Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 5 March 2026 (1)
Case C‑862/24
Satiksmes ministrija
in the presence of
A
(Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Supreme Court, Latvia))
( Reference for a preliminary ruling – Air transport – Regulation (EC) No 216/2008 – Common rules in the field of civil aviation – Regulation (EU) No 1178/2011 – Civil aviation aircrew – Private pilot licence – Skill test – Fraudulent conduct of an applicant – Temporary ban on retaking the skill test and obtaining a licence – ARA.GEN.355(e) – Necessary enforcement measures to prevent further non-compliance – Theoretical knowledge examination – ARA.FCL.300(f) – Application by analogy of the temporary ban on retaking the theoretical knowledge examination – Principle of legal certainty – Charter of Fundamental Rights of the European Union – Article 15 – Freedom to choose an occupation )
I.      Introduction
1.        This request for a preliminary ruling concerns the interpretation of point ARA.GEN.355(e) and point ARA.FCL.300(f) contained in Annex VI to Regulation (EU) No 1178/2011 (2) and of Article 52(1) of
the Charter of Fundamental Rights of the European Union (3) and the principle of legal certainty.
2.        The request has been made in proceedings between A and the Satiksmes ministrija (Ministry of Transport, Latvia) concerning a decision of the Civilās aviācijas aģentūra (Civil Aviation Agency, Latvia) (‘the Agency’), upheld by that Ministry, by which, following a finding that A had committed fraud in the skill test in order to obtain a private pilot licence, that agency annulled the results of that test and banned him from retaking that test and from obtaining such a licence for a period of one year.
3.        The question of the Augstākā tiesa (Senāts) (Supreme Court, Latvia), which is the referring court, concerns the lawfulness of that prohibition decision, which is provided for neither by Regulation No 1178/2011 nor by a national provision.
4.        I shall state the reasons why I consider that, where a flight logbook
is falsified in order to meet the requirements of the skill test which is mandatory for the purpose of obtaining a private pilot licence, point ARA.GEN.355(e), which is contained in Annex VI to Regulation No 1178/2011, must be interpreted as meaning that it does not authorise the competent authority to adopt against an applicant for such a licence a preventive prohibition measure in respect of the skill test which is analogous to that provided for in point ARA.FCL.300(f) inserted in that annex unless it is expressly provided for in a national provision.
II.    Legal framework
A.      European Union law
1.      Regulation (EC) No 216/2008
5.        Recitals 3, 11 and 12 of Regulation (EC) No 216/2008 (4) state:
‘(3)      The Chicago Convention [on International Civil Aviation, signed in Chicago on 7 December 1944, (5)] already provides for minimum standards to ensure the safety of civil aviation and environmental protection relating thereto. [European Union] essential requirements and rules adopted for their implementation should ensure that Member States fulfil the obligations created by the Chicago Convention, including those vis-à-vis third countries.
…
(11)      Enough flexibility should be provided for addressing special circumstances such as urgent safety measures, unforeseen or limited operational needs. Provision should also be made for reaching an equivalent safety level by other means. Member States should be entitled to grant exemptions from the requirements of this Regulation and its implementing rules, provided that they are strictly limited in scope and subject to appropriate Community control.
(12)      … There is … a need to establish a European Aviation Safety Agency [(EASA)]
which is independent in relation to technical matters and has legal, administrative and financial autonomy. To that end, it is necessary and appropriate that [EASA] should be a [Union] body having legal personality and exercising the implementing powers which are conferred on it by this Regulation.’
6.        Article 2(1) of that regulation provides:
‘The principal objective of this Regulation is to establish and maintain a high uniform level of civil aviation safety in Europe. [(6)]’
7.        The first and second subparagraphs of Article 7(2) of that regulation provides:
‘Except when under training, a person may only act as a pilot if he or she holds a licence and a medical certificate appropriate to the operation to be performed.
A person shall only be issued a licence when he or she complies with the rules established to ensure compliance with the essential requirements on theoretical knowledge, practical skill, language proficiency and experience as set out in Annex III.’
8.        According to Article 68 of Regulation No 216/2008:
‘Member States shall lay down penalties for infringement of this Regulation and its implementing rules. The penalties shall be effective, proportionate and dissuasive.’
9.        Annex III to that regulation, entitled ‘Essential requirements for pilot licensing referred to in Article 7’, states, in point 1.a.1 thereof:
‘A person undertaking training to fly an aircraft must be sufficiently mature educationally, physically and mentally to acquire, retain and demonstrate the relevant theoretical knowledge and practical skill.’
2.      Regulation No 1178/2011
10.      Recital 5 of Regulation No 1178/2011 states:
‘Regulation [No 216/2008] requires the [European] Commission to adopt the necessary implementing rules for establishing the conditions for certifying pilots as well as persons involved in their training, testing or checking, for the attestation of cabin crew members and for the assessment of their medical fitness.’
11.      According to Article 1(1) of that regulation, the regulation lays down detailed rules for, inter alia, ‘different ratings for pilots’ licences, the conditions for issuing, maintaining, amending, limiting, suspending or revoking licences’.
12.      Article 11b of that regulation, entitled ‘Oversight capabilities’, provides, in paragraph 5(f) and paragraph 6 thereof:
‘5.      Personnel authorised by the competent authority to carry out certification and/or oversight tasks shall be empowered to perform at least the following tasks:
…
(f)      take or initiate enforcement measures as appropriate.
6      The tasks under paragraph 5 shall be carried out in compliance with the legal provisions of the relevant Member State.’
13.      Annex I to that regulation corresponds to ‘Part-FCL’. (7) In Subpart
A of that annex, entitled ‘General requirements’, point FCL.030, on the ‘Practical skill test’, provides:
(a)      Before a skill test for the issue of a licence, rating or certificate is taken, the applicant shall have passed the required theoretical knowledge examination, except in the case of applicants undergoing a course of integrated flying training.
In any case, the theoretical knowledge instruction shall always have been completed before the skill tests are taken.
(b)      Except for the issue of an airline transport pilot licence, the applicant for a skill test shall be recommended for the test by the organisation/person responsible for the training, once the training is completed. The training records shall be made available to the examiner.’
14.      In Annex I, Subpart C, of Regulation No 1178/2011, concerning, inter alia, the private pilot licence (PPL), (8) Section 1 lays down the ‘Common requirements’. Point FCL.235, contained in that section, entitled
‘Skill test’, provides, in (a):
‘Applicants for a … PPL shall demonstrate through the completion of a skill test the ability to perform, as PIC [(9)] on the appropriate aircraft category, the relevant procedures and manoeuvres with competency appropriate to the privileges granted.’
15.      Annex VI to that regulation lays down the ‘authority requirements for aircrew’. (10) In that annex, Subpart GEN, (11) Section III, of that regulation, on ‘oversight, certification and enforcement’, point ARA.GEN.355, entitled ‘Findings and enforcement measures – persons’, (12) states, in point (e):
‘If, during oversight or by any other means, evidence is found showing a non-compliance with the applicable requirements by a person subject to the requirements laid down in Regulation [No 216/2008] and its Implementing Rules and not holding a licence, certificate, rating or attestation issued in accordance with that Regulation and its Implementing Rules, the competent authority that identified the non-compliance shall take any enforcement measures necessary to prevent the continuation of that non-compliance.’
