# EUR-Lex - 52012PC0457 - EN

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# 52012PC0457

**Proposal for a COUNCIL DECISION on the position to be taken by the European Union within the EU-ICAO Joint Committee, concerning the Decision on the adoption of an Annex on aviation security to the Memorandum of Cooperation between the European Union and the International Civil Aviation Organization providing a framework for enhanced cooperation /* COM/2012/0457 final - 2012/0222 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

1.1.        Objectives of the annex on
Aviation Security to the Memorandum of Cooperation

The International Civil Aviation
Organization (ICAO) is a UN specialised agency acting as the global forum for
civil aviation. ICAO works to achieve its vision of safe, secure and
sustainable development of civil aviation through cooperation among its Member States.
The legal basis for ICAO is the Chicago Convention on International Civil Aviation
of 1944. Currently ICAO covers 191 countries.

The European Union works closely with ICAO.
Firstly, most aspects of the Chicago Convention are Union competence; ICAO is
pursuing policies in the fields of safety, security, environment and air
traffic management. Secondly, ICAO standards and requirements form the basis
for EU legislation. Moreover, international standards, such as in the field of
aviation security, are taken over in EU law. For the EU, it is therefore important
to engage in ICAO's work and policy-making activities to contribute to sound
global aviation policies. Also the competitiveness of the European civil
aviation industry is at stake. That is why other global players are also
actively involved in ICAO activities.

The EU and ICAO have concluded a Memorandum
of Cooperation (MoC) providing for an enhanced framework for cooperation[1]. The MoC identifies security as
one of the areas in which cooperation shall be established between the Parties
and which shall be developed in a specific annex on Aviation Security to the
MoC. The annex should contribute to enhancing security in international
aviation and sets out areas of cooperation that will, inter alia, take
the form of exchanging relevant security information, posting experts and
financing specific security actions. An annex on Aviation Safety has already
been developed and it is foreseen to also develop annexes on the environment
and air traffic management. The annex on Aviation Security is thus the second
annex to the MoC.

The adoption of an annex on Aviation
Security is without prejudice to the rights or obligations of EU Member States
under the Chicago Convention or to the relationship between EU Member States
and ICAO resulting from their membership of ICAO.

1.2.        Procedural aspects

The Commission obtained an authorisation
from the Council to negotiate the MoC on 17 December 2009. After the signature[2] and conclusion[3] of the MoC by the EU, it
entered into force on 29 March 2012 following the notification by the Parties that
their respective internal procedures necessary for its entry into force had
been completed.

Article 218(9) of the Treaty on the
Functioning of the European Union establishes that the Council, on a proposal
from the Commission, shall adopt a decision 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.

Article 3 of Council Decision 2012/243/EU[4] on the conclusion of a
Memorandum of Cooperation between the European Union and the International
Civil Aviation Organization establishes that the Council shall determine the
position to be taken by the Union in the Joint Committee established under
paragraph 7.1 of the Memorandum of Cooperation as regards the adoption of new
Annexes to the Memorandum and amendments thereto, as referred to in point (c)
of paragraph 7.3 of the Memorandum.

As such, a Council Decision on the position
to be taken by the EU within the Joint Committee on the decision to adopt an annex
on Aviation Security is required.

1.3.        Consistency with other
policies and objectives of the Union

The Annex on Aviation Security will serve the
fundamental objectives of the European external aviation policy through the
formalisation of the cooperation in this area between ICAO and the EU.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

Member States were regularly informed throughout
the negotiation process.

3.           LEGAL ELEMENTS OF THE PROPOSAL

3.1.        Summary of the proposed
action

The annex on Aviation Security will enhance
cooperation with ICAO with a view to providing a discussion forum on aviation
security, to exchanging relevant security information, to promoting security
actions and regional cooperation, and to the posting of experts.

3.2.        Legal basis

Article 100(2) in conjunction with Article 218(9)
of the Treaty on the Functioning of the European Union.

3.3.        Subsidiarity principle

The agreement covers issues where the EU
has competence and where relations with ICAO need to be maintained at the EU
level.

3.4.        Proportionality principle

Only such an agreement is able to pool EU efforts
and provide for better coordination between Member States.

4.           BUDGETARY IMPLICATION

This Annex on Aviation Security has no
budgetary implications[5].

2012/0222 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken by the
European Union within the EU-ICAO Joint Committee, concerning the Decision on
the adoption of an Annex on aviation security to the Memorandum of Cooperation
between the European Union and the International Civil Aviation Organization
providing a framework for enhanced cooperation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 100(2) in
conjunction with Article 218(9) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       Council Decision
2012/243/EU of 8 March 2012 on the conclusion of a Memorandum of Cooperation
between the European Union and the International Civil Aviation Organization (ICAO)
providing a framework for enhanced cooperation, and laying down procedural
arrangements related thereto[6]
(hereinafter referred to as 'Memorandum of Cooperation'), entered into force on
29 March 2012.

