Explanatory Memorandum to COM(2005)429 - Common rules in the field of civil aviation security - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)429 - Common rules in the field of civil aviation security. |
|---|---|
| source | COM(2005)429  |
| date | 22-09-2005 |
- Grounds for and objectives of the proposal
Regulation (EC) No 2320/2002 of the European Parliament and of the Council establishing common rules in the field of civil aviation security has been in force since January 2003. Experience gained on the basis of Commission inspections and the daily application of the Regulation by Member States shows that the swift transformation into legislation of a set of non-binding recommendations developed by the Member States has led, due to the quick drafting and adoption of the Regulation as a response to the events of 11 September 2001, to a number of problems affecting its implementation in a more solid manner.
It is, therefore, appropriate to replace this Regulation. The objective is to clarify, simplify and harmonise further the legal requirements with the aim of enhancing the overall security in civil aviation. The new framework regulation should solely lay down the basic principles of what has to be done in order to safeguard civil aviation against acts of unlawful interference, whereas implementing acts should lay down the technical and procedural decisions on how this is to be achieved.
The Commission is of the view that a new regulation will be a clear case and leading example of Better Regulation.
- General context
Regulation (EC) No 2320/2002 was developed as a result of the terrible events of 11 September 2001 in the USA, when four passenger aircraft were hijacked with horrendous consequences. A legislative proposal was thus swiftly drafted and on 16 December 2002 following the procedure under Article 251 of the EC Treaty Regulation (EC) No 2320/2002 laying down basic requirements for aviation security was adopted.
This regulation has now been in force for some 2½ years and has been complemented by implementing legislation, developed through comitology, as envisaged by Articles 4 and 9 of the regulation. It has also had one minor revision - Regulation (EC) No 849/2004 - to rectify some small errors in the original text.
Experience over time has shown that the regulation is too detailed and is in need of simplification. Having such a high degree of detail in framework legislation adopted by co-decision makes legal revision to take into account technical or operational developments impractical. This is an over-prescriptive approach in a framework legislation, which should be replaced by general principles with details added, when necessary, in the implementing legislation.
Whilst recognising the principle of subsidiarity, the Commission is of the view that a greater degree of harmonisation than currently exists of security measures and procedures is desirable. In particular, industry (airlines, cargo shippers and freight forwarders, equipment manufacturers) has a legitimate interest in seeing greater levels of harmonisation for facilitation reasons. Indeed, there are situations where facilitation can be achieved through more harmonisation without compromising in any way security. In this regard the Commission understands, supports and follows the needs and orientations of industry.
One example where there is a lack of harmonisation concerns air cargo security. Point 6.2(b) of the Annex to Regulation (EC) 2320/2002 allows the rules for regulated agents to be defined by the appropriate authority. This has resulted in 25 national systems being in place and a consequential potential distortion of competition and the inability of industry to benefit from the freedoms of the Single Market.
Further harmonisation can be developed in greater detail in the implementing legislation. In the example of cargo security it will then be possible to interlink security requirements for regulated agents and known shippers with the Authorised Economic Operator concept developed in the Community's customs legislation.
Increased harmonisation is also an integral element of one-stop security - the concept whereby transfer- and transit passengers, bags and cargo need not be rescreened since there is confidence that baseline levels of security were met at the original departing airport. Again, this is an element that is of benefit to operators acting in a highly competitive market.
In addition to revising the regulation on the grounds of simplification and harmonisation, a revision of the regulation can ensure further clarity. The complexity of elements in the regulation has shown that there exists the possibility for different interpretations of the legal requirements. There is also ambiguity in parts of the text. Clarity will contribute to effective implementation of security standards and to legal certainty.
The proposed new regulation would seek to address such issues by improving the overall clarity and legal certainty (and thus quality) of the legislation and, with it, diminish the scope for misinterpretation.
Reference has already been made to the inflexibility that results from having detailed operational and technical standards in co-decision legislation. The Commission is of the view that the ability to (re)act swiftly in the light of risks that are constantly evolving over time is of major significance to improve the overall levels of security. This ability to (re)act swiftly, if necessary, should override potential concerns in relation to the institutional balance for developing legislation. Such an approach is, of course, without prejudice to the scrutiny reserve that the European Parliament has for implementation legislation that is adopted via the comitology process.
Finally, an issue of concern is that the current regulation is in the public domain. Consequently, any amendments made to it will also be in the public domain. In the view of the Commission it is not desirable to have detailed security measures and procedures placed in the public domain, as potential terrorists could use the information to seek out weaknesses in aviation security in order to perpetrate unlawful acts. Similarly, it is also not in the public interest to publicise new developments in security. By placing operational details in implementing legislation this issue can be addressed.
