Circular No. 26/2009/TT-BGTVT on air transportation and common aviation activities

CIRCULAR

Regulations on air transportation and common aviation activities

__________________

Pursuant to the Civil Aviation Law of Vietnam 2006;

Based on the Investment Law 2005;

Pursuant to Decree No. 51/2008/NĐ-CP dated April 28, 2008, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Transport;

Based on Decree No. 76/2007/NĐ-CP dated May 9, 2007 of the Government on air transportation business and common aviation activities.

The Minister of Transport shall stipulate regulations on air transportation and common aviation activities as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular guides the following contents:

1. Procedures:

a) Approving the leasing of aircraft between Vietnamese organizations and individuals and foreign organizations and individuals;

b) Registering the Air Transportation Charter of Vietnamese airlines;

c) Issuing Certificates for the establishment of Representative Offices and Ticket Sales Offices of foreign airlines in Vietnam;

d) Issuing Certificates for the registration of secondary air waybill issuance;

đ) Granting air transportation rights; approving contracts related directly to air transportation rights.

2. Requirements for aircraft leasing; obligations of airlines in case of delay, cancellation, interruption of transportation, refusal to transport; representation and ticket sales activities of foreign airlines, secondary air waybill issuance activities.

3. Documents for applying for an air transportation business license, common aviation business license.

Article 2. Applicability

This Circular applies to Vietnamese organizations and individuals and foreign organizations and individuals related to aircraft leasing activities, air transportation activities, and common aviation activities in Vietnam.

Chapter II

PROCEDURES FOR APPROVAL AND REQUIREMENTS FOR AIRCRAFT LEASING

Article 3. Procedures for approval of aircraft leasing

1. Organizations and individuals requesting approval of aircraft leasing shall submit eight (8) sets of application documents to the Civil Aviation Administration of Vietnam. The application documents shall include the following:

a) A request for approval of aircraft leasing;

b) Reports and explanations on the contents prescribed in Article 39 of the Civil Aviation Law 2006;

c) Aircraft leasing contract;

d) Documentation confirming the legal status and business operations of the lessee (in the case of leasing out), lessor (in the case of leasing), aircraft operator, and aircraft maintenance personnel;

đ) Documentation on technical specifications of the aircraft;

c) Documentation demonstrating the right (ownership, possession, use) of the lessor over the aircraft; in cases of leasing with crew and leasing without crew, additional certificates of aircraft operation, maintenance personnel, and insurance certificates are required.

2. The Civil Aviation Administration of Vietnam shall be responsible for reviewing and considering the approval of aircraft leasing within ten days from the date of receipt of complete and valid documents.

Article 4. Requirements for aircraft leasing

1. Organizations and individuals leasing aircraft must genuinely operate, control, and be responsible for the granted air transportation rights.

2. Organizations and individuals leasing aircraft may not allow any other party to directly or indirectly benefit from the use of air transportation rights outside the agreed lease price based on operational time or lease period, along with directly related costs.

3. Organizations and individuals leasing and leasing out aircraft have the obligation to participate in and explain the leasing process at review meetings and bear costs related to the review.

4. Prior to putting the aircraft into operation, organizations and individuals are responsible for notifying and providing the Civil Aviation Administration of Vietnam with relevant documents concerning temporary importation/re-exportation (for leasing) and temporary exportation/re-importation (for leasing out) of the customs authority.

5. In cases where the lease term does not exceed seven (7) consecutive days as stipulated in Clause 3, Article 39 of the Civil Aviation Law 2006, organizations and individuals must notify the Civil Aviation Administration of Vietnam in writing that the lessor has a certificate of qualified aircraft operator.

6. Organizations and individuals leasing and leasing out aircraft have the obligation to report to the Civil Aviation Administration of Vietnam any violations by the parties in implementing the aircraft leasing contract; early termination or extension of the lease term; actual time the aircraft leaves Vietnam (for leasing) or returns to Vietnam (for leasing out).

Chapter III

Article LAYMAN TRANSPORT REGULATIONS

Article 5. Issuance of Transport Regulations

1. Air carriers shall be responsible for drafting and issuing transport regulations that comply with legal provisions.

2. The transport regulations must include provisions on the following issues: rights and obligations of the carrier; rights and obligations of passengers; tickets; transportation fares and applicable conditions; seat reservations, flight schedules; delays, cancellations, refusals, and limitations on carriage; refunds; civil liability for damages caused to passengers; special passenger transportation.

