Back in 2002 the first European regulation ‘establishing common rules in the field of aviation’ were enacted. These rules have been amended and updated over the years so that the current regulation on the subject is ‘Regulation 2018/1138 of the European Parliament and of the Council’, known as the ‘New Basic Regulation’ (NBR). The NBR establishes the scope and intent of pan-European aviation rules together with some very general principles (the ‘essential requirements’) and establishes the framework within which more detailed rules were to be developed.
The New Basic Regulation broadly applies to aircraft designed, manufactured and operated by organisations within the European Member States, as well as to the organisations and personnel that operate and maintain them. It also applies to airport operations and the air traffic control system. There are several exceptions to the scope of the regulation, such as historic aircraft, small airports and military or government aviation.
The New Basic Regulation establishes the ‘essential requirements’ for different activities within its scope, but does not layout the detailed rules. For this there are ‘implementing rules’ for each of the different domains. Implementing rules for the different domains have been developed progressively since the first Basic Regulation in 2002. Until implementing rules are developed for a particular domain national rules continue to apply in each of the Member States.
The text of the various regulations are available from the EASA website.
Amending and updating the rules
The European Aviation Safety Agency and the European Commission have people working full-time on updating and improving the regulations. If a regulation needs to be amended then a new regulation will be produced with details of the changed text. For example Commission Regulation (EU) No 1178/2011 (the aircrew regulation) has been amended by Commission Regulations (EU) 290/2012, 70/2014, 245/2014, 2015/445, 2016/539, 2018/1065 and 2018/119. If you refer to the original aircrew regulation then you may well miss important changes. The system is ‘lawyer-friendly’ rather ‘user-friendly’.
In practice you need to make sure that you are referring to ‘consolidated versions’ of the regulation, such as the ‘Easy Access Rules’ published by EASA.
Acceptable Means of Compliance
The ‘implementing rules’ are ‘hard law’, i.e. you must always comply unless you have been granted an exemption from the rules (see ‘Flexibility Provisions’ below). In addition to this ‘hard law’ EASA publishes ‘ED Decisions’ containing ‘acceptable means of compliance’ (‘AMC’) and ‘guidance material’ (‘GM’). These are called EASA ED Decisions because the Executive Director of EASA can decide to publish these whereas regulations have to be made by (at least) the European Commission.
AMCs describe how to comply with implementing rules. For example the implementing rule for training organisations says that “a training course shall be developed for each type of course offered” [ORA.ATO.125(a)]. The AMC then describes the requirements for a type rating course including the content of the training, duration, types of simulators to be used etc. The AMC is ‘soft law’ in that it is not mandatory to follow the AMC but if you comply with the AMC then you are presumed to have complied with the rule. You can propose another way to comply with the regulation but this has to be notified to the your competent authority who will evaluate whether you proposed ‘Alternative Means of Compliance’ is acceptable (see ‘Flexibility Provisions’ below).
EASA Decisions also include ‘Guidance Material’ (GM). Guidance material is just that, explanatory material that should help you to understand the meaning of a rule or provide further background information.
The ‘New Basic Regulation’ and its implementing rules are European regulation and are directly applicable in all the EU Member States. Anyone coming under the scope of the regulation is required to comply, but the New Basic Regulation does contain a provision so that States can grant exemptions to allow for specific situations where it’s not possible to comply with a rule. These provisions are in article 71.
Article 71 of the New Basic Regulation allows a State to grant an exemption from the rules “in the event of urgent unforeseeable circumstances” or “urgent operational needs” provided that:
- safety and environmental protection are ensured;
- any distortion of market conditions is mitigated and
- the exemption is not discriminatory.
An exemption will be issued for the minimum necessary time. If the duration of the exemption exceeds eight months it will be referred to EASA and the European Commission who have the power to require the State to revoke the exemption.
The New Basic Regulation does not contain the provision for ‘derogations’ which existed under the previous regulation (216/2008). Any derogations that were granted under the previous regulation continue to apply but no new derogations cane be issued.
If your organisation needs assistance to prepare an application for an exemption then McKechnie Aviation are ready to help. More importantly we may be able to save you the bother by finding a way to comply with the rules.
