Explanatory Memorandum to COM(2024)477 - - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2024)477 - . |
|---|---|
| source | COM(2024)477 |
| date | 16-10-2024 |
1. Subject matter of the proposal
(i) the position to be taken on the Union’s behalf in the 233rd session of the Council of the International Civil Aviation Organization (ICAO) for the proposed amendments to Chapter 1 (“Definitions and general principles”), Chapter 3 (“Entry and Departure of persons and their baggage”) Paragraph C (“Security of travel documents”), Paragraph D (“Travel documents”), Paragraph G (“Embarkation/Disembarkation Cards”), Paragraph H (“Inspection of travel documents”) and Chapter 8 (“Facilitation provisions covering specific subjects”) Paragraph H (“Trafficking in persons”) and I (“Wildlife Trafficking”) as included in Amendment 30 of Annex 9 – Facilitation of the Convention on International Civil Aviation concerning the facilitation of landside formalities for clearance of aircraft and passengers, goods and mail, with respect to the requirements of customs, immigration, public health and agriculture authorities. These proposed amendments are contained in Amendment 30 which is included in the State Letter EC 6/3 − 24/67 dated 19 June 2024 and which will be voted at the 233rd session of the Council of the International Civil Aviation Organization (ICAO).
(ii) the position to be taken on the Union’s behalf after the ICAO announces the adoption of the Amendment 30 to Annex 9 Facilitation in respective State Letters, inviting its contracting States to notify any differences or compliance with the adopted measures.
2. Context of the proposal
2.1. The Convention on International Civil Aviation
The Convention on International Civil Aviation (‘the Chicago Convention’) aims to regulate international air transport. The Chicago Convention entered into force on 4 April 1947 and established the International Civil Aviation Organization.
All EU Member States are Parties to the Chicago Convention.
2.2. The International Civil Aviation Organization
The International Civil Aviation Organization is a specialized agency of the United Nations. The aims and objectives of the Organization are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport.
The ICAO Council is a permanent body of ICAO with a membership of 36 contracting States elected by the ICAO Assembly for a period of three years. For the period of 2022-2025, there are six EU Member States represented in the ICAO Council namely Austria, France, Germany, Italy, Romania and Spain.
Mandatory functions of the ICAO Council, listed in Article 54 of the Chicago Convention, include the adoption of international standards and recommended practices (SARPs), designated as Annexes to the Chicago Convention.
Pursuant to Article 37 j) of the Chicago Convention, the ICAO shall adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with customs and immigration procedures.
Pursuant to Article 90 of the Chicago Convention, the adoption by the Council of the Annexes requires the vote of two-thirds of the Council at a meeting called for that purpose and shall then be submitted by the Council to each contracting State. Any such Annex or any amendment of an Annex shall become effective within three months after its submission to the ICAO contracting States, or at the end of such longer period of time as the ICAO Council may prescribe, unless in the meantime a majority of contracting ICAO States register their disapproval.
Pursuant to Article 38 of the Chicago Convention, any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with respect to any such international standard or procedures or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the ICAO of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standards or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.
2.3. The envisaged act of ICAO and its relationship with the existing Union rules
During its 233rd or any consequent session, the ICAO Council is expected to consider and adopt Amendment 30 to Annex 9 – Facilitation as referred to in the State Letter EC 6/3-24/67 arising from the review of Annex 9 – Facilitation conducted by the Facilitation (FAL) Panel during its Thirteenth Meeting which was held from 26 February to 1 March 2024 (FALP/13).
- Annex 9 - Facilitation is based on 10 articles of the Chicago Convention which require that the civil aviation community comply with laws governing the inspection of aircraft, cargo and passengers by authorities concerned with customs, immigration, agriculture and public health. Annex 9 pertains specifically to Facilitation of landside formalities for clearance of aircraft and commercial traffic for both passengers and cargo, through the requirements, inter alia of customs, immigration, public health and agriculture authorities.