16.      In Annex VI, Subpart FCL, entitled ‘Specific requirements relating to flight crew licensing’, Section II of Regulation No 1178/2011, on ‘licences, ratings and certificates’, point ARA.FCL.250, governing the ‘limitation, suspension or revocation of licences, ratings and certificates,’ provides, in point (a):
‘The competent authority shall limit, suspend or revoke as applicable a pilot licence and associated ratings or certificates in accordance with ARA.GEN.355 in, but not limited to, the following circumstances:
(1)      obtaining the pilot licence, rating or certificate by falsification of submitted documentary evidence;
(2)      falsification of the logbook and licence or certificate records;
…’
17.      In Annex VI, Subpart FCL, Section III of that regulation, relating to ‘theoretical knowledge examinations’, point ARA.FCL.300, entitled ‘Examination procedures’, (13) provides, in (f):
‘The competent authority shall ban applicants who are proven to be cheating from taking any further examination for a period of at least 12 months from the date of the examination in which they were found cheating.’
B.      Latvian law
18.      Point 5 of the second paragraph of Article 6 and the fifth paragraph of Article 6 of the likums ‘Par aviāciju’ (Law on Aviation), (14) of 5 October 1994, provides:
‘The Agency …:
…
(5)      shall carry out the certification and oversight of civil aviation personnel, including the issuance, extension, suspension or revocation of licences of flight crew members, air traffic controllers, air traffic information services operators and civil aviation aircraft technical maintenance personnel.
…
The Civil Aviation Agency may issue administrative acts imposing prohibitions or limitations on activities related to the certification of civil aviation personnel and professional development bodies, the use of the airspace of the Republic of Latvia or the operation of civil aviation aircraft, aerodromes and other civil aviation facilities and equipment, in order to ensure that the requirements relating to civil aviation safety and aircraft flight reliability established by the European Union regulations are implemented. Administrative acts of the Civil Aviation Agency shall be subject to judicial review without the possibility of appeal to a higher authority. An appeal against an administrative act shall not suspend its enforcement.’
III. The facts of the main proceedings and the questions referred for a preliminary ruling
19.      A took steps to obtain a private pilot licence [PPL(A)]. (15) For that purpose, after obtaining a medical certificate of the appropriate class, which is a prerequisite for exercising the privileges of a student pilot, he had to take and pass a theoretical knowledge examination and then a practical skill test with an approved training organisation.
20.      After approaching the Agency on 6 October 2017 and obtaining a medical certificate, A submitted to it on 6 December 2017 an application form for the skill test and examiner designation. A enclosed with it a certificate from a Bulgarian aviation academy, dated 5 December 2017, attesting that the applicant had successfully completed the PPL(A) modular flight training course between 23 October and 5 December 2017. On 16 December 2017, the Agency received from the examiner an electronic copy of a form relating to the skill test taken on 12 December 2017 in Spain by A, together with a copy of his flight crew member flight log.
21.      In the course of the verifications made by the Agency from 17 January 2018, it established irregularities relating to the flight training record submitted by A.
First, the competent Bulgarian national authority informed the Agency that the Bulgarian aviation academy was not authorised to carry out training flights outside Bulgarian airspace and that it had not been possible to confirm that A had been trained there. Second, on 23 March 2018, the Agency received information from an authorised technical maintenance entity revealing that A’s flight training had not taken place as reflected in his pilot’s logbook. When invited to appear before the Agency to provide explanations, A merely submitted subsequently a request for withdrawal of his private pilot licence application [PPL(A)] and expressed doubts about the Agency’s jurisdiction to examine the pilot training organised by the Bulgarian aviation academy.
22.      On 7 November 2018, the Agency adopted a decision in which it, first, annulled the results of the skill test undertaken by A, second, banned A from retaking the skill test for the private pilot licence and from obtaining such a licence until 7 November 2019 (‘the ban at issue’), and, third, informed the Commission, EASA and the Member States of that agency (‘the decision at issue’).
The Agency based its decision, in particular, on the finding that A had falsified his flight training documents and that, therefore, the action of presenting his pilot’s logbook to the examiner had to be considered as constituting the communication of inaccurate data and falsification of documents. It also justified its decision by relying on the prevention of a possible risk to the safety of civil aviation aircraft.
23.      A lodged an appeal with the Administratīvā rajona tiesa (District Administrative Court, Latvia) against the decision of 17 May 2019 of the Ministry of Transport upholding the Agency’s decision. He argued that the temporary ban from obtaining a private pilot licence is, by its nature and effects, a penalty, for which the competent Latvian authority would have to have found that an administrative or criminal offence had been committed. He also claimed that to infer such a prohibition, by analogy, from Regulation No 1178/2011 is incompatible with the scheme and structure of that regulation. That court declared the ban on retaking the skill test unlawful.
24.      Ruling on the appeal lodged by the Ministry of Transport, the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia) upheld the judgment of the Administratīvā rajona tiesa (District Administrative Court). It found that the one-year ban on retaking the skill test imposed by the Agency was a criminal penalty which was not expressly provided for by any provision, since point ARA.FCL.300(f) was inapplicable. That court also held that point ARA.GEN.355(e) does not empower the competent authority to take decisions without a national legal basis, an interpretation which was confirmed by the AESA in its document entitled ‘Acceptable Means of Compliance. Part FCL’.
25.      The Ministry of Transport lodged an appeal on a point of law against that judgment with the Augstākā tiesa (Senāts) (Supreme Court). That ministry takes the view that the interpretation of the Administratīvā apgabaltiesa (Regional Administrative Court) is formalistic and is incompatible with the scheme and purpose of Regulation No 1178/2011. It claims that the ban at issue is not penalty, but is a means of safeguarding the high level of civil aviation safety required in particular for the solo flights (16) which A wishes to undertake. It also claims that that interpretation undermines the level of safety required and jeopardises flight safety by allowing a person to continue to operate in civil aviation when he is not properly trained in accordance with the established requirements. (17)
26.      The Augstākā tiesa (Senāts) (Supreme Court) referring court states that neither Regulation No 216/2008 nor Regulation No 1178/2011 specifically lay down the consequences for a candidate who, when taking the skill test, submitted false information to the examiner about the flight training and experience acquired in order to obtain a private pilot licence. It is therefore the responsibility of the competent national civil aviation body to establish appropriate enforcement measures in case of falsification of the licence and/or the logbooks.
27.      In that context, that court is uncertain as to the interpretation of point ARA.GEN.355(e) according to which the competent authority must take any enforcement measures necessary to prevent the continuation of non-compliance and of point ARA.FCL.300(f), which provides that the competent authority is to ban applicants who are proven to be cheating in a theoretical knowledge examination from taking any further examination for a period of at least 12 months.
