, the AOC, inter alia, testifies that the company has sufficient financial means to maintain flights for at least 24 months. Once they possess an operating permit and an AOC, companies may apply to the OFAC for licences to serve particular routes. The OFAC's decision to grant both operating permits and licences is based partly on ownership and control provisions. Domestic routes are in principle reserved for "Swiss-based carriers" as defined below. However, the OFAC has discretion to admit foreign carriers, based on common interest. The few requests that have been presented were for taxi flights, and were approved. For international routes, the OFAC admits Swiss or foreign carriers, in accordance with the relevant bilateral agreements.
The Federal Council has authority to decide the extent to which a commercial air transport company must be owned or effectively controlled by Swiss citizens to be considered as Swiss-based (LA, Art.27). As stipulated in the Ordinance on air navigation (OSAv), the company must be registered in Switzerland, and effectively controlled and majority-owned by either: Swiss companies
79 WTO document GATS/EL/83, 15 April 1994.
80 RS 748.0.
81 The main implementing ordinance is RS 748.01.