Legality of EASA requiring Pilots holding Third Country licences to also hold EASA licences for operations in the EU

Thanks for pointing us to it, but what would have been helpful is a joint lobbying / legal effort by all the interested parties about ten years ago. An article written by someone in a tiny Irish aviation magazine in September 2023 will not change anything at this time. Alea iacta est.

dublinpilot wrote:

Ireland has not enacted any general law under the aforementioned power to apply a general ban to all of its nationals from using Third Country pilot Licences in Irish airspace. Neither can the EU, which is not an ICAO contracting state in its own right, use this power to prevent the proper use of Third Country pilots licences by nationals of EU Member States.

This is where he is mistaken. The EU can certainly require a member state to refuse a Third Country License. An EU regulation is binding law in all member states.

You could possibly hold that as long as a member state has not itself explicitly refused Third Country Licenses then such licenses remain valid, but then that member state would violate the EU treaties by not deciding on such an explicit refusal. That reasoning seems far-fetched to me.

but what would have been helpful is a joint lobbying / legal effort by all the interested parties about ten years ago.

It was massively discussed all over the internet since c. 2011. Like this huge thread.

But Brussels can do what it likes. The machinery is specifically set up to be lobby resistant. Look at say ROHS.

The EU can certainly require a member state to refuse a Third Country License. An EU regulation is binding law in all member states.

Sure, but nobody is actually refusing a 3rd country license. Your FAA (or whatever) papers remain 100% valid. And indeed are needed the moment you fly out of the country which issued your EASA papers. What Brussels did was to require EASA papers (for any reg). This is within their power.

Upon brexit, it was hoped the UK was going to forget this charade but actually the UK did its own version, effective Dec 2021. Above link, for those who want to read it all, has all the details

There is an ambiguity, never defined, as to what the operator is and what operator residence means. Lots of pilots reading between the lines, but no formal definition. So unsurprisingly, no known enforcement.

Contracting States to the Chicago Convention have already agreed to recognise pilot licences issued or validated by the State of registry of the aircraft, as long as the licence or validation meets the minimum standards of ICAO Annex 1. Some Contracting States determine this by requiring the State of licence issue to have achieved a minimum ICAO USOAP-CMA Effective Implementation score (link).

The only exception in the Convention applies to nationals of the State above whose territory the flight occurs.

The requirement in the European Aircrew Regulation(s) for all pilots to hold a Part-FCL/Part-BFCL/Part-SFCL licence when flying a third-country aircraft in European airspace if the aircraft operator is resident or principally based in Europe is in conflict with these articles of the Chicago Convention. Contracting States cannot simultaneously comply with their international obligations and respect the primacy of EU (or EU-derived) law.

Article 32
Licenses of personnel

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.

b) 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.

Article 33
Recognition of certificates and licenses

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.

Qalupalik wrote:

The only exception in the Convention applies to nationals of the State above whose territory the flight occurs.

I guess then the case being made is that with the introduction of EASA FCL, the whole area of EASA member states is regarded as to be within that exception, meaning that any pilot who is a national of any EASA member state will need to have an EASA FCL license to operate within EASA territory, no matter where the airplane is registered.

Therefore the argument would have to be whether EASA is not in violation of that exception as the EU itself is not a nation state (yet) and therefore does not have a common nationality. Hence, they can only really prohibit pilots to operate within the borders of the countries they are nationals of, but not a blanket prohibition for the whole area.

But as we have seen in other issues too: I sometimes wonder what “power” to actually enforce their articles ICAO really has. Quite a lot of ICAO regulation is regularly and ballantly violated by ICAO member states without any form of retribution? So the question really would be, which court and which juristiction would ICAO really have if it wanted to e.g. reprimand the EU for violating one of their contractual obligations? The UN? Then all which happens would be a “strongly worded letter of protest” which would probably end up in a folder and duely noted while continuing as before?

ICAO has no power. There is no ICAO army, police, fine imposing authority. The only “power” is the extent to which some ICAO rule has been implemented in national law.

And that varies by country.

