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

wbardorf wrote:

Does anyone have any intelligence as to whether

I think this entire subject is up,in the air due to Brexit. As you are based in the UK, I would suggest waiting until we know if the UK will be part of EASA.

JasonC wrote:

I think this entire subject is up,in the air due to Brexit. As you are based in the UK, I would suggest waiting until we know if the UK will be part of EASA.

Agreed, the thought has crossed my mind although I suspect that in the event of a transitional agreement whereby “everything remains the same until the end of 2020 except for the loss of the UK’s voting rights” Part-NCO and Part-FCL will continue to apply for UK-based operators unless applicability of Part-FCL has been deferred by means of the derogation, i.e. Spain would continue to see a UK-based operator needing a Part-FCL licence to fly in its airspace as it has today already decided not to apply the derogation.

Also it is not clear to me what the CAA (or rather DfT) is cooking with their own requirements in the future (cf. http://publicapps.caa.co.uk/docs/33/InformationNotice2017029.pdf local copy) as to whether the SRG2140 declaration will continue to suffice for UK airspace. One would assume that DfT/CAA have more important things to worry about with Brexit…

So therefore I am getting to the point of considering going through the (fortunately mainly) administrative act of getting the IR added to my EASA licence (which is issued by Germany rather than the UK) and am crossing the t’s and dotting the i’s in terms of thought process before proceeding.

The way I read is that 3.1 and 3.2 refer to UK airspace and is the “main content” of the notice and that 3.3 to 3.4 are additional informational notes that just summarise existing Part-FCL requirements as they apply to G-reg aircraft, i.e. Germany would expect that a G-reg (and other EASA-reg) aircraft in German airspace be flown with an EASA Part-FCL unless a validation had taken place in accordance with Annex III.

UK CAA Information Notice IN–2017/029 of 14 Jul 2017:

Scope
All Third Country Licence holders intending to fly within UK airspace using a Third Country
Licence must comply with Annex III to Commission Regulation (EU) No. 1178/2011, as
amended (the Aircrew Regulation).

There is no legal basis for this statement in Commission Regulation (EU) No. 1178/2011 (the Aircrew Regulation).

Art 3 of the Aircrew Regulation:

1. Without prejudice to Article 8 of this Regulation, pilots of aircraft
referred to in Article 4(1)(b) and (c) and Article 4(5) of Regulation (EC)
No 216/2008 shall comply with the technical requirements and administrative
procedures laid down in Annex I [Part-FCL] and Annex IV [Part-MED] to this Regulation.

Regulation (EC) 216/2008 (the old Basic Regulation) until 11 Sep 2018 when it was replaced by Regulation (EU) 2018/1139 (the new Basic Regulation).

Arts 4(1)(b) and (c) of Regulation (EC) 216/2008 were:

1. Aircraft, including any installed product, part and appliance, which
are:

…

(b) registered in a Member State, unless their regulatory safety
oversight has been delegated to a third country and they are not
used by a Community operator; or

(c) registered in a third country and used by an operator for which any
Member State ensures oversight of operations or used into, within
or out of the Community by an operator established or residing in
the Community; or

…

Art 4(5) referred to aircraft listed in Annex II save for some that were flying for the purpose of commercial air transportation.

Arts 4(1)(b) and (c) have been moved to Art 2(1)(b)(i) and (ii) in the new Basic Regulation with modified wording:

Article 2
1. This Regulation shall apply to:

…

(b) the design, production, maintenance and operation of aircraft, as well as their engines, propellers, parts, noninstalled
equipment and equipment to control aircraft remotely, where the aircraft is or will be:

(i) registered in a Member State, unless and to the extent that the Member State has transferred its responsibilities
pursuant to the Chicago Convention to a third country and the aircraft is operated by a third country aircraft
operator;

(ii) registered in a third country and operated by an aircraft operator established, residing or with a principal place
of business in the territory to which the Treaties apply;

…

The territorial scope of the Treaties is made in Article 355 of the Treaty on the Functioning of the European Union.

The applicable territory referred to in the Basic Regulation as retained EU law will continue for some time to include the United Kingdom, as far as I understand it, because of articles 3 and 4 of The European Union (Withdrawal) Act 2018.

