Explanatory Memorandum to COM(2005)579 - Amendment of Regulation 1592/2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)579 - Amendment of Regulation 1592/2002 on common rules in the field of civil aviation and establishing a European Aviation Safety ... |
|---|---|
| source | COM(2005)579  |
| date | 15-11-2005 |
Since Regulation (EC) No 1592/2002 i entered into force in September 2002, the Community has had exclusive competence regarding the airworthiness and environmental compatibility of aeronautical products, parts and appliances. These, together with the organisations responsible for their design, manufacture and maintenance, now have to comply with uniform binding rules adopted by the Commission i.
The Regulation establishes a European Aviation Safety Agency (EASA) which provides the Commission with all the technical expertise it requires and assists it, inter alia , in the exercise of its legislative and regulatory tasks. The Agency is also setting up a system to monitor the application of Community legislation, evaluate its effects and make any useful suggestions. Certificates and approvals attesting that products and organisations conform to the common rules are issued either by the EASA or by the competent national authorities: the EASA carries out the type certification of products and issues certificates for organisations located in third countries; the national authorities issue individual certificates and approvals for most organisations located on their territory, on the basis of common rules and under the Agency's supervision.
The Agency's competences are defined by the scope of Regulation (EC) No 1592/2002. When the text was adopted, it was already understood that the objectives laid down in Article 2, which are, primarily, to guarantee a high, uniform level of safety and provide a level playing field for Community air operators, could not be achieved unless its scope was extended to include air operations and flight crew licensing. The legislator gave the Commission an explicit mandate to submit a proposal to this end, and to reconsider the question of the regulation of third-country aircraft i.
Contents
- 2. CURRENT CHALLENGES
- 3. OPINION OF THE EUROPEAN AVIATION SAFETY AGENCY AND CONSULTATION OF INTERESTED PARTIES
- 4. IMPACT STUDY
- 5. PROPOSAL FOR A REGULATION
- 5.1. Instrument and method
- 5.2. Content
- 5.2.1. Amendments to the Agency's opinion
- 5.2.2. Extension of the scope of the Regulation
- 5.2.3. Other amendments to the Regulation
- 6. CORRELATION TABLE SHOWING THE NEW AND FORMER NUMBERING OF THE ARTICLES AND INDICATING THE AMENDMENTS MADE TO REGULATION (EC) NO 1592/2002
- Unchanged
- 6a New Pilot licensing
- 6b New Air operations
- 9a New Qualified entities
- 11a New Introduction of provisions on protection of sources of information
- 15a Nouveau Certification of personnel
- 15b Nouveau Certification of commercial operators
- Unchanged
- Unchanged
- 28a New Establishment of an Executive Board
- 28b New Composition of the Executive Board
- 28c New Decision-making procedures of the Executive Board
- Unchanged
- Unchanged
- Unchanged
- 46a New Content and form of the annual work programme
- 46b New Content and form of the annual general report
- Unchanged
- Unchanged
- Unchanged (Article 2 of the proposal contains new provisions on repeal
- 7. SUBSIDIARITY AND PROPORTIONALITY
- 8. EVALUATION
For a long time the Joint Aviation Authorities (JAA) i have been developing rules on the operation of aircraft for the purpose of commercial air transportation i, flight crew licensing and crew training i, but their application is left to the discretion of the States which sign up to them and which implement them in very different ways, or do not implement them at all. Consequently, there is no uniform level of safety. In addition, national disparities interfere with the smooth functioning of the internal market.
The inclusion of the JAR-OPS rules in Community legislation, via the pending amendment of Regulation (EEC) No 3922/91,[7] will undeniably be a step forward but will not procure a sufficient degree of harmonisation because it will only cover commercial air transport. Other types of aircraft, other commercial operations and non-commercial operations will not be covered by these common rules; nor will the rules cover flight crew licensing or third-country aircraft.
The safety of third-country aircraft operating in the Community needs however to be more effectively ensured. The Annexes to the Chicago Convention lay down minimum standards with which aircraft, air carriers and crews involved in international flights must comply. The State in which an aircraft is registered has primary responsibility for checking that these obligations are fulfilled, but the other contracting States can inspect aircraft which overfly their territory to verify their safety. In the Community, this is done under the 'SAFA' Directive i, which refers to Annexes 1, 6 and 8 to the Chicago Convention. However, SAFA inspections carried out by the Member States will relate only to these minimum standards, which do not cover all aspects of air safety.
