Confirmation of two-month withdrawal of flight licence for dangerous flight under a bridge by helicopter

Facts

The appellant ([A.] ), a helicopter pilot represented by attorney Philippe Renz, reported to the Federal Office of Civil Aviation (FOCA) on 26 December 2021 that on 24 December 2021 he had twice flown a helicopter under the Rhine Bridge between Sennwald and Ruggell. The second passage under the bridge was filmed by a private individual and published on a Swiss media portal. The FOCA opened administrative proceedings and administrative criminal proceedings.

An inspection report dated 22 January 2022 assessed the manoeuvre as unusual and the safety clearance from the water and the bridge as clearly insufficient. The appellant complained that the report concerned the Haag-Bendern Rhine Bridge, approximately four kilometres away. The FOCA then commissioned a supplement dated 4 April 2022, which classified the two bridges as comparable. The recusal applications against two staff members were dismissed by the General Secretariat of the DETEC; the Federal Administrative Court (proceeding A-3962/2022) confirmed this with final effect by judgment of 1 March 2024.

By order of 26 July 2022, the FOCA withdrew the appellant's flight licence including all authorisations for two months (warning withdrawal, Art. 92 AviA). The Federal Administrative Court (Division I, proceeding A-3993/2022) dismissed the appeal by judgment of 7 April 2025. The appellant lodged a public law appeal with the Federal Supreme Court on 27 May 2025, requesting the annulment of the judgment, a declaration that his flight licence must not be withdrawn, a stay of the proceedings pending the administrative criminal proceedings, and a review of the lawfulness of the appointment of the judge. The Federal Supreme Court dismissed the stay applications. The FOCA requested dismissal, the lower court waived its response, and the DETEC did not comment.

The appellant also invoked new evidence that had arisen after the judgment of the lower court (genuine novas, inadmissible).

Considerations

Admissibility: The Federal Supreme Court affirmed its jurisdiction and the appellant's standing (Art. 82 let. a, 83, 86 para. 1 let. a, 89 para. 1 FSCA). The request for a declaratory ruling was deemed inadmissible, as an action for performance (annulment) aims at the same result (Art. 25 FSCA; BGE 151 II 884). The request to review the appointment of the judge was not admitted for lack of sufficient reasoning (Art. 42 para. 2 FSCA).

New facts and evidence: Genuine novas arising after the contested judgment are inadmissible (Art. 99 para. 1 FSCA). The email of 7 March 2022 was assessed as immaterial.

Jurisdiction: The subject matter was only the administrative proceedings concerning the withdrawal of the licence, not the criminal proceedings. According to the exchange of notes between Switzerland and Liechtenstein of 27 January 2003, the FOCA is also competent on Liechtenstein territory for administrative air police measures. Art. 92 let. a AviA permits measures independently of criminal proceedings; unlike in road traffic law (BGE 119 Ib 158), there is no obligation to wait. The FOCA's exercise of discretion was not open to objection.

Facts: The lower court's findings of fact are binding on the Federal Supreme Court (Art. 105 para. 1 FSCA). The appellant did not dispute the essential facts; the video recording, self-report, inspection report and supplement were assessed. The evidentiary assessment that the bridges were comparable was tenable; the confusion was remedied by the file note of 4 April 2022. The complaint concerning the email correspondence on the medical fitness certificate and other incidents (tech log, off-airfield landing) failed, as these were not the subject of the proceedings (Art. 106 para. 2 FSCA, Art. 12 APA).

Endangerment and breaches of duty: The flight at a distance of only 3.5 to 4.5 metres from the water and the underside of the bridge created a concrete…