THE DOCKET
COMMERCIAL
OR NON-COMMERCIAL:
THAT IS THE QUESTION
The new EASA Basic
Regulation (Regulation
1139/2018) came into
effect in September 2018,
repealing and replacing
Regulation 261/2008.
Attorney Giulia Mauri
explains what the
changes mean for you
A
mongst the many changes
brought by the new Basic
Regulation, there is one that it is
extremely relevant for Business
Aviation. The new Basic Regulation
removed the previous definition of
‘commercial operations’ and aligned
such definition with the one used in
the Chicago Convention and in
Regulation 1008/2008. As such, the
new Basic Regulation defines com-
mercial air transport as ‘an aircraft
operation to transport passengers,
cargo or mail for remuneration or
other valuable consideration’.
Until 12 September 2023, the imple-
menting rules adopted on the basis of
Regulation 261/2008 will still refer to
the ‘old’ definition of commercial
operations as included in Regulation
261. At the end of such transitional
AIM period, the new definition of ‘commer-
The new cial air transport’ will be fully enforce-
regulation will able.
bring further This change is quite relevant for
harmonization Business Aviation operators that
of aviation operate private, non-commercial
safety flights and that have structured their
regulations operations on the basis of the previ-
within the EU. ous definition.
74 - BART: FEBRUARY - MARCH - 2019
The Implications of the Change
Regulation 216/2008 defined com-
mercial operations as ‘any operation
of an aircraft in return for remunera-
tion or other valuable consideration,
which is available to the public, which
is performed under a contract
between an operator and a customer,
where the latter has no control over
the operator’.
This definition entailed that the fol-
lowing operations of an aircraft could
qualify as being a non-commercial
operation:
❍ not in return for remuneration or
other valuable consideration,
❍ which is not available to the pub-
lic,
❍ which is not performed under a
contract between an operator and a
customer, and
❍ where the customer has some
control over the operator.
This definition was very helpful as it
gave some guidance to operators and
civil aviation authorities alike as to
what operations could be considered
‘private’. For example, on the basis of
this definition, civil aviation authori-
ties usually authorised the exploita-
tion of fractional ownership systems,
where the customers are also owners
of the aircraft and have control over
its operation, or closed ‘club’ systems,
where the flights performed are sole-
ly available to a restrict group of club
members and are not available to the
public.
Now that this definition has been
cancelled, civil aviation authorities
and operators alike are left without
guidance. In fact, as we have seen
above, the new Basic Regulation
returns to the broad original defini-
tion of commercial aviation as used
under the Chicago Convention and
Regulation 1008/2008. The
Convention on International Civil
Aviation (also known as the Chicago
Convention), signed in 1944 and
which serves as the constitutional
chart for international civil aviation,
defines commercial aviation as ‘the
transport of passengers or cargo for
remuneration or hire’. Likewise,
Regulation 1008/2008 on common
rules for the operation of air services
in the Community provides that ‘no
undertaking established in the
Community shall be permitted to
 cial operations. This means each
State has developed its own
approach to what is allowed under
its respective national law in order
for the flight to be considered non-
commercial. The result is a
European system that is not uni-
form, and which allows for variation
from country to country.
The UK CAA, for example, does not
apply the concept of ‘commercial vs
non-commercial operations’, but it does
refer to the concept of ‘public vs private
transport’. Public transport operators
must hold a national air operator’s cer-
tificate. The UK CAA has issued very
detailed and useful guidelines clarify-
ing the meaning of commercial air
transport, public transport and aerial

carry by air passengers, mail and/or

cargo for remuneration and/or hire
unless it has been granted the appro-
priate operating licence’.