- Amendment 30 to Annex 9 includes, among others, new and/or revised provisions relating to entry and departure of persons and their baggage, international airports’ facilities and services for traffic, passenger name record (PNR) data, advance passenger information (API), trafficking in persons, as well as the relocation of health-related provisions from other chapters to Chapter 10 of the Annex.
- The envisaged Amendment to be adopted by the ICAO Council will be binding under international law in accordance with the procedure and time-line laid down in Article 90(a) of the Chicago Convention, which provides that: “The adoption by the Council of the Annexes described in Article 54, subparagraph l), shall require the vote of two-thirds of the Council at a meeting called for that purpose and shall then be submitted by the Council to each contracting State. Any such Annex or any amendment of an Annex shall become effective within three months after its submission to the contracting States or at the end of such longer period of time as the Council may prescribe, unless in the meantime a majority of the contracting States register their disapproval with the Council”.
- Further, the above Amendment is capable of decisively influencing the content of EU legislation, as explained more in details below.
- in relation to Chapter 1 (“Definitions and general principles”) and Chapter 3 (“Entry and Departure of persons and their baggage”) Paragraph C (“Security of travel documents”), Paragraph D (“Travel documents”), Paragraph G (“Embarkation/Disembarkation Cards”), Paragraph H (“Inspection of travel documents”), the proposed amendments add SARPs related to the security of the issuance process for electronic Machine Readable Travel Documents (“eMRTD”) and to update the access control protocol and technical standard for encoding the facial image in eMRTDs. The amendments cover subjects that are regulated - under EU law by Council Regulation (EC) No 2252/20041 (on travel documents and passports) and Regulation (EC) No 1683/952 (on visa standards) and due to its binding nature are capable of decisively influencing the content of EU legislation.
- with regard to Chapter 8 (“Facilitation provisions covering specific subjects”) former Paragraph J now renumerated to H (“Trafficking in persons”), the proposed Amendments are mainly of linguistics nature but they clarify that the requirements in standards 8.49 and 8.50 are binding for the Contracting States.
- Finally, with regard to Chapter 1 (“Definitions and general principles”) and Chapter 9 (“Passenger Data Systems”) the proposed amendments are largely editorial in nature; additions or rephrasing, mostly under the form of explanatory notes to SARPs, clarifying the conditions of application of API and interactive API systems. The proposed amendment seeks to streamline the use of advance passenger information (API) system and interactive advance passenger information (iAPI) system throughout the text of Annex 9. It aims to provide clarity on the definition of (batch) API system and iAPI system (Chapter 1), with editorial changes in Chapter 9 that consists on repositioning Recommended Practice 9.8 on recommending Contracting States to consider the introduction of an iAPI system earlier in the text of Annex 9. The amendments keeps Standard 9.7 as establishing an obligation on Contracting States to establish an advance passenger information (API) system with a more extensive definition of iAPI system (Note 2 under Standard 9.7). Under Standard 9.7 each Contracting State shall establish an Advance Passanger Information (API) system. On the basis of Notes 1 and 2 to that SARP, such API can take form of a normal API or iAPI. Based on the Recommended Practice under point 9.8. iAPI remains facultative (“Each Contracting state should consider the introduction of an interactive Advanced Passanger Information (iAPI) system.”). With regard to amendments in Chapter 9 on API system, there is no impact on Union law namely Council Directive 2004/82/EC3 of 29 April 2004 on the obligation of carriers to communicate passenger data (API Directive) as ICAO changes are purerly editorial.
- As substantiated above, the envisaged act concerns an area which is already largely covered by Union rules and is thus liable to ‘affect common rules or alter their scope’. The envisaged Amendment 30 to Annex 9 therefore concern an area in which the Union has acquired exclusive external competence by virtue of the last limb of Article 3(2) TFEU on this matter.
