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Act on the Reorganisation of Aviation Security Tasks (Luftsicherheitsgesetz, LuftSiG) |
In
the version published on 11 January 2005 (Federal Law Gazette I p. 78)
Table of Contents
Article 1: Act on Aviation Security
Chapter 1: General Provisions
Section 1: Object
Section 2: Tasks
Chapter 2: Security Measures
Section 3: General Powers of the Aviation Security Authority
Section 4: Principle of Proportionality
Section 5: Special Powers of the Aviation Security Authority
Section 6: Recording, Processing and Utilising
Personal Data
Section 7: Background Checks
Section 8: Security Measures to be taken by Airport
Operators
Section 9: Security Measures to be taken by Air Carriers
Section 10: Access Authorisation
Section 11: Prohibited Items
Section 12: Tasks and Powers of the Responsible Aircraft
Pilot
Chapter 3: Support and
Administrative Assistance Rendered by the Armed Forces
Section 13: Decision by the Federal Government
Section 14: Measures, Power to Issue Orders
Section 15: Other Measures
Chapter 4: Competent Authorities and
Procedure
Section 16: Competent Authorities
Section 17: Authorisation to Issue
Ordinances
Chapter 5: Administrative Fines
Regulations and Penal Provisions
Section 18: Administrative Fines Regulations
Section 19: Penal Provisions
Section 20: Administrative Fines Regulations and Penal
Provisions Regarding Section 12
Chapter 6: Concluding Provision
Section 21: Restrictions on Fundamental Rights
Article 2: Amendment to the Civil Aviation Act
Article 3: Amendment to the Act on the Federal Border Police
Article 4: Amendment to the Act on the Central Foreigners’
Register
Article 5: Amendment to the Ordinance Implementing the
Foreigners’ Act
Article 6: Amendment to the Act on the Federal Central
Criminal Register
Article 7: Amendment to the Civil Aviation Licensing
Ordinance
Article 8: Return to Standardised
Hierarchy of Ordinance
Article 9: Entry into Force
Article
1: Act on Aviation Security
Chapter
1: General Provisions
Section 1: Object
This Act serves to protect the
security of air traffic against attacks, especially against aircraft highjacking, acts of sabotage and terrorist attacks.
Section 2: Tasks
The aviation security authority is
charged with averting attacks against aviation security within the meaning of
Section 1. In particular, it shall conduct background checks as referred to in
Section 7, shall authorise civil aviation security programmes as referred to in Section 8(1) sentence 2 and
Section 9(1) sentence 2, shall order the implementing of security measures by
airport operators as referred to in Section 8 and by air carriers as referred
to in Section 9 and shall monitor compliance therewith.
Chapter
2 Security Measures
Section 3: General Powers of the Aviation Security Authority
The aviation security authority
shall implement the necessary measures to avert threats to the security of air
traffic in a particular case insofar as its powers are not regulated more
specifically in Section 5.
Section 4: Principle of
Proportionality
(1) That measure shall be chosen
from amongst several possible and suitable measures which shall be presumed to
cause the least interference to individual persons or to the general public.
(2) A chosen measure shall not lead
to any disadvantage which is recognisably
disproportionate to the anticipated success.
(3) A particular measure shall only
be permissible until such time as its objective is fulfilled or it becomes
apparent that this objective cannot be fulfilled.
Section 5: Special Powers
of the Aviation Security Authority
(1) The aviation security authority
shall be permitted to search or to screen by other appropriate means any
persons who have entered or wish to enter security restricted areas in the
airport. It may search, x-ray or screen items by other appropriate means which
have been taken to or were to be taken to such areas. The aviation security
authority shall be permitted to protect those places at which security controls
are carried out by means of armed police officers, to patrol security areas in
the airport and to secure vehicles at risk by means of armed sentinels.
(2) The aviation security authority
shall be permitted to, in particular, apprehend passengers, employees of the
airport operator, of the air carrier and other operators as well as other
persons who have entered or wish to enter restricted access areas in the
airport and to expel them from these areas in the event that these persons
1. cannot provide proof of
their authorisation to enter these areas,
2. refuse to allow the
aviation security authority to search them and any items carried or to screen
by other appropriate means for articles listed in Section 11(1), or
3. do not surrender and leave outside the restricted
access area the articles listed in Section 11(1) or other articles which are
discovered during the searching or screening procedure and these would be
suitable for carrying out attacks on persons or for damaging aircraft, or if
they do not agree to surrender these articles to the air carrier for
transportation.
(3) The aviation security authority
shall be permitted to search, x-ray or screen by other appropriate methods any
cargo, hold baggage, mail and other articles which have been taken or are to be
taken to the security restricted areas in the airport for articles listed in
Section 11(1). In the case of mail, sentence 1 finds application subject to the
condition that these may only be opened in the event that certain facts
substantiate the assumption that they contain articles whose transportation is
in contravention of Section 11(1) or of Section 27 of the Civil Aviation Act.
