A_A how can they be invisible when they are explained in the AIP and marked on the charts.
The addition of what would be permanent restricted areas, probably bigger than what is already there, IMO is additional restrictions.
I think you misunderstand how EU law and National Law interact.
So if the minimum altitudes are not permitted under EU law but they are under French law. That EU law is superior to national law try getting the EU to take France to court on it.
As a sovereign country EU law only trumps French law (in France) where France has accepted that EU law into national law.
gallois wrote:
A_A how can they be invisible when they are explained in the AIP and marked on the charts.
Now we are talking about different things. The proposed AMC by EASA is intended to force e.g. Austrian nature reserves to be shown as R-areas.
That’s not the same as the French minimum heights. An EU member state is not allowed to make national law that deviates from EU law. The minimum heights are EU law so France can’t just raise them. What France can do (and this is explicit in the guidance material to SERA) is introduce restricted areas to force traffic to fly higher.
Now, why is this important to a pilot? The whole point of the Standardised European Rules of the Air are precisely that they are standardised! Pilots flying abroad should not need to read through all of the AIP of every country looking for national differences. You should always be able to rely on a minimum height over obstacles of 1000 feet over built-up areas and 500 feet otherwise. (That principle is not limited to aviation but is the whole point of international standardisation which in the case of EU is set down in EU law.)
As a sovereign country EU law only trumps French law (in France) where France has accepted that EU law into national law.
France gave up that sovereignty when it signed the EU membership treaties. In areas where the EU have competence EU regulations are immediately applicable law in all member states and can not be overridden by national legislation. No explicit acceptance by France or any other EU member is necessary.
EU law must be accepted into National Law to become law in that country.
Member countries of the EU do not give up their sovereignty. They share it in particular areas where it is agreed as in the best interest of the union as a whole.
This is why laws passed in the EU parliament do not become law until they are agreed in the council of ministers.
Why are EASA getting involve in Austrian nature reserves, providing that these nature reserves are marked on the charts are marked as such.
If they are temporary nature reserves ie their details such as seasons when they need to be protected then they do need NOTAMS or being entered in the AIP.
But not for nature reserves that are permanently reserved.
gallois wrote:
EU law must be accepted into National Law to become law in that country.
You may be thinking about EU directives, which are instructions to EU member states to implement certain legislation in their national law.
EU regulations do not need to be accepted into national law. Wikipedia explains this with a quote from the EU treaty which France has signed.
In particular, “When a regulation comes into force, it overrides all national laws dealing with the same subject matter and subsequent national legislation must be consistent with and made in the light of the regulation.”
A_A whilst I agree with you to some extent we now have the debate of whether GA which would be most affected by this new law, is transport or tourism or whether it as in France seen as part of the culture of a country or a sport. This is where IMO France sees GA or more accurately light, very light and ultra light aviation as part of the nations culture. We really still hold in high regard the likes of Bleriot, Mermoz, St Exupery an others. They are all parts of what makes France, France.
We also have to look at whether there is a conflict between National Law and EU law in the case in question or whether they both do the same thing just in different ways.
I like the ULM basis "Freedom and Personal (pilot) responsibility.
As such I don’t see why EASA and the EU are meddling in this area.
Is there a need for this change of law?
If so why?
Who will it benefit?
What are the consequences of it?
These are the sort of questions to be asked in the original EU road map. Where are the answers?
Primacy of EU law (precedence, supremacy)
The principle of the primacy (also referred to as ‘precedence’ or ‘supremacy’) of European Union (EU) law is based on the idea that where a conflict arises between an aspect of EU law and an aspect of law in an EU Member State (national law), EU law will prevail. If this were not the case, Member States could simply allow their national laws to take precedence over primary or secondary EU legislation, and the pursuit of EU policies would become unworkable.
The principle of the primacy of EU law has developed over time by means of the case law (jurisprudence) of the Court of Justice of the European Union. It is not enshrined in the EU treaties, although there is a brief declaration annexed to the Treaty of Lisbon in regard to it.
In Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62), the Court declared that the laws adopted by EU institutions were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Member States. EU law therefore has direct effect.
In Costa v ENEL (Case 6/64), the Court further built on the principle of direct effect and captured the idea that the aims of the treaties would be undermined if EU law could be made subordinate to national law. As the Member States transferred certain powers to the EU, they limited their sovereign rights, and thus in order for EU norms to be effective they must take precedence over any provision of national law, including constitutions.
Further examples of cases in which the Court affirmed the primacy of EU law include:
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (Case 11/70);
Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77);
Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89).
