Commercial vs Private OPS: A need for certainty
For example, an owner who entrusts his business jet to an AOC or NCC operator for operations, and who, for tax or customs reasons, pays the market price to the operator when using private flights. Or the case of a general aviation pilot who flies a private flight where passengers contribute in the cost, which is legally permitted. Therefore, in order to overcome this gross loophole in the basic regulation, the EASA will have to invent a legal construction to enable private operations involving remuneration to continue.
While the European legislator unfortunately missed its chance to come up with a judicious alternative to ICAO’s equally out-dated definition of CAT, the EASA and the aviation sector’s stakeholders simply cannot afford to do the same from now on. They should use the opportunity provided by the basic regulation to specify precisely which operations should be qualified as commercial, and which can be private, within the framework of the implementing rules that still need to be adopted in the coming years. As things stand, the grey zone between these two sectors has resulted in the authorities of each of the EASA’s 32 Member states adopting their own interpretations of a law that was supposed to standardize practices, which never happened. Therefore, it is critically important for the aviation industry, which requires long-term regulatory certainty on these issues, to have rules that are comprehensible, play their role, and can be implemented effectively.
The role of bizav associations
In the regulatory process that should begin shortly, associations representing the interests of business aviation will have a major role to play alongside the EASA. Firstly, they are the ones who understand better than anyone the complex operational needs of their members, and they are the best placed to combine these needs with the law’s aim of ensuring aviation safety and economic efficiency.
Secondly, it is in business aviation that the issues are the most numerous and complex. That’s before you take into account the future economic models that should already be anticipated as far as possible.
For example, besides the problems mentioned above related to the acceptable remuneration in private aviation, entire activities of business aviation have never been seriously addressed – much less in detail – by lawmakers. This is the case of “clubs,” of economic interest groups and of similar structures that vary from one country to another, and which should be able to continue subsisting within clearly defined limits to avoid prejudicing the competitiveness of commercial aviation, which is legally protected. Another example is “fractional ownership” structures, where it should be clarified once and for all which belong to commercial aviation and which can be classified as private aviation. Another area to look into is “corporate” aviation, where the limits of private operations should be clearly spelled out in cases where several companies share the same aircraft for their business needs.
Furthermore, this regulatory process will also have to involve stakeholders in the general aviation sector, where the passenger’s life is currently less well protected than the passenger’s life in the business aviation sector. That is also a sector where the limits to the aircraft ridesharing model still need to be defined.
Last but not least, the implementing rules must be easy to understand, and compliance must be easy to monitor. This to finally provide the European aviation industry and the oversight authorities with a high level of legal certainty and consistent standardization, turning the huge grey area of today into a simple red line in the future. Simple solutions exist to achieve this overriding goal, failing which, the distinction between commercial and private activity will remain meaningless. And nobody today wants that situation to continue.