(4) The aviation security authority
shall be permitted, within business and working hours, to enter and inspect
business and office premises insofar as this is necessary in order to carry out
security measures in accordance with para. 2 and 3. Outside of business and working hours these rooms
may only be entered or inspected in order to avert very serious threats to
public security or public order.
(5) The aviation security authority
shall be permitted to transfer the discharging of certain tasks regarding the
carrying out of security measures in accordance with para.
1 to 4 to suitable (natural or legal) persons fulfilling state functions (Beliehener). The assigning of these rights may be revoked
at any time. Those charged with fulfilling state functions (Beliehener)
shall be authorised to implement the necessary
measures within the framework of such tasks assigned as well as by other
applicable laws.
(6) The tasks and powers of the
police authorities shall remain unaffected.
Section 6: Recording,
Processing and Utilising Personal Data
(1) The authority to record, process
and utilise personal data shall be in accordance with
regulations contained in federal and Land legislation applying to the aviation
security authority insofar as this Act does not stipulate otherwise.
(2) Irrespective of the authority to
transfer data in accordance with para. 1, the
aviation security authority shall be permitted to transfer personal data to
public authorities outside the scope of application of this Act if this is
necessary to avert direct, considerable threats to the security of air traffic,
in particular when terrorist attacks have been committed or a threat has been
issued.
Section 7: Background
Checks
(1) To protect against attacks on
the security of air traffic (Section 1), the aviation security authority must
carry out background checks on the following:
1. Persons who, in carrying out their professional
occupation, are to be given access not just occasionally to security restricted
areas of an airport as defined under Section 8 or of an air carrier as defined
under Section 9;
2. Staff from the airport operator and air carriers,
the aviation security company, cargo, mail and cleaning companies, as well as
goods suppliers and comparable suppliers, who, on account of their job, have a
direct influence on the security of air traffic; insofar as the aforementioned
companies use staff from other companies, these shall be treated in a like
manner;
3. Persons who are employed and charged with
fulfilling state functions (Beliehener) pursuant to
Section 5(5) or who have been authorised to carry out
tasks pursuant to Section 27c(2) of the Civil Aviation Act based on Section 31b(1)
sentence 2 of the Civil Aviation Act;
4. Pilots within the meaning of Section 4(1)
sentence 1 in conjunction with Section 1(2) numbers 1 to 3 and 5 of the Civil
Aviation Act and trainee pilots; and
5. Members of associations based at the airport, pupil
interns or pilots within the meaning of Section 1(2) of the Civil Aviation Act
or other authorised persons who are to be given
access more than just occasionally to
a) security restricted areas of a
commercial airport within the sense of Section 8, or
b) areas
referred to in Section 9(1) number 2.
(2) The check is carried out upon
submission of an application from the affected person. The person’s employer
shall carry the costs of a background check regarding the pursuance of a
profession.
Upon submitting an application the
affected person shall be informed about
1. the responsible aviation
security authority,
2. the reason for
recording, processing and utilising such data,
3. those authorities who
may be involved in accordance with para. 3 sentence 1
numbers 2 to 5 and para. 4, and
4. the recipient referred
to in para. 7 sentences 2 and 3.
No background check shall be carried
out in the event that the affected person
1. has been subject to an at least equivalent check
in Germany within the past 12 months and there were no indications that the
affected person was to be classed as unreliable; or
2. is subject to the
extended security check referred to in Section 9 of the Security Clearance
Check Act or the extended security check with security investigations referred
to in Section 10 of the Security Clearance Check Act.
(3) In carrying out the background
check the aviation security authority shall be permitted to
1. check the identity of
the affected person;
2. submit requests for available and relevant
information regarding the reliability of the affected person to the Land police
authorities and the Land authorities responsible for the protection of the
constitution, as well as, insofar as this is necessary in individual cases, to
the Federal Criminal Police Office (BKA), the Customs Criminal Office, the
Federal Office for Protection of the Constitution, the Federal Intelligence
Service (BND), the Military Counterintelligence Service (MAD) and the Federal Commissioner
for the Records of the State Security Service (Stasi) of the former GDR;
3. seek unlimited
information from the Federal Central Criminal Register:
4. in the case of foreign
nationals, submit a request for information to the Central Foreigners’ Register
and, insofar as this is necessary in individual cases, submit requests for
information to the respective foreigners authority regarding whether the
affected person constitutes a liability to public security;
5. insofar as is necessary in individual cases,
submit requests to the airport operator and the air carrier as well as to the
person’s current employer for information that is available and relevant to the
evaluation of the affected person’s reliability.
The affected person is obligated to
co-operate during his/her background check.
(4) Should the information supplied
by authorities referred to in para. 3 numbers 2 and 4
provide indications that reservations exist regarding the affected person’s
reliability, the aviation security authority shall be permitted to submit
requests for information to the criminal prosecution authorities.
(5) Before making a decision in the
matter, the aviation security authority shall give the affected person the
opportunity to make a statement regarding the information supplied, insofar as
there are reservations regarding his/her reliability and this is not in
contravention of any obligations to secrecy or, where the criminal prosecution
authorities have submitted information, there is no danger that the purpose of
the investigation may be jeopardised. Where an
authority has supplied information referred to in para.