This is the context in which the Commission has decided to comply with the legislator's request and propose that the common safety rules be extended to air operations, pilot licensing and third-country aircraft.
To do this, the Commission was required, under the terms of Article 14 of Regulation (EC) No 1592/2002, to first obtain the opinion of the EASA. The Agency, for its part, in accordance with its internal rules i and international practice in this area, had to carry out extensive consultation of all the interested parties and take their comments into account before delivering an opinion. On 27 April 2004 it published a consultation document on its internet site i, on 'the applicability, basic principles and essential requirements for pilot proficiency and air operations and for the regulation of third country aircraft operated by third country operators' i. Between 30 April and 31 July 2004, 1 695 comments on the document were submitted by 93 individuals, national authorities, undertakings and organisations. The Agency replied in writing to the comments and the interested parties were able to comment on the reply i.
On the basis of the comments received during these consultations, the Agency examined the question and on 15 December 2004 it sent the Commission an opinion recommending that the common rules be extended to air operations, pilot licensing and third-country aircraft i. The opinion, which is on the Agency's website 'reflects the majority of the views expressed during the consultation and contains compromises likely to ensure a high level of consensus'.
This proposal for a Regulation was preceded by an impact study carried out by the Commission. Two options in particular were examined:
- extending the scope of Regulation (EC) No 1592/2002, and hence of the European Aviation Safety Agency’s remit; this was the option favoured by the legislator;
- transposing into Community law, via Regulation (EEC) No 3922/91, the rules defined through intergovernmental cooperation within the JAA.
The study showed clearly that it would be better for aviation safety, and for the functioning of the internal market, to introduce specific Community measures: the Commission therefore opted to extend the scope of Regulation (EC) No 1592/2002.
Extending the scope of Regulation (EC) No 1592/2002 is the most appropriate legislative instrument for extending the common rules to cover air operations, pilot licensing and third-country aircraft because the EASA, established by that Regulation, will also be given new tasks in these areas, notably in the field of rulemaking and certification.
To spare the parties concerned disruption and unnecessary additional cost, the common rules will be based on those developed thus far by the JAA, i.e. the JAR-OPS, JAR-FCL and JAR-STD. They will thus become mandatory and be applied uniformly throughout the Community. The same method had been chosen, when Regulation (EC) No 1592/2002 was adopted, for the rules on airworthiness.
1. The Commission's proposal is based on the EASA's opinion; on some points however, the Commission wished to differ in order to achieve an even higher level of civil aviation safety in Europe. In accordance with the provisions of Article 12(2)(b) of Regulation (EC) No 1592/2002, these amendments were introduced in coordination with the Agency:
- Primarily, the Commission wanted to extend the scope of the Regulation to include all aircraft used, for whatever purpose, in the Community, within the limits imposed by the Chicago Convention. The scope of paragraphs 1(b) and 1(c) of Article 4 is therefore broader than the EASA's opinion proposed.
- Concerning cabin crew, the Agency proposed subjecting them to common safety requirements but, taking account of the majority view expressed during the consultation, not to a certification process. However, the EASA drew the Commission's attention to the incongruous situation of this category of staff who are now, in most of the Member States, the only ones assigned to aviation safety and security tasks not to be certified, although they play an essential role in ensuring passenger safety, as shown by the fortunate outcome of the accident in Toronto on 2 August 2005. The Commission believes that if this situation persists, it will contravene the objectives set out in Article 2 of Regulation (EC) No 1592/2002. The Commission therefore proposes, following on from the pending amendment of Regulation (EEC) No 3922/91, that cabin crew hold an attestation [Article 6b(4)] showing that they meet the specific essential requirements laid down in the new Annex IV to Regulation (EC) No 1592/2002.
- The Commission considered that ultralight aircraft should perhaps no longer be systematically exempted from common rules, as the performance of some of these aircraft now matches that of light aircraft. It would therefore like work to begin as soon as possible to examine if, and to what extent, certain types of ultralight aircraft should be subject to common rules (recital 4).
2. With regard to air operations, pilot licensing and third-country aircraft, the EASA options were accepted and the main lines of the proposal can be summarised as follows:
- Air operations:
To improve public safety, notably on the ground, and facilitate the free movement of services within the internal market, the proposed Regulation would extend the common rules to all air operations [Article 4(1b)] and the certification requirement to all commercial operators [Article 6b(2)]. Certificates would be issued by the Member States or, where appropriate, the EASA [Article 15b(1)], which could also, wherever necessary, impose operational directives [Article 15b(2)].