Article 6. Registration of Transport Regulations

1. Air carriers shall register their transport regulations by submitting the relevant documents to the Civil Aviation Authority of Vietnam. The registration dossier includes the following documents:

a) A request for registration of the transport regulations;

b) A copy of the transport regulations.

2. The Civil Aviation Authority of Vietnam shall be responsible for examining and issuing a Certificate of Registration of Transport Regulations within seven days from the date of receipt of a valid dossier.

Article 7. Obligations of Air Carriers in Case of Delays, Cancellations, Disruptions, or Refusal of Transportation

1. In case of planned delays or disruptions of fifteen minutes or more, air carriers shall have the obligation to inform passengers at intervals of fifteen minutes through the public address system, providing information related to the flight, specifically as follows:

a) Flight number and route;

b) Reason for the delay or disruption;

c) Expected departure time or alternative flight schedule;

d) Passenger service plan;

đ) Passenger assistance unit (location, identification signs);

e) Apology to passengers.

2. In case passengers have received confirmation for seats on a flight but transportation is disrupted or delayed due to the carrier's fault, the carrier shall serve passengers according to the following regulations:

a) For delays of two hours or more, light refreshments shall be provided;

b) For delays of three hours or more, meals and drinks shall be served, with meal types corresponding to the serving time: from 06:00 to 08:00 for breakfast; from 12:00 to 14:00 for lunch; from 19:00 to 21:00 for dinner.

c) For flights within the day with delays of six hours or more, suitable accommodation shall be arranged based on actual airport conditions.

d) For flights delayed where passengers are expected to wait for six hours or more between 22:00 the previous day and 07:00 the next morning, the carrier must arrange transportation to and from hotels for passengers, prioritizing special passengers.

đ) Re-routing the passenger's journey to ensure the passenger reaches the final destination as quickly and conveniently as possible;

3. In case passengers hold tickets and have been confirmed seats on a flight but are not transported due to the carrier's fault, or if the flight is canceled due to the carrier's fault, the carrier shall have the obligation to:

a) Inform passengers of the reason;

b) Fulfill the obligations stipulated in Clause 2 of this Article;

c) Pay a non-refundable advance compensation amount to passengers in accordance with the law on non-refundable advance compensation;

d) Fulfill the obligations stipulated in Points b and c of this Clause in accordance with an agreement with the passenger.

4. In case passengers have been confirmed seats on a flight but transportation is disrupted, delayed, or refused without being the passenger's fault, or if the flight is canceled, the carrier shall have the obligation to resolve the refund of the full ticket price or the unused portion of the ticket price for passengers immediately at the airport if requested, or at branch offices and ticket sales agents designated by the carrier, based on the itinerary or receipt issued by the carrier or under the name of the carrier transporting the passenger. The refund of tickets for passengers is regulated as follows:

a) Exemption from restrictive conditions on refunds and refund fees agreed upon (if any);

b) For fully unused tickets, the refund amount will be equal to the ticket price paid by the passenger; the ticket price includes: air fare; taxes and fees prescribed by the government and airport authorities; charges for passenger services at airports collected by the carrier; and other related fees;

c) For partially used tickets, the refund amount will not be less than the difference between the ticket price paid and the applicable ticket price for the passenger's journey and other services used.

Article 8. Special passenger transportation

1. The airline shall fulfill obligations similar to those for ordinary passengers, arrange staff to care for and support them; at the same time, it shall be responsible for organizing and implementing various types of supporting services during the transportation of special passengers, specifically:

a) Passengers with disabilities;

b) Pregnant women passengers;

c) Elderly passengers;

d) Child passengers.

2. Free of charge, the transportation fare for assistive devices owned by passengers shall be waived;

3. The type of mandatory supporting service for each category of special passengers, and the advance notice period required for passengers to receive such services must be clearly stipulated in the Transportation Regulations and posted at the airline's ticket sales agencies and airports.