- Existing provisions in the area of the proposal
Regulation (EC) No 2320/2002 of the European Parliament and of the Council establishes common rules in the field of civil aviation security. The proposal seeks to replace this legislative act.
- Consistency with other policies and objectives of the Union
The proposal seeks to replace the existing regulation in order to bring forward better legislation, based on four principles: that of simplification, harmonisation, clarification and enhancing the levels of security.
- Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents
The key stakeholder organisations representing airlines, airports, pilots and cargo handlers were all actively involved in a working group that assisted the Commission in developing standards that are reflected in the Commission proposal.
The stakeholder organisations support, in general terms, the aim of reducing the level of detail in the framework legislation, provided that they can also play an active role in the development of the complementary implementing legislation.
- Collection and use of expertise
There was no need for external expertise.
- Impact assessment
Given that the proposal aims at replacing the existing framework regulation there will be no impact in itself from its adoption. Consequently, dialogue with stakeholder organisations rather than a formal impact assessment was deemed to be most appropriate in the circumstances.
The legislation has no social or environmental impact.
Contents
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- Summary of the proposed action
With one exception it is not the wish of the Commission to change substantively its competences in the field of civil aviation security through a revision of Regulation (EC) No 2320/2002. Rather, what is proposed is a change in the balance of the legislative provisions between those that are laid down in the framework legislation (current Regulation (EC) No 2320/2002, as amended by Regulation (EC) No 849/2003) and those laid down in implementing legislation, of which there are currently seven acts: Commission Regulations (EC) Nos 622/2003, 1217/2003, 1486/2003, 68/2004, 1138/2004, 781/2005 and 857/2005.
Thus, Regulation (EC) No 2320/2002 would be replaced by a simplified, clearer regulation laying down general principles. Those details edited out of the framework legislation would, instead, be introduced into the implementing legislation, which would be amended accordingly.
In this regard it should be noted that the proposal is approximately half the size of the current regulation.
The only additional competence sought relates to rules for in-flight security measures. It covers such diverse topics as access to the cockpit, unruly passengers and in-flight security officers ('sky marshals'). There currently does not exist Community legislation covering in-flight security measures. In the view of the Commission harmonised rules would be best addressed as an element of aviation security legislation, by means of implementing legislation. However, it should be stressed that such implementing legislation will be developed only as and when such rules are deemed necessary at the Community level. Also, it should be noted that the Commission has no intention of compelling any Member State to accept in-flight security officers on board aircraft and the proposal in no way seeks to change existing sovereignty on this matter.
- Legal basis
Article 80 i of the EC Treaty
- Subsidiarity principle
The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reason(s).
In view of the Community wide scale of aviation security issues and the very advanced nature of the internal aviation market, the objectives are better achieved at the level of the Community than at national level.
Community action will better achieve the objectives of the proposal for the following reason(s).
The current regulation has already demonstrated why action at community level is the most appropriate.
The current regulation has already demonstrated that a Community approach to aviation security raises both overall standards and mutual confidence between Member States.
As is the case with the existing legislation that this proposal seeks to replace the objectives of the proposed new act are better achieved at the level of the Community in view of the Community-wide scale of aviation security issues and the advanced nature of the internal aviation market.
The proposal therefore complies with the subsidiarity principle.
- Proportionality principle
The proposal complies with the proportionality principle for the following reason(s).
As is the case with the existing legislation, the proposed new act sets common baseline standards, but allows Member States to apply more stringent measures if the threat so warrants.
The proposal does not address the issue of financing security. Who should pay for security - industry or the State - was a major topic of discussion during the adoption of Regulation 2320/2002. The conclusion then was a commitment in an Interinstitutional Declaration that the Commission should undertake a study addressing "in particular the way the financing [of aviation security] is shared between the public authorities and the operators and to submit to the European Parliament and the Council the results and proposals if appropriate". Such a study was undertaken and the results published in September 2004 and placed on the Commission website at europa.eu.int/comm/transport/air/safety The report's conclusions are to be used as the basis of a Commission Communication that will look at the funding of security across all modes of transport. This action is foreseen in the 2005 Work Programme of the Commission and its intended completion date is the end of 2005. The legislative initiative to replace Regulation 2320/2002 has thus been made without prejudging either the forthcoming Commission communication or the way that security is funded today across the Community.
- Choice of instruments
Proposed instruments: regulation.
Other means would not be adequate for the following reason(s).
The proposal replaces an existing regulation. The regulation was originally deemed the most appropriate instrument a) to ensure uniform application of rules within the Community and b) to ensure the swiftest possible adoption of common rules after the events of 11 September 2001.
The proposal has no implication for the Community budget.
- Simplification
The proposal provides for simplification of legislation.
Experience over time has shown that Regulation (EC) No 2320/2002 is too detailed and is in need of simplification. Having such a high degree of detail in framework legislation adopted by co-decision makes legal revision to take into account technical or operational developments very impractical.
