Current derogations from EASA FCL attack on N-regs - reportedly some surprising info

Peter wrote:

Can you post a translation of the Norwegian regulation, LeSving?

Well, this is much more bizarre than I could remember from reading this earlier, but then a new AIC has come in the mean time. This has nothing to do with parking or such things. In Norway we have laws and regulations. Laws are made by the parliament, while regulations can be made by the parliament or some governmental directorate or bureau. The CAA is such a bureau for instance. Regulations are typically made to specify a law. to set the details, and therefore they must always refer to one or more laws, and can never go “outside” the wordings in the law. This is very roughly speaking but close enough. Sometimes the laws are themselves very detailed and need no further specification. For this reason, EASA regulations are not considered to be laws, they are all regulations. Legally there is no difference if you break a law or a regulation, but sometimes regulations can themselves be illegal (due to overly eager bureaucrats or other “technicalities”). The law always outrank regulations. In other words, the CAA or EASA cannot change the law (not the words or the spirit ). They have to obey the law like anyone else. If there is a dispute, the law wins – always.

This is what the law say:

§ 2-2. Requirement of nationality
“Air operations/traffic” (Luftfart) within Norwegian areas can only be done by (air)crafts that have:
1. Norwegian nationality,
2. Foreign nationality that according to this law or regulation given with legal basis in this law shall be put on par with Norwegian nationality,
3. Nationality in a foreign state that has an agreement with Norway about the rights for such operations/traffic or
4. Special permission from the aviation authority.

The permission mentioned in 2-2 4 is given with such terms that in each case is appropriate to assure the operation is done in a safe manner or as found required from a general public interest. The permission can be withdrawn at any time.

The choice of words is a bit interesting. The Norwegian word “Luftfart” which I have translated to “Air operations/traffic”, means quite literally “transport and/or traffic in the air by aircraft”. Anyway, the law is about “air operations/traffic” (luftfart), and has nothing to do with ICAO overflight permissions or parking and that stuff. All “air operations/traffic” based in Norway and operations based anywhere, but done in Norway, is clearly covered by this law. It is also somewhat clear from the wordings that the focus is commercial aviation, and that private aviation is simply along for the ride. The word “luftfart” would be replaced by something else if this was minted for private aviation (although private aviation is covered by the term “luftfart”)

Any regulations specifying or detailing this specific law does not exist as far as I can see, so the law stands on it’s own. The exception is 2-2 4 where the law states that the CAA has a duty to hand out permissions on a case to case basis. The CAA has not made any regulations about this, except an AIC-N where these things are specified, and that is when things start to become funny.

First, all EASA aircraft is clearly covered by 2-2 2 (or the whole EASA stuff would be just one huge charade in my opinion, but what do I know). Yet, the CAA pretend that this is not the case, and insists that foreign EASA aircraft shall apply for a permission for a “permanent” stay (they can stand permanently though).

Second, all “other” aircraft can only apply for a 6 month “permanent” stay, that can be extended to max 12 consecutive months. After 12 months it is out. What is wrong with this (legally), is that the law does not open up for, or even mention, any time limit. The permission is to be given along with the terms to assure safe operations and other eventual general requirements. That is the only thing the CAA shall consider according to the law. Here they clearly have gone way outside their mandate (in my opinion of course).The law say that the permission can be withdrawn at any time, but this is common wording for such things, or otherwise it could not be withdrawn without a (probably lengthy) round in court.

For shorter stay (less than 6 consecutive months by the looks of it), anyone is free to come and go as they please. This includes all ICAO, EASA and ECAC experimental homebuilt. All other non ICAO aircraft have to apply for a permission (an email). This is kind of nice, but one could also argue that it is outside the CAA’s mandate to give such blanket statements when looking at the “in each case” wordings in the law in a very strict manner, too strict I guess. (One could argue that all EASA aircraft is one single case for instance, this is after all one of the main points with EASA and certification in the first place).