The scope of IN–2017/029 exceeds the Aircrew Regulation and runs afoul of the Chicago Convention:

Article 33
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.

I am coming to the opposite conclusion that IN-2017/029 is actually more favourable than Part-FCL, Annex III but only for FAA licence holders as non-FAA/EASA ICAO licence holders would have their validation limited to a maximum of one year.

The CAA seems to make an exception to that (as stated in the information notice) by reference to an expectation that an EASA-FAA BASA covering pilot licences is to be concluded in the near future.

A further exception seems to be that a validation is not required to the extent an EASA member state resident holding a non-FAA/EASA ICAO licence flying in UK airspace (and UK airspace only) can do so without a validation as long as the operator does not fly in UK airspace for more than 28 days per calendar year (there is no 28 calendar day exemption under the normal Annex III)

Annex III says under paragraph 2 (see part in bold for emphasis):

The period of validation of a licence shall not exceed 1 year, provided that the basic licence remains valid. This period may only be extended once by the competent authority that issued the validation when, during the validation period, the pilot has applied, or is undergoing training, for the issuance of a licence in accordance with Part-FCL. This extension shall cover the period of time necessary for the licence to be issued in accordance with Part-FCL. The holders of a licence accepted by a Member State shall exercise their privileges in accordance with the requirements stated in Part-FCL.

Your reference to article 3 of Part-FCL is correct except that it contains the phrase “without prejudice to Article 8 […]”.

The reference to Annex III is then contained in Part-FCL, article 8:

1. Without prejudice to Article 12 of Regulation (EC) No 216/2008 and where there are no agreements concluded between the Union and a third country covering pilot licensing, Member States may accept third country licences, ratings or certificates, and associated medical certificates issued by or on behalf of third countries, in accordance with the provisions of Annex III to this Regulation.

The part of article 8 in bold gives legal basis to Annex III.

So what is Article 12?

Article 12 of the old Basic Regulation is new Article 68 of the new Basic Regulation (see Annex X in EU 2018/1139), which is the ability to recognise bilateral agreements. Therefore Part-FCL, article 8 would not apply if there is a mechanism to accept third-country licences (e.g. FAA licences) via a bilateral agreement concluded for application via Article 68.

So in summary, my read is that the CAA has decided not to apply the derogation for non-FAA ICAO licence holders anymore (which has been discussed extensively in this and other threads) but decided to give a special treatment just for FAA licences.

Regarding ICAO contravention:

Article 32(b) has the famous/interesting statement:

Each contracting State reserves the right to refuse to recognize, for the purpose of flight above its own territory, certificates of competency and licenses granted to any of its nationals by another contracting State.

It could be argued (I have not done further analysis) that the Basic Regulation contravenes Article 33 as Article 32(b) gives that right only with respect to nationals of that contracting State but not residents. Also, as far as I know, the EU is not a “contracting State” for ICAO purposes, which presumably is why EASA discovered that it has to hastily produce the following automatic validation (see http://publicapps.caa.co.uk/docs/33/CAP1705%20-%20Automatic%20validation.pdf and https://www.easa.europa.eu/sites/default/files/dfu/Automatic%20validation%20of%20Pilot%20licenses-ICAO%20registration%20number%205950_EU-MS_V0.pdf) for the sample case where someone flies an F-reg aircraft in Canada with a German PPL to ensure that Canadian authorities understand that France (as contracting state) has rendered valid the use of a German PPL on aircraft registered in France. (What makes this automatic validation interesting is that Iceland, Liechtenstein, Norway and Switzerland, i.e. non-EU countries but EASA member countries, are not covered by this automatic validation document. I wonder what that means if a holder of a Swiss pilot licence were to fly a D-reg in Canada…and of course with Brexit, this would become interesting as well…)

Based on Article 33, I am not sure whether Germany would contravene Article 33 if it were to refuse licences of French nationals flying an N-registered aircraft in German airspace (it would be allowed to do so for German nationals). And I am not sure whether Germany could refuse licences of French nationals resident in Germany flying an N-registered aircraft in German airspace as Article 33 seems to refer only to nationals and not residents.