As an example of this point 4.1.1 of the Annex to the regulation lays down two ways whereby passengers may be screened - by hand or by walk-through-metal-detector. However, in the foreseeable future new technology-based forms of passenger screening will offer a realistic and very accurate alternative way of detecting prohibited items. Unfortunately, technologies other than those described in 4.1.1 of the Annex to the regulation cannot be used for this purpose until the annex is amended accordingly. Given that it requires co-decision procedure this cannot be done swiftly, with potentially negative effects on aviation as a consequence. This is only one example of many.
The adoption of the proposal would lead to the repealing of Regulation 2320/2002 and also Regulation 849/2004 which amended it. The proposal thus follows Commission's commitment to cutting 'red tape' by first scrapping existing legislation - the principle of 'new for old'.
The proposal is included in the Commission's rolling programme for up-date and simplification of the acquis communautaire and its Work and Legislative Programme under the reference 2005/TREN/016.
- Repeal of existing legislation
The adoption of the proposal will lead to the repeal of existing legislation.
- European Economic Area
The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.
- Detailed explanation of the proposal
Article 1 lays down the objectives, namely establishing common rules for safeguarding civil aviation against acts of unlawful interference. Article 1 does not differ in any significant way from Article 1 of Regulation (EC) No 2320/2002.
Article 2 addresses the scope. The text has been made clearer than in the current regulation to give legal certainty that the regulation applies both to Community airports serving civil aviation, to operators providing services at such airports and to entities performing aviation security functions for flights from such airports (for example catering or cargo facilities that do not lie within the airport perimeter).
Article 3 lays down definitions.
Article 4 refers to the common standards that are to be laid down in Community law, including those measures that should be addressed in implementing legislation.
Article 5 permits Member States to apply more stringent security measures. The principle is unchanged from Article 6 of Regulation (EC) No 2320/2002. However, the new proposal requires that Member States shall both undertake a risk assessment and that they shall be able to justify such action, in general terms, if requested to do so by the Commission. This is to address fears by stakeholders that national authorities can burden industry with additional security requirements without the need to justify their actions. Actions by Member States in response to specific threat information should not be prejudiced by this legislation and so heightened security requirements for individual flights would fall outside the requirements of this article.
Article 6 is new. It addresses the situation whereby a third country requires different security measures on flights from Community airports than those laid down by Community legislation.
Article 7 repeats the requirement (currently contained in Article 5 i of Regulation (EC) No 2320/2002) that there should be a single authority in each Member State that is responsible for coordinating and monitoring the implementation of the aviation security requirements.
Articles 8-12 require that there shall be security programmes at national-, airport- and air carrier level, as well as for all other entities performing aviation security functions. The article is not substantively different from obligations in Articles 5 i and 5 i of the existing legislation, but does formally require for the first time in Community legislation a security programme by other entities such as cargo handling companies or airline catering companies. The requirement for security programmes reflects current best practice in the aviation sector and, as such, is not a significant burden on industry or administrations.
Article 13 lays down an obligation for each Member State to undertake compliance monitoring activities by means of a national quality control programme. This article contains the obligations laid down in Articles 5 i and 7 i of Regulation (EC) No 2320/2002.
Article 14 allows for Commission inspections of, inter alia, Community airports. It is generally unchanged from the provisions of current Article 7 (2 to 4) of Regulation (EC) No 2320/2002.
Article 15 addresses the dissemination of information.
Article 16 lays down the Committee to assist the Commission in the development of implementing legislation. It is substantively unchanged from Article 9 in Regulation (EC) No 2320/2002.
Article 17 replaces the existing Article 10 on security of flights from third countries. It foresees agreements between the Community and third countries that would allow for the possibility of passengers, bags and cargo transferring at Community airports without the need for rescreening and/or additional security controls.
Article 18 obliges to have penalties against those that fail to adhere to the Community requirements for aviation security. The requirement is unchanged from that currently laid down in Article 12 of Regulation (EC) No 2320/2002.
Articles 19 and 20 repeal the existing regulation and replace it with this new act. It allows a staggered implementation so that existing implementing legislation that complements Regulation (EC) No 2320/2002 can be updated by Committee procedure to bring it into line with the new act so as to avoid a lacuna when the existing Regulation would be repealed.
Turning to the Annex of the new act, this is structured in the same way as the Annex to Regulation (EC) No 2320/2002. However, the contents of each chapter of the Annex have been simplified into general sets of principles. Whilst rules are needed these shall be developed by means of implementing legislation. As an example the new chapter 4 on passengers and cabin baggage is approximately half the size of the existing chapter 4. Only chapter 10 on in-flight security measures did not exist in the current Regulation.