28.      It considers, in the light of the civil aviation safety objective pursued in Regulation No 1178/2011, that cheating in the skill test should not be treated less strictly than cheating in the theoretical knowledge examination.
29.      Relying on Article 52(1) of the Charter,
the referring court, however, has doubts as to whether the ban at issue must be clearly expressed by a rule of law. According to that court, the present case concerns the freedom to choose an occupation protected by Article 15 of the Charter of a person who wishes to exercise that freedom by obtaining a private pilot license in order to be able to carry out air transport of persons. That court adds that, in accordance with the principle of legal certainty, the ban should follow directly from a specific provision of Regulation No 216/2008 or Regulation No 1178/2011. However, the provisions of those regulations dealing with the skill test, unlike the theoretical knowledge test procedure, do not expressly empower the competent authority to impose such a ban. Moreover, that court states that the Court has, on the other hand, held that the fact that a law confers a discretion on the authorities responsible for implementing it is not in itself inconsistent with the requirement of foreseeability, subject to the observance of certain guarantees against arbitrary interference. (18)
30.      Last, the referring court states that, according to the explanation of point ARA.GEN.355(e) published by the AESA, the type of enforcement measure depends on the applicable national law and may include, for example, the payment of a fine or the prohibition from exercising. (19) In that regard, it observes, first, that, since an EU regulation is a directly applicable legal act of EU law, the competent authority must also directly apply point ARA.GEN.355(e). Second, under point 5 of the second paragraph of Article 6 and the fifth paragraph of Article 6 of the Law on Aviation, that authority may issue administrative acts imposing prohibitions or limitations on activities related to the certification of civil aviation personnel in order to ensure the implementation of civil aviation safety and aircraft flight reliability requirements established by EU legislation. However, the power conferred on that authority does not provide for a specific temporary ban
for behaving dishonestly in the skill test.
31.      Moreover, the referring court raises questions about the application, in that context, of the general principle of EU law that EU law cannot be relied on by individuals for abusive or fraudulent ends.
32.      From this, that court infers the following interpretation: since, in Annex VI to Regulation No 1178/2011, point ARA.GEN.355(e) gives the competent authority the right to take the enforcement measures necessary and, in the theoretical knowledge test, point ARA.FCL.300(f) [of that Annex VI] establishes, as a consequence of fraudulent conduct, a ban, for at least one year, on retaking the examination, then, from a systematic point of view, and in order to ensure the objectives of that regulation of maintaining a high uniform level of civil aviation safety in all areas of examinations and skill tests and to achieve the useful effect of EU law, there would be no justification not to extend the same enforcement measures to the practical skill test.
33.      In those circumstances, the Augstākā tiesa (Senāts) (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      If an examinee is shown to have engaged in fraudulent conduct by showing the examiner, during the practical skill test, false documents concerning the acquisition of practical training, is the competent national aviation authority empowered, for the purposes of point ARA.GEN.355(e) … to ban the person concerned temporarily from retaking the skill test to obtain a private pilot licence and from obtaining a private pilot licence?
(2)      Should the explanation on point ARA.GEN.355(e) …, as laid down in the document published by the European Union Aviation Safety Agency under the title “Acceptable means of compliance. Part FCL”, namely that the type of enforcement measure depends on the applicable national law and may include, for example, a prohibition from exercising, be interpreted as meaning that it empowers the competent authority to choose appropriate limitations (derived from point ARA.FCL.300(f)) which achieve the objectives of [Regulation No 1178/2011], if the national law does not provide for a specific temporary ban on the performance of the skill test to obtain a private pilot licence?
(3)      Is it consistent with the principle of legal certainty and with Article 52(1) of the Charter to interpret point ARA.FCL.300(f) … in such a way that the temporary ban on performing the theoretical knowledge test provided for in that point may be extended to the retaking of the skill test?’
34.      Written observations have been submitted by A, the Ministry of Transport, the Latvian and Hungarian Governments and the Commission. Apart from the Hungarian Government, they participated in the hearing held on 3 December 2025, at which they replied to questions for oral answer put by the Court.
IV.    Analysis
35.      The referring court must rule on the lawfulness of an administrative decision banning an applicant for a private pilot licence from retaking the skill test and obtaining such a licence for a period of one year. In the absence of a European or national provision expressly providing for such a ban, it asks the Court, in essence, to interpret two provisions of Annex VI
to Regulation No 1178/2011, namely, point ARA.GEN.355(e), and point ARA.FCL.300(f).
36.      I shall examine, in turn, the answer to be given to the first of the questions for a preliminary ruling and then the third question. I shall leave aside examination of the second question, which is devoid of purpose, since the opinion of EASA relating to point ARA.GEN.355(e) is not legally binding.
37.      I shall therefore outline, first, the legislative framework of which point ARA.GEN.355(e) and point ARA.FCL.300(f) form part. The second part will be devoted to the classification of the ban at issue. In the third part,
I shall comment on the degree of precision required for the application of point ARA.GEN.355(e). Last, I shall state my opinion on the application of Article 52(1) of the Charter.
A.      A reminder of the legislative framework of point ARA.GEN.355(e) and point ARA.FCL.300(f)
38.      These provisions are contained in Annex VI
to Regulation No 1178/2011, which lays down technical requirements and administrative procedures related to civil aviation aircrew. It is an implementing regulation for Regulation No 216/2008 on common EU rules in the field of civil aviation. (20) That Annex VI, or ‘Part-ARA’, lays down the requirements applicable to the national authorities responsible for aircrews. It comprises a Subpart GEN containing, under general requirements, a Section III, on ‘Oversight, certification and enforcement’, and in particular point ARA.GEN.355. That Annex VI further contains a Subpart FCL, so called because it concerns flight crew members. (21) Its Section II covers the competent authority’s obligations as regards licences, ratings and certificates. Section III, entitled ‘Theoretical knowledge examinations’, contains point ARA.FCL.300 governing the procedures for such examinations.
39.      Point ARA.FCL.300(f) provides for the decision to be taken by the competent authority in the case of cheating in the theoretical knowledge examination, namely the ban ‘from taking any further examination for a period of at least 12 months from the date of the examination in which [the applicants] were found cheating’. (22) There is no equivalent in a section for skill tests.
40.      Point FCL.030, contained in Annex I to Regulation No 1178/2011, entitled ‘Practical skill test’, provides that such a test must be preceded by success in a theoretical knowledge examination and, in general, by a recommendation from the organisation or person responsible for the training. It does not, logically in my view, contain any provision relating to fraud committed during the practical skill test. That test, defined in point FCL.010 as the demonstration of skill for a licence or rating issue, including such oral examination as may be required, is unlikely to be passed by cheating. Thus, an applicant cannot deceive the examiner during the test as to whether he or she has an adequate skill level.
41.      The only conceivable fraud is therefore documentary fraud. The EU legislature has provided for it only where it has been discovered after the licence has been obtained. In Subpart FCL of Annex VI to Regulation No 1178/2011, (23) point ARA.FCL.250 (24) refers specifically to falsification of submitted documentary evidence in (a)(1) and to falsification of the flight logbook and licence or certificate records in (a)(2).
