EU Risk (Over-)Regulation in Aviation Prof. Dr. Sigmar Stadlmeier

EU Risk (Over-)Regulation in Aviation
Prof. Dr. Sigmar Stadlmeier, LL.M.
Head of Department, Institute of Public International Law, Air Law and International Relations
Instructor, ATO AeronautX GmbH
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What risk?
§  Design & operational safety / à prevent accidents?
§  Commercial soundness / à avoid bankruptcy?
§  Security / à keep hijackers & other terrorists away?
§  https://www.youtube.com/watch?v=uDffmOSVnBM
§  “Flight is inherently a risky venture, carried out in a hostile
environment at great speed. The only way to assure risk-free
flight is never to allow the airplane to leave the gate.”
—  Jiefang Huang, Aviation Safety through the Rule of Law (2009) p.6
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Which regulator?
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International Air Law
§  Convention on
International Civil Aviation
(1944 Chicago Convention)
§  Art 1: The Contracting States
recognise that every State has
complete and exclusive
sovereignty over the airspace
above its territory
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Law-Making in ICAO
§ 
Art 37 Each contracting State undertakes to collaborate in securing the highest
practicable degree of uniformity in regulations, standards, procedures, and
organization in relation to aircraft, personnel, airways and auxiliary services in all
matters in which such uniformity will facilitate and improve air navigation. To this
end the International Civil Aviation Organization shall adopt and amend from time to
time, as may be necessary, international standards and recommended practices
and procedures…
§ 
Art 54 The Council shall (…) Adopt, in accordance with the provisions of Chapter VI
of this Convention, international standards and recommended practices; for
convenience, designate them as Annexes to this Convention; and notify all
contracting States of the action taken.
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Annexes to ChConv
§  Personnel licensing
§  Rules of the air
§  Meteorological services for
international air navigation
§  Aeronautical charts
§  Units of measurement
§  Operation of aircraft
§  Aircraft nationality and
registration marks
§  Airworthiness of aircraft
§  Aeronautical
telecommunications
§  Air traffic services
§  Search and rescue
§  Aircraft accident and incident
investigation
§  Aerodromes
§  Aeronautical information
services
§  Environmental protection
§  Security / Unlawful interference
§  Dangerous goods
§  Facilitation
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Art 37: Annexes = Soft law?
§  Any State
§  which finds it impracticable to comply in all respects with any such
international standard or procedure,
§  or to bring its own regulations or practices into full accord with any
international standard or procedure after amendment of the latter,
§  or which deems it necessary to adopt regulations or practices
differing in any particular respect from those established by an
international standard,
§  shall give immediate notification to the International Civil Aviation
Organization of the differences between its own practice and that
established by the international standard.
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Art 33: Not so soft …
§  Certificates of airworthiness and certificates of competency
and licenses issued or rendered valid by the contracting State
in which the aircraft is registered, shall be recognized as valid
by the other contracting States,
§  provided that the requirements under which such certificates
or licences were issued or rendered valid are equal to or
above the minimum standards which may be established
from time to time pursuant to this Convention.
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The Old Days 1: JAA
§  Trust under Dutch law, based in
Hoofddorp
§  “Working Group” of CAAs of ECAC
Member States
§  à Joint Aviation Requirements, “JARs”
§  à quasi-legislative agenda for national (!)
law-making
§  not directly applicable
§  not enforceable, no sanctions in case of
non-compliance…
§  … other than inconvenience to the
aviation industry
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The Old Days 2: EU-JAA interface
§  Reg 3922/91
§  MS will comply with JARs
§  Mutual recognition of
certificates, products etc
§  Loyal cooperation with Comm
§  Annex II lists JARs: JAR 22,
25, 66, 145, AWO, E, P, APU,
TSO, VLA
§  Annex III: JAR-OPS
§  Tedious procedure
Joint Aviation
Requirements
§  à replaced by EASA system
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Aviation-related legislative EU competencies
§  Internal market
—  Free movement of goods (aircraft, equipment, …)
—  Free movement of workers (flight crew, cabin crew, maintenance personnel, …)
—  Freedom of establishment (design/production organisations, ATS providers, airlines, …)
—  Freedom to provide services (as above, but subject to transport policy provisions, see Art 58 para 1 TFEU)
§  Transport policy
—  Applicable to air transport subject to secondary legislation only (see Art 100 para 2 TFEU)
§  General Rules of the Treaties
—  E.g. Non-discrimination, Art 18 TFEU
