Explanatory Memorandum to COM(2000)595 - Establishing common rules in the field of civil aviation and creating a European Aviation Safety Agency - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)595 - Establishing common rules in the field of civil aviation and creating a European Aviation Safety Agency. |
|---|---|
| source | COM(2000)595  |
| date | 28-09-2000 |
Contents
- 1.1. Background
- 1.2. Recent work
- 2. The Community EASA
- 2.1. The objectives
- 2.2. The organisational concept
- 2.3. The Agency
- 2.3.1. Mandate
- 2.3.2. Functioning
- 2.4. Participation by European States that are not members of the European Union
- 2.5. International cooperation
- 3. The choice of the legal basis
- 4. Subsidiarity and proportionality: justification and value added
- 5. Comments on Articles
- Article 2 - Objectives
- Article 3 - Definitions
- Chapter II
- Article 5 - Essential requirements for airworthiness
- Article 6 - Essential requirements for environmental protection
- Article 7 - Other basic principles and essential requirements
- Article 8 - Recognition of certificates
- Article 9 - Acceptance of third-country proposals
- Article 10 - Flexibility provisions
- Article 11 - Dissemination and protection of information
- Chapter III
- Article 13 - Typology of acts
- Article 14 - Development of opinions, acceptable means of compliance and guidance material
- Article 15 - Certification
- Article 16 - Monitoring the application of rules
- Article 17 - Research
- Article 18 - Relations with third countries
- Section II
- Article 20 - Staff
- Article 21 - Privileges and immunities
- Article 22 - Liability
- Article 23 - Languages
- Article 24 - Creation and powers of the Administrative Board
- Article 25 - Composition of the Administrative Board
- Article 26 - Chairmanship of the Administrative Board
- Article 27 - Meetings
- Article 28 - Voting
- Article 29 - Functions and powers of the Executive Director
- Article 30 - Appointment of senior officials
- Article 31 - Establishment and powers of the Boards of Appeal
- Article 32 - Composition of the Boards of Appeal
- Article 33 - Independence of the members of the Board of Appeal
- Article 34 - Exclusion and objection
- Article 35 - Decisions subject to appeal
- Article 36 - Persons entitled to appeal
- Article 37 - Time-limit and form
- Article 38 - Interlocutory revision
- Article 39 - Examination of appeals
- Article 40 - Decisions on appeal
- Article 41 - Actions before the Court of Justice
- Article 42 - Representative
- Article 43 - Direct appeal
- Section III
- Article 45 - Individual decisions
- Article 46 - Investigating powers
- Article 47 - Inspection of Member States
- Article 48 - Investigation of undertakings
- Section IV
- Article 50 - Implementation and control of the budget
- Article 51 - Financial provisions
- Article 52 - Fees regulation
- Chapter IV
- Article 54 - Participation of European third countries
- Article 55 - Commencement of Agency's operation
- Article 56 - Repeal
- Article 57 - Entry into force
1.1.1. Air transport in the Community has been progressively liberalised since 1988 and the Community market in this sector has evolved from a market based on bilateral agreements, with virtually no competition, towards a genuine open market based on the Treaty principles. Hence, air transport is governed by common rules, which address licensing, market access, pricing and the application of the competition rules. As a result, airlines and consumers have greatly benefited from this situation, which has led to job opportunities and the entry into the market of new operators.
1.1.2. As soon, however, as this process started the aviation community realised that a genuine air transport single market required also the establishment and uniform application of common rules in the fields of aviation safety and environmental protection in order to ensure a high level of protection for the European citizen and provide a level playing field for Community air operators. This, moreover, would facilitate the smooth functioning of the internal market for related products, persons and services, the patchwork of national regulations being frequently used to deprive them of the freedom of movement enshrined in the Treaty.
1.1.3. The current Community system is based on Regulation (EEC) No 3922/91 i on the harmonisation of technical requirements and administrative procedures in the field of civil aviation, and on the JAA (Joint Aviation Authorities) i. During recent years this has been criticised for not working properly for the effective and timely adoption or amendment of the necessary Community legislation, nor does this provide the necessary flexibility to cope with the day-to-day needs of the industry. This is due to several reasons:
-First, although processed through the JAA consultation machinery, all rules of a general nature adopted in this framework need nevertheless to be processed again through the Community machinery for ensuring transparency and democratic control of rule-making. This not only introduces lengthy delays, but gives rise to controversy when some interested parties use this double procedure to re-open issues which were thought solved through the JAA process.
-Secondly the JAA harmonisation process being alien to the Community produces proposals, which, although certainly satisfactory in terms of safety, often contain provisions inconsistent with Community obligations and policies. This makes it impossible for the Community to adopt them as such and requires difficult screening and rephrasing so that they can be transposed without affecting their safety content.
1.1.4. Despite significant efforts by the JAA to streamline their own working methods, particularly in the framework of its 'Agenda for Change', these shortcomings continue to exist.