42.      That is therefore the only other provision in Subpart FCL relating to fraud. It provides for the limitation, suspension or revocation of the licence. It does not lay down any prohibition period. Similarly, no period is set for the decision to limit or suspend the licence. Theoretically, such suspension, equivalent to a flight ban, may therefore be unlimited in time.
43.      Accordingly, I note that the falsification of a logbook discovered before a licence is obtained was not covered by Regulation No 1178/2011 and that, where the licence has already been issued, the competent authority takes its decision ‘in accordance with point ARA.GEN.355’, (25) as stated in point ARA.FCL.250.
44.      The purpose of point ARA.GEN.355, entitled ‘Findings and enforcement measures – persons’, is to define the procedure to be adopted by the competent authority responsible for verifying compliance with the requirements applicable to persons as defined in point ARA.GEN.300(a) inserted in Annex VI to Regulation No 1178/2011. Point ARA.GEN.355(e)
expressly refers to the situation of a person not holding a licence. It provides that ‘the competent authority that identified the non-compliance shall take any enforcement measures necessary to prevent the continuation of that non-compliance’. A similar expression is contained in point ARA.GEN.355(b)(2), (26) where a licence had been issued and the licence holder’s non-compliance was identified. The competent authority is therefore authorised to take measures supplementing decisions taken to
limit or temporarily or definitively ban the use of a licence.
45.      In that context, is the interpretation of point
ARA.GEN.355(e), as submitted by the Ministry of Transport, the Latvian and Hungarian Governments and the Commission, sufficient to justify the ban on retaking the skill test and on obtaining a licence for a year? In other words, in the absence of national legislation expressly providing for the imposition of the ban at issue, is A right in claiming that the ban is unlawful?
46.      The answer to that question, as stated in the first question for a preliminary ruling, involves determining
whether the examination of the lawfulness of the administrative decision at issue concerns a penalty (27)of a criminal nature (28) or a preventive measure, in the light of the case-law of the Court and of the European Court of Human Rights (29) on the implementation of the ‘Engel criteria’, (30) since it may be seen from the Explanations relating to the Charter of Fundamental Rights (31) that,
in accordance with Article 52(3) of the Charter, the right guaranteed in Article 49
thereof has the same meaning and scope as the right so guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms. (32) An imprecise provision can act in breach of the principle of legality of penalties laid down in the first sentence of Article 49(1)
of the Charter (33) only if it establishes a penalty of that nature (B). However, if the first sentence of Article 49(1)
of the Charter is not applicable, the answer given to the referring court should, in my view, be based on the general principle of legal certainty (C).
B.      The classification of the ban at issue
47.      In the decision at issue included in the file before the Court, it is stated that, ‘in the light of the foregoing, although fraud committed during a theoretical knowledge examination results in the applicant being banned from retaking the examination for at least 12 months, it is proportionate to impose on the applicant an analogous penalty in the case of fraud and the deliberate submission of incorrect information to the examiner before the skill test, namely a ban on retaking and obtaining a pilot licence for at least 12 months’. (34)
48.      However, since it is common ground that
the agency acted within the framework set by ARA.GEN.355, that decision is, in my view, a measure and not a penalty. In that connection, I would draw attention to the expressions ‘actions correctives’ or ‘mesures nécessaires de mise en application’ used in the
French-language version
of ARA.GEN.355, which clearly reflect the absence of any link with a procedure leading to a coercive decision. Even though those expressions have no equivalent in many language versions except for the Italian-language version and, although, in the English-language version, the expression used is ‘enforcement measures’ (35) I share the Commission’s view stated at the hearing that that expression refers to implementing measures. (36)
49.      Nonetheless, that classification does not remove the obligation to determine whether the ban at issue is of a criminal nature. In that regard, it is relevant to refer, as the Commission suggested at the hearing, to the decision of the European Court of Human Rights of 9 October 2018 in Seražin v. Croatia, (37) which concerned a ban on attending sports competitions supplemented by an obligation to inform the police imposed by a court on an individual convicted of hooliganism. Seised pursuant to
Article 4 of Protocol No 7 of the ECHR, (38) which enshrines the principle ne bis in idem or of double criminality, the European Court of Human Rights
analysed this exclusion measure on the basis of the Engel criteria in order to determine whether or not there had been a ‘criminal charge’ and a ‘penalty’. (39)
50.      I therefore propose that the Court should refer to its settled case-law based on the Engel criteria relating to the interpretation of Article 50 of the Charter and transposed to Article 49 thereof, both in respect of paragraph 3 and of the last sentence of paragraph 1 thereof, holding that that case-law should be extended to the first sentence of that provision, which establishes the principle nullum crimen, nulla poena sine lege.
51.      It should therefore be noted that the first of the Engel criteria is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty which the person concerned is liable to incur. (40)
52.      Although it is for the referring court to assess, in the light of those criteria, whether the ban imposed on A is of a criminal nature for the purposes of Article 49(1) of the Charter, the Court, when giving a preliminary ruling, may nevertheless provide clarification designed to give the national court guidance in its assessment. (41)
53.      Regarding, first of all, the first criterion relating to the legal classification of the offence, it is apparent from the information provided by the referring court that, because it established the existence of documentary fraud, the Agency adopted an administrative measure under the conditions laid down in the fifth paragraph of Article 6 of the Law on Aviation. Under Latvian law which governs the Agency’s action, the offence at issue in the main proceedings is therefore regarded as an administrative offence. (42)
54.      However, it must be ascertained, in the light of the other two criteria referred to in point 51 of this Opinion, whether the application of a prohibition measure such as that at issue in the main proceedings is of a criminal nature. (43)
55.      Regarding, next, the second criterion based on the intrinsic nature of the offence, that criterion involves ascertaining whether the measure at issue has, inter alia, a punitive purpose, which is the distinctive feature of a penalty of a criminal nature for the purposes of Article 49 of the Charter, and the mere fact that it also pursues a deterrent purpose does not mean that it cannot be characterised as a criminal penalty. It is of the very nature of criminal penalties that they seek both to punish and to deter (44) unlawful conduct. By contrast, a measure which merely repairs the damage caused by the offence at issue is not criminal in nature. (45)
56.      In that regard, as the European Court of Human Rights stated, (46) it is difficult in practice to draw a clear distinction between deterrence, as an element of a penalty, and prevention.
