National law cannot alter EU law. It cannot contradict EU law, only further specify it. DGAC and similar are not lawmaking bodies, they are just interpreters of the law just like you are and a judge is. If brought to court, a judge won’t give a damn about what the DGAC think, he will read the law. Usually in such a case where the administration spreads FUD due to ignorance, it helps if lobby organizations take up the issue and seek written clarification.
Well I am sure the “advertisement” clause is not necessarily a further specification…
National law cannot alter EU law. It cannot contradict EU law, only further specify it. DGAC and similar are not lawmaking bodies, they are just interpreters of the law just like you are and a judge is. If brought to court, a judge won’t give a damn about what the DGAC think, he will read the law. Usually in such a case where the administration spreads FUD due to ignorance, it helps if lobby organizations take up the issue and seek written clarification.
Given the certainty of the above, one has to ask: are there any lawyers here who want to tackle the DGAC on this, pro bono of course?
Should be a walk in the park 
AOPA does that. I know that AOPA Germany employs a lawyer and in the board of directors there is another lawyer. They write such letters and they have done a lot of good by seeking clarification on similar matters. AOPA Germany has also started several court trials, one up to the highest court (Constitution Court). That’s what lobby organizations are for and that is why every pilot should join them — not the US AOPA but the local ones!
UK AOPA would not do this kind of job, for example. It’s too aggressive.
If NATS publish BS rules that are in violation of law, UK AOPA would not seek clarification?
It doesn’t take much for an employee down in some department to write nonsense somewhere and give that the agency stamp. Once a credible party (e.g. AOPA) with the professional credentials brings it to the attention at a certain level in the agency where legal skills and knowledge of the law are present, it is quickly corrected.
We’ve had it countless times in Germany. Some aviation authority (we have more than 25 of them due to federalism!) comes up with a BS interpretation of the law and then AOPA (or another lobby organization like DAeC/DULV/OUV) steps in and provides some legal background to help resolve the issue.
If the guy’s post
More than 75% of the French air clubs are not brave enough to let their pilots fly co-avionnage as they fear insurance problems IF an accident happens. This is only because the DGAC is not saying “yes, it’s legal” to allow the insurance companies to offer customized insurances.
is true then
Given the bits I know about the subject, and given that every national CAA has been fighting rearguard actions against every EASA rule change which is more permissive than the preceeding national regulation, I know which way I would bet.
Very few organisations want to tackle their national CAA with a lawyer. I recall one UK magazine issuing an FOIA request on the CAA about 10 years ago but I know of cases where this was avoided by certain organisations because you cannot have a friendly relationship with somebody while sending the lawyers around.
The provocative thing is that the new EASA cost sharing rules do make it possible to play it very close to public transport (charter), or at the very least enable very cheap flying for an aircraft owner who likes to fly people around and is happy to do it with complete strangers. The plus is that this could stimulate GA activity which is a good thing (it is declining over time) but nobody I know would expect an old-style regulator to see that. Most of the prosecutions that take place (in the UK, anyway – I don’t know if the DGAC publishes theirs) are going after illegal charters.
During August a pilot in Milos LGML wanted to do cost sharing flights with local residents, the type of quick tour of the island. (Yes @Peter it was the Cessna you saw at the apron). He posted posters abut it downtown with contact details. “Cost sharers” turned up and he started the flights. CAA (airport governor) at Milos immediately told him to contact CAA legal division to get a permit for this. The pilot then contacted AOPA Greece who in turn told him to produce the documentation he had from EU regarding cost sharing. CAA told him they know nothing about it. AOPA said then to the pilot to reverse the request and answer them that he is not going to contact central CAA about it but he demands the opposite; CAA to give him something in written about it if this is illegal (so that he/AOPA have something to work on) and to say to CAA in Milos that without a written explanation, if somebody would prevent the flight(s) from taking place, he would take legal action with the support of AOPA*.
*lawsuit of AOPA Hellas vs Santorini LGSR airport governor already in progress (takes ages) for denying PPR to 3 Lebanese private aircraft years ago while apron was empty (with proof) the date and time of requested PPR. Regardless of the lawsuit progress as a knock on effect the news have spread in CAA and their employees are cautious nowadays as to what they deny.
A week later a letter comes for CAA legal department stating in essence that cost sharing flights in Greece are prohibited. This is what AOPA needed as a tool to start work again. The legal department of AOPA Hellas has already initiated the necessary mail exchange with CAA legal department using EU legislation before moving on to further legal steps. So in the following months there shall be news on this front.
This story actually made AOPA Hellas set up a legal support official scheme (which was running anyway on ad hoc basis until recently) where its members with active subscription can pay an extra 30something Euro fee per year to have a full time legal support when needed with an always “on call” lawyer to even make instant phone calls/written communications at airport employee(s) representing the pilot and AOPA right when the incident takes place once the pilot makes the contact. The flat fee covers all of the lawyer’s activity up to but not including filing a lawsuit and what follows thereafter.
Fantastic, petakas! This is exactly what we need AOPA for and it is the very same issue in Greece or in Germany. Bureaucrats often just do not know what the law is (especially when it changes) and they are often not aware of where their powers end. In a democracy with separation of powers, it is exactly designed to work this way: the legislative makes the law (EU here), the executive executes it (here: CAA) and the judiciary ensures that it is properly executed.
I have seen a lot of AOPA letter exchanges with the various German aviation authorities and it usually starts with some staff making claims, then a response by an AOPA lawyer with reference to the applicable law, then it gets handled by the CAA’s lawyers and eventually they educate the staff. It’s not aggressive or anything, it’s just the normal process.
Peter wrote:
the DGAC is fighting a rearguard action to make advertising of cost sharing difficult and 75% of French aeroclubs believe that they cannot tackle the DGAC without repercussions (probably, they fear getting stabbed in the back at some future opportunity; the DGAC is much more closely involved in the aeroclub scene that the UK or German CAAs are).
I believe you’re still mixing up France and Albania