Differences in implementation are supposed to be published. There is some website where you can find these. But not all countries file all differences. Even the US does not – e.g. the right to enter Class D with just a two-way radio contact (no clearance required) is a difference to ICAO but the US has not filed it as a difference. Years ago I went to a presentation and the lawyer (India Pinkney) said the US is slowly looking into this but in reality everybody else will just have to live with it

As Qalupalik states above, AIUI, some aspect(s) of the EASA papers (or UK papers, post brexit) requirement is in breach of ICAO – specifically the “nationals of the State above whose territory the flight occurs” where “nationals” must mean passport holders. So e.g. a Mongolian citizen living in Germany (but not holding a German passport) would be incorrectly forced to obtain EASA papers.

But also EASA is not a country; nationality is per-country, so a German living in France (not holding a French passport) would also be incorrectly forced to obtain EASA papers – because Germany has no power over him.

According to contemporary reports, EASA wanted an ICAO seat but ICAO said they will do it only if each of the member countries resigns their seat. Obviously they all refused, so EASA never got a seat.

The next stage in the logic is that this breach could be regularised (ICAO-conformed) by each country filing a difference to ICAO. But this was never done. It could be done because Brussels has total power (in the FCL sphere) over each member country. But it wasn’t done, presumably because it would appear extremely aggressive/dictatorial, and the same result would be (and has been) achieved using the FUD principle because pilots tend to be 100% law-obiding.

It is quite possible that the whole thing was a cynical exercise, done with the knowledge that it will fail in a court. In that case, no wonder it was never tested.

Peter wrote:

ICAO has no power.

ICAO member states are bound by the contracts they have ratified. Practically all countries of the world are members of ICAO, so ICAO is a common idea.

In Practice, common ideas only work as long as people still regard them as thus and therefore keep upholding them. This is clearly not the case anymore, not only in ICAO but more and more in other international treaties as well.

The power any organisation has over it’s membership comes from the consent of it’s members that the power should be exercised and by the willingness of the members to make sure that rougue members are brought back in line. But that has never really happened in most cases. Since the existence of ICAO, fundamental rights described in the ICAO chapters and annexes have been balantly violated by non conformance .Be it in certification, be it in reckognition of licensing, be it in the way accidents and incidents are investigated, the lot.

The provocative question therefore is, whether ICAO still is a concept which does more than just making sure that everyone at least uses the same codes for airports or similar. Or whether countries have not drifted apart to the extent that the whole existence of both ICAO and the UN has not degraded into something out of “Pirates of the Carribean” whose “code of conduct” is conveniently called “mere guidelines” when someone wanted to break the law.

Peter wrote:

It could be done because Brussels has total power (in the FCL sphere) over each member country.

I think that Brussels in such cases is in the pretty much same situation as ICAO: Their member states are contractually bound and they SHOULD have full power but in reality they do not. If Brussels or EASA tells each CAA to do this and they simply drag their feet and “forget” it over years or flatly refuse, what power has Brussels got other than threaten them to withould EU funds? In fact, that is how most of the poorer EU countries are indeed kept in line.

So what is the parallel conclusion? ICAO is as good as members want it to be. Well, so is the EU and EASA. And obviously in practical terms, as long as nobody gives a fart when EU rules are ballantly disregarded or misinterpreted to suit their own needs, Brussels has no more power than ICAO does to bring them in line.

In todays world, supranational organisations are more and more loosing their grip on member states, as nationalism and division overtakes the common ideas. I guess that sums up what is going on. And with Article 50 having been invoked by a founding member no less, this has set a signal that nothing is a “given” anymore. So maybe if we look at countries misbehaving and not being brought to justice for it from that angle, I honestly doubt the “absolute power” of Brussels.

As stated, most federal countries and supranational organisations in democratic structures derive their power from the consent of their membership. If that is no longer given, the underlaying constitutions and contracts may well end up being just something which eventually ends up in a museum.

Peter wrote:

Even the US does not – e.g. the right to enter Class D with just a two-way radio contact (no clearance required) is a difference to ICAO but the US has not filed it as a difference.

That surprises me. I once looked at AIP-USA (yes, there is such a thing) and half of it was a list of differences from ICAO. (Well, I’m exaggerating a bit but not much.)