Anti N-reg provisions - EASA FCL and post-brexit UK FCL

Malibuflyer wrote:

You could just get an administrative fine from one of the countries you are flying in

Maybe, but what we’re talking about – the question of what papers you have vs what you’re required to have, hinging on where you are ‘resident’ is not a simple administrative penalty like a speeding fine. It requires investigation.

Malibuflyer wrote:

Sure – but esp. in terms of “traffic offenses” it is not unknown for foreign governments to seize the means of transportation (car, yacht, plane) in such cases next time they have the opportunity…

Yep – that’s always the case. Generally you can give the bird to a foreign government that wants to prosecute you, but you can’t go back there.

Airborne_Again wrote:

If you’re right, then no court would ever pass a judgement against the government’s desire and that’s clearly not true.

Of course not all the time and we’ve had loads of it too, particularly around Brexit. The appearance of independence has to be maintained, and 99% of the time European governments are totally fine with actual independence. Assange is just example of an incident where the judicial systems in two countries, both of which have a reputation for judicial independence, clearly did get leaned on by their own governments under pressure from a foreign country.

Malibuflyer wrote:

In theory you might fight against it in front of a court – but we see in many cases like airspace infringements that pilots seem to be much more confident on their legal opinion in Internet forums than they are when it comes to actually take a “wrong” administrative opinion in front of a court.

No pilot wants to fight it in court because it means lots of AMUs and being grounded while it all plays out.

The regulators don’t want it in court because the result will set precedent and FUD is more valuable to them than case law.

Malibuflyer wrote:

More relevant is the case that the insurance company would deny coverage after an accident has happened because they claim you’ve been flying w/o a license.

That’s a matter between a pilot and his/her insurers. I make no comment on individual cases, but comment broadly that the insurer is not empowered to ‘decide’ anything and everything is a negotiation.

Malibuflyer wrote:

Accident report concluded that the pilot was flying w/o required license.

If they really said exactly that then it probably says more about the (non) independence of the investigating body than anything else. I would expect an impartial investigator to note what licenses/ratings they did or didn’t have but to refrain from speculating around what they might have needed based on interpretations of the regulations, particularly as such an assertion would have required them to reach a conclusion on where the pilot was ‘resident’ – something clearly outside of their remit. Contrast with the N264DB report, where the UK AAIB simply list the licenses / ratings he had and leave it at that – no “the flight was illegal” or “he was flying without a licence” statement.

Peter wrote:

along with some other stuff like all the SR22s which were imported into Europe over many years, no ADF, no DME, and have happily been flying in the IFR system.

All SR20 and SR22 I’ve been flying/renting in Germany so far had a DME.

There is, however a fundamental difference to what it is discussed here:
It is completely legal to fly a SR22 IFR w/o DME or ADF as long as you do not need it for a specific flight. So the lack of DME can only be sanctioned for an individual flight and is depending on facts that one can not easily identify based on documents (e.g. to check if the flight has been cleared for the ILS approach that requires a DME or the GPS approach that does not can only be uncovered by interviewing the controller or listening to the radio tapes).
Flying without the proper license affects all flights

Graham wrote:

If they really said exactly that then it probably says more about the (non) independence of the investigating body than anything else. I would expect an impartial investigator to note what licenses/ratings they did or didn’t have but to refrain from speculating around what they might have needed based on interpretations of the regulations,

That is a “very individual” view on what a investigation body should do.

At least in Germany it is common practice in almost all accident reports that the investigators do not only list hard facts, but also draw conclusions – even up to the point that they make safety recommendations which would obviously be completely nonsense on only facts, e.g.:
- They do not only list that the ceiling has been 321ft at the time of the accident but also state that “based on interpretations of the regulations” (as you put it) the minimum would have been 500ft at that time
- They do not only state that the take off weight has been 1350kg but also that – based on their interpretation of the aircraft W&B diagram – this has been over MTOW.
- They do not only state that the pilot took a specific medication but also give their opinion that “based on interpretations of the regulations” this medication should have led to an unfit medical assessment

Accident investigations that only stated hard facts would be almost completely useless for 99% of the readers.