For commercial operations, there exists a whole bunch of agreements (2-2 3), but none for private operations. This only makes it more clear that this law is really only meant for commercial operations, because no normal private pilot can make two or more countries create such agreements. Heavy international commercial interests are needed to create agreements between countries.

All in all, the law is OK enough. There is nothing there that prevents permanent stay for “N-reg” aircraft. This is done exclusively and solely by the Norwegian CAA, and it is done without any legal backup in the law whatsoever (in my humble non-lawyer opinion ) I guess this is deep down just a case where no one involved has been willing to rock the boat hard enough yet. That, and the fact that, pre-EASA at least, Norway was a very easy place to maintain private aircraft with nothing gained by going “N-reg”. It is only after EASA that this has come up.

So I understand Peter you are saying only a few people in Europe actually have the special ability to understand the inane babble from the annals of Brussels, well I thank them. To interpret hundreds of different meanings from a few words of Brussels bile, well that really is a gift

And it looks like even fewer have the ability to write War and Peace type responses such as the above from LeSving

LeSving wrote:

If there is a dispute, the law wins – always.

Sweden has the same distinction between “law” and “regulation” as does Norway, but in Sweden — being an EU country — there is no doubt that an EU regulation is regarded as law, and if there is a conflict with Swedish law, then EU law wins.

LeSving wrote:

All in all, the law is OK enough.

The law as written is ridiculous unless the scope of 2-2-2 is much wider than it appears. You yourself gives several reasons…

Peter wrote:

So it seems to be something pretty vague – if I read you correctly.

Not exactly. This is a case where the law specify how the aviation authority is to act. This includes the scope. The scope is exclusively to give permissions including any necessary terms to assure safe operation. The point 4 and the last sentence is a directive for the aviation authority. What the CAA has done in their AIC-N is to include the point 4. They have thrown away the last sentence (the scope and directive for the CAA) and substitute their own.

Airborne_Again wrote:

The law as written is ridiculous unless the scope of 2-2-2 is much wider than it appears

That is true. It is difficult to understand what exactly is meant by 2-2-2, especially if it is not supposed to mean things like ICAO, ECAC, EASA and so on, which the CAA suggests.

bookworm wrote:

EASA and the Commission are going cold on “derogations”.

I don’t blame them. It’s a goulash.

Peter wrote:

bookworm being one

He has an advantage of being close to the source, if I got it right.

@LeSving Do you have a court that can examine such regulation and invalidate it/ order the bureau that issued it to correct it, put it in line with the law? Or can the appropriate ministry/ department of government do it? There has to be some instrument, you don’t let bureaucrats loose. Perhaps it’s time to yank their chain.

Martin wrote:

Do you have a court that can examine such regulation and invalidate it/ order the bureau that issued it to correct it, put it in line with the law

We have something called “ombudsmann”, a lawyer who’s job is to deal with these things on behalf of the individual or organisations. But it requires that somebody involved gets their hands dirty and gets one to investigate it. In the past 2-3 years, lots have been sortednout with experimental home built and old classics where the CAA has done equally strange things.

LeSving wrote:

For this reason, EASA regulations are not considered to be laws, they are all regulations.

If it works like in Switzerland, then there will be a law passed that enacts each EU directive (which is in fact a law in the EU, as Airborne_Again has pointed out). That law would then give the EU regulation the legal status of a national law. I would be astonished if it were different in Norway, which would mean that the EU (EASA) directives are never voted upon by the parliament before entering into force?

Rwy20 wrote:

If it works like in Switzerland, then there will be a law passed that enacts each EU directive (which is in fact a law in the EU, as Airborne_Again has pointed out). That law would then give the EU regulation the legal status of a national law. I would be astonished if it were different in Norway, which would mean that the EU (EASA) directives are never voted upon by the parliament before entering into force?

Don’t confuse EU directives and EU regulations. EU directives are not themselves law, but each EU country are obliged to implement them in their national legislation. EU regulations are law which apply at once in the member countries. (The EASA regs are regulations.) For non-EU countries like Norway and Switzerland, it depends on how the treaties with the EU are written.