Can pilots cope with regulatory freedom?

Rwy20 wrote
It is Swiss pilots reading the very clear FCL.055 thinking “but we have always required one exam per language, why should an English LP give me the right to do the radio in French, this is not logical”, who are longing for stricter rules despite a very clear legal text. And the Swiss FOCA emitting notes that for THEIR purposes, you must have one LP in each language despite what the law says.

Initially it was the French who screwed it up and harrassed people until someone apparently told them to stop. It was a Swiss airline pilot who was caught out and went public about it, but it was clearly a huge issue at the time and he was not the only one.

mh wrote:

How clearer can they ever be? Why are you asking to fill the regulation with complete unnecessary restrictions?
Plus: There is a court rule about this with a crystal clear outcome.

I never had a problem with this partiular rule. In fact, we have had the very same in Switzerland since I can think back. The question I ask is that as it is pretty obvious that the interpretation of this (e.g. is it only legal to share equally or do the proportions not matter) appears to be subject to quite heated discussion, people are pointing to a Danish court decision. Who tells you with any certainty however that if the same question is deliberated in say an Italian court, they will reach the same conclusion? I would not be sure about that. I have been doing this kind of flying since I started and the original Swiss legislation was even less restrictive. Obviously I have nothing at all against cost sharing, on the opposite. And yes, the text is quite clear, so why is there confusion and why are questions asked?

The interpretation of law by different courts with different outcome has nothing to do with being “Rechtsstaatlich” or not, Danmark and Italy are two independent states which belong in the same union, but whether that means that union law is interpreted the same way, I would be less than sure.

Other than that, all cases I mentioned where I felt that Annex 13 was violated are Swiss and yes, I will openly say that in some instances I do not agree with the presumption that a court will do justice to an issue, you will get a verdict but not necessarily justice.

mh wrote:

If it were so, you’d just omit any written rules, because in your view they can all be overturned by some angry judge. Our courts are no kangaroo courts.

Maybe you should talk to a qualified lawyer how these things work. In fact, the interpretation of law is in any society part of the democratic process of checks and balances (Gewaltentrennung) where the courts review the laws written out by legislative power and you can only be sure what it really means once there is a supreme court decision. Otherwise we would not need lawyers at all if it was all that clear. The trouble is that in recent years, this kind of checks and balances does not always work as intended. If the opinion of a supreme court regularly overturns legislation passed by the sovereign people, as it has happened here in Switzerland quite balantly in the recent past, it is no wonder that people will demand more restrictive interpretation of the law THEY passed.

mh wrote:

Especially since it won’t affect you anyway (you have let your SEP lapse and said in the past, you don’t do cost sharing flights anyway?

All of this affects me as much as any other guy here regardless of whether my SEP is active or not. I still own an airplane and btw I will hopefully correct the missing SEP within the next few weeks, provided I can match time and weather as usual. And as you are getting on a quite personal level, the reason I let my SEP lapse had nothing to do with those issues but the fact that I am the recent father of a now 2 year old and it turned out that without grandparents or other help it was a full time job more important than my flying ambitions. Apart, you might be aware that I have the responsibility for an aviation forum in Switzerland and the association running it. All that takes time and I had to set priorities. I can go back to flying whenever time warrants but my daughter will only once be 2 years old.

You asked a question and I gave you my opinion. No, I don’t want MORE regulation, I want regulation which is as unambiguous and clear as possible. For the issue of cost sharing this may be the case (and I agree with your interpretation of the law btw) in other issues in aviation and outside it it is anything but. I am not asking you to agree or even to like my opinion, as you don’t presume the same for me, but I have to admit it is kind of frustrating when one guy whom I usually know as very competent and worth reading every single post descends to personal attacks. Moreover since I believe that in the essence we are not very far apart, maybe I only have had more negative experiences due to some of the work I do how perverted the law can be in the wrong hands.

mh wrote:

Please provide a link.

The report is here. Schlussbericht HB-DFP und HB3373

The court decisions of the Swiss penal court are to my knowledge not public, but the case was widely discussed in the press as well. The pilot in command of the Mooney was one of my pilots and a friend of mine. He passed away on December 26.

