How to decide whether a flight is commercial air transport
3.1 To determine whether or not a flight is for the purpose of commercial air transport of passengers, the first question is whether or not there are any passengers on board. This is not always entirely straightforward as an occupant may claim to be a member of the crew or an employee of the aircraft operator.
3.2 Having determined that there is at least one passenger on board, the next question is whether any payment has been given or promised which, if it had not been given or promised would mean that the passenger(s) would not have been carried. If there is any payment which could fall into this category, consider what would have happened if the passenger had presented himself for carriage and announced that such a payment would not now be made. Would he still be carried?
3.3 If passengers are carried but there appears to be no payment for their carriage, it will be necessary to consider whether the operator is an air transport undertaking. If it is, even gratuitous carriage will be commercial air transport, subject only to the exceptions referred to in article 195(1)(b) noted in 2.2 above, i.e. for employees of the operator and authorised persons making inspections or carrying out tests.
3.4 Even if no passenger is carried or there is no payment for the carriage of passengers or cargo (and the operator is not an air transport undertaking) a flight may of course still be aerial work (see paragraph 2.1 above).