Cover regulation

Regulation (EU) 2018/395

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC4 OJ L 79, 19.3.2008, p. 1., and in particular Article 8(5) thereof,

Whereas:

(1) The Commission is to adopt the necessary implementing rules for establishing the conditions for the safe operation of balloons in accordance with Regulation (EC) No 216/2008, where such aircraft meet the conditions specified in points (b) and (c) of Article 4(1) of that Regulation.

(2) In light of the specific nature of operations with balloons, there is a need for dedicated operational rules, laid down in a self-standing Regulation. Those rules should be based on the general rules for air operations laid down in Commission Regulation (EU) No 965/20125 Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ L 296, 25.10.2012, p. 1)., but they should be restructured and simplified, so as to ensure that they are proportionate and founded on a risk-based approach, whilst ensuring that balloon operations are carried out safely.

(3) The specific rules for air operations with balloons should not extend, however, to the requirements in respect of oversight of air operations by the competent authorities of the Member States, as those requirements are not specific to any particular air operation activity but apply horizontally in respect of all such activities. As regards oversight, the requirements laid down in Article 3 of Commission Regulation (EU) No 965/2012 and Annex II to that Regulation should therefore continue to apply also with respect to air operations with balloons.

(4) In the interest of safety and with a view to ensuring compliance with the essential requirements laid down in Annex IV to Regulation (EC) No 216/2008, all operators of balloons covered by this Regulation, with the exception of design or production organisations performing certain operations, shall be subject to a set of basic requirements.

(5) In order to provide additional protection for balloon passengers, provision should be made for certain additional requirements for operators engaged in commercial operations with balloons which should apply in addition to the basic requirements.

(6) Those additional requirements should take account of the less complex nature of commercial operations with balloons as compared to other forms of commercial aviation, be proportionate and founded on a risk-based approach. Therefore, it is appropriate to replace the requirement of a certificate for commercial operations set out in Article 8(2) of Regulation (EC) No 216/2008 by a requirement to make a prior declaration to the competent authority and to lay down the detailed rules for making such declarations as well as certain other additional requirements.

(7) However, considering the comparatively low level of complexity and in light of a risk-based approach, operators engaged in certain commercial operations with balloons should be exempted from the requirement of certification and from those additional requirements, including the requirement of making a prior declaration. They should instead only be subject to the basic requirements set out in this Regulation which apply to all air operations with balloons covered by this Regulation.

(8) In order to ensure a smooth transition and to avoid as much as possible any disruptions when introducing the new, specific regime for balloon operations laid down in this Regulation, any certificates, authorisations and approvals issued to operators of balloons in accordance with the rules applicable prior to the date of application of this Regulation should continue to be valid and be deemed to constitute a declaration made in accordance with this Regulation for a limited time period. After the expiry of that time period, all operators engaged in commercial operations with balloons should make a declaration in accordance with the provisions of this Regulation.

(9) In order to ensure a smooth transition and to give all parties concerned sufficient time to prepare for the application of that new regime, this Regulation should only apply from an appropriate later date.

(10) The Agency prepared draft implementing rules and submitted them as an opinion6Opinion No 01/2016 of the European Aviation Safety Agency of 6 January 2016 for a Commission Regulation on the revision of the European operational rules for balloons. to the Commission in accordance with point (b) of Article 17(2) and Article 19(1) of Regulation (EC) No 216/2008.

(11) The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 65 of Regulation (EC) No 216/2008,

HAS ADOPTED THIS REGULATION:

Article 1 Subject matter and scope

Regulation (EU) 2020/357

1. This Regulation lays down detailed rules for air operations with balloons as well as for issuing and maintaining pilot licences and associated ratings, privileges and certificates for balloons, where such aircraft meet the conditions laid down in points (b)(i) and (ii) of Article (2)(1) of Regulation (EU) 2018/1139 of the European Parliament and of the Council7 Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (OJ L 212, 22.8.2018, p. 1)..

