Court forces decision about EZ Air’s permission to fly to St. Maarten
PHILIPSBURG — The administrative court gave the Ministry of Tourism, Economic Affairs, Transport and Telecommunication (TEATT) four weeks to take a decision about a request from EZ Air for a FACOP (Foreign Air Operator Certificate).
EZ Air, doing business under the name Z Air, applied on August 2, 2023, for a FACOP but so far the ministry has not taken a decision.
The Curacao-based airline, established in 2000 by Captain René Winkel, initiated two lawsuits to settle the matter; one against country St. Maarten and one against the minister of TEATT.
A FACOP would enable the airline to fly to international destinations with a stop in St. Maarten. The court ruled that the St. Maarten Civil Aviation Authority (SMCAA) has the exclusive authority to take a decision about the issuance of a FACOP and that it is possible to appeal a negative decision.
The court ruled against EZ Air’s demand saying that its option to take the matter to court is embedded in sufficient guarantees.
EZ Air repeated its request for a FACOP several times, and the SMCAA kept asking for additional information and documents. According to its attorneys, the SMCAA refuses to grant the FACOP because there is no agreement with the American Federal Aviation Authority (FAA) about the supervisory tasks related to its fleet of planes that are registered in the United States and that are hired based on a dry lease agreement, whereby EZ Air provides the crew and takes care of control over the planes.
The agreement the SMCAA demands is however impossible, according to EZ Air because the Unites States does not make agreements over supervisory tasks with other countries about US-registered planes that are operated by foreign companies and that are used for business outside of the United States. Instead, the FAA says that the regulations that are in place on Curacao apply to the planes. EZ Air’s maintenance program for the planes has been approved by the FAA. This information has been provided to the SMCAA.
In spite of all this, the administrative court declared EZ Air’s demand inadmissible
At the regular Court in First Instance EZ Air had more success. In this lawsuit it demanded that the ministry takes a decision about its request for a FACOP. After repeated requests, the airline stated in a letter dated April 3, 2024, that SMCAA had all necessary information in its possession and demanded the issuance of the FACOP on the same date.
But the ministry did not react, reason for EZ Air to take the matter to court. In this case, the ministry stated that the term for taken a decision had not expired yet but the court did not accept the argument: “A legal term does not apply to a request for a FACOP.” Besides, the court ruling states, the ministry has had more than ten months to take a decision and that therefore the reasonable term for it had expired.
“The defendant has had enough time to take a decision,” the court ruled, adding that postponing a decision any longer would result in disproportionate damages to EZ Air. The court therefore ordered the ministry to take a decision within four weeks after the ruling that is dated July 12.
The court did not provide a further-reaching ruling (such as declaring that the FACOP must be considered to have been issued) because this would interfere with the authorities of the government and the administrative court.
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