Those are straw men. All those things are totally reasonable and the UK AAIB does likewise.

None are remotely the same as stating “the pilot was flying without a licence” because he had FAA papers not EASA ones and a particular view of the pilot’s ‘residency’ prevailed.

I checked the N264DB report again and they were careful to say, regarding 61.75 night privileges, that it was the view of EASA and the UK CAA that the pilot needed the equivalent EASA rating for these to be valid. They made no statement that it was actually the case, probably mindful of the fact that neither their opinion nor those of EASA or the CAA would change US regulation/law nor cause an ICAO PPL to have limited validity in their territory.

European regulators have difficulty understanding the boundaries of their remit. They are not empowered to place additional restrictions on a third-country ICAO PPL based on what qualifications that same individual may or may not hold in an EASA state, and nor are they empowered to make a decision on the question of a where an individual is ‘resident’.

Graham wrote:

European regulators have difficulty understanding the boundaries of their remit. They are not empowered to place additional restrictions on a third-country ICAO PPL based on what qualifications that same individual may or may not hold in an EASA state,

Also a very individual interpretation.

European countries have full sovereignty over their airspace. If they allow holders of a foreign license to fly in their airspace, they do it based on international contracts and their interpretation of it. The US in general and the FAA in specific has no say at all on what is legal in EU airspace.

If people with US papers are allowed to fly in EU airspace, they can do so, because it is the individual countrie’s interpretation of the ICAO and EU/US contract. It is up to the legal system in that country to decide on questions what is allowed in that country or not – and that legal system might or might not as the FAA for an opinion as an expert witness but it has no say.
If a pilot beliefen that the verdict of the countries legal system is in breach of international contracts, there is typically an arbitration mechanism established in the contract – but these take years or even decades and not weeks or months.

Malibuflyer wrote:

European countries have full sovereignty over their airspace. If they allow holders of a foreign license to fly in their airspace, they do it based on international contracts and their interpretation of it. The US in general and the FAA in specific has no say at all on what is legal in EU airspace.

The countries do it as contracting states to ICAO. In so contracting, they afford full reciprocal rights of access to other contracting states where the state of registration of the aircraft and state of license issue are the same.

A 61.75 is a full ICAO PPL, indistinguishable for ICAO purposes from a ‘normal’ FAA PPL. It is not within EASAs (or the German CAAs) competence or remit to delve into the details of how the FAA issues certificates (licenses in Euro-speak) and declare that certain sorts have certain limitations in European airspace. As a contracting ICAO state Germany recognises FAA PPLs, end of story. This contracting is not done on a ‘rights reserved’ basis and by accepting/recognising such licenses they do not take over the right to determine their validity or otherwise for various purposes. That is the reason ICAO defines types of licenses (and certain ratings) – precisely so that individual states don’t have to thrash it out between them in terms of who’ll accept what. A European regulator in this sort of case only knows that the pilot doesn’t have any night training because it holds the records for the license which underpins the 61.75. If the 61.75 was granted on the basis of a non-European license then they’d have no idea, and would have to accept it (as they should) as a full ICAO PPL.

It is a common misconception that a 61.75 is only a ‘validation’ affording some FAA privileges to foreign license holders, when in fact it is a full ICAO license/certificate.

The easy way for a European regulator to sanction a 61.75 holder is to suspend their European license (assuming they have one) because the 61.75 requires that the foreign license remain valid.

Peter wrote:

But there is no credit as such so if e.g. you did 30hrs with an FAA CFII (or for that matter 40hrs with an FAA CFI towards a PPL) how do you get this credited towards the EU IR or PPL? Has there been a recent change, crediting US training time in this way?

Maybe I misunderstand. You get credit for this time by showing your log book, just as you do with any crediting.