2. This Regulation does not apply to air operations with tethered gas balloons.

Article 2 Definitions

Regulation (EU) 2020/357

For the purpose of this Regulation, the following definitions and, unless terms are defined otherwise in this Article, the definitions of Article 2 of Commission Regulation (EU) No 1178/20118 Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ L 311, 25.11.2011, p. 1). apply:

(1) ‘balloon’ means a manned lighter-than-air aircraft which is not power-driven and sustains flight through the use of either a lighter-than-air gas or an airborne heater, including gas balloons, hot-air balloons, mixed balloons and, although power-driven, hot-air airships;

(2) ‘gas balloon’ means a free balloon that derives its lift from a lighter-than-air gas;

(3) ‘tethered gas balloon’ means a gas balloon with a tether system that continuously anchors the balloon to a fixed point during operation;

(4) ‘free balloon’ means a balloon that is not continuously anchored to a fixed point during operation;

(5) ‘hot-air balloon’ means a free balloon that derives its lift from heated air;

(6) ‘mixed balloon’ means a free balloon that derives its lift from a combination of heated air and a lighter-than-air, non-flammable gas;

(7) ‘hot-air airship’ means a power-driven hot-air balloon, whereby the engine does not create any portion of lift;

(7a) “commercial operation” means any operation of a balloon, in return for remuneration or other valuable consideration, which is available for the public or, when not made available to the public, is performed under a contract between an operator and a customer, where the latter has no control over the operator;

(8) ‘competition flight’ means any air operation with a balloon performed for the purposes of participating in air races or contests, including practising for such an operation and flying to and from air races or contests;

(9) ‘flying display’ means any air operation with a balloon performed for the purposes of providing an exhibition or entertainment at an advertised event open to the public, including practising for such an operation and flying to and from the advertised event;

(10) “introductory flight” means any air operation, against remuneration or other valuable consideration, that consists of an air tour of short duration for the purpose of attracting new trainees or new members, performed either by a training organisation referred to in Article 10a of Regulation (EU) No 1178/2011 or by an organisation established with the aim of promoting aerial sport or leisure aviation;

(11) ‘principal place of business’ means the head office or registered office of the operator of the balloon within which the principal financial functions and operational control of the activities referred to in this Regulation are exercised;

(12) “dry lease agreement” means an agreement between undertakings pursuant to which the balloon is operated under the responsibility of the lessee;

(13) “national licence” means a pilot licence issued by a Member State in accordance with national legislation before the date of application of Annex III (Part-BFCL) to this Regulation or of Annex I (Part-FCL) to Regulation (EU) No 1178/2011;

(14) “Part-BFCL licence” means a flight crew licence which complies with the requirements of Annex III (Part-BFCL) to this Regulation;

(15) “conversion report” means a report on the basis of which a licence may be converted into a Part-BFCL licence.

Article 3 Air operations

Regulation (EU) 2020/357

1. Operators of balloons shall operate the balloon in accordance with the requirements set out in Subpart BAS of Annex II.

However, the first subparagraph shall not apply to design or production organisations which are compliant with Articles 8 and 9, respectively, of Commission Regulation (EU) No 748/20129 Commission Regulation (EU) No 748/2012 of 3 August 2012 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations (OJ L 224, 21.8.2012, p. 1). and which operate the balloon, within the scope of their privileges, for the purposes of the introduction or modification of balloon types.

2. Operators of balloons shall engage in commercial operations only after having declared to the competent authority their capacity and means to discharge the responsibilities associated with the operation of the balloon.

The first subparagraph shall not apply to the following operations with balloons:

(a) cost-shared operations by four individuals or less, including the pilot, provided that the direct costs of the flight of the balloon and a proportionate part of the annual costs incurred for the storage, insurance and maintenance of the balloon are shared by all those individuals;

(b) competition flights or flying displays, provided that the remuneration or any other valuable consideration for such flights is limited to the recovery of the direct costs of the flight of the balloon and a proportionate part of the annual costs incurred for the storage, insurance and maintenance of the balloon and that any prizes gained do not exceed the value specified by the competent authority;

(c) introductory flights with four individuals or less, including the pilot, and flights for the purposes of parachute dropping, performed either by a training organisation referred to in Article 10a of Regulation (EU) No 1178/2011 that has its principal place of business in a Member State, or by an organisation created for the purposes of promoting aerial sport or leisure aviation, provided that the organisation operates the balloon on the basis of either ownership or a dry lease agreement and provided that the flight does not generate profits distributed outside the organisation and that such flights represent only a marginal activity of the organisation;

(d) training flights performed by a training organisation referred to in Article 10a of Regulation (EU) No 1178/2011 that has its principal place of business in a Member State.

