DG MOVE Guidance for Applying Article 3d(3) of Regulation 833/2014 on Pilots (Exemptions)

La demande a été rejetée par Mobilité et transports.

Dear Mobility and Transport,

On February 28, 2022, EU Council adopted changes to EU Regulation 833/2014 (hereinafter shall be referred to as "Regulation") implementing a flight ban for Russian-controlled aircraft. Being aimed at the Russian political and business elite it banned unrelated individuals who are:
- student pilots, unable to proceed with their flight training to get a license or pursue/maintain the career; or
- flight instructors or other commercially rated pilots, losing jobs and business, being unable to fly in the EU (not in Russia) as a part of their job or self-employment; or
- non-commercial (private/recreational/sport) pilots, unable to use small aircraft as a hobby, for training and for prolongation of their license and rating, or for personal transportation; or
- glider/sailplane pilots (aircraft without engine); or
- drone pilots;
and
- not subject to any individual restrictions (are not designated persons under Council Regulation No 269/2014); and
- not affiliated with Russian business or political elites in any way; and
- residing in the EU Member State permanently and lawfully and paying local taxes for many years; and
- are dual (EU and Russian) citizens.

Indeed, Article 3d of the Regulation introduces a blanket ban against any Russian-controlled aircraft. But it also contains paragraph 3 which clearly defines a possibility for authorization (by way of derogation) for flights for ANY purpose consistent with the objectives of the Regulation (NOT JUST humanitarian flights). The objectives of the sanctions are stated on the official website of the EU Council (https://www.consilium.europa.eu/en/polic...) and in the Consolidated FAQ (section 'General questions', question 6, https://finance.ec.europa.eu/publication...). They include:
- weaken the Kremlin’s ability to finance the war;
- impose clear economic and political costs on Russia’s political elite responsible for the invasion.

It's evident that solely exercising the privileges of a flight crew license or pursuing flight training within the EU airspace by a pilot - resident and citizen of the EU, with no ties to the Kremlin and its accomplices, does not contradict the objectives of the Regulation in any way and, therefore, fully consistent with them. Hence, any flight operated by these pilots within the EU is in principle permittable.

Nevertheless, the existence Article 3d(3) is widely ignored in relation to the aforementioned categories of pilots. There is no official guidance for this specific case and authorities on different levels fail to give any explanation why authorizations may not be considered in these cases despite Article 3d(3 being clearly articulated in the Regulation.

The general lack of transparency and the enormous reluctance of the governmental institutions to have any substantial communication on this matter has generated a steady suspicion that despite Article 3d(3) existing, EASA and the national civil aviation authorities might have been instructed, possibly informally, by the European Commission and agreed to avoid making exemptions to pilots and avoid providing them any legally binding explanation of the reasons.

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents (including but not limited to copies of any correspondence, written communications, operational and administrative conclusions, briefings, opinions, presentations and notes of telephone conversations or meetings) produced by the European Commission or exchanged between the European Commission and other parties (including, but not limited to the national aviation authorities of the Member States and EASA), that :

- contain and/or could be understood or interpreted as direct, indirect, formal, or informal guidance to recognize or prohibit to recognize the flights operated, within the capacity of their flight crew license or student permit, by the categories of pilots specified above, as a subject of an exemption under Article 3d, paragraph (3);
- contain any other opinion, guidance, recommendations, or advice of the European Commission on applying / not applying Article 3d, paragraph (3) to the categories of pilots specified above.

Please note that an email containing a similar request has been sent to DG MOVE on August 18, 2022 at 06:20 CEST to the e-mail: [email address]. Follow-ups were repeatedly sent on September 5 and September 22. These requests were never confirmed to be received or replied to.

Yours faithfully,

Boris Samoylenko

MOVE-ACCES-DOCUMENTS@ec.europa.eu,

Dear Sir or Madam,

We are writing to you concerning your request for access to documents sent
on 19/10/2022 and registered on 20/10/2022 under case number 2022/5972.

Since you have not indicated your postal address, we are not able to start
handling your request. The 15 working days to reply to your request will
start running only when you send us your postal address.

You can send your postal address by replying to this e-mail. If we do not
receive your reply we may close this case.

Please note that you can submit a request for access to Commission
documents via the portal [1]'Request a Commission document', which does
not require you to indicate your postal address.

Why do we need your personal postal address?