For non-commercial operations, the rules would be tailored to the complexity of the aircraft used and there would be no certification, as is already the case in most Member States. Where such operations are conducted with complex aircraft [Article 3(j)], the operators concerned should however declare that they are able to meet all the essential requirements relating to air operations [Article 6b i and Annex IV].
- Pilot licensing:
The proposed Regulation would require most pilots operating in the Community to hold a licence issued on the basis of common requirements regarding their theoretical and practical knowledge and physical aptitude [Article 4(1a)]. Organisations, flight synthetic training devices and persons involved in the training, testing, checking and medical assessment of pilots must also be certified on the basis of common rules [Article 6a i, i, i, i and (5)]. The EASA would be responsible for checking that these rules are correctly applied by the national certification bodies, and would itself certify the organisations and flight synthetic training devices of third countries [Article 15a].
However, not all pilots would be subject to the same rules, which in some cases would be disproportionate. So while commercial transport would be subject to the maximum requirements, other aviation sectors should be governed by rules adapted to the complexity of the aircraft used and that of the airspace in which they fly. In particular, better provision should be made for recreational flying: the specific rules developed by the JAA (JAR-FCL PPL) are often considered excessive. The proposed Regulation would therefore introduce a new category of licence, the 'recreational pilot licence', tailored more closely to this category of airspace user. This licence would be issued by assessment bodies approved by the Agency or by the competent national authority, as the applicant chooses [Articles 6a i and 15a(1)(b)]. Sports federations could, for example, fulfil this function.
- Third-country aircraft:
To ensure effective protection of public safety, on the ground and on board these aircraft, the proposed Regulation would impose common rules on third-country aircraft operating in the Community, within the limits imposed by the Chicago Convention [Articles 5 i, 5(4)(j), 5(5)(d), 6a i, 6b(1)]. In addition, for third-country operators engaged in commercial operations in the Community, compliance with the common rules would have to be attested by a certificate [Articles 6b i and i and 15b(1)].
3. As Regulation (EC) No 1592/2002 entered into force in September 2002 and the EASA has been operational since 28 September 2003, the Commission believes that lessons should be drawn from the experience acquired since then to improve the text whenever necessary. Besides extending its scope, some of its provisions should be amended including, primarily:
- Qualified entities conducting certification tasks on behalf of the Agency, or on behalf of national aeronautical authorities where the Agency assigns such tasks to the Member States, should be accredited by the Agency, which would thus ascertain their capability to perform the tasks in question (Article 9a).
- Derogation management should be simplified: as far as possible, the Commission should only have to take decisions on derogation measures adopted by the Member States if the measures are not in conformity with this Regulation and its implementing rules (Article 10).
- The composition of the Management Board should be changed, notably to increase transparency: it should therefore include observers representing the interested parties. The governance of the Agency would also be improved, by having an Executive Board which would adopt strategic guidelines and monitor the implementation of the Management Board's decisions (Articles 25, 28a, 28b and 28c).
- In addition, in accordance with the Agency's opinion, an effective mechanism for checking all aircraft operating in the Community should be established to ensure that all the common safety rules are properly complied with (Article 7).
6. CORRELATION TABLE SHOWING THE NEW AND FORMER NUMBERING OF THE ARTICLES AND INDICATING THE AMENDMENTS MADE TO REGULATION (EC) NO 1592/2002
New number Former number Changes
Unchanged
Establishment of conditions for fair competition is also one of the objectives pursued: addition of point (2)(f)
Addition of new definitions (h) to (n) and amendment of the definition of qualified entity (f)
To guarantee public safety, all aircraft used in the Community are governed by common rules: - Amendment of points (1)(b) and (c) - Addition of point (1)(d) - Addition of paragraphs (1a) and (1b) - Redrafting of paragraph i
Addition of provisions concerning the certification of products designed and manufactured in the Community. Demonstration of conformity with essential airworthiness requirements for aircraft registered in third countries: - Redrafting of paragraph i - Addition of paragraph (2a) - Amendment of points (4)(e) and (f) - Addition of points (4)(j) and (5)(d)
Amendment of the article: establishment of a mechanism for checking aircraft safety