1.1.5. In its communication on 'The European Airline industry: from Single Market to World-wide Challenges' i the Commission identified problems which still prevent the internal market from developing completely: fragmentation of air traffic control (ATC), physical access to the market (allocation of slots), costs of infrastructure, the absence of an external dimension to aviation and the fragmentation of safety rules. Several actions are currently being developed to tackle these issues. This proposal is the response to overcome the difficulties in the technical field.
1.1.6. Discussions within the Community, but also externally and within the JAA, showed that there was a need for a strong organisation with extended powers in all fields of civil aviation safety and the potential for taking over executive tasks currently exercised at national level when collective action appears more efficient. The European Parliament has also called on several occasions for the establishment of a single aviation safety regulatory authority i. In other words it was felt that a body comparable to the Federal Aviation Administration (FAA) in the United States should be created, with the prime task of ensuring a uniform high level of safety in Europe through the gradual integration of the national systems. This would also facilitate the free movement of aeronautical products, as well as persons and services, by making possible the automatic recognition, without any further requirements, of certificates and approvals issued by any duly authorised body on the basis of common requirements.
1.2.1. To this end, on 16 July 1998 the Council adopted a decision authorising the Commission to open negotiations with States which are full members of the JAA other than European Community Member States, with a view to concluding an agreement establishing a European Aviation Safety Authority (EASA), which will have the legal form of an international organisation.
1.2.2. On the basis of this, a draft Convention was prepared by the Commission services, in cooperation with national experts, to set up an organisation capable of executing, in cooperation with its contracting parties' aviation authorities, all the tasks related to the regulation of civil aviation safety, and to exercise the necessary powers where collective action is more efficient than that of its individual members. Its scope was to encompass initially the design, production, maintenance and operation of aircraft and aeronautical products, as well as personnel and organisations involved. In a later stage it was to be enlarged to include the safety aspects of airport operations and air traffic management. Insofar as the normative rules and individual decisions adoptedP by this organisation were to be directly applicable, a system of judicial review would have to be set up (an EASA court of justice).
1.2.3. Although the draft Convention was considered to be what the sector needed, its institutional architecture would have required cumbersome ratification procedures; some Member States would have had to make some constitutional changes; as regards the Community, the Court of Justice opinion would have been a necessary prerequisite. Quite apart from the length of these procedures, there was no guarantee that this text could be ratified because of the political uncertainty about the willingness of the European Parliament and national parliaments to accept the wide delegation of executive powers it envisaged. Therefore, the Commission expressed concerns about the feasibility of such a system and suggested a further examination to see whether the same objectives could not be met by using the Community mechanisms and institutions.
1.2.4. At the invitation of the Council, the Commission presented a detailed analysis of a Community alternative i that would establish an authority capable of guaranteeing a high level of safety in Europe and work with the rapidity and efficiency needed. On this basis and following further work with national experts, the Council on its meeting of 26 June agreed that such an alternative, further elaborated in a Presidency working document, was the most practicable way forward. It therefore suggested that the Commission should make a proposal to put it in place as early as possible.
2.1.1. As already agreed when setting the mandate for creating an EASA, the essential objective is to achieve a high uniform level of safety and environmental protection in the Community. Additional objectives would be the facilitation of free and fair competition in the Community; more efficient certification processes; and the world-wide promotion of European aviation standards.
2.1.2. The means to achieve such objectives are the formulation, approval and uniform application of all necessary regulations; the automatic recognition, without any further requirement or verification, of approvals granted in accordance with these regulations to products, organisations and personnel involved in civil aviation; and the establishment of a Community Agency able to undertake the related tasks.
2.2.1 All interested parties have always recognised that the achievement of these objectives and the implementation of related means required the creation of a specialised agency, with a high level of expertise in all areas related to aviation safety and environmental protection. To be able also to play its role effectively in protecting public interests internally and promoting European views externally, it needs to be vested with real powers and enjoy the necessary independence. In short, the aeronautical community needs a strong and efficient agency able inter alia to carry out certification functions and to be a valid partner for foreign aeronautical authorities.
2.2.2. The exercise of executive powers and the control of implementation of rules and regulations is the prerogative of the Commission; such tasks may be delegated to another body only on the basis of rules limiting its discretion to a technical judgment within its sphere of competence.
2.2.3. To remain in line with this institutional architecture, it is necessary therefore that, in a Community EASA, the European Parliament and the Council set basic principles for regulation and essential requirements defining the level of safety and of environmental protection required by European citizens. At that level targets should be specified in sufficiently broad terms to allow innovation and competition and avoid standardising products and services. Such requirements, which do not change frequently, can be incorporated in the legislation creating the EASA itself.
The Commission proposal contains therefore, as a first step, such basic principles for the certification and maintenance of aeronautical products. It also prescribes essential requirements based on Annex 8 to the Chicago Convention, annexed to the proposal, and existing Community legislation applicable to environmental protection.
As for other fields falling within the scope of the Regulation, basic principles and essential requirements will have to be adopted in due course in accordance with the normal legislative process; related legislation will complement the present proposed Regulation. This will concern in particular the safety aspects of air operations, flight crew licensing, airport operations and air traffic management, although in these last two sectors, it is likely that common rules will be adopted only at a later stage when the current activities of the JAA are covered.