Since 1 April 2014, the submission of a postal address became a mandatory
feature when submitting an application for access to Commission documents
via an e-mail. We would like to explain why we need your postal address in
order to register and handle your application for access to documents when
submitted via e-mail:

• Firstly, to obtain legal certainty as regards the date you received
the European Commission reply to your application for public access to
documents. Article 297 of the Treaty on the Functioning of the
European Union (TFEU) states that 'decisions which specify to whom
they are addressed, shall be notified to those to whom they are
addressed and shall take effect upon such notification.' In line with
this provision, if the Commission does not grant full access to the
requested documents, it notifies the reply to the applicant via
registered mail with acknowledgement of receipt or via delivery
service. This requires an indication of a valid postal address by the
applicant;
• Secondly, to apply correctly the [2]Data Protection Regulation (EU)
2018/1725. Knowing whether the applicant is an EU resident (or not) is
necessary for deciding which conditions shall apply for the
transmissions of personal data to applicants for access to documents.
These conditions are not the same for recipients established in the
Union and for recipients in third countries. As the vast majority of
the documents requested contain personal data, the Commission cannot
ensure the correct application of the data protection rules in the
absence of a postal address;
• Thirdly, to apply correctly [3]Regulation (EC) No 1049/2001. Article
4(1)(b) of that Regulation refers to the protection of the privacy and
integrity of the individual and has to be applied in line with the
Data Protection Regulation;
• Fourthly, to protect the interest of other citizens and safeguard the
principle of good administration. The Commission has to treat all
citizens equally by ensuring that the legal framework for public
access to documents is respected. For example, it has to verify
whether Article 6(3) of Regulation (EC) No 1049/2001 is being evaded
by introducing several requests under different identities. Indeed, in
its Ryanair judgment ([4]EU:T:2010:511), the General Court confirmed
that Article 6(3) of Regulation (EC) No 1049/2001 cannot be evaded by
splitting an application into several, seemingly separate, parts. In
addition, the Commission has to make sure that the legal framework is
respected and the right of access to documents is not abused by making
requests under an invented identity.

The considerations above show that the request for and the consequent
processing of the applicant's postal address is not only appropriate, but
also strictly necessary for the performance of a task carried out in the
public interest within the meaning of Article 5(1)(a) of Data Protection
Regulation, namely providing a smooth and effective access to documents.

Yours faithfully,

Directorate-General for Mobility and Transport - Access to Documents
European Commission

References

Visible links
1. https://www.ec.europa.eu/transparency/do...
2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...
4. https://eur-lex.europa.eu/legal-content/...

Boris Samoylenko

Please use the following postal address:

Boris Samoylenko
[ADDRESS REDACTED]
.
[ADDRESS REDACTED]

Mail Delivery System,

2 Attachments

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Dear Mobility and Transport,

Please confirm that postal address provided to you on October 20 is received in good order, and that response to this FOI request will be provided in due time, by November 10.

MOVE-ACCES-DOCUMENTS@ec.europa.eu, Mobilité et transports

1 Attachment

Dear Sir,

 

Thank you for your email.

 

We have not received any communication mentioning your postal address.
Therefore, we are not able to start handling your request.

 

We recall that the 15 working days to reply to your request will start
running only when you send us your postal address.

 

You can send your postal address by replying to this e-mail. If we do not
receive your reply we may close this case.

 

Please note that you can also submit a request for access to Commission
documents via the portal [1]'Request a Commission document', which does
not require you to indicate your postal address.

 

Finally, please also note that you have lodged your application via
a private third-party website, which has no link with any institution of
the European Union. Therefore, the European Commission cannot be held
accountable for any technical issues or problems linked to the use of this
system.

 

Best regards,

 

MOVE ACCES DOCUMENTS TEAM

 
[2]cid:image001.gif@01D7643D.DC7E5B10
European Commission
Directorate-General for Mobility and Transport

Unit MOVE A4

Legal Issues & Enforcement

▪ Postal address: Europese Commissie/Commission européenne, B-1049
Brussel/Bruxelles

▪ Office address: Rue de Mot 28, B-1040 Brussels

▪ Tel. +32 2 299 11 11

E-mail: [3][DG MOVE request email]

 

 

 

Afficher les sections citées

MOVE-ACCES-DOCUMENTS@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your request for access to documents
sent on 19/10/2022 and registered on 09/11/2022 under the case number
2022/5972.

We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 30/11/2022. We will let you know
if we need to extend this time limit for additional 15 working days.

To find more information on how we process your personal data, please see
[1]the privacy statement.