3 number 2 or in para. 4, the agreement of this
authority must be given. The affected person is obligated to make true
statements. He/she may refuse to provide information if this could lead to the
threat of criminal prosecution, prosecution of an administrative offence or
disciplinary measures or measures under labour law
for himself/herself or persons referred to in Section
52(1) of the Code of Criminal Procedure (Strafprozessordnung).
The affected person shall be instructed beforehand of his/her obligation to
make true statements and of the right to remain silent.
(6) Until a background check has
been completed, and no reservations regarding the reliability of the affected
person remain, he/she may not be given access to security restricted areas in
the airport (para. 1 numbers 1 and 5) or he/she may
not take up his/her employment (para. 1 numbers 2 and
3).
(7) The aviation security authority
shall only be permitted to utilise the data recorded
in accordance with para. 3 and 4 for the purposes of
the background check. It shall inform the affected person, his/her current
employer, the airport operator, air carrier or air traffic control service, as
well as any involved federal or Land police authorities and authorities
responsible for the protection of the constitution of the outcome of the
background check; none of the information on which the results of the check are
based may be passed on to the affected person’s current employer. Other
information may be passed on to the current employer insofar as it is necessary
for the carrying out of court proceedings in connection with the background
check. Section 161 of the Code of Criminal Procedure (Strafprozessordnung)
shall remain unaffected.
(8) The aviation security
authorities shall inform each other of any checks that are being carried out
insofar as this is necessary in individual cases. Para.
7 sentence 1 shall apply accordingly.
(9) In the event that authorities
involved in the background check referred to in para.
3 sentence 1 number 2 or offices involved based on para.
3 sentence 1 number 5 receive information after the
background check has been completed and which is relevant to a background check
on those persons referred to in para. 1, they shall
be obligated to inform the aviation security authority of the available
information. To this end, the surname, first name, name at birth, date of
birth, place of birth, place of residence and nationality of the affected
person, as well as the source of the information may be put on record. The
Federal Office for Protection of the Constitution shall in addition be
permitted to store the personal data of the affected person referred to in
sentence 2 and the source of the information for this purpose in jointly used
files in accordance with Section 6 of the Federal Act on the Protection of the
Constitution. The authorities and offices referred to in sentence 1 shall
inform the aviation security authority about which affected
person they are storing data in accordance with sentences 2 and 3.
(10) The aviation security authority
shall be permitted to co-operate in background checks which have been
commissioned by offices outside of the scope of application of this Act. To
this end it may pass on the surname, first name, name at birth, date of birth,
place of birth, place of residence and nationality, as well as the outcome of
the background check of the affected person. No data shall be passed on if the
affected person has an interest meriting protection in this not being done, in
particular where the authority receiving the information cannot guarantee an
appropriate level of data protection. The authority receiving the information
shall be instructed that the transferred data may only be utilised
for the purpose to which it was transmitted.
(11) The personal data stored during
the processing of a background check shall be deleted
1. by the aviation security authorities
a)
within one year in the event that the affected person
does not commence employment pursuant to para. 1;
b)
three years after the affected person has left the employment pursuant to para. 1, unless he/she has in the meantime again taken up
employment pursuant to para.1;
2. by the federal
authorities involved pursuant to para. 3 and 4 and
other involved authorities pursuant to para. 3
sentence 1 number 5
a) if the data was stored in accordance with para. 9 sentences 2 and 3, immediately after this data has
been deleted in accordance with number 1; the aviation security authority shall
inform the authorities involved that this data has been deleted;
b)
in other cases, immediately after the end of the
person in question’s involvement.
Should there be reason to suppose
that the affected person’s interests meriting protection could be injured if
the data were deleted, the data are to be disabled. Disabled data may only be utilised without the permission of the affected person
insofar as this is imperative to avert a considerable threat.
Section 8: Security Measures to be taken by Airport
Operators
(1) The airport operator shall, in
order to protect airport operations from attacks against the security of air
traffic, be obligated to
1.
construct and design airport installations, buildings, rooms and facilities in
such a manner that provides for the necessary structural and technical
protection and proper implementation of staff security and protection measures
and the control of restricted access areas, as well as to make available and
maintain the necessary areas; equipment needed for screening passengers and
items carried are exempt from this obligation, as are facilities and technical
equipment for examining whether mail, hold baggage, cargo and supplies contain
any articles referred to in Section 11(1);
2.
securely transport and store mail, hold baggage, cargo
and supplies required to carry out measures referred to in Section 5(3); this
includes the transportation to and between multi-level control facilities;
3.
fetch the passenger when searching hold baggage in
accordance with Section 5(3) or, when searching such baggage in the absence of
the passenger, to open any locks the items of luggage are fitted with;
4.
secure any restricted access areas against unauthorised access and, in the case of security restricted
areas, only to allow specially authorised person
access;
5.
search or screen by other appropriate means its own staff, staff from other
companies operating in the airport and other persons prior to their accessing
critical parts of the restricted access areas, as well as to search, x-ray or
screen by other appropriate means any items carried and vehicles; this likewise
applies to goods and supplies taken into these areas by other means;
6.
train security staff for their tasks and to ensure all
other employees take part in a security training programme;
7.
take any aircraft which becomes the subject of a threat, in particular a bomb
threat, to a designated security area, insofar as the air carrier is not
obligated to do so in accordance with Section 9(1) sentence 1 number 5, as well
as to deplane the aircraft, replenish supplies and dispose of any waste;
8.
insofar as is necessary, to co-operate in background checks referred to in
Section 7.
