The Air-Law team regularly gives a small insight into their accumulated aviation law knowledge in order to inform and enlighten members of the aviation industry about current and relevant topics. Publications can be found in the following trade press journals.

§ 99 LuftVZO and the operation of microlight aircraft with a foreign registration number

It is not uncommon to see aircraft with foreign registration at our airfields. From time to time actually visited and piloted by fellow pilots from abroad.

Far more often, however, these aircraft are based at the airfield or have their regular location at another German airfield and belong to German nationals or are at least owned by persons whose primary residence is in Germany.

In its original version of 1979, the provision of § 99 LuftVZO dealt overall with “registration plates and proof of insurance for foreign aircraft”.

Already in the 1993 version (version of 26.05.1993, in force since 09.06.1993) the two additional paragraphs (2) and (3) are included, which deal additionally with air sports equipment.

Currently, a letter from the Federal Ministry of Transport (BMVI) to the two commissioned associations DAeC and DULV is causing quite a stir. The associations are called upon to ensure that the § 99 para.2 LuftVZO is observed and operators of air sports equipment registered abroad are grounded.

The decision of German, or German-based operators to use a foreign identifier or foreign license can have very different motivations.

Due to the assignment of light aircraft with a take-off weight of up to 450 kg (plus 22.5 kg or, since 2018, plus 25 kg for the rescue device) to Annex I of the European Aviation Regulation (Basic-Regulation VO(EU) 2018/1139), the development, manufacture, maintenance and operation of these devices are assigned to the respective national legislator of the member states. Since 2018, this has also included aircraft with a take-off weight of up to 600 kilograms, if the respective member state has declared by opt-in that it also wishes to be responsible for this. This has been done by the Federal Republic and since the LTF-UL 2019 the ultralight scene is happy to have a construction regulation that in principle also allows the certification of 600 kg ULs.

Not all manufacturers are able to meet the requirements of the German building code. It is not uncommon for this to be due to an excessively high unladen weight. In addition to proving a payload of 200 kilos, the German building code also wants the engine to be guaranteed to operate under full load for 1 hour. Depending on the engine, this results in a maximum empty weight of between 375 and 385 kg. Other verifications are also demanding and costly. For example, the proof of strength during deployment impact while opening the reserve at v(ne) and maximum takeoff weight.

Member States’ building regulations and administrative and approval practices vary widely in this respect. Thus, it can happen that a UL is certified in the neighboring member state and has no prospect of (type) certification in Germany.

Others are in the type certification process and could possibly even be operated with a provisional marketing authorization. However, the VVZ has its own hurdles in store. Typically with the restriction to named pilots, flight operations possible exclusively in the Federal Republic and, for example, a time limit. In this case, too, it then seems less complicated to register the aircraft abroad.

Licensing regulations, the requirements for inspection, maintenance or even the use of special equipment, such as autopilots, also vary greatly in the member states.

Since the Federal Republic of Germany refrains from requiring an entry permit for air sports equipment, which would otherwise be required as a matter of principle, it is very convenient to fly into the territory even with a foreign permit. Whereabouts, excursion or deployment are not recorded.

The Federal Ministry of Transport sees the reason for now very vehemently pointing out the legal requirements in the fact that time and again clearly overloaded air sports equipment appears in the aircraft accident investigation reports of the BFU. And some of them with foreign registration. Since the BFU does not necessarily investigate accidents involving microlight aircraft at all, objective statistics are difficult to compile. Even the Internet database “Aviation-Safety-Network” cannot really provide reliable figures here. According to this database, there have been about 280 incidents or accidents involving ultralight aircraft in Germany over the past 10 years. A foreign license plate number is noted for just under 15 accidents.

The fundamental interest of the German authorities in flight safety in the operation of air sports equipment is to be welcomed. The federations were given exclusive supervision over the development, manufacture, maintenance and licensing in the operation of air sports equipment. The prosecution authority for administrative offenses is the Federal Aviation Authority. For criminal offenses, the respective locally competent public prosecutor’s office.

Since the Luftfahrt-Bundesamt (German Federal Aviation Authority) has unsuccessfully searched for an administrative offense provision to punish a violation of § 99 para. 2 LuftVZO, the opinion there is that it is a criminal offense under § 60 LuftVG. This view is open to attack. The principle of certainty under German criminal law requires a clear and unambiguous threat of punishment for a specific act or omission. § Section 60 LuftVG does not differentiate between a domestic and a foreign license. In principle, a foreigner could also commit the criminal offense if he were to travel entirely without a license.

The foreign-certified air sports equipment typically has a type and airworthiness certificate. But just from abroad. A German citizen, or a person with permanent residence in Germany, is not flying without a “traffic permit” but (only) in violation of § 99 LuftVZO.

In addition, the term “operating” is not automatically synonymous with “piloting” such an aircraft. The operator would be interpreted in application of European law definitions in Germany with the “holder”.

Also, the term “air sports equipment” is not legally defined anywhere. Of course, it would be open to a German citizen to rent such an aircraft from a foreign operator in compliance with the licensing requirements there, and to fly it into Germany. Last but not least, an association or a company would not be a “national”.

The provision and the possible courses of action associated with it in the event of a violation of the same do not appear to be a legislative tour de force. Criminal courts would have to deal with the principle of certainty and the above-mentioned concepts in the event of a corresponding complaint.

But even without criminal courts, things can get uncomfortable for the “operators” of foreign-licensed air sports equipment. The Ministry requests that, if necessary, a take-off or landing ban be issued or that the foreign authority be asked to withdraw the traffic permit. That the latter will be followed seems unlikely. But the dispute about whether a takeoff or landing ban was rightly or wrongly issued can take time. Time in which one is then referred to another means of transport or leisure vehicle if necessary.

However, the fundamentally very liberal handling of the entry and overflight of foreign air sports equipment into and over Germany should not be called into question in the long term. For those cases where it seems possible to obtain a German VVZ or a German traffic permit, this path should be taken quickly. In other cases, constructs are conceivable with which the operation of foreign-registered aircraft in German airspace appears possible even in compliance with German requirements. But with such constructs there is no guarantee for the long term. It is not entirely unlikely that the current discussion will prompt the legislature to consider further modifications to § 99 LuftVZO, the associated penalty provisions and, if necessary, entry and overflight restrictions.

Frank Dörner, 29.01.2022