Yours faithfully,

Directorate-General for Mobility and Transport - Access to Documents
European Commission

References

Visible links
1. https://ec.europa.eu/info/principles-and...

MOVE-ACCES-DOCUMENTS@ec.europa.eu, Mobilité et transports

1 Attachment

Dear Sir,

 

As a complement to our previous e-mail, please note the following.

 

You have lodged your application via a private third-party website, which
has no link with any institution of the European Union. Therefore, the
European Commission cannot be held accountable for any technical issues or
problems linked to the use of this system.

 

Please note that the private third party running the AsktheEU.org website
is responsible and accountable for the processing of your personal data
via that website, and not the Commission. For further information on your
rights, please refer to the third party’s privacy policy.

 

We understand that the third party running the AsktheEU.org website
usually publishes the content of applicants’ correspondence with the
Commission on that website. This includes the personal data that you may
have communicated to the Commission (e.g. your private postal address).

 

Similarly, the third party publishes on that website any reply that the
Commission will send to the email address of the applicants generated by
the AsktheEU.org website.

 

If you do not wish that your correspondence with the Commission is
published on a private third-party website such as AsktheEU.org, you can
provide us with an alternative, private e-mail address for further
correspondence. In that case, the Commission will send all future
electronic correspondence addressed to you only to that private address,
and it will use only that private address to reply to your request. You
should still remain responsible to inform the private third-party website
about this change of how you wish to communicate with, and receive a reply
from, the Commission.

 

For information on how we process your personal data visit our page
[1]Privacy statement – access to documents.

 

Yours faithfully,

 

MOVE ACCES DOCUMENTS TEAM

 
[2]cid:image001.gif@01D7643D.DC7E5B10
European Commission
Directorate-General for Mobility and Transport

Unit MOVE A4

Legal Issues & Enforcement

▪ Postal address: Europese Commissie/Commission européenne, B-1049
Brussel/Bruxelles

▪ Office address: Rue de Mot 28, B-1040 Brussels

▪ Tel. +32 2 299 11 11

E-mail: [3][DG MOVE request email]

 

 

From: [DG MOVE request email]
<[email address]>
Sent: Wednesday, November 9, 2022 1:56 PM
To: [FOI #12028 email]
Subject: Case 2022/5972 - Acknowledgement of receipt

 

Dear Sir or Madam,

We hereby acknowledge the receipt of your request for access to documents
sent on 19/10/2022 and registered on 09/11/2022 under the case number
2022/5972.

We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 30/11/2022. We will let you know
if we need to extend this time limit for additional 15 working days.

To find more information on how we process your personal data, please see
[4]the privacy statement.

Yours faithfully,

Directorate-General for Mobility and Transport - Access to Documents
European Commission

References

Visible links
1. https://ec.europa.eu/info/principles-and...
3. mailto:[DG MOVE request email]
4. https://ec.europa.eu/info/principles-and...

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5972, sent on 19/12/2022 and registered on 19/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 18/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

This freedom-of-information request was initiated through the platform https://www.asktheeu.org. Therefore, all of its correspondence is publicly visible. It is likely that anyone finding this case on asktheeu.org might be perplexed by the apparent lack of progress on it. Given that this case might represent a certain public interest, such as to investigative journalists, aviation professionals, or regular individuals considering making the EU their home, it is important that this confusion is addressed and a transparent record of this case is maintained.

Hence, I confirm that the following facts remain fully valid as of today, February 6, 2024.

(1) Neither DG MOVE nor any other department of the European Commission has provided a response to the confirmatory application I filed on December 19, 2022, as clearly visible on this page (https://www.asktheeu.org/en/request/dg_m...). This is despite the deadline of February 8, 2023, as promised by DG MOVE themselves (source: https://www.asktheeu.org/en/request/dg_m...) and multiple reminders from the requester. It has been a year since this application has been ignored.

(2) This remains the case even though a relevant complaint was raised to the European Ombudsman regarding this striking maladministration (case number 2302/2023/OAM, https://www.ombudsman.europa.eu/en/openi...). The deadline of January 15, 2024, as set by the European Ombudsman, has equally been ignored by the European Commission and is now overdue by almost a month.

(3) On December 20, 2023, the General Court of the Court of Justice of the European Union (CJEU) delivered a judgment on case T-233/22 where it dismissed the plea of the applicant, but also clearly stated (and even highlighted in bold in their official press release): "the prohibition at issue does not apply to the applicant. That prohibition refers solely to the economic or financial control of an airplane and not the control exerted by the pilot. The interpretation according to which that prohibition also includes Russian citizens who hold a private pilot license would be manifestly inappropriate in the light of the objective of exerting pressure on the Russian President and his government capable of halting the violations of international law and upholding the territorial integrity of Ukraine".