Chapter IV

FOREIGN AIRLINES' REPRESENTATIVE AND TICKET SALES ACTIVITIES

Article 9. Issuance and renewal of permits and certificates related to representative and ticket sales activities of foreign airlines in Vietnam

1. Foreign airlines shall submit applications for establishment permits for Representative Offices and Ticket Sales Offices to the Civil Aviation Authority of Vietnam, including the following documents:

a) An application for permit issuance according to Model No. 01 issued together with this Circular;

b) Notarized certified copies of documents confirming the legal status of the airline, and a document confirming the legal control rights belonging to the country where the airline's headquarters is located (establishment permit, business registration certificate, or equivalent documents);

c) The airline's operational charter in Vietnamese;

d) Documents confirming the right to use the premises for the Representative Office and Ticket Sales Office;

đ) Appointment letter for the head of the Representative Office and Ticket Sales Office;

e) Receipt for payment of fees.

2. Vietnamese organizations and individuals shall submit applications for registration certificates for representative activities of Vietnamese legal entities for foreign airlines in Vietnam according to Model No. 02 issued together with this Circular to the Civil Aviation Authority of Vietnam, including the following documents:

a) An application for a registration certificate for representative activities of Vietnamese legal entities for foreign airlines in Vietnam;

b) Business registration certificate, establishment permit, or equivalent documents of the organization or individual accepting representation;

c) Agreement on delegation of representation in Vietnam between the foreign airline and the Vietnamese organization or individual;

d) Receipt for payment of fees.

3. Vietnamese enterprises shall submit applications for registration certificates for designated general agency and ticket sales contracts for foreign airlines according to Model No. 03 issued together with this Circular to the Civil Aviation Authority of Vietnam, including the following documents:

a) An application for a registration certificate for designated general agency and ticket sales contracts for foreign airlines;

b) Business registration certificate or equivalent documents of the organization or individual applying;

c) Notarized certified copy of the business registration certificate or equivalent documents of the foreign airline issued by the competent authority where the foreign airline was established;

d) General agency and ticket sales contract;

đ) Receipt for payment of fees.

4. Validity period of permits and certificates:

a) The establishment permit for Representative Offices has a validity period of five years from the date of issuance;

b) The establishment permit for Ticket Sales Offices has a validity period of two years from the date of issuance;

c) The registration certificate for representative activities of Vietnamese legal entities for foreign airlines in Vietnam has a validity period not exceeding five years from the date of issuance;

d) The registration certificate for designated general agency and ticket sales contracts for foreign airlines has a validity period not exceeding two years from the date of issuance.

5. The validity period of the establishment permits and registration certificates mentioned in Clauses 1, 2, and 3 of this Article may be extended. Organizations and individuals requesting an extension shall submit an application for extension to the Civil Aviation Authority of Vietnam, along with a copy of the permit or certificate, a report on activities under the permit or certificate, a receipt for payment of fees, and additional documents (if necessary).

6. The Civil Aviation Authority of Vietnam shall be responsible for reviewing and deciding on the issuance and extension of establishment permits and registration certificates mentioned in Clauses 1, 2, and 3 of this Article within seven days from the date of receiving complete applications.

Article 10. Notification and Reporting on the Activities of Representative Offices, Ticket Sales Offices, and the Agency Activities of Vietnamese Legal Entities for Foreign Airlines in Vietnam

1. Representative offices, ticket sales offices of foreign airlines, and Vietnamese legal entities operating agency activities for foreign airlines in Vietnam shall have the obligation to notify their activities and report on their operations according to Model No. 04 issued together with this Circular.

2. Within forty-five days from the date of issuance of the permit or registration certificate, representative offices, ticket sales offices, and Vietnamese legal entities must commence operations at the registered address and publish notices in a newspaper permitted for circulation in Vietnam for three consecutive issues, containing the following information:

a) The name and address of the representative office, ticket sales office, and transaction office of the Vietnamese legal entity;

b) Name and address of the headquarters of the foreign airline;

c) The head of the representative office, ticket sales office, and the legal representative of the Vietnamese legal entity;

d) List of foreign employees (name, nationality, passport number, and valid work permit if applicable);

d) The number, date of issuance, and validity period of the permit or registration certificate;

e) The content of the activities of the representative office, ticket sales office; the content of the agency activities for foreign airlines.