The airport operator shall outline
the security measures referred to in sentence 1 numbers 1 to 8 in a civil
aviation security programme within the meaning of
Article 5 para. 4 of Regulation (EC) No 2320/2002 of
the European Parliament and of the Council of 16 December 2002 establishing
common rules in the field of civil aviation security (OJ EC L 355 p. 1), which
shall be presented to the aviation security authority within a specified time
period for authorisation. Authorisation
may carry certain incidental provisions. The subsequent imposition of
conditions shall also be permissible. The airport operator shall be obligated
to carry out the security measures outlined in the authorised
civil aviation security programme.
(2) The aviation security authority
shall be permitted to obligate the operators of other airports to carry out
security measures in accordance with para. 1, insofar
as this is necessary to provide for the security of the air traffic.
(3) In order to provide and maintain
rooms and areas in accordance with para. 1 and 2
which have been made available to the authority responsible for the
implementation of measures in accordance with Section 5, the obligor shall be
permitted to demand remuneration for his costs. The obligor shall carry the
costs of the security measures referred to in para. 1 and 2. To determine the costs within the meaning of this
Act, the regulations contained in the price law for public contracts shall be
applied. If the market price is lower than the costs outlined therein, the
market price shall be applied.
Section 9: Security Measures to be taken by Air Carriers
(1) An air carrier operating
aircraft of more than 5.7 tonnes maximum weight
shall, in the interests of providing protection from attacks against aviation
security, be obligated to
1.
carry out security measures when processing passengers
and when handling mail, baggage, cargo and supplies;
2.
secure all restricted access areas in the airport under his responsibility
against unauthorised access and, where security
restricted areas are concerned, to authorise access
to such areas only to specially authorised persons;
in the case of buildings, cargo installations and other operating facilities
constructed on his behalf or operated by the air carrier itself, Section 8(1)
numbers 1 to 7 shall apply accordingly;
3.
train security staff to carry out their tasks and to
ensure flight crews and ground staff take part in a security training programme;
4.
secure any of his aircraft parked on a commercial airport in such a manner that
neither unauthorised persons have access nor that
suspicious articles can be taken onto the aircraft;
5.
take any aircraft which becomes the subject of a
threat, in particular a bomb threat, to a designated security area, or to
co-operate in its being taken there by an airport operator in accordance with
Section 8(1) sentence 1 number 7;
6.
insofar as is necessary, to co-operate in background checks referred to in
Section 7.
The air carrier shall outline the
security measures referred to in sentence 1 numbers 1 to 6 in a civil aviation
security programme within the meaning of Article 5 para. 4 of Regulation (EC) No 2320/2002 of the European
Parliament and of the Council of 16 December 2002 establishing common rules in
the field of civil aviation security (OJ EC L 355 p. 1), which shall be
presented to the aviation security authority within a specified time period for
authorisation; the aviation security authority may
grant exceptions to the obligation to submit such a programme.
Authorisation may carry certain incidental
provisions. The subsequent imposition of conditions shall be permissible. The
air carriers shall be obligated to carry out the security measures outlined in
the authorised civil aviation security programme.
(2) Paragraph 1 shall apply
1.
to air carriers who have been granted permission pursuant to Section 20 of the
Civil Aviation Act, also outside the scope of this Act, in the event that and
insofar as this does not conflict with locally applicable regulations;
2.
to air carriers who have their head office outside of the scope of application of
this Act, insofar as they utilise commercial airports
located in the Federal Republic of Germany.
(3) The aviation security authority
shall be permitted to obligate an air carrier to carry out security measures on
other airports in accordance with para. 1 insofar as
this is necessary to provide for secure air carrier operations.
(4) Any owner of aircraft other than
those mentioned in para. 1 may be obligated by the
aviation security authority to carry out security measures in accordance with para. 1 to 3 insofar as this is necessary to provide for
aviation security.
Section 10: Access Authorisation
The aviation security authority
shall determine who, upon fulfilment of the necessary
preconditions, may be given authorised access to
restricted access areas or from whom such authorisation
should be withdrawn upon cessation of these preconditions. After completion of
the background check in accordance with Section 7(1) the affected person may
receive an identification card proving access has been authorised
from the airport operator / air carrier in accordance with Section 8(1) or
Section 9(1). The holder of the identification card shall be obligated to wear
the identification card in a visible place when in restricted access areas and
to return it after expiry or upon request. The holder of the identification
card may not pass the card on to third parties. Loss of the identification card
must be reported immediately to the issuing office. Access to restricted access
areas is prohibited without authorisation.