Amendments necessary owing to the insertion of Articles 6a and 6b: - Redrafting of paragraph i - Addition of paragraph i
Rules governing the recognition of certificated issued by third countries: amendment of paragraph i
The article is amended to simplify the application of derogations
Amendment of paragraph i, in the light of the new Article
Unchanged
Redrafting of paragraph (c) and addition of paragraph (d), as standardisation inspections are followed up by reports, not decisions
Redrafting of paragraph (2)(a)
Issue of permits to fly by the EASA, certification of personnel responsible for the release of products after maintenance and certification of maintenance organisations by the EASA: - Redrafting of points (1)(e) and (i) - Addition of points (1)(k) and (l) - Amendment of point (2)(b)(ii) - Redrafting of point (2)(c)
Redrafting
Unchanged
The EASA's relations with authorities and organisations in third countries must be compatible with the Community's general foreign policy: amendment of paragraph i
Unchanged
Unchanged
Unchanged
Unchanged
In the interests of transparency, the Commission's opinion on the EASA's work programme must be accessible to the public [(2)(c)]. Clarification of paragraph (2)(d): the EASA can allocate certification tasks both to national authorities and to qualified entities, as stated elsewhere in the text. The Management Board appoints the members of the Executive Board i
New rules on the composition of the Management Board which include the relevant provisions of the draft interinstitutional agreement on the regulatory agencies i: amendment of paragraph i and addition of paragraph i
Amendment of paragraph i
New rules on Management Board voting rights which include the relevant provisions of the draft interinstitutional agreement on the regulatory agencies: amendment of paragraph i
Functions and powers of the Executive Director: redrafting of paragraph i
Amendment of procedures for selecting and extending the term of office of the Executive Director and of the Directors of the EASA, in accordance with the provisions of the draft interinstitutional agreement on the regulatory agencies: amendment of paragraphs i and i
Unchanged
Unchanged
Unchanged
Redrafting of paragraph i
Unchanged
Unchanged
Unchanged
Unchanged
New provision relating to action before the Court of Justice: amendment of paragraphs i and i
Unchanged
Unchanged
New, clearer wording of paragraph i
Investigation of qualified entities: redrafting of paragraph i and addition of paragraph (1a)
Application of Regulation (EC) No 1049/2001 and reference to Regulation (EC) No 45/2001:[15] addition of paragraphs i and i
Alignment with the Agency's Financial Regulation: redrafting of paragraph i
Unchanged
Unchanged
Unchanged
Paragraph i: the transitional provisions relating to the Community contribution are deleted
Unchanged
Deletion of paragraph i, which is now redundant
Unchanged (Article 3 of the proposal contains new provisions on the entry into force)
Annex I Annex I Unchanged
Annex II Annex II Amendments
Annex III New Essential requirements for pilot licensing
Annex IV New Essential requirements for air operations
Annex V New Criteria for qualified entities
EUROPEAN COUNTRIES HAVE BEEN COOPERATING FOR MANY YEARS WITHIN THE JAA TO DEVELOP COMMON AVIATION SAFETY RULES, WHICH BY THEIR VERY NATURE CANNOT BE PURELY NATIONAL. HOWEVER, AS THE APPLICATION OF THESE RULES IS LEFT TO THE DISCRETION OF THE COUNTRIES WHICH SIGN UP TO THEM, THE MEMBER STATES SOON AGREED THAT A HIGH, UNIFORM LEVEL OF SAFETY COULD ONLY BE ATTAINED THROUGH ACTION AT COMMUNITY LEVEL.
Thus, Regulations (EEC) No 3922/91 and (EC) No 1592/2002 gradually transferred to the Community the competences of the Member States regarding the airworthiness and environmental compatibility of aeronautical products. Directive 91/670/EEC introduced common rules on personnel licences and Directive 2004/36/EC introduced common rules on the safety of third-country aircraft.
In adopting Directive 91/670/EEC, the legislator already gave the Commission a mandate to submit measures for harmonised requirements in respect of licences and training programmes. A year later, Regulation (EEC) No 2407/92 i on licensing of air carriers referred to a future Council Regulation on air operators' certificates. Likewise, in adopting Regulation (EC) No 1592/2002, the legislator recognised that a high, uniform level of safety could not be achieved unless its scope was extended to include air operations and flight crew licensing; it also wished to see the text applied to third-country aircraft.
The need for Community action to attain this objective, i.e. the establishment and uniform application of common rules on pilot licensing, air operations and third-country aircraft, is therefore clearly recognised. The proposal for a regulation does not go beyond what is necessary to achieve this. It therefore complies with the principles of subsidiarity and proportionality established in Article 5 of the Treaty establishing the European Community.
The measures introduced by this Regulation and its implementing rules are to be evaluated in accordance with Article 51 of Regulation (EC) No 1592/2002.