GM1 Article 3(2)(a);(b)   Air operations

ED Decision 2018/004/R

DIRECT COST

‘Direct cost’ means the cost directly incurred in relation to a flight, e.g. fuel costs of the balloon and the retrieve vehicle directly incurred in relation to a flight, take-off and landing fees, and rental fee for a balloon. There is no element of profit or salary for the pilot.

GM2 Article 3(2)(a);(b)   Air operations

ED Decision 2018/004/R

ANNUAL COST

‘Annual cost’ means the cost of the balloon over a period of one calendar year. There is no element of profit or salary for the pilot.

GM1 Article 3(2)(c)   Air operations

ED Decision 2018/004/R

ORGANISATION CREATED FOR THE PURPOSES OF PROMOTING AERIAL SPORT OR LEISURE AVIATION

An ‘organisation created for the purposes of promoting aerial sport or leisure aviation’ means a non-profit organisation established under applicable national law for the sole purpose of gathering persons sharing the same interest in general aviation to fly for pleasure or to conduct parachute jumping. The organisation should have balloons available.

GM2 Article 3(2)(c)   Air operations

ED Decision 2018/004/R

MARGINAL ACTIVITY

The term ‘marginal activity’ should be understood as representing a very minor part of the overall activity of an organisation, mainly for the purpose of promoting itself or attracting new students or members. An organisation intending to offer such flights as a regular business activity is not considered to meet the condition of marginal activity. Also, flights organised with the sole intent to generate income for the organisation are not considered to be a marginal activity.

Article 3a Pilot licences and medical certification

Regulation (EU) 2020/357

1. Without prejudice to Commission Delegated Regulation (EU)10 Commission Delegated Regulation (EU) of 4 March 2020 (not yet published in the Official Journal)., pilots of aircraft referred to in Article 1(1) of this Regulation shall comply with the technical requirements and administrative procedures laid down in Annex III (Part-BFCL) to this Regulation and in Annex IV (Part-MED) to Regulation (EU) No 1178/2011.

2. As an exception to the privileges of the holders of licences as defined in Annex III (Part-BFCL) to this Regulation, holders of such licences may carry out flights referred to in Article 3(2)(a) to (d) without complying with point BFCL.215 of Annex III (Part-BFCL) to this Regulation.

3. A Member State may authorise student pilots who follow a balloon pilot licence (“BPL”) training course to exercise limited privileges without supervision before they meet all the requirements that are necessary for the issue of a BPL in accordance with Annex III (Part-BFCL), subject to all of the following conditions:

(a)  the scope of the privileges granted shall be based on a safety risk assessment carried out by the Member State, taking into account the extent of training necessary for the intended level of pilot competence to be achieved;

(b)  the privileges shall be limited to the following:

(i)  the whole or part of the national territory of the authorising Member State;

(ii)  balloons that are registered in the authorising Member State;

(c)  the holder of such an authorisation who applies for the issue of a BPL shall receive credits for training conducted under the authorisation on the basis of a recommendation from an approved training organisation (“ATO”) or a declared training organisation (“DTO”);

(d)  the Member State shall submit reports and safety risk assessments to the Commission and the European Union Aviation Safety Agency every 3 years;

(e)  the Member State shall monitor the use of authorisations issued under this paragraph to ensure an acceptable level of aviation safety and take appropriate action in case of identifying an increased safety risk or any safety concerns.

Article 3b Existing pilot licences and national medical certificates

Regulation (EU) 2020/357

1. Part-FCL licences for balloons and associated privileges, ratings and certificates issued by a Member State before the date of application of this Regulation shall be deemed to have been issued in accordance with this Regulation. Member States shall replace those licences with licences that comply with the format laid down in Annex VI (Part-ARA) to Regulation (EU) No 1178/2011 when they reissue licences for administrative reasons or upon a request of licence holders.

