At Tannkosh, I attended a very interesting workshop by the head of FIS Langen titled "Captured above a solid cloud layer -- what to do?". This was for VFR pilots but I still thought it could be interesting because of the legal aspects and the general fear of excessive policing in Germany.
Here are the key statements:
DFS knows that this situation can happen to anybody, even if you are well prepared and have done your weather due diligence. It is something that can be dealt with.
DFS will treat this as an emergency, you get a personal squawk code and they will look for the best way to get back on the ground safely: fly somewhere else, do a localizer approach or a military radar precision approach. They have a procedure book for this which includes lots of interesting things like reminding the pilot to turn on carburetor heat, etc.
There will be NO consequences of any type, it is part of their job so don't fear it.
This was of course the interesting thing so I kept asking questions and was very pleased with what I heard:
Aviation authorities in Germany expect DFS to file reports about each infraction to the rules of the air. However, DFS generally does not do this. Last year they did file exactly one report and this was a severe case. He said they simply do not have the capacity to file reports. The actual wording was even stronger but let's leave it at this...
Airspace violations are criminal offenses in Germany (pretty much everything else is "only" an administrative infraction). In this case, DFS might be legally required to cooperate with the authorities but in 90% of the cases, nothing happens (yes, I've busted airspaces in the past).
You can do IFR air filing in Germany provided there is a good reason. What you cannot do is use air filing as a convenience because you didn't feel like doing it yourself. Stronger than expected winds getting you beyond SS+30 or weather that is worse than forecast, etc. are all valid reasons.
When you are waiting for an IFR pickup and are told to remain VMC until passing x feet, it is your responsibility to determine what VMC is -- according to the rules of the airspace. DFS are not supposed to verify or question this, VMC/IMC can only be determined by the crew and it's none of their business.
Also interesting news was that all FISOs in Germany can now overlay the VFR map onto their radar screen and ATCs are expected to get this feature in the future, too.
The non-criminalisation of emergencies is also the standard line in the UK (and frankly no civilised country is ever going to say anything else).
Except that in the UK we never hear about anybody getting busted under these rules, whereas there are persistent reports of people in Germany getting busted for e.g. departing "VFR" and disappearing in cloud soon afterwards.
Do you think these reports are false?
One difference of course is that Germany bans IFR in Class G, which should make a conviction easier because if you get witnesses confirming you departed in sub VFR conditions, you are guilty even if you have a valid IR.
there are persistent reports of people in Germany getting busted for e.g. departing "VFR" and disappearing in cloud soon afterwards.
Show me a report, I have never seen more than the usual "I know somebody who knows somebody that has heard from his friend that somebody got busted".
if you get witnesses confirming you departed in sub VFR conditions, you are guilty even if you have a valid IR.
No, it doesn't work like this. If the airfield has an official METAR station, then there might be grounds (but even then you can find holes that the METAR station missed). Flight visibility according to the law is determined from the cockpit. Therefore it can never be determined on the ground. Many times I have found that what looks like a solid overcast from the ground is actually a couple of very low FEW (which don't matter in G, no distance required) and then another layer a bit higher, i.e. fully legal for a VFR departure and pickup later.
Do you think these reports are false?
Not necessarily, but likely these pilots were reported to LBA by someone else than DFS. Achim was talking about what DFS would do, and it sounds plausible that they wouldn't care about clound distance in G.
No, it doesn't work like this.
I can give you as a reference two pilot names from my home base (of course not publicly!) who have been prosecuted and dragged before court exacty for that: Departing VFR in non-VFR conditions. In one case, the tower controller at Stuttgart (DFS employee) was called as a witness and testified against the pilot. In the other case, it was the radio operator of the uncontrolled airfield in the vicinity from which the pilot departed. Both (the pilots, not the witnesses) were convicted to hefty fines.
I myself once violated a temporary military airspace. Again, the military relied on information from DFS to link my transponder returns to an aircraft callsign. By the time I landed, they had already obtained the name and address of the aircraft operator and left a message for me to call them back ASAP. The whole file containing military and civilian radar tracks was then submitted to LBA for confirmation that everything was technically valid and then forwarded to the prosecutors office. So maybe DFS will not prosecute themselves, but they are more than happy if they can be helpful to the law enforcement agencies...
I can give you as a reference two pilot names from my home base (of course not publicly!) who have been prosecuted and dragged before court exacty for that: Departing VFR in non-VFR conditions.
The first case is not surprising. Departing VFR from a controlled airport which declares itself as IFR is not something you can do (in or outside of Germany).
The second case is more interesting and I bet there is more to it than just an AFIS saying VFR conditions are not met (for which he is not really qualified). Normally your lawyer should be easily able to rip such cases apart. I've witnessed somebody depart into OVC001/1km visibility at our airfield but when I thought about what I would be able to truthfully state if asked for a witness statement, I realized that there wasn't much more than "the weather looked bad to me". Only facts can be used against you, not opinions.
Just to state the obvious: I don't do crazy things like that and wouldn't encourage anybody. For me IFR in G was about the scariest thing I've done and that was fully legal 
For me IFR in G was about the scariest thing I've done and that was fully legal ...
I have done so much IFR flying in class G (illegaly, but long enough ago so that it can't be prosecuted any more) that scared me enough not do ever do it again even if it will become legal.
The second case is more interesting and I bet there is more to it than just an AFIS saying VFR conditions are not met...
That "more to it" was the fact that due to fog he declared his airfield as being closed. The pilot questioned his authority do do this and departed anyway. And lost his case before court.
That "more to it" was the fact that due to fog he declared his airfield as being closed. The pilot questioned his authority do do this and departed anyway. And lost his case before court.
Exactly, that is an entirely different thing. The AFIS represents the operator/owner of the airfield and has the authority to close it and deny movements. If it's a special airfield (Sonderlandeplatz) he can do it on his own and without reason, if it's a public infrastructure airfield (Verkehrslandeplatz) it can only be done under certain circumstances ("unmittelbare Gefahrenabwehr").
Also fog is the one case where a ground eye witness can give a legally useable statement. You have to be rather stupid to insist on a takeoff in fog when it's clear that AFIS does not support your stunt.
So we're still looking for examples where pilots got convicted for VFR in IMC 
PS: There is a well known airfield in our vicinity with a long runway and frequent fog conditions (almost 100% of fall/winter/spring). Yet, it sees a lot of movements in these conditions because nobody objects. I guess you know which one it is...
I guess you know which one it is...
I have a certain suspiction...
Also fog is the one case where a ground eye witness can give a legally useable statement. You have to be rather stupid to insist on a takeoff ...
As there were two pilots in the cockpit who both said "Fog? I can't see no fog!" and only one AFIS who said: "I see lots of fog and therefore close my airfield" they thought that two witnesses against one should protect them. But obviously, one AFIS counts more than two pilots in front of a judge. Flying under commercial pressure is not always fun. I would also prefer to win a Euro Millions jackpot and only fly when I like, but when the guys in the back who pay your mortgage want to fly, you can sometimes do rather stupid things.
DFS knows that this situation can happen to anybody, even if you are well prepared and have done your weather due diligence. It is something that can be dealt with.
And the UK's way of dealing with it was called the IMC rating! Sounds like there is a good case for continuing it and making it Europe wide!