3. Representative offices, ticket sales offices, and Vietnamese legal entities shall submit annual reports on their activities according to the permits or registration certificates issued. These reports must be submitted to the Civil Aviation Administration of Vietnam before January 31 of the following year according to Model No. 05 issued together with this Circular.

4. Representative offices, ticket sales offices, and Vietnamese legal entities shall submit ad hoc reports upon request of the Civil Aviation Administration of Vietnam or in the following cases:

a) Changes in foreign personnel: within ten days from the date of change;

b) Changes in the scope of authorized agency activities: within ten days from the date of change.

Article 11. Termination of Activities of Representative Offices, Ticket Sales Offices, and Vietnamese Legal Entities Acting as Agents for Foreign Airlines

1. The activities of representative offices, ticket sales offices of foreign airlines, and the agency activities of Vietnamese legal entities for foreign airlines will terminate in the following circumstances:

a) At the request of the foreign airline;

b) The foreign airline ceases operations under the laws of the country where it was established or registered;

c) The establishment permit for representative offices, ticket sales offices, and the registration certificate for agency activities expire or are revoked in accordance with the provisions of the law;

d) The authorization agreement for agency activities becomes void.

2. Thirty days prior to the planned termination of activities, representative offices, ticket sales offices, and Vietnamese legal entities must send a notice of termination of activities according to Model No. 06 issued together with this Circular to the Civil Aviation Administration of Vietnam, creditors, employees, and other interested parties. The notice must clearly state the expected termination date and be publicly posted at the representative office, ticket sales office, and Vietnamese legal entity's premises, and published in a newspaper permitted for circulation in Vietnam for three consecutive issues.

3. Foreign airlines, representative offices, ticket sales offices, and Vietnamese legal entities acting as agents for foreign airlines shall be responsible for fulfilling all debts and other obligations to related organizations and individuals in accordance with the provisions of the law.

Chapter V

EXPORT OF SECONDARY AIRWAY BILLS

Article 12. Registration for Issuing Secondary Airway Bills

1. A Vietnamese enterprise shall submit to the Civil Aviation Administration of Vietnam a registration application file for issuing secondary airway bills, including the following documents:

a) A request for issuance of the Certificate of Registration for Issuing Secondary Airway Bills according to Form No. 07 issued together with this Circular;

b) A notarized copy of the Enterprise Registration Certificate of the Vietnamese enterprise;

c) At least two employees holding certificates of completion from training courses on cargo handling issued by the International Air Transport Association or the International Federation of Freight Forwarders Associations;

d) Receipt for payment of fees.

2. In the case of a foreign forwarding service provider registering for issuing secondary airway bills in Vietnam, the registration file shall include the following documents:

a) The documents specified in Clause 1 of this Article;

b) A notarized copy of the agency agreement for issuing secondary airway bills;

c) A sample of the secondary airway bill of the foreign forwarding enterprise according to Form No. 08 issued together with this Circular;

d) A notarized translation of the Enterprise Registration Certificate or equivalent document of the foreign forwarding enterprise.

3. The Certificate of Registration for Issuing Secondary Airway Bills has a validity period of up to five years from the date of issuance and may be renewed. The enterprise shall submit a renewal request to the Civil Aviation Administration of Vietnam along with a notarized copy of the certificate, a report on activities under the certificate, payment receipts, and any additional documents (if necessary).

4. The Civil Aviation Administration of Vietnam shall be responsible for examining and deciding on the issuance and renewal of the Certificate of Registration for Issuing Secondary Airway Bills within seven days from the date of receipt of a complete application file.

Article 13. Requirements for Providing Cargo Handling Services via Air Transport

1. Providing cargo handling services via air transport is not considered an air transportation activity of an airline as defined in the Civil Aviation Law of 2006.

2. An enterprise providing cargo handling services via air transport may only handle cargo procedures at airports after being granted the Certificate of Registration for Issuing Secondary Airway Bills.

Chapter VI

GRANTING AIR TRANSPORT RIGHTS

Article 14. Procedures for Granting Air Transport Rights

1. An airline shall submit an application file for granting air transport rights to the Civil Aviation Administration of Vietnam. The application file for granting air transport rights shall comply with Article 113 of the Civil Aviation Law 2006.