2.2.4. The way the essential requirements are to be implemented, in particular the procedure to be followed to obtain the necessary approvals, the privileges attached to such approvals, as well as applicable technical standards, can be adopted by the European Parliament and the Council or delegation can be given to the Commission to do so. It is likely that in areas where such rules are to be applied by Member States themselves, they will be adopted by the European Parliament and the Council. The Commission would then be given the capacity to complement them when they refer to very specific technical fields and to adapt them to scientific or technical progress; this may be the case for air operators' certification requirements or flight crew licensing.
For products, however, where centralised certification is needed and wanted, uniformity would be better achieved by such centralised certification than by detailed technical specifications. Moreover, in such a field where technology evolves rapidly it would be a mistake to over-specify technical details at legislative level. It is proposed therefore, a more practicable and flexible approach, in which, as already agreed in preparatory work in the Council, the Commission should be empowered to adopt the necessary implementing rules and when doing so it should not affect the technical discretion of the Agency in evaluating the conformity of product with the essential requirements. Implementing rules therefore are likely to be limited to procedural requirements such as those contained in JAR-21, while airworthiness codes such as JAR-25, JAR-E, JAR-APU etc. which are listed in Annex 2 to Regulation (EEC) No 3922/91 would be considered as acceptable means of compliance, similar to industrial standards, and therefore left to the Agency or to the industry where a true standardisation process is achievable - for parts in particular. However, in order to benefit from the expertise existing in Member States and to maintain a closeness with stakeholders, a fair balance has been agreed between functions that will be centralised at the Agency level and those that will remain within national administrations (individual certifications of planes, granting of pilot licenses etc.).
2.2.5. In such a framework the Agency can be empowered with the granting of certificates attesting the conformity of aeronautical products with the applicable essential requirements since it is a purely technical judgment. In order to give, however, guidance to the industry on how such judgment will be made the agency will develop in a transparent manner - by the proper and wide consultation of all interested parties (aerospace industry, air operators, workers, consumer representatives etc.) -technical specifications and guidance material, in particular acceptable means of compliance (airworthiness codes) and publish them. Such publication would not give them any binding status for applicants - providing so for the necessary flexibility - but it would oblige the Agency to justify any deviation from published documents limiting therefore its margin of discretion.
2.2.6. For maintenance finally, which is close to product certification but which implies the approval of organisations and personnel and where centralisation is not envisaged, a mixed approach is proposed whereby the Commission is empowered to adopt the implementing rules in a sufficiently detailed manner - based on JAR-145 - to ensure their uniform application at Member State level.
2.2.7. Because the Agency will be entitled to make decisions directly affecting individuals, it is necessary to foresee a judicial control mechanism. In order to avoid as much as possible that technical cases are presented to the Court of Justice, it is proposed to put in place a first instance specialised level of boards of appeal, as for the Office for Harmonisation in the Internal Market (OHIM).
2.2.8. This new structure and sharing of rules being significantly different from that established by Regulation (EEC) No 3922/91, it is proposed to repeal that Regulation. It is, however, necessary to retain some of its elements to ensure the proper functioning of the internal market. This is the case with automatic recognition of approvals granted by the Member States or the Agency in accordance with the Regulation and rules adopted for its application. It is also the case with Community review mechanisms designed to ensure that when the essential requirements or related implementing rules open the door to flexibility (acceptance of third-country approvals, immediate safety measures, variations, exemptions and equivalent safety findings) the Commission is given necessary powers to monitor this and adopt appropriate measures.
The Agency will be established as part of the Community system, it will be entitled to build on its expertise and carry out preparatory work in all areas covered by the Regulation; it may therefore develop international cooperation and research activities as appropriate. In all these fields the Agency should be entitled to formulate recommendations or opinions. More precisely:
-It will develop essential requirements and implementing rules applicable to aeronautical products, personnel and organisations and forward them to the Commission. The Commission will either propose them to the European Parliament and the Council or adopt them in the comitology framework as the case may be (see 2.2.3. and 2.2.4. above).
-It will develop and adopt acceptable means of compliance and guidance material, including airworthiness codes, for the application of the above rules. These are not mandatory but will serve as an indication of how compliance would be verified, leaving it up to those concerned to prove whether they satisfy the essential requirements and implementing rules by other acceptable means.
-It will conduct technical investigations and issue type certificates. The Agency can carry out these tasks itself, or allocate them to national administrations and the industry - so-called qualified entities - when they have showed that they possess the required capabilities.
-It will put in place a system of surveillance, including, in particular, the continuous monitoring of the airworthiness of the products for which it has issued type certificates (it encompasses Instructions for Continued Airworthiness, Design Changes including Approved Manuals, Service Bulletins, Airworthiness Directives, Repairs). This aims, on the one hand, at ensuring that the common rules are proportionate to the safety objectives to be achieved and, on the other, at triggering immediate action where necessary to preserve the safety of goods and persons. Such surveillance may lead either to amendment of the common rules or to the adoption of safety measures such as the suspension or withdrawal of licences or the modification of the conditions for issuing a type certificate (airworthiness directive).