Section 11: Prohibited Items
(1) The following are classified as
prohibited articles and as such may not be carried in cabin baggage or on a
passenger’s person whilst on an aircraft and in restricted access areas:
1.
Firearms, cutting and thrust weapons, as well as aerosol sprays which can be
used to attack other persons or for self-defence;
2.
Explosives, ammunition, blasting caps, flammable liquids, corrosive or toxic
substances, gases in containers, as well as other substances which on their own
or in combination with other articles could cause an explosion or a fire;
3.
Articles which, by dint of their shape or labelling,
give the impression that they constitute weapons, ammunition or other
dangerous, explosive substances;
4.
Other articles listed in the Attachment to Regulation (EC) No 2320/2002 of the
European Parliament and of the Council of 16 December 2002 establishing common
rules in the field of civil aviation security (OJ EC L 355 p. 1).
(2) The Federal Ministry of the
Interior may grant general or individual exceptions to articles listed in para. 1 numbers 1 to 4, insofar as there is a need to do so
and authorisation to carry such articles is granted
by other statutory regulations. Incidental provisions may be attached to any
such permission.
(3) Section 27(2) of the Civil
Aviation Act shall remain unaffected.
Section 12: Tasks and Powers of the Responsible Aircraft
Pilot
(1) The responsible aircraft pilot,
as the person charged with fulfilling state functions (Beliehener),
shall ensure security and order is maintained on board any aircraft whilst in
flight. He/she shall be authorised to carry out the
necessary measures in accordance with para. 2 and other applicable laws.
(2) The responsible aircraft pilot
shall be permitted to carry out any necessary measures in order, in individual
cases, to avert an existing threat to persons onboard the aircraft or to the
aircraft itself. In doing so he/she shall abide by the principle of
proportionality (Section 4). In particular, the pilot shall be permitted to
1.
establish the identity of a person,
2.
secure articles,
3.
search a person or an object,
4.
handcuff a person if facts justify the assumption that
the person will attack the aircraft pilot or third parties or damage objects.
(3) The aircraft pilot may apply
means of coercion to enforce these measures. The use of physical violence is
only permissible if other coercive measures cannot be taken into consideration,
do not promise success or do not serve the purpose intended. The right to use
firearms is reserved for police officers, in particular those of the Federal
Border Police pursuant to Section 4a of the Act on the Federal Border Police.
(4) All persons onboard an aircraft
must follow the instructions of the aircraft pilot or his/her agent in
accordance with para. 2.
(5) The responsible pilot shall
provide compensation for any damage resulting to the Federal Republic of
Germany through unlawful and wilful or grossly
negligent dereliction of his/her duties in discharging the tasks and powers
referred to in para. 1 to 3.
If the responsibility for a flight is with an air carrier, then the air carrier
must provide compensation for damage resulting to the Federal Republic of
Germany through unlawful and culpable dereliction of duty by the responsible
aircraft pilot or his/her agent in discharging the tasks and powers referred to
in para. 1 to 3.
Chapter
3 Support and Administrative Assistance Rendered by the Armed Forces
Section 13: Decision by the Federal Government
(1) In the event that, due to a
considerable air traffic incident, facts become known which, as part of
averting a danger, justify the assumption that a particularly serious accident
pursuant to Article 35 para. 2 sentence 2 or para. 3 of the Basic Law (Constitution) will occur, the
armed forces shall be permitted, insofar as is necessary for effectively
averting this threat, to back up the Land police forces in air space to prevent
the accident occurring.
(2) The decision regarding
deployment of the armed forces in accordance with Article 35 para. 2 sentence 2 of the Basic Law shall be taken upon the
request of the affected Land by the Federal Defence
Minister or, in the event that he/she is being deputised,
by the member of the federal government authorised to
represent him/her in conjunction with the Federal Minister of the Interior.
Should immediate action be required, the Federal Ministry of the Interior shall
be informed without delay.
(3) The decision regarding the use
of the armed forces in accordance with Article 35 para.
3 of the Basic Law shall be taken by the federal government in conjunction with
the affected Länder. In the event that a timely
decision by the federal government is not possible, the Federal Defence Minister or, in the event that he/she is being deputised, the member of the federal government authorised to represent him/her in conjunction with the
Federal Minister of the Interior. The federal government’s decision shall be
made immediately. Should immediate action be required, the affected Länder and the Federal Minister of the Interior shall be
informed without delay.
(4) The federal administration and
the Länder shall determine further details. Any
backup provided by the armed forces shall be in accordance with this Act.
Section 14: Measures, Power to Issue Orders
(1) In order to prevent the
occurrence of a particularly grave accident, the armed forces shall be
permitted to force the aircraft aside, to force it to land, to threaten the use
of armed force or to fire warning shots.
(2) Where there are several possible
measures which could be taken, that measure is to be selected which will cause
the least interference to individual persons and the general public. This
measure may only be carried out for as long as and to such an extent as the
purpose to which it is being put requires. It shall not be allowed to lead to
any disadvantage which is recognisably
disproportionate to the anticipated success.