2. The Civil Aviation Administration of Vietnam shall be responsible for examining and deciding on the issuance of the Certificate of Registration for Issuing Secondary Airway Bills within ten days from the date of receipt of a complete application file.

Article 15. Conditions for Granting Air Transport Rights

1. Market demand:

a) For new routes that have not been operated by any airline, air transport rights shall be granted based on the application of the airline planning to operate such routes;

b) For existing routes, air transport rights shall be granted based on the results of operations on these routes at the time the airline applies for the rights.

2. Capacity of the airline:

a) Financial capacity, aircraft fleet, human resources;

b) Feasibility of the operational plan at the time the airline applies for the rights.

3. Balance of route networks and economic development goals:

a) Infrastructure conditions of airports;

b) Stable and reasonable development of routes;

c) Balanced air cargo transportation between regions, taking into account factors to stimulate and encourage operations to airports in economically disadvantaged areas, mountainous regions, remote and far-flung areas with essential needs for air cargo transportation (essential routes), airports with low traffic, actual operation of essential routes by airlines;

d) Reasonable allocation of supply capacity for Vietnamese airlines on the North-South trunk routes, including Hanoi-Ho Chi Minh City, Hanoi-Da Nang, Ho Chi Minh City-Da Nang routes.

Article 16. Types of cooperation contracts directly related to air transport rights

1. Cooperation contracts directly related to air transport rights include the following types of contracts:

a) Joint venture contracts;

b) Franchise operation contracts;

c) Other contracts where the direct object is the exploitation and use of air transport rights.

2. A joint venture contract is a contract wherein an airline uses its flight number on flights operated by another airline in Vietnam.

3. A franchise operation contract is a contract wherein an airline uses one or more of the following elements of another airline for marketing, selling, and operating its own flights in Vietnam, including name, code (three letters of ICAO or two letters of IATA), logo, or other brand images.

4. Requirements for the conclusion and implementation of cooperation contracts directly related to air transport rights include:

a) The contract must contain a clause stipulating that it only becomes effective after approval by the Civil Aviation Administration of Vietnam;

b) Airlines participating in the contract must have air transport rights on corresponding routes; the approval of the contract must ensure the common interests of Vietnam and Vietnamese airlines;

c) For joint ventures between foreign airlines on routes to and from Vietnam, foreign airlines must submit the joint venture flight schedule to the Civil Aviation Administration of Vietnam for review and approval in accordance with relevant international treaties;

d) The revenue of the franchised airline does not depend on the results of the operations of the routes of the franchised airline.

Article 17. Procedures for Approving Cooperation Contracts Directly Related to Air Transport Rights

1. An airline submits an application for approval of a cooperation contract directly related to air transport rights to the Civil Aviation Administration of Vietnam, including the following documents:

a) Request for approval of the contract;

b) Copy of the contract;

c) Certificate of air transport rights issued by the Civil Aviation Administration of Vietnam or the corresponding foreign aviation authority;

d) Documentation proving lawful ownership of the code, logo, or other brand images of the transferring airline.

2. The Civil Aviation Administration of Vietnam is responsible for reviewing and deciding on the approval of cooperation contracts directly related to air transport rights within ten days from the date of receipt of a complete application.

Article 18. Requirements for Exploiting Air Transport Rights

1. An airline may only engage in air transport business within the scope of the granted air transport rights.

2. Airlines are allowed to buy and sell air transport rights, but they are prohibited from engaging in anti-competitive practices or unfair competition.

3. Except in cases of implementing cooperation contracts directly related to air transport rights on approved routes under the law, an airline shall not conduct promotional activities, advertising, or marketing using the image, brand, logo, or trademark of another airline for flights it operates.