-It will assist the Commission in monitoring the application of the common rules at national level. It will therefore create teams of experts for inspecting the national systems and checking their working methods. It will thus verify on the field that Community law is correctly implemented and applied; it will report back to the Commission, which could then decide whether to institute infringement proceedings when incorrect application of the common rules is detected. It will also assist the Commission in the implementation of the Community review mechanisms mentioned in paragraph 2.2.8..
-In the international field, it will be able to establish appropriate relations with international organisations and third-country aeronautical authorities with the view to harmonising rules and procedures in the context of working agreements concluded by the Commission with these bodies, and make the necessary recommendations to the Commission. It will also assist the Commission in the negotiation and implementation of bilateral or multilateral agreements.
-In the field of research, the Agency should have a budget for carrying out activities related strictly to its field of expertise. It may also take the appropriate initiative to coordinate its activities and those of the Community and of the Member States in this field.
(a) Management bodies
2.3.2.1. Decisions on safety should be made without any political interference or national considerations, hence they should be taken by the Executive Director of the Agency. These decisions should be based on a codified process, to be developed by the Administrative Board, designed to ensure appropriate transparency and the right of all the affected parties to present their opinions while preserving the necessary commercial and personal secrecy.
2.3.2.2. As for the development of opinions (draft material for Community rule-making) and acceptable means of compliance, the Executive Director will be able to draw on available expertise, Member States could participate in the shaping of those rules, which are to be applied by their aeronautical authorities. As far as individual cases are concerned, the Executive Director will be given a wide margin of manoeuvre to seek the best expertise and get the advice it needs to make a neutral and independent decision. The Executive Director will also be responsible for the preparation and execution of the budget and the work programme of the Agency, and for all questions related to personnel.
2.3.2.3. With individual decisions being made exclusively by the Executive Director, but affecting Member States, it is preferred that the Executive Director is appointed by the Administrative Board on a proposal from the Commission, so as to have the necessary legitimacy.
2.3.2.4. An Administrative Board consisting of one representative of each Member State, the Commission and the European Parliament will be in charge of all administrative issues. It will adopt the work programme of the Agency, after approval from the Commission, and its budget at the beginning of the financial year and adapt it to the contributions and fees received. It will also adopt guidelines for the delegation of certification tasks to qualified entities after approval from the Commission, and develop procedures applicable to the decision-making process (see above). Finally, it will establish an advisory body of interested parties (aerospace industry, workers, consumer representatives, etc.) to be consulted before it takes decisions on budget, the work programme and procedures on transparency.
2.3.2.5. Finally, as mentioned earlier, it is proposed to establish one or several boards of appeal whose role is to verify whether the Agency has applied the implementing rules properly without going beyond the scope for technical appraisal which these texts allow (judicial review). Member States, however, may lodge a direct appeal before the Court of Justice of the European Communities against decisions of the Agency on type certification and inspections.
(b) Personnel
2.3.2.6. For carrying out the tasks described above, the Agency needs to have a sufficient number of high-quality staff, even if to conduct its certification duties it may be more efficient in a first stage to set up joint teams largely calling on experts from national administrations without having to recruit them. Persons are required to conduct the rule-making activities, organise the certification process and provide the necessary support to the Boards of Appeal. To that must be added additional personnel for the surveillance and inspections tasks, as well as to allow the Agency to fully play its role in the international arena. The number of staff the Agency might require would be around 150 persons.
2.3.2.7. The personnel of the Agency will be subject to the Staff Regulations applicable to Officials of the European Communities and the Conditions of Employment of Other Servants. It is envisaged that only a small number of these will be seconded from the Commission or the Member States to carry on management functions under temporary contract, as it is already the case for instance in the European Agency for the Evaluation of Medicinal Products (EMEA). The other personnel will be recruited on the basis of experience and merit from national administrations or the industry. Without prejudice to the need to ensure stable qualified staff in sufficient number, they will be hired on the basis of temporary renewable contracts, so as to ensure continuous renewal and that such personnel is abreast of technological developments.
(c) Budget
2.3.2.8 The Agency needs a budget allocation large enough to hire its personnel as described above; to conduct its certification tasks; to pay the members of the Boards of Appeal; to undertake research activities; and to have the common standards translated and published. For the first year this budget can be valued at roughly EUR 3 100 000. When fully operational the Agency will need a budget of circa EUR 28 700 000.
2.3.2.9. The Agency's budget will be financed to an extent by a subsidy from the Community, in particular as far as its contribution to legislative tasks and Community control is concerned. In order to ensure full transparency and complete evaluation of the Agency budget, in particular by the Community Budgetary Authority, it will be necessary to create a new budget line in the general Budget of the European Union. Services the Agency provides (such as certification, training and documentation) will be paid for by beneficiaries in the form of fees, which must be non-discriminatory and charged uniformly in all the States participating in the system. The level of these fees would have to be in line with international practice so as not to affect the competitiveness of the industry. It is proposed that the Commission adopts them. In the first four years, however, because it will be difficult to evaluate the exact contribution such fees and charges can make to the budget of the Agency, it is proposed that the Community subsidy may cover part of the expenditures related to such services. Consequently, the Community contribution might be EUR 3 100 000 the first year and increase progressively to EUR 10 600 000. Beyond 2006, the subsidy will, in principle, diminish in relation with the rule-making activity.