[ local copy ]
[ local copy ]

wbardorf wrote:

I am coming to the opposite conclusion that IN-2017/029 is actually more favourable than Part-FCL, Annex III but only for FAA licence holders as non-FAA/EASA ICAO licence holders would have their validation limited to a maximum of one year.

There’s no question that the temporary exemptions, UK General Exemptions E 4433 & 4474, from Annex III to the Aircrew Regulation for non-commercial operations using the privileges of a US airman certificate are advantageous. However they are only applicable to residents of treaty territory and UK CAA failed to limit the scope of its information notice accordingly.

wbardorf wrote:

Your reference to article 3 of Part-FCL is correct except that it contains the phrase “without prejudice to Article 8 […]”.

Article 3 of the Aircrew Regulation to which Part-FCL is an annex. Article 8 is irrelevant when article 3 does not apply. There’s no need to entertain the conversion or validation rules in Annex III, or the exemptions from them which you mention for US airman certificate holders when engaged in non-commercial operations, if the operator is neither resident nor established in the territories to which the Treaties apply.

Thank you for bringing up Article 32(b) of the Chicago Convention. I had hoped you would. We should be bridge partners :) The second point on the automatic validation mechanism pursuant to a recent amendment to ICAO Annex 1 has significance for UK-granted Part-FCL licences when UK withdraws from EU regardless of continuing, or re-established, membership of EASA. I raised this point recently with the head of personnel licensing at UK CAA and he acknowledged that individual validations would be required in the circumstances you describe.

wbardorf wrote:

Based on Article 33, I am not sure whether Germany would contravene Article 33 if it were to refuse licences of French nationals flying an N-registered aircraft in German airspace (it would be allowed to do so for German nationals). And I am not sure whether Germany could refuse licences of French nationals resident in Germany flying an N-registered aircraft in German airspace as Article 33 seems to refer only to nationals and not residents.

Article 32(a) of the Chicago Convention may apply if a flight concluded wholly within the airspace of a single Contracting State by an aircraft registered in another is considered to be “engaged in international navigation.” Art 32(a):

a) The pilot of every aircraft and the other members of the
operating crew of every aircraft engaged in international navigation
shall be provided with certificates of competency and
licenses issued or rendered valid by the State in which the
aircraft is registered.

For US-registered aircraft this treaty obligation is included at 14 CFR 61.3(a)(1)(v). The Office of the Chief Counsel for FAA has confirmed that “country” for the purpose of that regulation does not mean the entire EU.

Qalupalik wrote:

However they are only applicable to residents of treaty territory and UK CAA failed to limit the scope of its information notice accordingly.

If you mean that the exemptions apply only to residents of treaty territory as operators being non-resident should be not in scope in the first place, I fully agree that the information notice is misleading as the scope paragraph does not mention applicability to treaty-resident operators only. That has the great potential to confuse information notice readers, including CAA staff themselves!

Also I agree with your statement about article 3 (and thus article 8 and thus Annex III) not applying to non-resident operators – my original question further up was for my case though, i.e. being resident in the UK, and therefore article 3, article 8 and Annex III would apply to me unless a derogation (or the UK “special derogation”) for the airspace I am planning to transit is applied. (Thus the various questions about state of play of BASA and derogations.)

And yes, the FAA position is clear here that the EU is not a “country”/“state” for the purposes of the ICAO treaties. It therefore does not allow someone with a French PPL to fly an N-reg in UK airspace as France != UK. The Australian CAA is also taking the position (I wonder whether that makes ramp inspections interesting – I have not looked at the international treaties with respect to pilot licence and medical issues by different states) that it cannot validate German pilot licences with UK medicals as the medical was not issued by the same licensing authority as the pilot licence (see “EASA Licence Holders” under https://www.casa.gov.au/standard-page/converting-overseas-licences). And now having re-read 14 CFR 61.75 (b)(4), it seems that the FAA position would be the same.

On a separate note, when looking back at the validation I received from the UK CAA, it says there

This declaration is valid to 8th April 2019 or the implementation of the BASA agreement, whichever comes first, and is subject to the maintenance of the FAA licence, medical and rating privileges.

It seems there is also here the potential risk of an EASA Part-FCL required for the UK (assuming a transition deal Brexit or a constellation that retains EU aircrew law in national law).