(3) The direct use of armed force
shall only be permissible in the event that circumstances suggest that the
aircraft is intended to be used against human life and this is the only means
to defend this human life against the current threat.
(4) Only the Federal Defence Minister or, in the event that he/she is being deputised, the member of the federal government authorised to represent him/her, may order the
implementation of measures in accordance with para. 3 above. Furthermore, the Federal Defence
Minister may authorise the Commander-in-Chief of the
German Air Force to order measures in accordance with para.
1 above.
Section 15: Other Measures
(1) Measures referred to in Section
14(1) and (3) may only be taken after a check has been carried out and there
have been unsuccessful attempts to warn and re-route the aircraft. To this end
the armed forces, upon the request of the authority responsible for aviation
security in the air space in question, may carry out a check, re-route or issue
a warning to the aircraft. A generalised request
shall be permissible. Agreement shall be reached beforehand regarding
preconditions under which such action may be taken.
(2) The Federal Defence
Minister shall be permitted to issue a general authorisation
to the Commander-in-Chief of the German Air Force to order measures referred to
in para. 1 above. The
Commander-in-Chief of the Air Force must immediately inform the Federal Defence Minister if situations arise which could lead to
measures referred to in Section 14(1) and (3) being taken.
(3) Other regulations and principles
regarding administrative assistance shall remain unaffected.
Chapter
4 Competent Authorities and Procedure
Section 16: Competent Authorities
(1) Local competence of the aviation
security authorities for duties based on Section 2 shall be limited by the
airport boundaries. The aviation security authority may carry out measures
referred to in Section 5(3) and (4) and the monitoring of procedures regarding
companies’ safe handling of cargo, mail and supplies outside the boundaries of
the airport.
(2) The duties of the aviation
security authority pursuant to this Act and in accordance with to Regulation
(EC) No 2320/2002 of the European Parliament and of the Council of 16 December
2002 establishing common rules in the field of civil aviation security (OJ EC L
355 p. 1) shall be carried out by the Länder on
behalf of the federal administration insofar as para.
3 and 4 do not provide otherwise.
(3) The authorisation
of civil aviation security programmes in accordance
with Section 9(1), including the monitoring of security measures outlined
therein, shall be carried out by the Federal Office of Civil Aeronautics under
federal administration. Furthermore, the duties of the aviation security
authority may, based on this Act, be carried out under federal administration
where this is necessary to guarantee security measures are performed uniformly
across the Federal Republic. In those cases referred to in sentence 2, these
duties shall be carried out by a federal authority to be determined by the
Federal Ministry of the Interior; the Federal Ministry of the Interior shall
announce in the Federal Bulletin the fact that these duties have been taken on
and shall name the responsible federal authority.
(4) The Federal Ministry of the
Interior shall be charged with overseeing the duties outlined in para. 2. Measures which have repercussions for the
operations of the airport operator or the air carrier shall be ordered by the
Federal Ministry of the Interior with the agreement of the Federal Ministry for
Transport, Building and Housing.
Section 17: Power to Issue Ordinances
(1) The Federal Ministry of the
Interior shall, by issuing ordinances and with the agreement of the Bundesrat, regulate details regarding background checks
referred to in Section 7, in particular
1.
the period within which the background check is to be
repeated, as well as
2.
details regarding the recording and utilisation of personal data.
(2) The Federal Ministry of the
Interior shall, with the agreement of the Federal Ministry for Transport,
Building and Housing, the Federal Finance Ministry and the Federal Ministry for
Economics and Labour and with the agreement of the Bundesrat, issue ordinances regarding costs (fees and
expenses) for official acts, in particular the screening of passengers and
items carried as well as their baggage or the inspection by other means which
are necessary to implement this Act or Regulation (EC) No 2320/2002 of the
European Parliament and of the Council of 16 December 2002 establishing common
rules in the field of civil aviation security (OJ EC L 355 p. 1). The ordinance
shall determine which matters shall be subject to a fee and may list fixed
prices or ranges. The rates of charges shall be calculated so that the human
resources costs and other costs associated with the official duties shall be
covered; in the case of official acts from which the affected person derives a
benefit, the significance, the economic value for or the other benefit to the
person liable to pay the fee may be taken into consideration. The ordinance may
also determine exemptions from the fee, the creditors, the debtors, the extent
of reimbursable expenses and charges levied by other means than set out in the
Act on Administrative Expenses. It may contain the debtor’s duty to provide
information regarding the number of affected passengers as well as on the type
and number of transported articles; information provided to affected persons
regarding personal data stored in air traffic files shall be free of charge.
(3) The Federal Ministry of the
Interior shall be authorised, in agreement with the
Federal Ministry for Transport, Building and Housing and with the agreement of
the Bundesrat, to issue ordinances in regard to the
carrying out of security measures pursuant to Sections 8 and 9. These
ordinances may, in particular, contain details regarding structural and
technical safeguards, screening of persons, articles and vehicles, training
measures for staff and the content of civil aviation security programmes. It may, furthermore, be determined that the
Federal Ministry of the Interior may authorise
exceptions to the prescribed security measures in general or in individual
cases, so far as security consideration permit.