Of course, the Agency must put in place an appropriate set of rules and controls. The Administrative Board will be entitled to adopt the necessary measures, but the Agency will ultimately be subject to the supervision of the Court of Auditors.
(d) Language
2.3.2.10. The language regime should allow the Agency to work in an efficient and swift manner. Hence, all acceptable means of compliance and guidance material adopted by the Agency will be available only in English as it is the language commonly, if not exclusively, used for all technical documentation in the aeronautical industry. Therefore its use will maximise the process of standardisation while enhancing cost-effectiveness. The rights of third parties will be preserved to the extend that they can use the Community language of their choice in correspondence with the Agency and the Agency will be required to reply in the same language. By contrast, all preparatory material for future Community acts, to be adopted by the Commission, the Council or the European Parliament and the Council, will have to be available in all Community languages.
(e) Location
2.3.2.11. The Agency will need to be located in a convenient location, also for the working relation with the Community institutions with which it will develop close links. The location should also be easily accessible for all stakeholders. Taking into account such requirements and after evaluation of applications received, the Commission will propose to the competent authorities one or several locations. On the basis of such proposal, the competent authorities will have to set a location at the latest six months after the adoption of this Regulation. Besides, the Agency, as other Community agencies, can decide to establish regional offices in any Member State, with the assent of such Member State.
2.4.1. It is in the interest of Member States, European citizens and the industry to enjoy a high level of safety on as wide a geographical scale as possible. The long-standing cooperation between European countries in this field, in particular in the JAA, has always allowed European States that are not member of the EU to take part in the work and the decision-making process on an equal footing. It is therefore the intention to give the Community EASA a pan-European dimension and allow these countries to continue to participate as fully as possible.
2.4.2. Since this proposal gives decision-making powers to the Agency, other European countries cannot participate unless they fully adopt and apply the Community acquis in the fields covered by the scope of the Regulation. This is the case with the different agreements which the Community has concluded with Norway and Iceland (EEA) or is about to conclude with the central European countries (European Common Aviation Area, ECAA) and Switzerland. It is therefore possible for these countries to be associated in a Community EASA, subject to appropriate conditions to be set in the framework of these agreements, including financial contributions.
2.4.3. As regards the application in these States of the legislation adopted in the field covered by this Regulation, since it will form part of the 'acquis communautaire' the various mechanisms provided in the agreements will be used. In these agreements, proper implementation and judicial review are generally the responsibility of national courts. These courts sometimes have the possibility (EEA et ECAA agreements) of requesting an interpretation from the Court of Justice of the European Communities, which would be a way of preserving uniform interpretation and application of the rules.
2.5.1 This new Community system will not work in isolation from other pan-European organisations such as ECAC (European Civil Aviation Conference) or Eurocontrol, or from other international organisations involved in the field covered by this Regulation, such as ICAO (International Civil Aviation Organisation). Its work and activities will be interdependent of those carried out in such organisations and should liase closely with them. The Agency will be entitled to undertake the necessary steps for early and close involvement of and cooperation with these organisations.
3.1. The legal basis of the proposed Regulation is Article 80 paragraph 2, which is consistent with the objective of the proposal and all the legislation adopted so far in the field of aviation, particularly where safety and environmental protection are concerned.
3.2. The chosen instrument, a Regulation, is justified because an effective Community system in this field calls for a harmonised and common regulatory framework, applied and enforced in an effective and uniform manner, to ensure fair competition and maintain high safety standards. Uniformity and efficiency would not be ensured by a less constraining legislative instrument.
4.1 The objective of this proposal is to establish a high uniform level of safety in the Community by means of the formulation, approval and uniform application of all necessary aviation safety regulations, and to create a Community Aviation Safety Agency.
4.2. The current system has been criticised for not being able to ensure aviation safety oversight efficiently and in a cost-effective manner. The establishment of common rules and of an independent authority for the certification of aeronautical products would overcome those deficiencies. Indeed carrying out all executive tasks at a Community level will provide effective support for Community policies - particularly on air safety, harmonisation of conditions of competition and association with other European States - while easing the administrative and financial burden these tasks impose on the European industry. Thanks to a common system, applicants for certification of aeronautical products will have only one set of procedures to follow to get an approval, which would then be valid throughout the whole Community without restrictions or additional bureaucratic requirements. This is particularly important in view of the fact that Europe's main competitors' certification mechanisms, eg in the USA, are provided free of charge to the aircraft manufacturing industry.
4.3. The proposed legislative act limits itself to the minimum required to achieve the objectives defined above and does not exceed what is necessary to this end.
Chapter I
Principles
Article 1 - Scope
This Article specifies that the Regulation applies to all fields of civil aviation. State aircraft as defined in the Chicago Convention - i.e. aircraft involved in military, customs and police services - and persons and organisations involved in these activities are excluded, subject to their compatibility with the objectives of the Regulation.