Another provision that allows for some flexibility in applying the air operations and aircrew regulations is the ‘Alternative Means of Compliance’ or ‘AltMoC’. The organisations rules (ORO.GEN.120 / ORA.GEN.120) allow an organisation to use an alternative to the acceptable means of compliance (AMC) published by EASA. This does not allow a deviation from the ‘hard law’ (regulation) but does allow a deviation from the ‘soft law’ (EASA Decision, AMC). There two different kinds of AltMoC:
Authority AltMoCs. An NAA can decide to adopt an alternative means of compliance. The NAA must then make this AltMoC available to all organisations under its oversight. So if DGAC France issues a particular AltMoC then it is available to all organisations and people certified, approved or licenced by DGAC France, but not to operators from other Member States.
Organisation/Operator AltMoCs. A certified or approved organisation (e.g. an airline/AOC or ATO) can apply to the NAA for an alternative means of compliance. The organisation has to show that the intent of the rule is met, and demonstrate an equivalent level of safety to the published AMC. In order to do this the organisation has to give the NAA all the relevant documentation and procedures and a demonstration of compliance including a documented risk assessment. If your AltMoC is approved then EASA and the other member states will be informed. The details aren’t published, so the content can be kept confidential if it’s commercially sensitive.
AltMoCs that are approved by the NAAs are then scrutinised by EASA as part of its standardisation function.
If the air operations or aircrew regulations present a difficulty for your organisation then McKechnie Aviation can help. We can help you prepare an AltMoC and the necessary demonstration of compliance, but we’ll work also work with you to see if there’s an easier way.
Where do these rules apply?
The European regulations apply directly in the 28 EU member states and the 4 EFTA states :
EU Member States (coloured green on the map):
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, The Netherlands, Untied Kingdom.
EFTA States (coloured blue on the map):
Iceland, Lichtenstein, Norway, Switzerland.
There are some territories within Europe where the European regulations don’t apply, for example the Channel Islands, the Isle of Man and San Marino. There are also territories geographically outside Europe where the rules are applicable, for example La Reunion in the Indian Ocean.
Several non-European countries are also adopting national rules based on the European requirements.
Oversight and enforcement
Although the regulations are now made centrally for Europe enforcement and oversight is largely the responsibility of individual Member States. Each of the different ‘implementing rules’ describes who is the ‘Competent Authority’ for different people and organisations. The ‘Competent Authority’ is the national aviation authority (NAA) that can issues certificates and licences and that has responsibility for oversight and inspections.
|Person or Organisation (& reference)||Criteria||Competent Authority|
|Licensed pilot (FCL.001)||An individual is free to apply for a pilot licence in any (one) member state||NAA of the state to which the pilot applied for a licence|
|Cabin crew (CC.GEN.001)||NAA of the state where the person applied for an attestation.|
|Pilot training organisation (ORA.GEN.105)||Principal place of business within the member states||NAA of the state where the organisation has its principal place of business|
|Principal place of business outside the member states||European Aviation Safety Agency (EASA)|
|Flight Simulation Training Device (FSTD) Operator (ORA.GEN.105)||Principal place of business within the member states; device (FSTD) within the member states||NAA of the state where the operator has its principal place of business|
|Principal place of business within the member states; device (FSTD) outside the member states||European Aviation Safety Agency (EASA)|
|Principal place of business outside the member states||European Aviation Safety Agency (EASA)|
|Aircraft operator (ORO.GEN.105)||Principal place of business within the member states||NAA of the state where the operator has its principal place of business|
What’s a principal place of business?
The ‘principal place of business’ is important because it determines which European national authority is responsible for the certification and oversight of aircraft operators and pilot training organisations.
Principal place of business is defined as “The head office or registered office of the organisation within which the principal financial functions and operational control of the activities referred to in this regulation are exercised”. [ARA.GEN.105 / Annex I to regulation 965/2012]
Its worth noting that a lot of multi-national companies will have operations in countries other than their ‘principal place of business’, so the ‘Competent Authority’ isn’t necessarily going to be located in the same territory as the operations its overseeing.