Chapter
5 Administrative Fines Regulations and Penal Provisions
Section 18: Administrative Fines Regulations
(1) An administrative offence shall
be deemed to be committed by any person who wilfully
or negligently
1.
in contravention of Section 7(5) sentence 3 does not
make true statements;
2.
in contravention of Section 8(1) sentence 2 or Section
9(1) sentence 2 does not present a civil aviation security programme
for authorisation within the specified time limit;
3.
in contravention of Section 8(1) sentence 5 or Section 9(1) sentence 5 does not
carry out the security measures outlined in an authorised
civil aviation security programme;
4.
in contravention of Section 10 sentences 2 to 4 does not wear his/her
identification card in a visible place whilst in restricted access areas, gives
it to third parties, does not hand it back to the issuing office or does not do
so in good time, or does not inform the issuing office of the loss of this
identification card or does not do so in good time;
5.
in contravention of Section 10 sentence 5 gains unauthorised
access for himself/herself or a third party to restricted access areas; or
6.
contravenes an enforceable order or instruction
pursuant to Section 8(1) sentence 3 or 4, Section 8(2), Section 9(1) sentence 3
or 4, or Section 11(2) sentence 2.
(2) An administrative offence based
on para. 1 numbers 1 to 5 may be punished with a fine
of not more than ten thousand euro; an administrative offence based on para. 1 number 6 with a fine of up to
twenty-five thousand euro. The aviation security authority shall be the
administrative authority within the meaning of Section 36(1) number 1 of the
Act on Administrative Offences.
Section 19: Penal Provisions
(1) Anyone who, in contravention of
Section 11(1), carries with them in their hand luggage or on their person on an
aircraft or in restricted access areas in an airport the articles listed in
Section 11(1) shall be punished with imprisonment of not more than two years or
with a fine.
(2) Anyone who acts negligently
shall be punished with imprisonment of not more than six months or a fine of
not more than 180 daily rates.
Section 20: Administrative Fines Regulations and Penal
Provisions Regarding Section 12
(1) An administrative offence shall
be deemed to be committed by any person who, in contravention of Section 12(4),
when travelling as a passenger on an aircraft, does not obey the instructions
of the pilot or his/her authorised agent. Such an
administrative offence may be punished with a fine of not more than twenty-five
thousand euro.
(2) Anyone who commits the act
outlined in para. 1 above and thereby offers
resistance by use of force or threatens resistance by use of force, shall be
punished with imprisonment for not more than two years or a fine.
(3) In particularly serious cases of
an act under para. 2 the period of imprisonment shall
be between six months and not more than five years. A particularly serious case
is generally defined as when
1.
the perpetrator or another involved person carries a
weapon in order to use this in committing the act; or
2.
the perpetrator, by means of the force used, places
the person on whom the force is used in mortal danger or inflicts serious
bodily injury.
Chapter
6 Concluding Provision
Section 21: Restrictions on Fundamental Rights
The fundamental rights to life,
physical integrity and freedom of the person (Article 2 para.
2 sentences 1 and 2 of the Basic Law), the fundamental right to privacy of
correspondence (Article 10 para. 2 of the Basic Law)
and the fundamental right to the inviolability of the home (Article 13 para. 1 of the Basic Law) shall be restricted subject to
this Act.
Article
2: Amendment to the Civil Aviation Act
The Civil Aviation Act as amended by
publication of 27 March 1999 (Federal Law Gazette I, p. 550), last amended by
Article 1 of the Act of 21 August 2002 (Federal Law Gazette I, p. 3355), is
hereby amended as follows:
1.
The following words shall be added to Section 4(1) sentence 1 number 3: “and no doubts regarding the reliability of
the applicant exist pursuant to Section 7 of the Act on Aviation Security,”.
2.
Section 19b shall be deleted.
3.
Section 20a shall be deleted.
4.
In Section 20b sentence 3 the reference “Section 20a(2)”
shall be replaced by the reference “Section 9(2) of the Act on Aviation
Security.
5.
Section 27(4) shall read as follows:
“(4) Section 11(1) and (2) of the Act on Aviation Security shall remain
unaffected.”
6.
Section 27c shall be amended as follows:
a)
In para. 2 number 1a the
words “including the checking, warning and re-routing of aircraft in air space”
will be added after the word “airports”.
b)
The following paragraph 4 shall be added after paragraph 3: “(4) Section 15 of
the Act on Aviation Security shall remain unaffected.”
7.
Section 29 shall be amended as follows:
a)
The word “operational” shall be added in front of the word “hazards” in para. 1 sentence 1.
b)
Paragraph 3 shall be deleted.
8.
Section 29c shall be deleted.
9.
Section 29d shall be deleted.
10.
Section 31(2) shall be amended as follows:
a)
The semicolon at the end of number 18 shall be replaced by a full stop.
b)
Number 19 shall be deleted.
11.
Section 32 shall be amended as follows:
a)
The full stop at the end of para. 1 number 13
sentence 6 shall be replaced by a comma.
b)
Paragraph 1 number 13 sentence 7 and para. 2a and 2b
shall be deleted.