In these cases, the Court clarified that the primacy of EU law must be applied to all national acts, whether they were adopted before or after the EU act in question. Where EU law takes precedence over conflicting national law, the national provisions are not automatically annulled or invalidated. However, national authorities and courts must refuse to apply those provisions as long as the overriding EU norms are in force.
The principle of primacy therefore seeks to ensure that people are uniformly protected by an EU law across all EU territories.
It should be noted that the primacy of EU law only applies where Member States have ceded sovereignty to the EU – in fields such as the single market, environment, transport, etc. However, it does not apply in areas such as education, culture or tourism.
gallois wrote:
we now have the debate of whether GA which would be most affected by this new law, is transport or tourism
The principle of primacy therefore seeks to ensure that people are uniformly protected by an EU law across all EU territories.
It should be noted that the primacy of EU law only applies where Member States have ceded sovereignty to the EU – in fields such as the single market, environment, transport, etc. However, it does not apply in areas such as education, culture or tourism.
Aviation is transport. That you can fly on a holiday trip doesn’t change that.
Is the flying we do transport? It can be but here it comes under culture and sport .
The vast majority of aerodromes in France are not infrastructure they are considered leisure and sports facilities.
Transport is just an added advantage.
Are all aerodromes in Sweden, part of the transport infrastructure, including grass strips?
Gallois, I’ll be a bit blunt, but this isn’t really a debate. It truly is as Airborne Again explained. EU regulations are automatically binding and immediately supersede national law as they enter into force. In the European air law, as he explained, are no EU directives that would work the way you assume is the case for aviation. There are only EU regulations for aviation, and they are absolutely binding. You can see that these rules fall under transport in the official journal of the EC, but the easiest way to know it is binding is, well, it is a regulation. See https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:l14522
Under the old Basic Regulation, member states were able to file derogations, subject to agreement by EASA and the European Commission. These were duly published on the EASA website and there were very few of those. Under the new Basic Regulation even this option for national gold plating has been removed. Now member states can only use so called flexibility provisions for a very short time and only in extreme circumstances (e.g. a new hazard, basically as an emergency measure). See here: https://www.easa.europa.eu/en/document-library/regulations/flexibility-provisions/eu-2018-1139 (there is only an old one listed for the UK)
@OP, thanks for promoting the EASA comment feature for proposed rules. It is important that as many pilots as possible are involved at the early stage, when proposals can still be influenced. Without such comments, the Agency has no official record of a public opinion and could do whatever they want.
Edit: I must note though, that AIPs are usually littered with old sentences that were written before these regulations came into force. Even after ten years or so of SERA, I see lots of errors in those publications. This is IMO one of the causes of the legal uncertainty among pilots in Europe.
Ok but what is the reason for this change?
Who does it benefit?
As far as I can see it only really applies GA pilots who are not flying high enough going from A-B ie doing what many of us do, here in France flying for the sake of flying. To emulate the birds to get a different view of the world. It wouldn’t benefit Peter on his trips to and from Croatia and Greece but it might well disbenefit Dan who just likes to enjoy the world from above.
If EASA want to make changes or introduce new regulations I want to see the case for that. Regulation for light GA was to be relaxed under the EASA road map.
And I still don’t see that GA is transport.
It can be used as transport but it is for most a leisure activity.
Do you really believe that EASA can’t find something more important to occupy itself?
I would also lay odds that there will be a significant fight back in France if you block more RAs or PAs just so we don’t fly over the centre of a city below 5500ft, which we don’t because there is a general rule and all one has to do is look at a VFR chart and its key.
We already have an AIP, NOTAMS , SUP AIP, AIC, a VFR complimentaire listing every RA, PA, DA what their limits are who to.call to get transit etc etc. If we need to cross the very high speed jet corridors whose activity you can check out during flight planning.
“The primacy of EU law is based on the concept of where a CONFLICT arises between an aspect of EU law and an aspect of National Law, EU law takes precedence.”
Is there a conflict or was there a conflict and if the regulation changes and France goes its own way, will there be a conflict?
So I ask again what benefits and what disbenefits does this new regulation bring?
gallois wrote:
So I ask again what benefits and what disbenefits does this new regulation bring?
Maybe you did not read what Frans wrote in one of the first comments?
Frans wrote:
Indeed a welcoming enhancement of EASA rulemaking. Especially those Austrian nature reserve areas in the Tauern region, are still a real pain, as this area goes up to 16.500 ft and Austro Control refuses to publish these in the AIP as it’s not a national protected area, but only belongs to state rulemaking.
