More of the EASA mess, confusion and ineptitude!
From Fly Corporate, another interesting article on the Part NCC debacle!
(sorry, can't get link to paste properly)
05/01/2015
In summer 2016, all non-commercial operators of complex aircraft having their principal place of business or residence in EASA Member States will have to comply with the European regulation called Part-NCC. As raised in an article previously published by FlyCorporate entitled “New EU Part-NCC: a revolution riddled with uncertainty”, many aircraft owners will need to get organized (or re-organized) in order to face their new operational obligations. Meyer Avocats Attorney Philippe Renz discusses.
In fact, numerous owners have already started to assess whether they should continue to manage their own flight operations or instead entrust third parties with this task. Numerous AOC holders and other aviation professionals are likewise in the course of evaluating how they might take such responsibility on themselves.
In order to determine the best possible option, many owners and operators have already turned to their National Aviation Authority (NAA) to raise practical and legal issues that the latter have generally not been able to answer so far. Although this situation is not surprising given the uncertainties related to Part-NCC, these issues must be clarified as soon as possible to prevent the industry from suffering damages in the coming months.
What operational structure to set up?
As mentioned in the previous article, the European Union (EU) does not intend to implement the oversight coordination mechanism provided by the ICAO regulation between the State of Registry (SoR) and the State of the Operator (SoO). In doing so, the EU accepts that aircraft registered in third countries and their operators will be submitted to two parallel oversight systems independent from each other. This already raises a number of issues.
First, operators already required by their SoR to operate with an Operations Manual (OM) now wonder whether the provisions of the EU regulation could be inserted into their current OM and, should this not be possible, how their new EASA OM should be detailed. Indeed, the Acceptable Means of Compliance and the Guidance Material provided by the EU legislation are very succinct and offer little help. Not many NAAs are able to answer these questions today and those who can have little in common on recommendation, ranging from a rough OM with just a few pages to an OM worthy of a commercial operator.
The same uncertainty relates to the complexity of operators (not of the aircraft, but of the operator’s activity), which to a great extent is left to the discretion of each NAA. This issue is significant, in particular for small operators, since the decision of the NAA as to whether an operator is complex or not may have an expensive impact on its Safety Management System. Unfortunately, today most NAAs do not know where they will draw the line between a complex and a non-complex operator.
And what about all operators already IS-BAO certified? Will their certification be recognized in Europe? If so, to what extent?
Here too, in the absence of clearer guidelines from the EU and answers from the NAAs, the owners do not have all the necessary information to make an informed decision. The standardization wished for by the EU looks to be a long way off.
A level playing field?
As shown, implementing Part-NCC will not be easy. An additional difficulty will arise since the legality of Part-NCC is increasingly questioned. Indeed, the submission to Part-NCC of aircraft registered in third countries raises eyebrows not only of third countries, but even of a number of European NAAs. As mentioned above, if Part-NCC applied today, the European-based operators of such aircraft would be subject to the double oversight of the SoR and of the SoO – without any coordinated mechanism for shared oversight.
Therefore, it is understandable that European NAAs are cautious about the idea of having to accept as SoO their own parallel and possibly conflicting responsibility while the ICAO system attributes the majority of the oversight obligations to the SoR, on which the relevant SoO will have no control.What would happen in case of an accident, if a default of oversight over the operator is attested by the accident report? Legal certainty demands that only one authority is held responsible for this lack of oversight, and not two.
This European intrusion into the competence of the SoR, which additionally prevents the latter from discharging their responsibility to the benefit of the European NAAs, could well be an own goal for the EU should Part-NCC be declared legally not applicable to aircraft registered in third countries. Indeed and in such a case, has the probable exodus of many EU registered aircraft to new horizons, different from the EU regulatory world but equally safe, been envisaged? And if the EU could against all odds impose its system, how could it ensure that all operators will play the game?
Today, the European NAAs do not have the legal and practical tools to effectively and quickly control if a non-commercial flight operated by a non-commercial operator is legal or not. So, how are we to believe that these NAAs will be able to ensure that all operators concerned by Part-NCC have declared themselves, or that they will be able to prosecute the black sheep?
The EU’s intentions seem to be doomed to fail. Its failure to anticipate the hurdles of regulatory enforcement will once more benefit those who feel at ease in the grey area – to the detriment of those who comply with the rules and finally pay the bill. In both cases, the principle of “level playing field” between operators as advocated by the EU will remain a dead letter and competition distortions are likely to increase.
The responsibility of the EU
Business aviation has never been seriously considered by European legislators and NAAs. This is clear in the fact that commercial operators are still subject to rules poorly adapted to their activities while non-commercial operators have remained almost unregulated for decades. Although the non-commercial sector has never been safer than today, the EU’s intention to fill part of the gap with commercial standards makes sense. However, the first practical and legal issues reported above tend to show that its regulatory ambitions are not yet mature.
This precipitation is not new. Just consider the high price that the general aviation sector has paid in recent years because of inappropriate regulations based on a failure to properly identify the needs of this industry. Today, the EU tries to make adjustments, but the damage is done and the business aviation community wants to avoid – at all costs – the same costly experience.
While non-commercial operators are ready to accept new operational rules – this is not the issue – these should be reasonable, applicable and uniformly enforceable, and respect the rights and competence of the SoR. However, unlike the fate reserved to the EU ETS system put on hold by powerful political lobbies, non-commercial operators do not have the same lobbying influence to force the discussion with the EU. The EU should be incited to further analyze the adverse consequences of its regulation and to initiate discussions with ICAO – which has never really been able to impose its Annex 6 Part II regulation – for a better and above all effective legal and oversight system applicable worldwide. Such a system would be applicable equally to EU registered aircraft and to the several hundred non-EU registered aircraft frequently based in the Old Continent - see attachment below.
European aircraft owners and operators are not willing to become the guinea pigs of the EU lab and to pay the price for choices that the EU has taken unilaterally and a bit lightly. For this reason, and in order to protect the business aviation market and help the European NAAs, a quick reaction by the EU is essential. Time is short and the badly tied up regulatory package should be exchanged for a better product as soon as possible, before irreparable damage is caused to all of those who invest huge time and financial resources to (try to) comply with the regulations.
Article by Philippe Renz, Meyer Avocats Attorney