The report about the ATC case is also available here. and here

Press coverage

mh wrote:

So you don’t want freedom. You want regulation.

No. I want that regulation where it is necessary to be as clear and as unambiguous as possible. And not only in Aviation but generally. What is the point of feeding a whole industry of people who do nothing else than telling us the law is something quite different than what it sais black on white. BTW, this was one of the things the EASA GA roadmap group put a lot of emphasis into as well and they have done well more than not. But as you have seen and what prompted your question, there still is a lot of insecurity. And these kind of happenings do not help.

Mooney_Driver wrote:

The question I ask is that as it is pretty obvious that the interpretation of this (e.g. is it only legal to share equally or do the proportions not matter) appears to be subject to quite heated discussion, people are pointing to a Danish court decision.

I can imagine the heated discussions stem from expectations carried over from earlier legislation. E.g. before part-NCO, cost sharing was legal in Sweden, but only if the pilot payed at least his/her equal share. I can well imagine that there is a mindset that cost sharing still must work that way even though the EASA regs don’t say that.

The problem with the cost sharing argument is that there is a very big incentive to discourage cost sharing, and this is nothing to do with [mis]interpretation of the regs.

We have many other threads on this (e.g. under the Wingly and DGAC cost sharing headings) and there are some serious factors involved which can’t be simply disregarded “just because it is legal”. To throw in just a few: a club member renter who is cost sharing is likely to be under more pressure to fly so more scrutiny from the club president aircraft owner is to be expected especially with a very low hour pilot who has rarely gone anywhere before … or a club which is using some tax concession might lose it if there is a “commercial” element.

But a regulator cannot openly say that they think X% of the pilots who they licensed (and who were trained by FIs who they licensed) are judged to be not good enough for cost sharing flights because they fly 10hrs/year and only fly 50nm down the road and cannot fly outside their country anyway because in 95% of cases they don’t have ELP! So they have to dress up their opposition in some more politically palatable way, and this is exactly what we have seen. They dress it all up as a different interpretation of the regs. And in scenarios where the regulator is heavily involved on the ground they can and do get away with it… it is like a gun shop owner is not going to argue with the opinion of the police inspector who visits him every year to check his gun safe etc is ok.

From what I have read and heard the problem with cost sharing and “commercialised” private flying is that favours are “over payed”.

We have always cost sharing with no equal share. This has been interpreted as getting payed is OK as long as the price is somewhat similar to rental cost. If you actually do rent an aircraft, this is no problem, because the price is set and perfectly verifiable. If you have your own aircraft however, the exact price is very fluid. What has happened, and still is happening, is people with private planes are getting payed more than they should, because the hourly price is unknown in any case, and the assumed hourly price is greatly exaggerated.

EASA has, as far as we are concerned, restricted and specified to more detail the old national regs. The cost is divided into direct cost and annual cost, and where only the direct cost is “shareable”. Cost of maintenance, insurance and so on cannot be shared.

If you rent an aircraft, nothing has really changed, but if you own your aircraft, you can no longer use rental prices as a template. The only thing EASA has done is making it much easier for the authorities to catch the ones doing overpayd favours with their own aircraft. A club is free to set the hourly price to whatever it wants, and since they are non profit organizations, there are no elements of profit as per def. Since the only price for each member is the hourly cost, that cost is the direct cost per definition for the pilot.

EASA has added another thing too. You can advertise your flights freely. This enables a club to in principle work as a small airline company, well within the letters of the law. Each pilot will not get much, but the club can use this to renew the fleet, new hangar and so on, and the pilots pay nothing to fly. Doing anything like this with your own private aircraft, and you will get caught. The authorities know this, and therefore only go after private owners.

Regarding Part NCO and simplified regs. I have to deal with 3 different “NCOs”. EASA regs for EASA aircraft. The old national regs for Annex I/(II), and microlight regs for microlight aircraft.

LeSving wrote:

Regarding Part NCO and simplified regs. I have to deal with 3 different “NCOs”. EASA regs for EASA aircraft. The old national regs for Annex I/(II), and microlight regs for microlight aircraft.