57.      However, it clearly follows, in my view, from the decision in Seražin v. Croatia that consideration should be given to the public interest aspect of prevention, namely, the protection of future victims (47) rather than the deterrence of potential perpetrators. Moreover, the fact that the measure imposes a detriment on its recipient does not change that analysis. (48) The analysis is therefore directly transposable to the area of civil aviation safety on account of the objective pursued. (49)
58.      Thus, the comparison with the decision in Seražin v. Croatia, concerning a ban on attending sports competitions supplemented by an obligation to inform the police (50) imposed by a court on an individual convicted of hooliganism is interesting in a number of respects. First, the European Court of Human Rights classified that exclusion measure not as a ‘criminal penalty’ within the autonomous meaning of the ECHR (51) applied in the context of ‘criminal proceedings’, (52) but as a preventive measure aimed at removing the threat of violence. The emphasis placed by that Court is on protecting the public rather than on punishing a person for his previous violent behaviour at sports events. (53)
59.      Second, in the decision in Seražin v. Croatia, (54) the European Court of Human Rights
referred to its case-law concerning the administrative procedure for immediate withdrawal
or temporary suspension of a driving licence. (55) That analogy also appears to me to be relevant in the present case. The European Court of Human Rights held that each of those measures constitutes ‘a preventive measure for the safety of road-users’ (56) not presupposing any investigation or finding of guilt (57) and not a ‘criminal charge’ within the meaning of Article 6 ECHR or Article 4 of Protocol No 7.
60.      I therefore observe two characteristics in the case-law of the European Court of Human Rights which are shared by the ban at issue in the main proceedings. First, the fact that that measure can be decided independently of any criminal proceedings. Second, it is taken in order rapidly to meet a general safety requirement and for a limited period of time.
61.      According to the same logic based on the public interest, the Court’s case-law on the temporary exclusion of economic operators in the context of the common agricultural policy (58) also appears to me to provide an interesting point of comparison.
62.      Moreover, the Court has held more generally that the fact that the measure at issue is aimed not at the general public, but a particular category of addressees who, because they pursue an activity specifically regulated by EU law,
must satisfy the conditions required by that law, may tend to indicate that that measure does not have a punitive purpose and thus help to establish that that measure is not of a criminal nature, provided that the measure confines itself to depriving its addressee of certain specific prerogatives which have been conferred on that addressee by EU law, on the ground that the competent administrative authority has found that the conditions for granting those prerogatives were no longer satisfied. (59)
63.      In the present case, that is the purpose both of the ban at issue on
retaking the skill test and on obtaining a licence for a year and of the supplementary decision, namely the annulment of the results of the skill test.
64.      Finally, if, however, the Court were to consider it necessary to examine the third of the Engel criteria, (60) it should be noted that the sole effect of the ban at issue imposed by the Agency under ARA.GEN.355(e) is to deprive A of the prospect of obtaining his licence for a limited period of time. (61) Therefore, in my view, that ban does not have a high degree of severity.
65.      Accordingly, I suggest that the Court should hold, consistent with the case-law of the European Court of Human Rights, (62) that the ban at issue is not a measure of a criminal nature within the meaning of its case-law, in so far as it aims to combat irregularities committed during the acquisition of licences which seriously compromise aviation safety. Ensuring that safety (63) for the licence applicant and for all operatives in that field justifies requiring a high degree of probity and trustworthiness from the applicant. (64) The ban imposed in the event of transgression of those standards appears to me to constitute a specific administrative instrument which forms an integral part of the system for granting and renewing licences designed to avert major risks in the airspace.
66.      Although, in my view, that ban does not constitute a penalty and is not of a criminal nature, I propose that the Court, in furtherance of
the analysis based on the decision in Seražin v. Croatia, should extend its case-law according to which a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis. (65) Since the ban at issue prohibits the exercise of a right, the question arises whether, in the light of the general principle of legal certainty, ARA.GEN.355(e) gives to that ban a sufficient legal basis, (66) when Article 11b(6) of Regulation No 1178/2011 states that the tasks referred to in paragraph 5, including that of taking ‘enforcement measures’, are to be carried out by the personnel authorised by the competent authority in compliance with the legal provisions of the relevant Member State.
C.      The degree of precision required for the application of ARA.GEN.355(e)
67.      In view of the wide variety of situations
in which non-compliance may arise, (67) it would be consistent, at first sight, without referring to national provisions, for ARA.GEN.355(e) to give to the competent authority complete discretion in choosing the measures necessary to prevent the continuation of the non-compliance ‘with the applicable requirements by a person [not holding a licence] subject to the requirements laid down in Regulation [No 216/2008] and its Implementing Rules’. Where the person holds a licence, non-compliance is easier to deal with, which is why ARA.FCL.250 is very precise.
68.      I therefore agree with the opinions stating that account must be taken of the specific characteristics of
civil aviation safety and the diversity of situations to be covered by Regulation No 1178/2011. The technical nature of the issues to be dealt with and the role of the national authorities must also be noted, as also observed by the European Court of Human Rights. (68)
69.      However, with regard to the role of national authorities in a similar field, namely road safety, the European Court of Human Rights
referred, in its case-law cited in point 59 of the present Opinion, to measures provided for in national law. (69) It follows that those are not general provisions.
70.      The following issue concerning the degree of precision of ARA.GEN.355(e) must therefore be examined: where an administrative measure is imposed which temporarily prohibits or excludes a person from benefiting from a right, does ARA.GEN.355(e), in so far as it provides that ‘the competent authority that identified the non-compliance shall take any enforcement measures necessary to prevent the continuation of that non-compliance’, satisfy the requirements of foreseeability and
legal certainty in a State governed by the rule of law?
71.      That the ban at issue is, in fact, analogous to that provided for in the case of a theoretical knowledge test does not guarantee, in the absence of an express provision, that an identical decision should be taken. Consequently, in view of the limited scope of ARA.FCL.300(f) and the wording of the relevant provisions of Regulation No 1178/2011, (70) an application by analogy is not, in my view, possible.
72.      As regards the context, I note that, since the entry into force of Regulation 2018/1139, (71) ARA.GEN.355(e) has not been amended. Moreover, to my knowledge, no new provision relating to cheating or fraud has been introduced.
73.      However, according to the Court’s settled case-law, the principle of legal certainty requires, on the one hand, that the rules of law be clear and precise and, on the other, that their application be foreseeable for those subject to the law, in particular, where they may have adverse consequences. That principle requires, inter alia, that legislation must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly. (72)
74.      That said, it should be noted that some discretion exists in respect of the principle of legal certainty under certain conditions admitted by the Court where an abstract rule is adopted by the EU legislature. (73) In the present case, it is common ground that all the specific assumption of non-compliance cannot be determined in advance by the EU legislature. However, the scope and manner of exercise of the discretion conferred by ARA.GEN.355(e) on the authorities responsible for implementing it must be defined with sufficient clarity, in particular in the case of documentary fraud for the purpose of obtaining a licence, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. (74) However, the fifth paragraph of Article 6 of the Law on
Aviation is not precise in that regard.