2. When a Member State reissues licences and associated privileges, ratings and certificates in accordance with paragraph 1 of this Article, the Member State shall, as applicable:

(a)  transfer all privileges already endorsed in Part-FCL licences to the new licence format;

(b)  convert the privileges for tethered flight or commercial operation associated with a Part-FCL licence into a tethered flight rating or a commercial operation rating in accordance with the provisions of Point BFCL.200 and BFCL.215 of Annex III (Part-BFCL) to this Regulation;

(c)  endorse the expiry date of a flight instructor certificate associated with a Part-FCL licence into the pilot’s logbook or issue an equivalent document. After that date, those pilots shall exercise instructor privileges only if they comply with point BFCL.360 of Annex III (Part-BFCL) to this Regulation.

3. Holders of national licences for balloons issued by a Member State before the date of application of Annex III (Part-BFCL) to this Regulation shall be allowed to continue to exercise the privileges of their licences until 8 April 2021. By that date, Member States shall convert those licences into Part-BFCL licences and associated ratings, privileges and certificates in accordance with the elements laid down in a conversion report that complies with the requirements of Article 4(4) and (5) of Regulation (EU) No 1178/2011.

4. National pilot medical certificates associated with a licence as specified in paragraph 2 of this Article and issued by a Member State before the date of application of Annex III (Part-BFCL) to this Regulation shall remain valid until the date of their next revalidation or until 8 April 2021, whichever is the earliest. The revalidation of those medical certificates shall comply with the requirements of Annex IV (Part-MED) to Regulation (EU) No 1178/2011.

Article 3c Credit for training that commenced prior to the date of application of this Regulation

Regulation (EU) 2020/357

1. In respect of issuing Part-BFCL licences and associated privileges, ratings or certificates in accordance with Annex III (Part-BFCL) to this Regulation, training that commenced prior to the date of application of this Regulation in accordance with Annex I (Part-FCL) to Regulation (EU) No 1178/2011 shall be deemed to comply with the requirements of this Regulation, provided that the BPL is issued by 8 April 2021 at the latest. In that case, the following shall apply:

(a)  BPL training commenced on balloons representing the hot-air airship class, including the related testing, may be completed on those balloons;

(b)  training hours completed in the hot-air balloon class in balloons other than group A of that balloon class shall be fully credited towards the requirement in point BFCL.130(b) of Annex III.

2. Training that commenced prior to the date of application of this Regulation or of Annex I (Part-FCL) to Regulation (EU) No 1178/2011, in accordance with Annex 1 to the Chicago Convention, shall be credited for the purposes of issuing Part-BFCL licences on the basis of a credit report established by the Member State in consultation with the European Union Aviation Safety Agency.

3. The credit report referred to in paragraph 2 shall describe the scope of the training, indicate for which requirements of Part-BFCL credit is given and, if applicable, which requirements applicants need to comply with in order to be issued with a Part-BFCL licence. It shall include copies of all the documents necessary to attest the scope of the training, as well as copies of the national regulations and procedures in accordance with which the training was initiated.

Article 3d Training organisations

Regulation (EU) 2020/357

1. Training organisations for pilot licences referred to in Article 1(1) shall comply with the requirements of Article 10a of Regulation (EU) No 1178/2011.

2. Training organisations referred to in paragraph 1 of this Article which hold an approval issued in accordance with Annex VII (Part-ORA) to Regulation (EU) No 1178/2011 or have submitted a declaration in accordance with Annex VIII (Part-DTO) to Regulation (EU) No 1178/2011 before the date of application of this Regulation shall adapt their training programmes, where necessary, by 8 April 2021 at the latest.

Article 4 Transitional provisions

Regulation (EU) 2018/395

Certificates, authorisations and approvals issued to operators of balloons by Member States before 8 April 2019 in accordance with Regulation (EU) No 965/2012 or in accordance with provisions of national law compliant with Article 10(2), (3) and (5)(b) of Regulation (EU) No 965/2012 shall remain valid until 8 October 2019.

Until 8 October 2019, any reference made in this Regulation to a declaration shall also be understood as a reference to the certificates, authorisations or approvals issued by Member States before 8 April 2019.

Article 5 Entry into force and application

Regulation (EU) 2018/395

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from 8 April 2019.

Regulation (EU) 2018/395

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 13 March 2018.

For the Commission

The President

Jean-Claude JUNCKER