This Article defines the purpose of the Regulation. It aims at establishing a high, uniform level of protection of European citizens without imposing unnecessary burdens on the industry and users. The means to achieve it are the formulation, approval and uniform application of all necessary legislation, the automatic recognition, without any further requirement or verification, of approvals granted in accordance with these regulations to products, organisations and personnel, and the establishment of an Agency.
This Article contains the definitions of the various terms used in the provisions of the proposed Regulation.
(a), (b), (c), (d), (e) and (f) 'Continued oversight' 'Chicago Convention', 'product', 'appliance', 'certification' and 'type certificate' are self explanatory; the reference date for the Chicago Convention can only be modified by a comitology procedure.
(g) The definition of 'commercial transportation' excludes private transportation and more generally general aviation.
(h) The Agency will have the right to outsource its tasks to so-called 'qualified entities'. These, as defined in this Article, can be the national aviation authorities or even third parties such as manufacturers. The Agency, or more precisely its Administrative Board, will have to define a policy on the delegation of tasks to these entities, to be approved by the Commission.
Substantive requirements
Article 4 - Basic principles
This Article lays down the foundation for any regulatory activity affecting fundamental freedoms of persons. It establishes the principle of certification of products, organisations and personnel. Its content derives from, and is similar to that of, national aviation laws. It also recalls that if the Community may regulate third-country operators and crew when flying in the airspace of its Member States it shall respect their rights specified in applicable international Conventions. Accordingly, for example, certificates granted by third countries to their own citizen in accordance with the Chicago Convention should be accepted as specified in that Convention.
This Article establishes that essential airworthiness requirements products must meet in order to be certified are those contained in Annex 8 to the Chicago Convention, annexed to the proposal, (paragraph 1). It empowers the Commission to adopt within a 'comitology' procedure (paragraph 3) any additional rule (of a procedural or technical nature, as necessary) for the application of these requirements. Products must receive their certificates if they have been found airworthy according to Annex 8.
Essential environmental requirements are already set in Council Directive 80/51/EEC (paragraph 1). The application of these requirements will have to be defined in implementing rules to be adopted by the Commission in comitology (paragraph 2).
This Article indicates that basic principles and essential requirements concerning aspects, other than products, falling within the scope of this Regulation will be adopted in accordance with the applicable legislative process.
This Article ensures that products, persons and organisations can freely circulate within the Community, as soon as they are recognised by one Member State as meeting the conditions set by the Regulation and derived implementing rules, by creating an obligation for other Member States to accept them without additional conditions. Besides, when the first recognition has been given for a particular purpose it cannot be subsequently recognised for other purposes, i.e. if a screw or rivet, which has been certified for use on a propeller for a particular type of aeroplane it cannot subsequently be certified for use on a helicopter rotor blade. It also recognises that, pending the adoption by the Community of the necessary legislation, products and derivatives may be certified in accordance with national legislation.
This Article provides both for the possibility to derogate to the provisions of this Regulation in the framework of a mutual recognition agreement between the Community and a third country and for a simplified procedure: as long as the Community has not concluded such mutual recognition agreements. It is proposed in that later case that Member States be empowered to recognise the approvals granted to foreign products, organisations and personnel by a third country subject to an appropriate Community review procedure to verify that Community and other Member States interests are safeguarded.
The objective of this Article is to introduce necessary flexibilities in the regulatory framework so as to cope with rare circumstances where Member States should be entitled, under their own responsibility, to adopt measures, subject to an appropriate Community review aimed at maintaining the overall consistency of the system. These circumstances are:
-The immediate safety case where an urgent action must be taken to avoid an accident or the recurrence of an accident. In such case Community review is made 'ex post facto' and appropriate conclusions shall be drawn.
-The unforeseen urgent operational issue (for example an aircraft for which a special authorisation is required to fly back to its home base) or the operational need of a limited duration (for example the use of a replacement aircraft). In such case the Community review can be done 'ex post facto' to verify whether such flexibility is not used to escape the obligations created by the regulator.
-The equivalent safety case where other means than those specified in the common rules can guarantee the same level of safety. In such a case the Community review must take place 'ex-ante' in order to verify that the measure does not affect other objectives of the common rules, such as fair competition in the market, and if so allows all other parties to benefit from it.
This Article ensures that the information collected in the field covered by this Regulation is confidential. Nevertheless, it ensures that this information will be available to each national civil aviation authority, which will use it for its day to day work and to the entities investigating civil aviation accidents and incidents. Other parties involved in the improvement of aviation safety such as research centres, training organisations or universities may also receive selected information for their own use. Release of this information will be made on a case by case and 'need to know' basis. The legitimate interest of the public to be informed of the safety level of aviation will also be taken into account by the publication of specific regular review.
