Thomas, whose charter/management company has had to meet European standards for commercial operators, emphasized the difference between the two categories of operation, varying from materials used in the cabin to qualification and training of cockpit crews and cabin attendants. “For example, in the commercial application, seat cushion foams, upholstery covers and veneers used to cover tables and cabinetry all have to pass burn tests, and glass used for partitions or bulkheads has to be shatter-proof. In the larger aircraft, you have to have ratios of cabin crew to passenger numbers, proper crew seats so the cabin attendants can view all the passengers, and all crew have to be properly trained. A lot of private flying does not meet these qualifications.”

As a result, the illegal operator, with lower overhead and related costs, holds a competitive advantage over the rules-abiding charter provider. “At PrivatAir,” Thomas said, “we have 10 aircraft in our livery, plus we broker flights out of a pool of aircraft from suppliers that we audit. We hold full commercial air operator certifications in Switzerland and Germany under EASA [European Aviation Safety Agency] plus International Air Transport Association Operational Safety Audit [IOSA] approval and approvals from both Wyvern and Argus. Now, all of this costs money — the mere fact of having the commercial certification runs us €2 million a year. We are required to have a quality manager, chief pilot, ground operations manager and other staff positions. Additionally, manuals have to be kept up to date. So we are at a disadvantage to the guy who is renting off the spare time on his private jet.”

A provision in commercial operating regulations among several European countries, including the U.K., that the EBAA believes encourages illegal chartering is runway restrictions. “Whereas you in the United States under Part 135 have an agreement for use of 80% of runway distance subject to risk assessment,” Humphries said, “we over here are required, as commercial operators, to use 60% of the runway for performance.” This provision dates from the late 1950s when jet aircraft were introduced by the airlines and the flight crews of some DC-8s and 707s committed runway overruns. “However,” Humphries continued, “here's the rub: Private operators are not required to observe that restriction, and that may be an incentive to send a charter out under private rules, especially if the aircraft is going into an airport with a shorter strip.”

Another tactic to mask an illegal charter is the short-term lease. “We suspect that there may have been some people engineering short-term aircraft leases to get around the rules,” Humphries said. “They offer the lease and a crew to the customer, they make the flight, and then they terminate the lease. That is technically legal, but not quite within the spirit of the law. We have been urging the authorities to put a stop to this practice.”

Given the lack of oversight, Humphries believes “it is in the best interests of the EBAA to do everything possible to ensure that our members are operating to best practices and within the law. And those EBAA members who are legitimate charter providers are not happy with the people who are undercutting them, those who aren't paying the fees to obtain an AOC and submitting themselves to the requirements and oversight endemic to being a commercial operator — all the overhead you have to bear in this business. So the illegal operator has a competitive advantage.”

He went on to say that “charter brokers are working with us, as well, to ensure they have the necessary controls in place. Avinode, for example, has told us it will find ways to flag its Web listings ‘subject to permit.' And we are working with them on this.”