Chapter VII

APPLICATION FOR ISSUANCE OF LICENSE FOR AIR TRANSPORT BUSINESS AND JOINT AIRLINE BUSINESS

Article 19. Confirmation Documents for Statutory Capital

1. In the case of new establishment, the confirmation document for statutory capital issued by the competent authority shall be as follows:

a) For capital contribution in cash: a document from the bank or credit institution confirming the freezing of the account of the organization or individual applying for the business license at the bank or credit institution; the amount of frozen funds must be at least equal to the statutory capital corresponding to the industry applied for the business license or the difference between the statutory capital and the value of property or real estate contributions (in cases where both cash, property, and real estate are used); the confirmation must remain valid until the organization or individual receives the license.

b) For capital contribution in property or real estate (only the portion directly serving the purpose of the business activity applied for the business license): a document from organizations or units established and operating legally in Vietnam or recognized by Vietnam in the field of valuation, recognition of ownership or possession rights over property or real estate and their values; the value of the property or real estate must be at least equivalent to the statutory capital corresponding to the industry applied for the business license or the difference between the statutory capital and the cash contribution (in cases where both cash, property, and real estate are used); the ownership or possession rights over the property or real estate must be maintained until the organization or individual receives the license.

2. In the case of existing enterprises, in addition to the forms specified in Clause 1 of this Article, the audited financial report of the enterprise at the time of application for the license may also be used.

3. Organizations and individuals directly confirming the statutory capital shall jointly bear responsibility for the accuracy and truthfulness of the capital at the time of confirmation.

Article 20. Requirements for Professional Positions

1. The person responsible for supervising aircraft operation, aircraft exploitation, aircraft maintenance, and flight training must have relevant work experience and possess certificates issued or recognized by competent authorities.

2. The person responsible for supervising product development activities, marketing, and air cargo service sales must hold a bachelor's degree in economics, commerce, or finance.

3. The person responsible for supervising the financial payment system must hold a bachelor's degree in finance or a certificate as a chief accountant.

Article 21. Foreign Capital Component of Investment Projects in Air Transport Business

1. The foreign capital component includes:

a) Direct foreign capital contribution by foreign organizations or individuals;

b) The foreign capital contribution of a foreign-invested enterprise multiplied by the proportion of foreign capital contribution in that foreign-invested enterprise.

2. The total amount of foreign capital contribution in a foreign-invested airline shall comply with the provisions of the law on air transport business operations and general aviation activities.

Chapter VIII

IMPLEMENTATION

Article 22. Responsibilities of the Civil Aviation Authority of Vietnam

1. Revoking, recalling, suspending licenses, certificates, approvals, or granting rights in the following cases:

a) Organizations or individuals holding licenses, certificates, rights, or approvals violate the provisions of this Circular or Vietnamese laws or international treaties to which the Socialist Republic of Vietnam is a member;

b) Organizations or individuals holding licenses, certificates, rights, or approvals no longer meet the conditions for obtaining or maintaining such approvals according to regulations;

c) Related parties terminate their activities or agreements;

d) Intentionally submitting false files or reports during the review process;

đ) Relevant documents or papers prescribed in this Circular expire according to the stipulated period.

2. Inspecting and conducting procedures to recognize and validate aircraft operation and maintenance documents in accordance with the law.

3. Notifying the provincial People's Committees, tax authorities, and provincial public security organs about the termination of representative offices, ticket offices, and representative activities of Vietnamese legal entities.

4. Sending the Certificate of Registration for Secondary Air Cargo Waybills provided by organizations or individuals supplying air cargo services to the Planning and Investment Departments of provinces and cities where the organizations or individuals have their headquarters, and to the Civil Aviation Port Authorities and corresponding Civil Aviation Port Corporations.

5. Announcing essential air routes periodically based on the Government's announcement regarding difficult regions, with criteria including per capita income, difficulties faced by other modes of transportation, impact on economic development in remote areas, and ensuring national defense and security.

6. Designating Vietnamese airlines to operate essential air routes at appropriate frequencies as stipulated by law.

7. Monitoring and supervising the fulfillment of obligations by Vietnamese organizations or individuals and foreign organizations or individuals after being granted or extended relevant documents or papers as prescribed in this Circular.

8. Summarizing and reporting to the Ministry of Transport issues arising and obstacles encountered during implementation for timely research and resolution.

Article 23. Effectiveness and Responsibility for Implementation

1. This Circular takes effect 45 days from the date of signature.

2. The Director of the Ministry's Office, the Inspector General of the Ministry, the Heads of the various Departments, the Director of the Civil Aviation Administration of Vietnam, the Heads of agencies, organizations, and individuals related to this matter shall be responsible for implementing this Circular.