Part-NCC: EASA for a global solution

Philippe Renz

In 14 months, non-commercial operators of complex aircraft based in Europe will have to be fully compliant with the new EU Part-NCC regulation. Due to the numerous uncertainties related to its implementation, EASA took the opportunity at EBACE to address a clear message to the industry about the main objectives of this regulation. Meyer Avocats Attorney Philippe Renz reports and discusses.

Over the course of the past few months we heard many times that the NCC standards would make up the gap with the commercial standards in such a way that non-commercial operators should definitely entrust the operation of their aircraft to AOC holders. At EBACE, the majority of those who participated in the session Should there be a marked difference between NCC and CAT? did not share this point of view. The reasons for their disagreement are twofold. First, they believe the standards ignore the difference that the European and ICAO regulations make between these two regime and, second, it does not take into account market needs.

Same level as Annex 6 Part II

During the discussions, the EASA representative stated that the provisions of Annex 6 Part II reach an adequate level of safety and that a standardization of the rules at a global level is necessary and wished by the EU. Thus, it would not be justified to apply and interpret the new EU regulation in a more rigorous way than the ICAO rules.

This clear message from the European legislator might guide the EU NAAs, most of which have not yet forged their opinion on how to implement the regulation – two years after its entry into force, but only 14 months before the compliance deadline. This message also reassures a number of non-commercial, small and large operators who know that, in the future, they could continue to operate their aircraft themselves if they have the structure and skills to do so.

OM, third-country aircraft and IS-BAO

The discussions next focused on a practical aspect: in what detail should operators describe their procedures and organization in their OM? According to the EASA representative, the manuals must reflect their safety philosophy and can be quite simple, in particular for non-complex operators. The recurrent but still unanswered issue of the regulatory and oversight duplication for operators of third country aircraft then enlivened the debate.

Also about this topic: Part NCC – quick EU reaction required

Quite unexpectedly, the EASA representative said that the EU regulator wants to avoid any unnecessary duplication for operators complying with the standards of Annex 6 Part II and effectively overseen by their State of Registry. In such a case, it would mean that the European NAAs would intervene only in the context of their responsibilities assigned by the ICAO regulations and during SAFA checks, which corresponds to the system that ICAO has set up.

Even if a clear legal basis is still missing in the EU regulation to concretize the oversight coordination between the State of Registry and the State of the Operator, the EASA representative promised to confer soon with the NAAs of the concerned third countries to define how and to what extent the conformity of their standards and oversight with the ICAO system could be recognized. This analysis made beforehand is crucial because it could avoid an individual assessment by the 32 EASA State Members of the ICAO compliance status of these third countries. It is only in this way that standardization can be guaranteed on the EU level and be promoted globally.

One other issue that is causing debate is the fact that the IS-BAO standard is not recognized as such by the EU, but only as a potential “acceptable means of compliance,” as the EASA representative confirmed. While it is understandable that the European NAAs wish to keep some kind of control over the operators applying this standard, could not all concerned parties try to reach an agreement for a global solution based on an IS-BAO standard that has been successfully implemented for many years in the aviation community worldwide and is recognized by the European Committee for Standardization (CEN)?

No time to waste

EASA also took the opportunity to confirm the entry into force on 25 August 2016 and to contradict any rumors of deferment. Aircraft owners have therefore no other choice but to comply from this date. Failure to comply means running big risks: in case of accident or incident, they would be exposed to potential criminal, civil and administrative liability, for which their insurance may not cover them. Moreover it should be noted that France has imposed obligations on NCC operators from summer 2015 already.

To be ready in time, aircraft owners should now go ahead quickly, decide who will be the operator of their aircraft from 2016 and determine where its principal place of business or residence is located.

For more details, read: New EU Part-NCC – a revolution riddled with uncertainty.

To limit their liability, it is obvious that neither the aircraft owner, the pilot nor any other individual has an interest to be named personally as the operator. It thus falls to a company that the responsibility and liability of the new operational life of the operator could be assigned. Such a company might be linked or independent of the structure owning the aircraft.

The setting-up of the operational structure should be analysed on a case-by-case basis, taking into account operational, regulatory, commercial and tax factors. To limit the risks, the structure and its activity should be formalized by contracts. At a later stage or in parallel, the tasks related to the compliance process (OM, SMS, SPA, etc.) should be started. Indeed, on the basis that the compliance process might well take 12 to 18 months, aircraft owners can no longer afford to wait to get organized.

Those owners who decide to transfer the operation of their aircraft to a third party under a commercial or non-commercial regime will first have to ensure that they can actually do so; some countries of registration restrict the possibility to transferring completely the operational control to a third party. If such a possibility exists, the owner will need to make sure the third party possesses an appropriate structure able to support the safe operation of the aircraft and settle the relationship with the third party by a contract in due form.