EASA continues its troubled efforts to develop new rules in line with two of its objectives cited in Regulation (EC) no 216/2008 - to establish and maintain high uniform standards of safety across Europe and to provide a level playing field for those involved in aviation activities.

However, attention has again turned to the question of when a flight is commercial and when it is not.

Some five years ago, I chaired the industry working group on business aircraft operations (IWG-BAO) formed to make recommendations on harmonising the regulatory treatment of international private and on-demand charter flights using business aircraft, driven by anomalies in the treatment of such flights between the US and Europe.

After much lively debate, the group concluded, inter alia, that European-based non-commercial aviation operations - including those which employ shared aircraft ownership, contracted aircraft management services, and/or shared aircraft usage - should be permitted by European authorities to be conducted as non-commercial general aviation operations by the owner using the aircraft, so long as they conform to European corporate aviation safety regulations or other European non-commercial aviation safety regulations, as applicable.

This recommendation was very much in line with Part 91k and essentially rests on who is the accountable manager for the flight. If the owner is onboard and he elects to be held the accountable manager, then the flight can be deemed non-commercial. Conversely, if the owner does not wish to be held so accountable or the aircraft is being used for third-party charter, then as long as the contract manager holds an AOC, such operations should be permitted by the European authorities to be conducted as commercial operations by the contract manager.

Finally, as permitted by the US DoT, European operators should be allowed to alternate or "flip-flop", between commercial and non-commercial. In essence, where the contract manager holds an AOC, the aircraft owner should be permitted to elect, on a flight-by-flight basis, whether to operate the flight as a non-commercial general aviation operation, or have the contract manager operate the flight as a commercial operation, providing the necessary approvals for each category have been granted.

Now you would think all of this was pretty clear, and indeed it is, albeit that it introduces the question of who has operational control for the flight. However, basic regulation 3i implies a different interpretation for determining whether a flight is commercial or non-commercial. Here the determinant for a flight "not made available to the public and performed under a contract between operator and customer" is whether or not the owner has "some control over the operator."

Unfortunately there are as many interpretations of "some control" as there are interpreters. These range from the owner virtually running the operation himself and dealing directly with the regulatory authorities on key issues, to just telling the contractor the destination to which he/she wants to fly.

Such wide differences of viewpoint have understandably made life very difficult for EASA, to the point where it now feels unable to rule on this important topic. Instead it will leave it for a later rule making task. Unfortunately, deletion of the relevant text from OR.OPS.GEN has further muddied the water, leading some authorities such as Italy, to conclude that flip-flopping should no longer be permitted at all!

So where are we? In short, in a bit of a mess, because the ability to operate the same aircraft both commercially and non-commercially is critical to the success of business aviation operators using both fixed and rotary wing aircraft. Moreover, there are, as indicated, wide national variations in the interpretation of what is commercial and non-commercial, and discouraging owners to use expert management companies to operate their aircraft would be detrimental to safety.

EASA has therefore agreed to clarify that its failure to rule on this matter is because the task needs further work, NOT because it thinks the practice should cease. Meanwhile, pending the further rule making task, existing national practices should continue to permit flip-flopping of an aircraft between commercial and non-commercial operations.

So, for the time being, the unlevel playing field both within Europe, and between Europe and the US will continue, pending a new rule making task after April 2012 when EASA will attempt to resolve the diverse viewpoints and meet its remit of creating a level, safe playing field.

On which point, a final thought: The annual IBAC review of business aviation safety notes that the fatal accident rate for corporate operations at 0.4 per million hours is 10 times better than that for commercial air taxi. Maybe, therefore, instead of worrying too much about legal niceties, real emphasis should be placed on sharing and emulating corporate best practices in delivering one of the safest aviation operations in the world!

By Brian Humphries, president European Business Aviation Association (EBAA).