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Exclusive Q&A On Aviation Law

By Fabio Gamba
Posted: 19th June 2014 09:26
Q) Have there been any recent regulatory changes or interesting developments in your jurisdiction?

There has been an opinion made apparent lately from the European Court of Justice (ECJ) with respect to the way traffic rights are exercised in Europe. In particular, the Court opined on the question of the procedure of non-objection and the obligation for Community carriers to follow the procedure if and when operating 5th, 6th or 7th freedom rights to/from a Member State other than the one in which they have their principal place of business.  The ECJ’s opinion is that, based on the notion of non-discrimination between national and EC companies, the obligation is null and void. That’s a welcomed development as it reinforces the idea of a single market for the EU-28 operators, and it also restores, to some extent, legal certainty.
Q) Are there any exciting technological developments on the horizon?

There obviously are a few, although to be fair we are more in an ordinary evolution rather than facing a real quantum leap today. All the new aircraft are lighter, consume less, fly longer, make less noise, etc. That’s business as usual. Where we might see some exciting changes though is in the way operations are being conducted. Today, SESAR – the technological pillar of the Single European Sky – is entering into its Deployment phase, and a number of large-scale demonstrators are being considered. For Business Aviation, being able to impose LPV (localizer Performance with Vertical Guidance) non-precision approaches at a majority of regional airports would be a major benefit for all and this can be done at an acceptable cost. Satellite-based technologies need to be promoted!
Q) Can you outline the main environmental and sustainability concerns currently facing the sector?

Business Aviation is obviously partaking in the worldwide reflection that aims to curb aviation’s CO2 footprint leading up to 2020. Many pundits view the role of Business Aviation in offsetting its emissions as being central to the cause in the long-term credibility and sustainability of air transport. Public perception is perhaps a bit less lenient when it comes to allowing a still fast-growing sector such as ours to emit without constraints. That’s why Business Aviation, led by its international council, IBAC (International Business Aviation Council), is now mulling over various solutions, including some extremes such as the full offset of its emissions. But the how and when are yet to be determined. The target to achieve something meaningful is 2016 at the ICAO Assembly.
Q) Are there any incentives or schemes worth noting?

It would be difficult not to talk about the EU ETS. This is a European scheme, in force since 2012, which in theory leads to the offsetting of air transport’s CO2 emissions. EBAA never had any problem with the principle underlying the scheme; however, the problem is that the scheme has continually morphed since its inception in 2008. Today, the system is applied for intra-EU flights only, and is doubly discriminatory with respect to Business Aviation: a de minimis clause only really applies to commercial BusAv operations, practically excluding non-commercial operations without satisfactory explanations; and Business Aviation, contrary to airlines, was granted no grandfather rights in terms of historic emissions. As a result, we are accountable for the entirety of our emissions, not – as was originally envisaged – for offsetting the emissions of our growth compared to a baseline year. And I won’t even mention the administrative nightmare the registration and the MRV (Monitoring, Reporting and Verification) obligations are creating. It’s no surprise then that ICAO and its Member States have challenged this piece of legislation so vehemently. 
Q) Airport privatisations are on the rise throughout the world as governments look to cut their budget deficits and transfer the burden of financing, developing and operational costs to the private sector. Has this been an active area of work for you and your firm? Do you expect this trend to continue?

As a matter of fact, some of the most important and/or prominent airports hosting Business Aviation are private (e.g. Farnborough in London or Egelsbach in Frankfurt). That being said, the nature of an airport’s property has never been a significant matter of concern to the sector or EBAA as, so far at least, it has not been the target of a particular policy against or in favour of a given business model. However, EBAA got heavily involved in the issue of State Aid at regional airports when the European Commission considered cutting public aid to local infrastructure in a drastic way in 2012-13. The Commission was obviously aiming at public, not private, airports. I believe we were relatively successful in fending this one off, but like a hydra, it has different heads, and similar future initiatives are lurking with the potential to resurface. Needless to say, it would be a catastrophe for Business Aviation if purely-economic considerations were to prevail and eventually determine the fate of an airport.
Q) What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?

Ideally we would like to see a gradual awareness shift by the decision makers in Europe regarding the economic importance of Business Aviation: the realisation that a thriving BusAv sector is good for Europe Plc. This is not science-fiction, and we see areas today where the image of the sector has undeniably progressed; but EBAA is also aware that so much more needs to be done. To start with, the recognition of a specific legislation on Flight and Duty Time (FTL) would tremendously help. Assuming non-scheduled operations with rigid FTL rules that were crafted for scheduled airlines is not sustainable in the mid-term for our sector. We’re hopeful, that with the help of EASA, which is devoting resources to the issue, along with further efforts from the sector, we will be able to demonstrate this fact. That recognition and its effective implementation could be the starting point for other legislations to follow suit. We’re not there yet, but we’re making encouraging progresses! 

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