COMMERCIAL
OR NON-COMMERCIAL:
THAT IS THE QUESTION
The new EASA Basic
Regulation (Regulation
Regulation 261/2008.
A
mongst the many changes The Implications of the Change tion of fractional ownership systems,
brought by the new Basic Regulation 216/2008 defined com- where the customers are also owners
Regulation, there is one that it is mercial operations as ‘any operation of the aircraft and have control over
extremely relevant for Business of an aircraft in return for remunera- its operation, or closed ‘club’ systems,
Aviation. The new Basic Regulation tion or other valuable consideration, where the flights performed are sole-
removed the previous definition of which is available to the public, which ly available to a restrict group of club
‘commercial operations’ and aligned is performed under a contract members and are not available to the
such definition with the one used in between an operator and a customer, public.
the Chicago Convention and in where the latter has no control over Now that this definition has been
Regulation 1008/2008. As such, the the operator’. cancelled, civil aviation authorities
new Basic Regulation defines com- This definition entailed that the fol- and operators alike are left without
mercial air transport as ‘an aircraft lowing operations of an aircraft could guidance. In fact, as we have seen
operation to transport passengers, qualify as being a non-commercial above, the new Basic Regulation
cargo or mail for remuneration or operation: returns to the broad original defini-
other valuable consideration’. ❍ not in return for remuneration or tion of commercial aviation as used
Until 12 September 2023, the imple- other valuable consideration, under the Chicago Convention and
menting rules adopted on the basis of ❍ which is not available to the pub- Regulation 1008/2008. The
Regulation 261/2008 will still refer to lic, Convention on International Civil
the ‘old’ definition of commercial ❍ which is not performed under a Aviation (also known as the Chicago
operations as included in Regulation contract between an operator and a Convention), signed in 1944 and
261. At the end of such transitional customer, and which serves as the constitutional
AIM period, the new definition of ‘commer- ❍ where the customer has some chart for international civil aviation,
The new cial air transport’ will be fully enforce- control over the operator. defines commercial aviation as ‘the
regulation will able. This definition was very helpful as it transport of passengers or cargo for
bring further This change is quite relevant for gave some guidance to operators and remuneration or hire’. Likewise,
harmonization Business Aviation operators that civil aviation authorities alike as to Regulation 1008/2008 on common
of aviation operate private, non-commercial what operations could be considered rules for the operation of air services
safety flights and that have structured their ‘private’. For example, on the basis of in the Community provides that ‘no
regulations operations on the basis of the previ- this definition, civil aviation authori- undertaking established in the
within the EU. ous definition. ties usually authorised the exploita- Community shall be permitted to
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.