75.      Consequently, when A produced a falsified flight logbook, he was perfectly aware, in view of the prerogatives which he intends to exercise and the fact that he was informed by the examiner subject to that requirement under FCL.1030, (75) that he was infringing the regulations governing eligibility for a private pilot licence. (76) However, as the applicable European and national provisions stand, he cannot know precisely what the Agency’s decision might be, as is the case where criminal proceedings may be conducted by judicial authorities. (77)
76.      Therefore, in answer to the first question referred by the referring court, I propose that the Court should hold that precise national provisions must be adopted in order to clarify the nature and duration of the measure taken by the administration against an applicant for a licence in the case of non-compliance referred to in ARA.GEN.355(e), such as the production of a falsified flight logbook. In that regard, I note that certain Member States (78) have implemented EASA’s recommendation in its document entitled ‘Acceptable Means of Compliance. Part FCL’ cited by the referring court. (79)
D.      Application of Article 52(1) of the Charter
77.      This provision is referred to in the third question for a preliminary ruling in a particular context. I note that A claims that the damage he has suffered on account of the ban at issue imposed in Latvia (80) constitutes a restriction on his freedom to choose an occupation enshrined in Article 15 of the Charter, because he was unable to exercise his activity as a private pilot or instructor/examiner. First, as stated by the Commission, the Latvian Government and the Ministry of Transport, according to FCL010, ‘private pilot’ means a pilot who holds a licence which prohibits the piloting of aircraft in operations for which remuneration is given, with the exclusion of instruction or examination activities, as established in this Part’. That private pilots are not remunerated is corroborated by FCL205.A. (81) Secondly, as the Ministry of Transport highlighted at the hearing, flight instruction activity for the purpose of issuing private pilot licences is subject to a special qualification procedure (82) laid down in FCL915.FI, which is contained in Annex I, Subpart J, Section 2, of Regulation No 1178/2011. It is distinct from the private pilot licence, which justifies, in my view, the expression ‘with the exclusion of’ employed in FCL010. Consequently, I consider there to be no need to answer the third question referred for a preliminary ruling.
78.      Furthermore, since the present case concerns fraud acknowledged by A, although Regulation No 1178/2011 does not contain any provisions on a penalty for cheating by an applicant for a private pilot licence,
it seems appropriate to point out that it follows from the general principle of law according to which individuals cannot rely on EU law
for abusive or fraudulent ends (83) that a Member State must refuse, even in the absence of provisions of national law providing for such a refusal, to grant the benefit of the provisions of EU law where they are relied upon by a person not with a view to achieving the objectives of those provisions, but with the aim of benefiting from an advantage granted to that person by EU law when the objective conditions required for obtaining the advantage sought, prescribed by EU law, are met only formally. (84)
79.      Consequently, in respect of the granting of
a private pilot licence, although the competent authority of a Member State can refuse to give effect to the production of a flight logbook which has been falsified for the purpose of taking the skill test, on the basis of an abuse of right, it cannot, in the absence of precise national legislation analogous to that provided for in ARA.FCL.300(f), justify that refusal being supplemented by a ban on retaking such a test and on obtaining a private pilot licence for a period of one year.
V.      Conclusion
80.      In the light of all the foregoing considerations, I propose that the Court answer the questions referred by the Augstākā tiesa (Senāts) (Supreme Court, Latvia) as follows:
Where falsification of a flight logbook is discovered before a private pilot licence is issued, point ARA.GEN.355(e), contained in Annex VI to 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, as amended by Commission Regulation (EU) 2016/539 of 6 April 2016,
must be interpreted as meaning that
it does not empower the competent authority to impose on an applicant for a private pilot licence a ban analogous to that provided for in point ARA.FCL.300(f), contained in Annex VI to Regulation No 1178/2011, as amended, without that ban being expressly provided for in the national legislation. It is for each Member State to determine the appropriate measures with sufficient clarity.
1      Original language: French.
2      Commission Regulation 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 2011 L 311, p. 1), as amended by Commission Regulation (EU) 2016/539 of 6 April 2016 (OJ 2016 L 91, p. 1), ‘Regulation No 1178/2011’.
3      ‘The Charter’.
4      Regulation 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/EC (OJ 2008 L 79, p. 1, as amended by Commission Regulation (EU) 2016/4 of 5 January 2016 (OJ 2016 L 3, p. 1) (‘Regulation No 216/2008’). From 11 September 2018, Regulation No 216/2008 was replaced by 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 2018 L 212, p. 1) (see Article 139).
5      United Nations Treaty Series, Vol. 15, No 102, p. 295; ‘the Chicago Convention’.
6      See, concerning the relationship with the Chicago Convention,
recital 3 of Regulation No 216/2008.
7      ‘FCL’
stands for ‘Flight Crew License’ in English.
See Article 2(1) of Regulation No 1178/2011.
8      ‘PPL’ stands for ‘private pilot licence’ in English.
9      See definition given in point FCL.010, contained in Annex I, Subpart A of Regulation No 1178/2011, entitled; [d]efinitions’ (‘point FCL.010’): ‘“Pilot-in-Command – PIC”
means the pilot designated as being in command and charged with the safe conduct of the flight.’
10      That annex corresponds to the ‘Part-ARA’ for ‘Authority Requirements for Aircrew’.
11      ‘GEN’, stands for ‘General’ in English.
12      ‘Point ARA.GEN.355’.
13      ‘Point ARA.FCL.300’.
14      Latvijas Vēstnesis, No 123, 1994.
15      PPL(A)
stands for ‘private pilot licence aeroplanes’ in English, (see point FCL.205.A et seq., contained in Annex I, Subpart C, Section 2, of Regulation No 1178/2011). Hereinafter referred to as a ‘private pilot license’.
16      According to point FCL.010, ‘“Solo flight time” means flight time during which a student pilot is the sole occupant of an aircraft’.
17      The Ministry of Transport also lays emphasis on the conduct of A, who has falsified documents and knowingly submitted false information, does not cooperate with the supervisory authority, evades investigation and does not comply with the instructions of that authority.
18      The referring court refers to the judgment of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 321 and the case-law cited).
19      The referring court refers to the document entitled ‘Acceptable Means of Compliance. Part FCL’. It may be consulted, in English, at the following internet address: https://www.easa.europa.eu/en/document-library/easy-access-rules/online-publications/easy-access-rules-aircrew-regulation-eu-no?page= 24&kw=LAPL#_Toc256000674.
20      See Article 7(2) of Regulation No 216/2008 and Annex III thereto laying down the essential requirements for pilot licensing referred to in that article. See also recital 7 of that regulation, regarding the conformity of the requirements laid down by the European Union with standards and recommended practices set by the Chicago Convention.
21      See footnote 7
to
this Opinion.
22      An identical period is provided for in the American legislation. See Article 61.37 of the Code of Federal Regulations, which is contained in Title 14 concerning the Federal Aviation Administration, available at the following internet address: https://www.ecfr.gov/current/title-14/chapter-I/subchapter-D/part-61/subpart-A/section-61.37. See, also, in the Australian legislation, Article 298A, paragraph 5(a) and (b), of the Civil Aviation Regulations 1988, available at the following internet address: https://www.legislation.gov.au/F1997B00935/latest/text.
23      See point 38 of this Opinion.
24      ‘Point ARA.FCL.250’.
25      See ARA.GEN.355(a) and (b) on non-compliance with the applicable requirements by a person holding a licence.
26      Point ARA.GEN.355(b)(2)
states that, ‘when such finding is raised, the competent authority shall carry out an investigation. If the finding is confirmed, it shall: … take any further enforcement measures necessary to prevent the continuation of the non-compliance’.
