Case T‑102/13

Heli-Flight GmbH & Co. KG

v

European Aviation Safety Agency (EASA)

‛Civil aviation — Application for approval of flight conditions for a Robinson R66 helicopter — Rejection by EASA — Actions for annulment — Scope of review by the Board of Appeal — Scope of review by the General Court — Actions for failure to act — Non-contractual liability’

Summary — Judgment of the General Court (Eighth Chamber), 11 December 2014

Transport — Air transport — Common rules for the operation of air services in the EU — Procedure for approving flight conditions — Verification by EASA of an aircraft’s capability for safe flight — Discretion as to the manner of review — No obligation to carry out inspections or tests

Transport — Air transport — Common rules for the operation of air services in the EU — Procedure for approving flight conditions — Verification by EASA of an aircraft’s capability for safe flight — Account taken of concerns expressed in the context of a certification procedure — Lawfulness — Irrelevant that approval issued for another aircraft with similar characteristics — Type-certificate issued by a non-member State not binding

EU agencies — European Aviation Safety Agency (EASA) — Appeals procedure — Action before the EU judicature — No jurisdiction of the EU judicature — Review of the legality of decisions of the Board of Appeal — Procedure designed to ensure compliance with the right to be heard

It is clear from an analysis of recital 26 and Articles 49 and 50(2) of Regulation No 216/2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (EASA), and repealing Directive 91/670/EEC, Regulation No 1592/2002 and Directive 2004/36, and of Article 41(1) of the said Regulation No 1592/2002, in terms of both their wording and their purpose, namely both to enable the Board of Appeal when required to hear an application that has been refused by the other units of EASA and, also, where the Board upholds that refusal, to clarify the factual and legal grounds leading to it so that the European Union judicature is in a position to review the legality of the refusal decision, that, just as there is continuity in terms of functions between the different examining units of OHIM and its boards of appeal, so there is continuity in terms of functions between the different examining units for EASA and its Board of Appeal. Moreover, EASA’s decisional processes are specifically designed to ensure that the right to be heard, as guaranteed under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, is complied with. Only the final decision, in other words that of the Board of Appeal, may be referred to the General Court and, beforehand, the Board of Appeal collects written observations from the natural or legal person concerned as well as oral observations at a hearing. (see paras 27, 45, 46)

See the text of the decision. (see para. 41)

With regard to the approval by EASA of flight conditions, pursuant to point 21A.710(c) of the Annex to Regulation No 1702/2003 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, EASA must be satisfied prior to approving flight conditions that the aircraft is capable of safe flight under the specified conditions and restrictions. EASA is therefore entitled to base its decision on concerns raised in the context of a type-certificate procedure if they are such as to affect its capability for safe flight. Concerns that constitute a barrier to obtaining a type-certificate are not necessarily critical with regard to the capability of the aircraft for safe flight or, therefore, to approval of flight conditions. Moreover, the procedure for approval of flight conditions presupposes, by definition, that there is no valid certificate of airworthiness. As the issue of approval of flight conditions is, by its nature, specific to each aircraft, the fact that another aircraft, said to have similar characteristics to the aircraft that is the subject of the application for approval of flight conditions, has been granted a type-certificate cannot have any effect on the lawfulness of the EASA decision. Similarly, EASA, which, as stated in Article 2(1) of Regulation No 216/2008, as amended by Regulation No 1108/2009, must establish and maintain a high uniform level of civil aviation in Europe, is not bound, when dealing with the safety rules it wants to prevail in relation to aircraft belonging to natural or legal persons in EU territory, by any less stringent requirements used by bodies in non-member States responsible for regulating air safety, such as the American Federal Aviation Administration (FAA). International conventions, in particular the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 and ratified by all EU Member States, do not preclude Member States from adopting safety rules relating to their own aircraft that are stricter than those applied by other States Parties to that convention, such as the United States of America. A type-certificate issued by the FAA cannot therefore be held to be binding on EASA. (see paras 69, 93, 95, 96)

