Legal issues about cost sharing with PAX in Germany

[Rhino25782]

Hello,

So in Germany, the regulation 1178/2011 (EU) has been effective as of April 2013.

According to this regulation, a PPL (A) holder has the privilege to "act without remuneration as PIC or co-pilot on aeroplanes or TMGs engaged in non-commercial operations". The regulation also defines "commercial air transport" as "the transport of passengers, cargo or mail for remuneration or hire".

It is widely accepted that strictly based on this regulation, it is now illegal in Germany to carry passengers on a cost-share basis. Previously, as per §20 LuftVG, this was possible as long as the aircraft's registered passenger capacity didn't exceed 4 (including crew).

Now, the Federal Ministry of Transport, Building and Urban Development has "decided" that until the issue is clarified with the European Commission, cost sharing flights within clubs, in groups with a common goal/interest/destination, among friends/relatives, and for parachute dropping are not to be treated as "commercial". If you can read German, here's the letter to the Commission:

http://www.daec.de/fileadmin/user_upload/files/2012/service/newsletter/News/BMVBS-Brief_wg_Rundfluege.pdf

This is all very nice, but legally, I'd say the EU regulation is binding and not the "opinion" of a federal ministry. It seems that common practice in Germany now is to go along the lines of the ministry - but will one be on the safe side in case of any legal disputes (possibly post-accident)? I think not.

Additionally, as a UK CAA-issued license-holder - am I subject to both UK and German legislation with this respect if I charter and fly from Germany in a D-reg aircraft? (Chicago conventions ringing a bell about applicabilty of national regulations..?)

Cheers

Patrick

[wb9999]

The same regulation has been in effect in the UK since April 2012. As an EU law, it overrides anything that each country may say locally.

But personally, I don't consider cost sharing as remuneration. I regard remuneration as being paid to provide a service - ie, charging a fee for your time or a product. Maybe it's a case of something getting lost in translation with the regulations.

I think I have read recently that EASA had made it legal to cost share with up to 6 people - an increase from 4 that it was previously. I haven't read that anywhere formally - just seen it on a forum or magazine website.

[Johnm]

The Ministry interpretation is quite correct. Cost sharing is not "remuneration" which is defined in the Oxford English Dictionary as "Reward, pay for services rendered"

English is a very complex and subtle language and VERY careful translation is needed to get meaning correct in legal terms. Brussels is not very good at that. Because French has a small vocabulary compared to English they often choose an inappropriate translation and it's necessary to understand the intention of the rule makers, who then turn out not to have thought through their own intentions!

When flying an aircraft where more than one state is involved e.g D reg in French airspace it's generally the rule of thumb that more onerous or restrictive of the two sets of rules will apply.

[Rhino25782]

So it seems to be a translation issue indeed.

In the German translation of the regulation, the term "Entgelt" is used, which, in German legal jargon, includes any form of payment or "consideration", even towards the cost.

Re the different countries involved, just trying to clarify that for my own case: If I fly a German (D)-registered plane in Germany, does it matter that I'm a UK-license holder? Would I, for example, be limited by the "pro rata" cost sharing requirement (which doesn't exist in German air law)?

Regards

[cockney steve]

Suppose four of you want to do a trip that uses 40 gallons of fuel -and a quart of oil (for the sake of completeness)

You each buy 10G fuel and 1/2 pint of oil, tip them in, toss a coin to see who'se going to be P1 (again, assuming you're all licence -holders)

Away you go!

Who has been "remunerated?" NOBODY.

each paid their own share of the costs directly attributable to the trip.

plain as a pikestaff! :}

[AlexUM]

Rhino,

it is a translation issue for sure. We had long discussions at our glider club.

Bezirksregierung says it's allowed that pax pay their share of the flight costs.

Take care,
Alex

[ITSAB]

As far as I understood german air law & exams & LuftVO etc. You are bound by the laws of the country that you are currently flying in / over.
Being a UK Citizen with a UK licence in a D reg aircraft in Germany should not make a difference. With an international EASA or still a JAR PPL(A), as I understood it, you are allowed to fly european registered aircraft wherever you may find them.
You would be bound by the Luftfahrtgesetze & the LuftVO.

The wording "Entgelt" and "renumeration" match up according to Leo translation. However there is a lot of difference between the meaning / interpretation of the two. I would also go with a translation issue here. It wouldn't be the first time...
;)

And if all else fails I suppose one could find a very good restaurant and let your passengers buy you dinner...
;)

Regards

ITSAB

[David Roberts]

Fresh from 2 days in Cologne (at EASA). I am very much aware of this issue and I am 99% sure it is on the agenda, amongst many other things, at next month's "comitology" meeting of member states in the EASA Committee. It is late now but I recall seeing that this question is to be clarified in the final draft of OPS regulations and that "cost sharing" within certain parameters (e.g. max 6 people including pilot) is not regarded as 'remuneration' / "commercial". There are other qualifying criteria which are quite normal. It never was the intention of EASA to make such arrangements commercial but drafting in English can sometimes not get across the full intentions of the rule-makers. And of course different countries interpret the rules slightly differently, due to translation issues as others have alluded to.

The whole question of the definition of "commercial operations" in the Basic Regulation, and its interpretation, is now at last under review at the Commission, as a result of several years of pressure from the organisation I lead, and others. The issue was one of the main ones to be brought forward in the GA Safety Strategy paper that was produced for the EASA Management (i.e. Governance) Board last year by a broad based group of experts led by DGAC / France.

Usual legal caveats etc etc......
DGR / President, Europe Air Sports

[Rhino25782]

Ah thanks David for that insight! Good to know that there's something going on to that end...

[bookworm]

So it seems to be a translation issue indeed.

Actually it's a bit more complicated, if my bad German and Google translate are up to it.

The issue cited in Münz's letter is not the "remuneration" (Vergütung), but that the flight falls within (or might be viewed to fall within) the definition of a "commercial operation" (gewerblichen Betrieb) or even "commercial air transport". The operations that he describes are more than just cost sharing, but include what have been termed "introductory flights", where a club charges passengers for rides. (Sie bieten regelmäßig Flüge für Gäste an, um für ihren Verein zu werben und die Vereinskosten durch das Entgelt zu kompensieren.) But in principle, under existing EU law, the broad definition of "commercial operation" might be interpreted as catching both introductory flights and cost sharing with passengers.

I understand the issue is being looked at by the Commission with a view to accommodating some sensible things, so I wouldn't expect a formal reply to the letter in a hurry.

[Johnm]

EU will never work properly as long as it's multi-lingual in rule making. Eer forget that EU will never work properly period:ugh:

[Rhino25782]

How do other multi-lingual environments work? India? Switzerland?

Okay, for India I think the law-making language might be English?

But Switzerland seems pretty efficient to me in translating their laws in all official languages?

[bookworm]

But Switzerland seems pretty efficient to me in translating their laws in all official languages?

The irony is that in Switzerland, which is not a member of the EU, but an EASA Member State, the English version of the EASA regulations are regarded as authoritative. In the rest of the EU, in principle they have no greater weight than the version in any other language.