The European Aviation Safety Agency
Section I
Tasks
Article 12 - Establishment and functions of the Agency
This Article establishes the Agency and describes the functions it will carry out. It shall be able to develop its technical expertise and work in all matters covered by this Regulation in order to assist the Commission as necessary. The Agency will also be endowed with decision-making powers in the field of type certification and will be able to conduct investigations and inspections.
This Article provides an exhaustive list of the types of acts the Agency may take. The Agency may take binding individual decisions by granting type certificates, by conducting inspections and investigations. In relation to general acts the Agency may issue non-binding materials e.g. airworthiness codes, and present opinions to the Commission on essential requirements and implementing rules, or following inspections or investigations, as well as in the areas of research and relations with third countries.
This Article relates to the role of the Agency in presenting opinions on essential requirements and implementing rules to the Commission to be adopted by itself in comitology or by the European Parliament and the Council in co-decision. The Agency may also issue non-binding material providing acceptable means of compliance (e.g. airworthiness codes) and guidance material.
This Article relates to the core activity of the Agency, namely the granting of type approval for products and appliances. To this end, the Agency is authorised to conduct itself or through qualified entities inspections, and to issue, modify, suspend or revoke type certificates.
This Article requires the Agency to monitor the application of this Regulation in cooperation with the Commission, in particular of its Article 10 on flexibility.
This Article requires the Agency to conduct research activities falling strictly within its field of competence and to coordinate with the Commission and the Member States. For this purpose the Agency must be endowed with the appropriate budget.
This Article gives the possibility to the Agency to assist the Commission in relations with third countries. It will be able, within the bounds of the working agreements established between the Commission and the aeronautical authorities of third countries or international organisations competent in the field of civil aviation, to discuss directly with them and send its contribution to the Commission. It will also assist the Commission in the negotiation and implementation of mutual recognition agreements. This Article also entitles the Agency to assist the Community and its Member States in their relations with third countries, this may cover technical cooperation, safety assessment of third-country aircraft, etc. as the Community and its Member States may decide.
Internal structure
Article 19 - Legal status, location, local offices
This Article specifies that the Agency is an independent body of the Community. The competent authorities will have to decide its location on a proposal from the Commission. The Agency, with the consent of the Member State concerned may have local offices in any Member State as required for its day to day work.
The Staff Regulations of the Community institutions will also apply to the staff of the Agency.
This provision stipulates that, like the European Communities, the Agency should also benefit from the same privileges and immunities as set out in the Protocol on the Privileges and Immunities of the European Communities.
The regime of contractual and non-contractual liability of the Agency corresponds to the regime applicable to the Community by virtue of the Treaty, Article 288.
This Article specifies the language regime for the Agency. All opinions addressed to the Commission for possible future acts, to be adopted by the Commission, the Council or the European Parliament and the Council, will have to be available in all Community languages. All other non-binding acts of the Agency will be available only in English, the language commonly, if not exclusively, used for all technical documentation in the aeronautical industry.. The rights of third parties are preserved to the extent that they can use the Community language of their choice in correspondence with the Agency, and the Agency is required to reply in the same language. However, in some specific cases, third parties might have to provide some documentation in English as well.
This Article lays down the powers of the Administrative Board, which forms part of the management bodies of the Agency. It has a supervisory function in appointing the Executive Director, in adopting the annual report, the work programme - after approval by the Commission - and in taking budgetary decisions. Moreover, it shall ensure that the Agency works with the necessary transparency and neutrality and shall adopt, therefore, procedures for decisions made by the Agency and guidelines, to be approved by the Commission, for the allocation of certification tasks to qualified entities. The Administrative Board shall also establish a body of interested parties (aerospace industry, air operators, workers, and consumer representatives) to be consulted at least before it takes decisions on budget issues, on the work programme, on rules on transparency.
This provision specifies that the Administrative Board will be composed of one representative of each Member State, one representative of the Commission, and one representative of the European Parliament.
This Article specifies that the Administrative Board will elect its Chairman and Deputy Chairman.
This Article provides for ordinary, as well as extraordinary meetings of the Administrative Board, which can be attended by the Executive Director, as well as by outside observers.
A two third majority will be required for decisions of the Administrative Board, with each member having one vote.
This provision sets out the functions and powers of the Executive Director. To be made free from any political interference or national consideration safety decisions are taken by the Executive Director of the Agency. The Executive Director is also the manager of the Agency, he is therefore responsible for the preparation and execution of the budget and of the working programme as well as for all questions related to personnel.
The Executive Director together with one or more Directors are appointed by the Administrative Board, which exercises disciplinary authority on the Executive Director. Appointments are made for a limited, renewable period.
This Article establishes Boards of Appeal in order to review individual decisions taken by the Agency as detailed in Article 35.
This Article stipulates in general that the members of the Board of Appeal will be drawn from a list established by the Commission in accordance with Article 33. More detailed provisions on the functioning of the Boards of Appeal will be adopted by the Commission in accordance with Article 53.
This Article provides for the clear separation of functions between the Boards of Appeal and the Agency, so as to allow for the independence of the members of the Board of Appeal in reviewing decisions of the Agency.
This Article allows for the exclusion of members of the Board of Appeal having an interest in the appeal brought before them.