27      That term is used in Article 68 of Regulation No 216/2008. In the English-language version of that regulation, the expression used is ‘penalties for infringement’. The term ‘infringement’ is also used in Article 10(4) of Regulation No 216/2008 which provides for the exchange of information between the Commission, EASA and the Member States. That article has been replaced by Article 62(9) of Regulation 2018/1139, since 11 September 2018. It should be added that, in other contexts, the term ‘penalty’ may also cover an administrative decision.
28      The referring court stated that the classification of the penalty as punitive had been upheld on appeal in the judgment challenged by the Ministry of Transport. See point 24 of the present
Opinion.
29      (ECtHR).
30      See judgment of the ECtHR of 8 June 1976, Engel and Others v. the Netherlands (CE:ECHR:1976:0608JUD000510071, § 82).
31      OJ 2007 C 303, p. 17.
32      Signed at Rome on 4 November 1950 (ECHR). See judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, paragraphs 53 and 54).
33      See, in particular, on the principles applicable, judgment of 29 July 2024, Belgian Association of Tax Lawyers and Others (C‑623/22, EU:C:2024:639, paragraphs 38 to 45 and the case-law cited), and, on their application to a judgment, judgment of 20 December 2017, Vaditrans (C‑102/16, EU:C:2017:1012, paragraphs 55 to 58). See, also, as regards general considerations on the principle of legality contained in Article 7(1) ECHR and in Article 49(1) of the Charter, Opinion of Advocate General Spielmann in Alchaster II (C‑743/24, EU:C:2025:88, paragraphs 47 and 48, in particular on the prohibition of analogy, and paragraphs 52 and 53).
34      Emphasis added.
35      It is strictly equivalent in the Spanish-, German-, Lithuanian- or Polish-language versions, for example, which I was able to check. The Latvian Government and the Ministry of Transport have made submissions to the same effect.
36      See, in that regard, paragraph 5(f) of Article 11b of Regulation No 1178/2011, which provides that personnel authorised by the competent authority to carry out certification and/or oversight tasks will be empowered to take or initiate ‘enforcement measures’ as appropriate. See also, by way of comparison with the American regulations, Order 2150.3C of the Federal Aviation Administration, Chapter 9. point 6(g), paragraph 6 (version of September 2018 available at the following internet address: https://www.faa.gov/documentLibrary/media/Order/FAA_Order_2150.3C_with_CHG_1.pdf), which contains the expression ‘corrective action’, the definition of which corresponds to corrective measures [see Chapter 5 5, point 1 and point 4(d)] and not penalties as also referred to in point 4 of that Chapter 9, since they are measures taken quickly in order to prevent other infringements of the legislation.
37      CE:ECHR:2018:1009DEC001912015;
‘the decision in
Seražin v. Croatia’.
38      Signed in Strasbourg on 22 November 1984; ‘Protocol No 7’.
39      See the decision in
Seražin v. Croatia (§§ 62 to 65).
40      See judgments of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 26 and the case-law cited), and of 1 August 2025, BAJI Trans (C‑544/23, ‘the
judgment in BAJI Trans’, EU:C:2025:614, paragraph 63 and the case-law cited). See also the decision in
Seražin v. Croatia (§ 65), in which the ECtHR examined the ‘offence or measure in question’.
41      See the judgment in
BAJI Trans (paragraph 64).
42      It must be distinguished from an offence classified as ‘criminal’
which justified parallel proceedings. It is apparent from the decision at issue (paragraph 6) sent to the Court that criminal proceedings had been started
on 22 February 2018 pursuant to Article 275(2) of the Krimināllikums (Criminal Code). As the Ministry of Transport stated
in its written observations
reiterated at the hearing, the Public Prosecutor of Riga (Latvia),
by decision of 8 October 2020, found that A,
by using a falsified logbook
conferring the right to obtain a private pilot licence, committed the offence provided for in Article 275(1) of the Criminal Code.
A confirmed that he had received a criminal conviction.
43      See, in particular, the judgment in
BAJI Trans (paragraph 66). See, also, the decision in Seražin v. Croatia (§ 65) stating that
the
second and third criteria are alternative and not necessarily cumulative, and that
that does not, however,
exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge.
44      That term
seems to me to have been understood as referring to the deterrent effect
for other persons tempted to commit offences. See point 113
of the Opinion of
Advocate General Campos Sánchez-Bordona in
Menci (C‑524/15, EU:C:2017:667) referred to in the judgment of 20 March 2018 in
Menci (C‑524/15, EU:C:2018:197, paragraph 31).
45      See the judgment in
BAJI Trans (paragraph 67 and the case-law cited).
46      See the decision in
Seražin v. Croatia (§ 82).
47      See § 82 of the
decision in
Seražin v. Croatia: ‘the measure sought and applied in respect of the applicant was chiefly preventive in nature in the sense that it aimed at removing the possibility of violent behaviour for the benefit of public safety’
See also, Report of the 54th
Meeting of the
European Committee on Legal Cooperation
of the Council of Europe
which preceded the adoption by the Committee of Ministers of
Recommendation No (91)1 on administrative sanctions (p. 57).
48      See, to that effect, opinion of the British judge
appearing in the confirmed judgment cited in the decision in
Seražin v. Croatia (§§ 52 and 53).
49      See point 65 of this Opinion. In that regard, a comparison can also be drawn,
in respect of a professional ban, with the judgment of the ECtHR of 4 June 2019 in
Rola v. Slovenia (CE:ECHR:2019:0604JUD001209614, §§ 60 to 66), relating to the revocation of the liquidator’s licence
in insolvency proceedings, in that it is aimed at ensuring public confidence
in a profession possessing special status. That measure provided for in a law on financial transactions, imposed completely separately from the ordinary sentencing procedure was
regarded as not being a penalty within the autonomous meaning of Article 7
ECHR.
50      The obligation on the person concerned is to report to a police station when the relevant sports competition is taking place in order to inform the police of his or her whereabouts during the event and the two hours after it ends. See the decision in
Seražin v. Croatia (§ 76).
51      See Article 4 of Protocol No 7.
52      See the decision in
Seražin v. Croatia (§§ 62, 64, 88 and 91).
53      See the decision in
Seražin v. Croatia (§§70, 79 and 82).
54      See the decision in
Seražin v. Croatia (in particular § 82).
55      See judgment of 28 October 1999, Escoubet v. Belgium (CE:ECHR:1999:1028JUD002678095);
‘the judgment in
Escoubet v. Belgium’, and decision of 14 December 1999, Mulot v. France (CE:ECHR:1999:1214DEC003721197);
‘the decision in Mulot v. France’, on the measures taken by the public prosecutor, in the first case, and by the prefect, in the second case, on the basis of the finding
by the police services
of an infringement of the provisions of the
highway code.
