Writing laws for the citizens or for the courts?

EASA, the European Aviation Safety Agency, organised two seminars at the end of April to explain the background to the new draft rules on operations, licensing and air traffic systems. The Agency intends to publish these rules in the next few weeks. It wanted to inform the public about the nature of the documents, as they represent a big change in the way aviation rules have been structured.

EASA officers wanted to be reassuring and indicated that, in practice, operators would hardly notice the changes as the obligations remain the same. The Agency has only reorganised the way to present and write the legislation to improve its quality and integrate rules in the EU legal system. According to EASA, everything that is today in the JARs is in the new EASA draft rules but in different places.

Legally speaking, the Agency might be right. EASA has applied to aviation the same "legislative style" as the EU applies to any other subject like taxes and veterinary products?. Is this absolutely necessary? This new approach to legislation in the aviation field goes against a tradition of technically oriented regulations based on experience and expertise with the involvement of all stakeholders. The result might not have the nicest legal structure, but allowed the users to apply it immediately. By changing the way rules are presented and written, the Agency risks creating a big gap in understanding between the legislator and the citizen.

The Agency's concern with the old JAR rules is that, should there be a problem, the Courts need good legal structure. This demonstrates a tendency towards the judicialisation of society. However, there were few Licensing and OPS regulations cases and these were often settled out of Court. When a judge needed to decide, experts were consulted.

Today EASA seeks to invert the situation. The rules are written for the small number of occasions in which things go wrong and go to the Courts, while the people using the rules everyday will need to hire legal experts to know what their legal obligations are.

In its publication "Better Regulation - simply explained," the Commission explains that Regulation is a tool for delivering policies and meeting citizens' expectations. It also says that the European Institutions should aim at making the proposals for law more understandable and more accessible. Has EASA really tried to meet these objectives this time?