What is a
‘Non-commercial Operation’?
Neither European law, international
law or national laws define what ‘non-
commercial operations’ are. Non-com-
mercial operations must therefore be
defined as any activity that is not
included in the definition of ‘commer-
cial operations’. This means that the
consequence of this change in the
Basic Regulation is that now the only
criteria that should differentiate a
commercial operation from a non-
commercial one is the fact that non-
commercial operations should be car-
ried out without ‘remuneration’. Moreover, (private) Business work. According to the UK CAA, for
This is an extremely difficult criteria Aviation is an ever-evolving sector example, if the only payment involved
to meet, especially when one takes where new business models appear is the payment of the pilot, then the LACK
into account that most private opera- every day, ranging from fractional flight is considered private for airwor- The Chicago
tions include in one way or another ownership to clubs to cost-sharing thiness purposes. Convention
an element of ‘remuneration’. Indeed, activities and pilots’ clubs. The UK regulation also contains a (top) does not
neither the Chicago Convention nor The various regulations and inter- definition of the term ‘club environ- contain any
Regulation 1008/2008 were drafted to national conventions mentioned ment’, which is helpful in determining definition of
take into account the specificities of above do not contain any definition how and when club-type operations non-commercial
(private) Business Aviation. of ‘remuneration’ or of non-commer- are considered private, as well as an ops.

BART: FEBRUARY - MARCH - 2019 - 75

 THE DOCKET
explanation of the regulations applica-
ble to jointly owned aircraft.
The criteria and guidelines estab-
lished by the UK CAA are not included
in European or international laws, and
therefore are only applicable in the UK,
where even here they may be varied at
any time by the UK CAA.
In other European countries, any per-
son who is not a member of the crew is
a passenger. If such passenger pays
some ‘remuneration’ to be carried on
board, such flight should be consid-
ered commercial. The ‘remuneration’,
however, must be linked to a contract
of transport of passengers or cargo.
Thus, in a joint ownership scenario, the
operating costs of the flights should
not be considered as remuneration.
The same should apply to remunera-
tion paid to service providers that help
manage the aircraft, organise the
flights, find the pilots, etc.
However, each national authority has
its own approach and its own criteria:
some allow non-commercial operations
under fractional ownership schemes
where the owners co-own parts of an
aircraft, others allow such co-owner-
ship not only when the co-owners own
RELATION parts of the plane, but also if the co-
Giulia Mauri owners are co-shareholders of a com-
(bottom right) pany that owns a plane, etc.
shows the Operators are therefore often left to
example of the their own devices when interpreting
UK CAA, which the law, and rare are the civil aviation
refers to the authorities that have issued guidelines
concept of and that are ready and willing to help
public vs. private operators when they wish to start pri-
transport. vate operations.
76 - BART: FEBRUARY - MARCH - 2019
The result of this legal framework is a
lack of harmonisation and lots of uncer-
tainty for operators and aviation author-
ities alike.
The changes to the definition of ‘com-
mercial aviation’ in the Basic
Regulation take away the only official
European guideline that operators had
in relation to what would be the ele-
ments to consider when starting non-
commercial operations.
The Interim Period
The New Basic Regulation provides
for an interim period during which
EASA should issue some implementa-
tion measures in relation to various
topics, including the definition of ‘com-
mercial aviation’.
This would be a good opportunity to
work in cooperation with European
and national Business Aviation associa-
tions to try and provide for implemen-
tation measures or guidance material
that could help new entrants and exist-
ing operators better understand exist-
ing laws and regulations so as to act in
full compliance with them.
✈ 899 23 62.
Attorney Giulia Mauri is a partner at
Pierstone Brussels. She has more than
20 years’ experience in advising nation-
al and international clients on all
aspects of aviation and transport-related
transactions, including asset-finance
and leasing, regulatory issues, carrier’s
liability and litigation matters. She also
acts as a mediator and is the co-founder
of Mediation4Aviation, a mediation
platform dedicated to the aviation
industry. Giulia co-chairs the European
and Legal Affairs Committee of the
European Business Aviation
Association and is an active member of
the Industry Affairs Group of the
European Regions Airline Association.
www.pierstone.com/team/giulia-mauri;
giulia.mauri@pierstone.com; +32 02