56      In the judgment in
Escoubet v. Belgium (§ 37), referred to in the decision in
Seražin v. Croatia (§ 82), the ECtHR
observes, as regards the nature of the measure, that the national legislation at issue
‘does not presuppose any investigation or finding of guilt and that its application is totally independent of any criminal proceedings which may subsequently be brought. The immediate withdrawal of a driving licence appears to be a preventive measure for the safety of road-users, designed to take a driver who is potentially dangerous to other road-users temporarily off the roads. It should be compared with the procedure of issuing a licence, which is undoubtedly an administrative procedure and is aimed at ensuring that a driver is fit and qualified to drive on the public highway. The immediate withdrawal of a driving licence is a precautionary measure; the fact that it is an emergency measure justifies its being applied immediately and there is nothing to indicate that its purpose is punitive. Withdrawal of a driving licence is distinguishable from disqualification from driving, a measure ordered by the criminal courts at the end of criminal proceedings.
In that situation, the criminal court assesses and classifies the facts constituting the offence which may give rise to withdrawal of a driving licence and imposes disqualification for a period it deems appropriate, as a principal or secondary penalty (judgment in
Malige v. France
of 23 September 1998, [CE:ECHR:1998:0923JUD002781295], § 38)’.
57      See footnote 56
to this
Opinion
and decision in Mulot v. France (§ 2). Regarding the decision in
Seražin v. Croatia, see §§78 and 81.
58      See judgment of 5 June 2012, Bonda (C‑489/10, EU:C:2012:319, paragraph 40).
59      See the judgment in
BAJI Trans (paragraph 69 and the case-law cited).
60      See footnote 43
to this Opinion.
61      See, by analogy, judgment of 5 June 2012, Bonda (C‑489/10, EU:C:2012:319, paragraph 43). See, with regard to the case-law of the ECtHR, point 60 of this Opinion and judgment of the ECtHR
of 4 June 2019, Rola v. Slovenia (CE:ECHR:2019:0604JUD001209614, § 66 relating to a measure of a permanent nature which does not prevent the addressee from practising other professions.
62      See points 58 and
59 of this Opinion.
63      See, with regard to that objective, Article 2(1) of Regulation No 216/2008. Also, point 1.d.1 of Annex III to that regulation
provides that ‘a pilot must acquire and maintain the practical skills as appropriate to exercise his/her functions on the aircraft. Such skills must be proportionate to the risks associated to the type of activity’. See, in the case of solo flights, point 25 of this Opinion.
64      According to point FCL.010, the term
‘airmanship’ means ‘the consistent use of good judgement and well-developed knowledge, skills and attitudes to accomplish flight objectives’. To be compared with
point 1.a.1 of Annex III to Regulation No 216/2008.
65      See, to that effect, judgment of 28 October 2010, SGS Belgium and Others (C‑367/09, EU:C:2010:648, paragraph 61 and the case-law cited).
66      I note that the prevention measure at issue
in the judgment in
Escoubet v. Belgium
and in the decisions in
Mulot v. France
and
in Seražin v. Croatia
was
expressly provided for by law.
67      In that regard, see recital 11
of Regulation No 216/2008 and, in practice, certain circumstances based on the case in the main proceedings (see points 21 and 25 of this Opinion) may be noted: lack of authorisation by the training organisation, falsifications of the flight logbook
of various kinds, occurrence of the training in more than one Member State (for example, training activities in a Member State other than
the Member State of certification, persons or organisations of more than one Member State involved in the training or
verification). See, also, circumstances subsequent to the
licence application
stated in paragraph 6.1 of the order for reference.
68      See, to that effect, judgment of 16 April 2024, Huci v. Romania (CE:ECHR:2024:0416JUD005500920, § 54). I also note, following my searches of the legislation of certain Member States (Federal Republic of Germany, Ireland, French Republic, Hungary, Kingdom of the Netherlands, Republic of Poland
and Republic of Slovenia) or internationally (United Kingdom, Australia
and United States), that, with the exception of criminal provisions, the provisions adopted are no more precise
beyond the case of fraud in a theoretical knowledge examination
and after obtaining a licence.
69      See also footnote 66
to
this
Opinion.
70      See points 38 to
43 of this Opinion.
71      See footnote 4
to this Opinion.
72      See judgments of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 319 and the case-law cited), and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package) (C‑541/20 to
C‑555/20, EU:C:2024:818, paragraph 158 and the case-law cited). See, regarding the case-law of the ECtHR, on
the fundamental function of the principle of legal certainty in interpreting the ECHR, Opinion of Advocate General Spielmann in
Associació Catalana de Víctimes d’Organitzacions Terroristes (ACVOT) (C‑666/24, EU:C:2025:891, footnote 65).
73      See judgments of 16 February
2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraphs 320 and 321 and the case-law cited), and of 4 October 2024,
Lithuania and Others v Parliament and Council (Mobility package) (C‑541/20 to
C‑555/20, EU:C:2024:818, paragraphs 159 to 161 and the case-law cited).
74      See, for a recent reminder of that objective in those terms, judgment of 4 October 2024,
Lithuania and Others v Parliament and Council (Mobility package) (C‑541/20 to
C‑555/20, EU:C:2024:818, paragraph 161 and the case-law cited).
75      FCL.1030 is contained in Annex I, Subpart K, to Regulation No 1178/2011, on
‘examiners’, Section I establishing ‘common requirements’.
76      Account should be taken of the area which the law at issue is deemed to cover
and of the number and status
of the persons to whom it is addressed.
77      See, for example, Australian application form for a pilot license, available at the following internet address:
https://www.casa.gov.au/application-pilot-licence-australian-civil-trained (point 12, last point). See, also, information provided by training organisations, inter alia, in Canada (in particular, Admission Handbook of the Sea Land Air Flight Centre, available at the following internet address:
https://www.sealandair.ca/pdf/Admission_Handbook.pdf (point 7, at p. 7, and points 3, 4 and 6, at p. 14).
78      See, for example, Article 22
of Chapter 4 of the luftfartslagen (Law on Aviation of
3 June 2010 (SFS 2010, No 500)), to which A alludes at the hearing. See, also Spanish and Italian legislation
which I have been able to access.
79      See point 30 of this Opinion.
80      That is not the case in Lithuania. The referring court states that the Ministry of Transport pointed out that A also infringed the temporary ban imposed
by the Agency
and continued to fly outside the territory of Latvia
in order to obtain a private pilot licence in Lithuania.
81      FCL205.A, inserted in Section 2, on
‘specific requirements
for the PPL aeroplanes – PPL(A)’, of Annex I, Subpart C, to Regulation No 1178/2011, states, in (a), that
‘the privileges of the holders of a PPL(A) are to act without remuneration as PIC or co-pilots of aeroplanes …
engaged in non-commercial operations’ (see footnote 9
to this Opinion).
82      See point 1.i.2. of Annex III to Regulation No 216/2008.
83      See judgment of 28 October 2020, Kreis Heinsberg (C‑112/19, EU:C:2020:864, paragraphs 45 and 46 and the case-law cited).
84      See, by analogy, judgment of 30 October 2025, Mercedes-Benz Bank and Volkswagen Bank (C‑143/23, EU:C:2025:837, paragraph 80).