Sweden is in the process of changing its national regs for Annex I (except UL) to simply refer to part-NCO. What has other countries done?

LeSving wrote:

If you rent an aircraft, nothing has really changed, but if you own your aircraft, you can no longer use rental prices as a template.

Which goes to show that this is already a too detailed overregulation, where an aviation authority is trying to get involved with the economics of plane ownership as imagined by public servants.

That is, if you sell your plane to your spouse and rent it back for a cost sharing flight, technically you are allowed to charge more to your passenger (fixed plus variable cost as reflected in the rental rate) as opposed to doing the same thing with your own plane (variable cost only). Logical? No.

So I would argue that we would be best served by not wishing for any more detailed regulation, as you end up either with illogical cases stemming from the person writing the regs considering only one case when writing the reg, but then applying it generally to all sorts of situations. If you have general laws, which DO need interpretation, but also give more freedom, things are judged on a case by case basis according to the INTENT of the law and less the letter, because there are so few letters to go by. A situation that many pilots seem to fear, as @mh correctly analysed. Or, as one of my law professors once remarked, the quality of a legal clause is usually inversely proportional to its length.

If you rent an aircraft, nothing has really changed, but if you own your aircraft, you can no longer use rental prices as a template.

AIUI, the only difference is the way you have to account for the expenses. If you rent, every penny you pay is legitimate expenses, so under the EASA cost sharing rules you can fly for nothing (or maybe €0.01 – I am not sure ).

OTOH if you own the plane then nobody except the airport can stop you doing Wingly etc. Well, the airport can kick you off, like Biggin Hill said they will do.

That is, if you sell your plane to your spouse and rent it back for a cost sharing flight, technically you are allowed to charge more to your passenger (fixed plus variable cost as reflected in the rental rate) as opposed to doing the same thing with your own plane (variable cost only). Logical? No.

Indeed, a scheme like this was used in the UK many years ago by one guy who the CAA prosecuted but IIRC they lost.

The plane is Ltd Co owned, you own the company, you rent the (PA28) plane from the company for €1000/hr and then, under the old regs, carrying 3 passengers, you could recover €750/hr from the passengers. You paid the other €250/hr yourself. The company ended up with €1000/hr in its bank account. Take away expenses, say €100/hr, and you can draw out the €900/hr as a salary or a dividend. You pay tax on it of course, plus the non cost effective bit of paying tax on the (already taxed) €250/hr which you put in, but you still come out with a post-tax €500/hr or thereabouts, which is quite nice Now, with the new rules, you can do the same and it is slightly better because you don’t need to put in the €250/hr from your own pocket so you save the double tax on that.

Back in the days when the UK CAA still had smart people at the customer interface (about 15 years ago) I asked them whether I could cost share a plane owned by a Ltd Co which I owned. Obviously this is a similar scenario to the one immediately above, and open to such obvious explotation. They told me, in writing, this is fine. Well, it kind of has to be fine, otherwise an office employee employed by and paid from a flying school could not rent a plane from the school and cost share it… They probably decided very few people will think about it, and anyway the bottom dropped out of the “piston charter” business many years ago. What_Next (who unfortunately left a while ago following a disagreement with another pilot) wrote at length how that business is dead.

If you have general laws, which DO need interpretation, but also give more freedom, things are judged on a case by case basis according to the INTENT of the law and less the letter, because there are so few letters to go by

I would agree. Moreover, in any functioning justice system, a restrictive regulation must be read exactly as written, no more. And any ambiguity is construed in favour of the defendant. If the author wants to ban X and Y he needs to specify X and Y. So vague laws tend to benefit those wanting to explore the margins.

I think the main problem with EASA regs is that so many are written by people unfamiliar with the field. In the UK, we have lots of stupid laws (“stupid” varying according to who you ask, obviously) but very few ambiguous laws. This is because the drafting process is done by people who do this job all year and who know what sort of “margin exploration” will be typically attempted. Then the big stuff gets debated and amended. A lot of the EASA regs are horribly obviously ambiguous; drafted by people not familiar with aviation.

UK laws still didn’t foresee the “plane owned by wife” scenario but that is a second level of ingenuity. I think that is what the courts get to deal with mostly