—  à apply irrespective of secondary legislation under Art 100 (ECJ, cases Neukirchinger and IJM)
§  Competition law
—  Cartels, abuse of a dominant position
—  Mergers
—  Subsidies and state aid
§  Approximation of laws
—  High level of protection in safety-related matters, Art 114 para 3
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Nouvelles frontières: The EASA system
§  Reg 216/2008 (“Basic regulation”)
—  Legislative act (Art 288 + 294 TFEU)
—  Establishment and functioning of EASA
—  Applicability
—  Substantive Requirements
—  Annexes with detailed Essential Requirements
§  Implementing regulations
—  Non-legislative act supplementing or amending nonessential elements of a legislative act (Art 290 TFEU,
ex “comitology”)
—  Drafted by EASA (NPA / CRD / opinion)
—  Adopted by European Commission
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Basic Regulation 216/2008
§  Airworthiness
ATM/h
Initial
Airworthiness
Part 21
A/TC
STC
Production Org
Design Org
CofA
Noise
Parts
Repairs
ETSO
Permit
Authority
Requirements
AD/LTA
Airworthiness
Directives
Continuing
Airworthiness
Part M
A/Maintenance
M/F
CAMO
B/Authority RQ
Part 145
M Organisation
Flight Standards
AIR
Crew
Part FCL
Flight Crew
Licensing
Conversion
from national
licences
NON EU
Licences
Part 66
M Licence
Part Medical
Part 147
M Trg Org
Part CC
Cabin Crew
Part ARA
Authority
Requirements
Part ORA
Organizational
Requirements
ATM/ANS
Aerodromes
Third
Country
Operators
ATC License
DEF
Definitions
TCO
Oversight
PART-ADR.AR
Part ARO
Autority Rq
ART
ANS Providers
PART-ADR.OR
AUR/ACAS II
PART-ADR.OPS
AIR
Operations
Part ORO
Organisation
al Rq
Part CAT
Comm Air
Trasport
Part SPA
Special
Approvals
SERA
Standardised
European Rules
of the Air
Part NCC
Non Comm
Complex
Part NCO
NonC omm
NonComplex
Part SPO
Special Ops
Source: Austro Control, season
openers 2013-14, revised by
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… plus …
§  Traffic rights, market access, pricing
§  Slot allocation, CRSs
§  Insurance, liability, overbooking compensation
§  Traffic flow management
§  Accident/Incident investigation, reporting systems
§  Airport / Aviation security
§  SES (Single European Sky)
§  ….
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Why „Overregulation“?
§  Duplication of existing regulatory system
—  “Re-Inventing the Wheel”
—  “If it ain’t broken, don’t fix it”
§  Vertical and horizontal discrepancies
—  Vertical: ICAO-system / EU-system / national law
—  Horizontal: within different EU sources
§  Unnecessary details
—  “Sterile cockpit” in small planes = “do not talk to the pilot during takeoff and landing”
—  à EASA: several pages of draft regulation + six sets of AMC / GM
§  Amount and frequent minute changes
§  à increasing lack of acceptance
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Amount
§  Austria in 1990
—  1 Federal Aviation Statute
Austria in 2015
plus
Some 80 EU regulations/directives
—  12 Ministerial Regulations
—  400 pages total
7900 pages total = x 20!
§  Keeping current with paper = mission impossible
§  Databases
—  www.luftfahrtrecht.at , http://easa.europa.eu/regulations
§  ATO’s hire professors and attorneys to keep up
§  Flying schools? Flying clubs? SME’s?
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Airplanes
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Helicopters
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Rate of fatal accidents in
CAT per million flights,
2004-2013
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Occurrences 2004-2013,
EASA MS, CAT
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Occurrences 2004-2013,
EASA MS, GA < 2t
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Discrepancies 1
§  Implementing regulation on air operations 965/2012, part CAT
(commercial air transport) does not include „aerial work“
—  E.g. photography, uplifting of large goods by helicopter, towing of gliders
§  Part CAT requires operator to hold an AOC (air operators
certificate)
§  Details on AOC to be regulated by national law
§  Austrian ministerial regulation requires AOC also for aerial
work...
§  ... but foreign providers of aerial work will not normally have
one, since CAT does not require it (!)
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Discrepancies 2
§  Basic regulation, Art 3, para (i):
—  ‘commercial operation’ shall mean any operation of an aircraft, in return for
remuneration or other valuable consideration
—  à “commercial” = “for remuneration”
§  Aircrew regulation, part FCL, 205.A:
—  The privileges of the holder of a PPL (A) are to act without remuneration as PIC or Co-Pilot
… engaged in non-commercial operations
—  à non-commercial ≠ without remuneration
§  Air operations regulation, Art 6 as amended:
—  By way of derogation from CAT, some categories of flights are not to be considered
“commercial”, although the pilot receives valuable consideration:
—  Cost-shared flights
—  Competition flights, flying displays
—  Introductory flights, parachute dropping, sailplane towing, aerobatic flights
§  à try to explain this to a pilot…
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Thank you for your attention!
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