More information about the case can be found below.

- Official press release: https://curia.europa.eu/jcms/upload/docs...
- Full text of the ruling: https://curia.europa.eu/juris/document/d...
- Abstract: https://curia.europa.eu/juris/document/d...

Conclusions from this judgement important to the matter are:

(3.1) This ultimately proves that all concerns raised in this freedom-of-information request are entirely valid and correct. The Court confirmed that the flight ban applied to pilots is disproportionate, serves no purpose and fundamentally in odds with the Article 3d of Regulation No 833/2014 as amended (Regulation).

(3.2) As the judgements are effective immediately unless stated otherwise (it is not), continued application of the flight ban even for a single day beyond the date of judgment (December 20, 2023) shall be deemed as a violation of the court ruling. Furthermore, it would be an equally blatant violation of the European laws overall, as the decisions of the CJEU have ultimate precedence over any other regulations or interpretations within the EU.

(3.3) Not only that, but the ruling of CJEU also confirms that the flight ban should not have been imposed on pilots in the first place, since the very inception of the Article 3d of the Regulation on February 28, 2022. This clearly implies that all the European national civil aviation authorities (CAAs) that listened to the guidance of the European Commission and EASA essentially held the affected pilots on the ground unlawfully all this time (almost two years).

(3.4) Despite that CJEU judgment is clear, and despite it being almost 2 months since the ruling, the European Commission and EASA seem to be ignoring it, as they have made no visible effort to adjust their guiding documents in any way:
- the guidance of the European Commission published at https://finance.ec.europa.eu/publication... has the latest update date of July 6, 2023;
- the guidance of the EASA published at https://www.easa.europa.eu/en/the-agency... - updated last on August 11, 2022.
The national CAAs are obviously following these guidelines, and thus, continue upholding the flight ban, even though it is now clearly proven to be contradictory to the law.

The visible lack of compliance, shady practices of publishing non-legally binding "guidelines" de facto working as quasi-laws, voluntary intervention into case T-233/22, unwillingness to cooperate and disclose information, and ignoring requests for years, all as exercised by the European Commission, are dangerous indicators that this institution has a strong bias towards not allowing certain categories of people to continue their aviation education, no matter what.

To my deepest disappointment, all of that suggests a concerning state of the rule of law as implemented by certain the European Commission, and highlights how bigoted things could be when it comes to individuals with "wrong" origin, even those who may be nationals of EU member states. The level of trust in this institution is severely undermined, to the point where it would not be entirely unexpected to discover one day that the European Commission is currently expending resources searching for a loophole in the Court's judgment to uphold an illegal discriminatory flight ban at any cost, rather than simply adhering to the law and implementing the ruling.

Boris Samoylenko

This message is published for the visitors of the AskTheEu.org platform, where this freedom-of-information request was initially published, for the purposes of clarification.

After careful consideration, I had to mark this freedom-of-information request as refused for the following reason.

Despite an unacceptable delay that required intervention of the European Ombudsman, the European Commission did eventually provide a reply to my confirmatory application, which I duly confirmed earlier.
The reply can be found on the web-page of my another FOI-request because the European Commission has taken unilateral decision to review both requests jointly: https://www.asktheeu.org/en/request/dg_m...

However, that reply lacks any substance whatsoever, as almost every word of the released documents is redacted, rendering them incomprehensible. Merely formally disclosing some irrelevant papers cannot alone serve sufficient basis to consider this reply satisfactory.

In a broader context, it should be noted that despite some positive changes regarding the flight ban, which were observed thanks exclusively to the Court of Justice of the European Union (CJEU) decision in case T-233/22 dated December 20, 2023—such as EASA finally publishing updated guidelines on March 8, 2024, and national CAAs beginning to comply—we cannot ignore the fact that the practice of applying the flight ban to unrelated individuals based solely on their nationality, deemed inappropriate by the CJEU themselves, not only existed but also persisted for a long two-year period from February 28, 2022, to March 8, 2024. This includes the period after December 20, 2023, when this took place even contrary to the aforementioned CJEU decision. It should also be emphasized that no institution has yet been held accountable for this.

I perceive this and the European Commission's reluctance to cooperate properly on this FOI request as parts of this bigger issue, and therefore will certainly be considering further action at this point.