3. Position to be taken on the Union's behalf
3.1. Proposed amendments and their relationship with the existing Union rules
Amendments to Chapter 1 (“Definitions and general principles”), Chapter 3 (“Entry and Departure of persons and their baggage”), Paragraph C (“Security of travel documents”), Paragraph D (“Travel documents”), Paragraph G (“Embarkation/Disembarkation Cards”), Paragraph H (“Inspection of travel documents”) and Chapter 8 (“Facilitation provisions covering specific subjects”) Paragraph H (“Trafficking in persons”) and I (“Wildlife Trafficking”) included in Amendment 30 to Annex 9 – Facilitation of the Convention on International Civil Aviation
The proposed amendments, included in Amendment 30 to Annex 9 as referred to in the State Letter EC 6/3-24/67, cover subjects that are also regulated by EU legal acts as cited in paragraph 2.3 and are consistent therewith.
The proposed amendments would contribute to the improvement of Annex 9 clarity and efficiency thus better pursuing the aim of allowing that the flow of travellers, baggage, cargo, and mail is efficient and delivered in a healthy, safe, and secure environment on the ground and in the air. The Union acknowledges the need for continuosly reviewing Annex 9 in order to keep it updated and able to reflect the evolution of air travel.
The proposed position to be taken on behalf of the Union is then to support these amendments.
Hence, the position to be taken on the Union’s behalf, provided the ICAO Council adopts the proposed Amendment 30 to Annex 9 – Facilitation, should be to not notify any disapproval but to comply with the adopted measures in reply to the respective ICAO State Letter.
Where Union legislation would deviate from the newly adopted ICAO Standards after an envisaged date of application of those Standards, the Union position on the differences with those particular Standards should be notified to ICAO by Member States, on the basis of preparatory document submitted in due time by the Commission to the Council for discussion and approval, and setting out the detailed differences for the time necessary to complete the implementation.
4. Legal basis
4.1. Procedural legal basis
4.1.1. Principles
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a party to the agreement4.
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’5 since several parts of the proposed Amendment fall within Union law namely: Council Regulation (EC) No 2252/2004 and Regulation (EC) No 1683/95.
4.1.2. Application to the present case
The ICAO Council is a body set up by an agreement, namely the Chicago Convention.
In accordance with Article 54(l) of the Chicago Convention, the ICAO Council adopts international SARPs, designated as Annexes to the Chicago Convention. The acts which the ICAO Council is called upon to adopt constitute acts having legal effects. The envisaged acts will be binding under international law in accordance with Article 90(a) of the Chicago Convention.
Further, as explained above, the envisioned amendments to Annex 9 are capable of decisively influencing the content of Union legislation as they touch upon matters already regulated thereby, namely: Council Regulation (EC) No 2252/2004 and Regulation (EC) No 1683/95.
The envisaged acts do not supplement or amend the institutional framework of the agreement.
Therefore, the procedural legal basis for the proposed Decision position in respect of such notifications is Article 218(9) TFEU.
4.2. Substantive legal basis
4.2.1. Principles
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure may be founded on the corresponding legal bases.
4.2.2. Application to the present case
The envisaged act although pursues objectives of common transport policy has in its content several predominant components in the areas of border control and migration, including the security of travel documents. At the same time, due to a non-binding and purely editorial nature of relevant ICAO amendments concerning collection and transfer of API data for border management purposes the relevant Union rules in that area (namely Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data) are unaffected. Furthermore, ICAO changes (namely Paragraph H in Chapter 8) concerning trafficking in persons are of incidental nature to the predominant content of those amendments, which is international border controls and migration (passports and visas).
Therefore, the substantive legal basis of the proposed decision is Article 77(2) (a) and (b) TFEU.
4.3. Conclusion
The legal basis of the proposed Council Decision is Article 77(2) (a) and (b), in conjunction with Article 218(9) TFEU.
5. Publication of the envisaged act
For reasons of transparency and proper reference as the proposed amendments will amend Annex 9 of the Chicage Convention, it is necessary to publish it in the Official Journal of the European Union after its adoption indicating the date of its entry into force.