This Article specifies the decisions, which are subject to appeal. These are the granting of type certificates, decisions taken in the context of an investigation and decisions related to fees. Appeals will have a suspensory effect only when decided by the Agency. Appeal shall be made against a final decision; intermediate appeal can be made only when provided by the decision.
Any person may appeal against a decision addressed to that person or of direct and individual concern to him.
This Article sets out a two-month time-limit for appeals.
This Article allows the responsible body of the Agency to rectify a decision subject to appeal, unless the appellant is opposed to another party and not the Agency. If the Agency has not revised its decision, the case is brought to the Board of Appeal with the possibility for the Agency to suspend its decision.
This Article specifies that the Board of Appeal may invite third parties to the appeal proceedings in order to determine that the appeal is well-founded.
This Article provides that the Board of Appeal may conclude its examination either by taking a decision or by remitting the case to the competent body of the Agency. Nevertheless, in this last case, the Agency is bound by the reasoning of the Board.
This Article gives the possibility for review of the decisions of the Board of Appeal by the Court of Justice on the same grounds as those provided in the EU Treaty on review of Community acts (Article 230).
This Article mandates the designation of a procedural representative for non-Community persons.
This Article enables Member States to lodge an appeal against decisions taken by the Agency on type certification and on inspections.
Working Methods
Article 44 - Procedures for the development of opinions, acceptable means of compliance and guidance material
This Article requires that transparent procedures are developed by the Administrative Board to regulate the Agency's rule-making with a view to ensuring the use of the relevant expertise, the proper and wide consultation of all interested parties (aerospace industry, air operators, workers, representatives of consumers, etc.), and the right of each Member State to be associated when the Agency is developing opinions on rules to be applied at their level.
Special procedures must also be developed to allow the Agency to take immediate actions in case of safety problems.
This Article mandates similar transparent procedures in the case of individual decisions.
This Article allows the Agency to undertake inspections and investigations for the application of this Regulation. The investigation tasks may also be allocated to qualified entities according to guidelines to be developed by the Administrative Board.
The Agency will assist the Commission in monitoring the application of the Regulation and its implementing rules at national level. It will have at its disposal teams of inspectors for monitoring the national administrations and checking their working methods on its own initiative or at the Commission's request. The Agency will thus verify in the national administrations that Community law has been correctly implemented and applied; it will report back to the Commission, which could then decide whether to initiate infringement proceedings for incorrect application of the common rules and procedures. The Member States can appeal to the Court of Justice against the decision to inspect.
This Article authorises the Agency to conduct technical investigations required for purposes of Article 15 in order to issue the relevant certificates and ensure continued safety oversight.
Financial Requirements
Article 49 - Budget
The Agency's budget could be financed to an extent by a subsidy from the Community. Also, services it provides (such as certification, training and documentation) may be paid for in the form of fees.
The Agency would need a budget allocation large enough to employ adequate and qualified personnel; to enable it to undertake research activities and have the common standards translated and published.
The Executive Directive will establish a preliminary draft budget to be adopted by the Board and then forwarded to the Commission, which will in turn process it in accordance with standard budgetary procedure.
This Article specifies that the Executive Director will be responsible for the implementation of the budget. Financial control will be ensured by the Financial Controller of the Commission. The Court of Auditors will examine the Agency accounts and publish an annual report. The discharge of the Agency budget will be given by the Administrative Board to the Executive Director on recommendation of the European Parliament.
This Article specifies that for the purpose of guiding the Agency in preparing and implementing the budget a Financial regulation will be adopted by the Administrative Board, after obtaining the agreement of the Commission and the opinion of the court of Auditors.
This Article refers to the establishment of fees to be charged to applicants for the services they receive from the Agency. They shall be adopted by the Commission, which shall therefore adopt a regulation in accordance with Article 53 (Comitology).. When developing such regulation, the Commission shall ensure inter alia that fees are charged uniformly and without discrimination to all the States participating in the system. Although such fees should cover all the costs associated with the service provided, in a transitional period of four years, the Community subsidy could cover part of the expenses.
Final provisions
Article 53 - Committee
This Article establishes one committee with two kind of procedures, a regulatory and a consultative one. This provision refers to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission i, in particular to Articles 3 and 5 of that Decision.
This Articles opens for the possibility for other European countries to participate in the work of the Agency within the framework of the different agreements which the Community has concluded or is about to conclude with the central European countries (European Common Aviation Area, ECAA), and the agreement with Switzerland and the EEA, whereby they are bound to fully apply the Community acquis in the field covered by this Regulation. The modalities of participation of these countries will be decided through the internal procedure foreseen by the above mentioned agreements.
This Article specifies that while the Regulation enters into force according to Article 56, the Agency will only be operational 12 months later, in order to give it sufficient time for its establishment.
This Article specifies that while Regulation (EEC) No 3922/91 is repealed, products, persons and organisation which have already been approved according to that Regulation will still be able to circulate freely.
This Article lays down the date when the Regulation enters into force. However, the entry into force of each Articles 5, 6 and 7, will occur when the necessary rules are taken for their application.