As regards the approval of flight conditions by EASA, a reading of point 21A.710(c) of the Annex to Regulation No 1702/2003 shows that EASA does not have a mandatory duty to exercise its powers but that it has discretion in relation to a complex technical question, namely determining whether or not the aircraft is capable of safe flight. The words ‘shall be issued’ in the wording of that provision relate not to approvals of flight conditions but to permits to fly, where, it is recalled, there is a presupposition that flight conditions have previously been approved. Moreover, the assumed duty on the part of the competent authority implied by the words in question arises only once the competent authority has held that the aircraft concerned is capable of safe flight for the purposes defined at that time, which means that it is simply the consequence of the positive assessment made by the competent authority. Furthermore, complex technical assessments are subject to limited review by the EU judicature, which means that the latter verifies that procedural rules have been complied with, that the facts on which the contested choice is based have been accurately stated and that there has been no manifest error of assessment of those facts or misuse of powers. Since assessment as to whether an aircraft is capable of safe flight constitutes a complex technical assessment, the level of judicial review applicable to it must be the limited review of the EU judicature. The wording of point 21A.710(c) of the Annex to Regulation No 1702/2003, which does not specify what methods or criteria EASA must adopt in order to be satisfied that the aircraft is capable of safe flight confirms that EASA has a broad discretion. What the EU judicature must review is therefore the existence of any manifest errors of assessment. (see paras 74, 75, 89, 90)

With regard to the approval by EASA of flight conditions, the discretion afforded by point 21A.710(a) of the Annex to Regulation No 1702/2003 operates in favour either of EASA or of an appropriately approved design organisation in a specific context, namely where there is an issue related to the safety of the design, which is therefore already identified as such at the time the application for approval of flight conditions is filed. The element of discretion implied in such a context by the need to be satisfied that an aircraft is capable of safe flight is reflected by the fact that EASA may make or require the applicant to make any necessary inspections or tests for that purpose. It cannot therefore be maintained that EASA must make or require to be made any necessary inspections or tests, since the actual wording of point 21A.710(c) of the Annex to Regulation No 1702/2003 shows that this is merely a possibility and not an obligation. As long as due mention is made in the grounds for its decision, EASA may therefore rely on any information in its possession that would substantiate its safety assessment of the aircraft in question, for example by drawing on the documentation supplied in support of the flight conditions, and is not bound to make inspections or tests or require them to be made if it considers that it has sufficient information. The fact that EASA has not undertaken any inspections or tests does not therefore in any way constitute a manifest error of assessment. EASA is perfectly entitled not to carry out such checks if it considers itself able to find that the aircraft’s capability for safe flight has not been demonstrated, without the need for such checks. (see paras 77-79, 91)

In the context of the procedure for approving flight conditions by EASA, an applicant whose application for approval of flight conditions is not accompanied by sufficient evidence has no justification for complaining when EASA notes that inadequacy and uses the technical and scientific knowledge in its possession in order to reject the application. In relation to the burden of proof, the mechanism set up for the approval of flight conditions by point 21A.708 (b) and (c) of the Annex to Regulation No 1702/2003 places that burden on an applicant, who is responsible for providing the substantiation that the aircraft is capable of safe flight under the conditions or restrictions’ specified by him/her, among which are the conditions and restrictions put on the flight crew to fly the aircraft and the operating limitation, specific procedures or technical conditions to be met. The proposed flight conditions must be accompanied by documentation and a declaration that the aircraft is capable of safe flight under the conditions referred to above. It is therefore, above all, on the basis of the information provided by an applicant that EASA must determine whether an aircraft is capable of safe flight. Since the provisions allowing approval of flight conditions are by way of derogation from the requirement for a valid certificate of airworthiness, they must be strictly interpreted. (see paras 80-84)

See the text of the decision. (see paras 104-106)

See the text of the decision. (see paras 108, 109, 111)