12.
Section 58 shall be amended as follows:
a)
In para. 1 numbers 4a to 4e shall be deleted.
b)
In para. 1 number 11 the reference “or (4) sentence
2” after the reference “27(1) or (2)” and the reference “authorisation
pursuant to Section 19b(1) sentences 3 or 4 or 20a(1)
sentences 3 or 4” following the reference “24(1)” shall be deleted.
c)
In para. 2 the references “4c to 4f” and “to 4b”
shall be deleted.
13.
Section 60(1) number 8 shall be deleted.
14.
Section 69 shall be deleted.
Article
3: Amendment to the Act on the Federal Border Police
The Act on the Federal Border Police
of 19 October 1994 (Federal Law Gazette I, p. 2978f), last amended by Article 6
of the Act of 9 January 2002 (Federal Law Gazette I, p. 361, 365) is hereby
amended as follows:
1.
Section 4 shall be rendered as follows:
“Section
4 Aviation Security
The
Federal Border Police shall provide protection against attacks on aviation
security pursuant to Section 5 of the Act on Aviation Security, insofar as these
duties are carried out pursuant to Section 16(3) sentences 2 and 3 of the Act
on Aviation Security under federal administration.”
2.
In Section 4a sentence 2 the reference “Section 29(3) sentence 1 of the Civil
Aviation Act” shall be replaced by the reference “Section 12(1) sentence 1 of
the Act on Aviation Security”.
3.
In Section 14(3) sentence 3 the reference “Section 29c and 29d of the Civil
Aviation Act” shall be replaced by the reference “Section 5 of the Act on
Aviation Security”.
4.
In Section 62(4) sentence 2 the reference “Section 19b(1)
sentence 1 number 1 second clause of the Civil Aviation Act” shall be replaced
by the reference “Section 8(1) sentence 1 number 1, second clause of the Act on
Aviation Security”.
Article
4: Amendment to the Act on the Central Foreigners’ Register
The Act on the Central Foreigners’
Register of 2 September 1994 (Federal Law Gazette I, p. 2265), last amended by
Article 5(4) of the Act of 22 August 2002 (Federal Law Gazette I, 3390), is
hereby amended as follows:
1.
In the table of contents in the reference to Section 15 the words “Land
aviation authorities within the meaning of Section 29d of the Civil Aviation
Act” shall be replaced by the words “aviation security authorities within the
meaning of Section 7 of the Act on Aviation Security”.
2.
In the heading and in para.
1 sentence 3 of Section 15 the words “Land aviation authorities within the
meaning of Section 29d of the Civil Aviation Act” shall be replaced by the
words “aviation security authorities within the meaning of Section 7 of the Act
on Aviation Security”.
Article
5: Amendment to the Ordinance Implementing the Foreigners’ Act
The Ordinance Implementing the
Foreigners’ Act of 17 May 1995 (Federal Law Gazette I, p. 695), last amended by
Article 6(2) of the Act of 22 August 2002 (Federal Law Gazette I, p. 3390), is
hereby amended as follows:
1.
In Section 8(3) sentence 3 number 21 the words “Section 29d of the Civil
Aviation Act” shall be replaced by the words “Section 7 of the Act on Aviation
Security”.
2.
In the Annex, Chapter I, numbers 1, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 24a, in column D the words “Land aviation
authorities within the meaning of Section 29d of the Civil Aviation Act” shall
be replaced in each instance by the words “aviation security authorities within
the meaning of Section 7 of the Act on Aviation Security”.
Article
6: Amendment to the Act on the Federal Central Criminal Register
The Act on the Federal Central
Criminal Register of 18 March 1971 (Federal Law Gazette I, p. 243) as amended
by publication of 21 September 1984 (Federal Law Gazette I, p. 1229, 1985 I, p.
195), last amended by Article 4 of the Act of 22 December 2003 (Federal Law
Gazette I, p. 2834), is hereby amended as follows:
In
Section 41(1) sentence 1 number 13 the word “aviation authorities” shall be
replaced by the word “aviation security authorities” and the reference “Section
29d of the Civil Aviation Act” by the reference “Section 7 of the Act on
Aviation Security”.
Article
7: Amendment to the Civil Aviation Licensing Ordinance
The Civil Aviation Licensing
Ordinance, as amended by publication of 27 March 1999 (Federal Law Gazette I,
p. 610), last amended by Article 2 of the Act of 29 December 2003 (Federal Law
Gazette I, p. 3093) is hereby amended as follows:
Section
77 shall be deleted.
Article
8: Return to Standardised Hierarchy of Ordinance
Those sections of the Ordinance
Implementing the Foreigners’ Act based on Article 5 may be amended by virtue of
the authority of the Act on the Central Foreigners’ Register of 2 September
1994 (Federal Law Gazette I, p. 2265) by the issuing of ordinances.
Article
9: Entry into Force
This Act shall enter into force on
the day following its promulgation.
The above translation is unofficial. It was
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with kind permission. © 2005 Federal
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