(2)       Pursuant to Article 7.3(c)
of the Memorandum of Cooperation, the Joint Committee established by Article 7.1
of the Memorandum of Cooperation may adopt annexes to the Memorandum of
Cooperation.

(3)       It is appropriate to
establish the position to be taken by the European Union within the Joint
Committee with regard to the adoption of an annex on Aviation Security to be
added to the Memorandum of Cooperation,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken by the European
Union within the EU-ICAO Joint Committee, as referred to in Article 7.3(c) of
the Memorandum of Cooperation between the European Union and the International
Civil Aviation Organization providing a framework for enhanced cooperation (the
Memorandum of Cooperation), with regard to the adoption of an Annex on aviation
security to the Memorandum of Cooperation, shall be based on the draft Decision
of the EU-ICAO Joint Committee, attached to this Decision.

Article 2

This Decision shall enter into force on the
day of its adoption.

Done at Brussels,

For
the Council

The
President

ANNEX 1

DRAFT

DECISION
OF THE EU-ICAO JOINT COMMITTEE

of ...

on
the adoption of an annex on aviation security to the Memorandum of Cooperation
between the European Union and the International Civil Aviation Organization
providing a framework for enhanced cooperation

THE EU-ICAO JOINT COMMITTEE,

Having regard to the Memorandum of
Cooperation between the European Union and the International Civil Aviation
Organization providing a framework for enhanced cooperation (the ICAO MoC), and
in particular Article 7.3(c) thereof,

Whereas:

It is appropriate to include an annex on Aviation
Security in the ICAO MoC,

HAS ADOPTED THIS DECISION:

Article 1

The Annex to this Decision is hereby
adopted and shall form an integral part of the ICAO MoC.

Article 2

This Decision shall enter into force on the
day of its adoption.

Done at

For the EU-ICAO Joint Committee

The
Chairpersons

ANNEX 2
'ANNEX II - AVIATION SECURITY

1.         Objectives

1.1       The
Parties agree to cooperate in the field of aviation security within the
framework of the Memorandum of Cooperation (MOC) between the European Union and
the International Civil Aviation Organization (ICAO) signed in Montreal on 28
April 2011 and in Brussels on 4 May 2011.

1.2       Consistent
with their commitment to achieving an appropriate and sustainable level of aviation
security on a global basis, notably through ICAO Standards and Recommended
Practices (SARPs), the Parties agree to cooperate closely in the conduct of
their aviation security activities.

2.         Scope

2.1       In
pursuit of the objectives specified in paragraph 1, the Parties agree to
cooperate by:

(a)        conducting
regular dialogue on aviation security matters of mutual interest;

(b)        conducting
a regular exchange of relevant aviation security information in accordance with
applicable rules;

(c)        participating
in aviation security activities;

(d)        analysing,
as relevant, States’ compliance with ICAO Standards, adherence to Recommended
Practices, and effective implementation of an aviation security oversight
system;

(e)        monitoring
EU States’ compliance with ICAO Standards, adherence to Recommended Practices,
and effective implementation of an aviation security oversight system;

(f)         continuing
cooperation in regulatory and standard-setting matters;

(g)        developing
and providing technical assistance;

(h)        promoting
regional cooperation;

(i)         exchanging
experts; and

(j)         providing
aviation security-related training.

3.         Implementation

3.1       The
Parties may establish working arrangements specifying mutually agreed
mechanisms and procedures to effectively implement cooperation in the areas
referred to in Article 2.1. These working arrangements shall be adopted by the
Joint Committee.

4.         Dialogue

4.1       The
Parties shall convene meetings and/or teleconferences on a regular basis to
discuss aviation security matters of mutual interest and, where appropriate,
coordinate activities.

5.         Sharing
of aviation security information, research/studies and analysis

5.1       Without
prejudice to their applicable rules, the Parties shall establish working
arrangements specifying what information and analyses can be shared with one
another on the basis of information gathered by their respective audit and inspection
programmes, as well as the sharing mechanism to guarantee the confidentiality
of information received from the other Party in accordance with Article 6 of
the MOC.

5.2       The
Parties shall collaborate in aviation security activities through the exchange
of relevant and appropriate data, research, studies, information and
documentation, and by facilitating mutual participation in meetings.

6.         Participation
in aviation security activities

6.1       For
the purpose of implementing this Annex, each Party shall, as appropriate,
invite the other Party to participate, in accordance with established rules or
procedures, in aviation security-related activities and meetings with a view to
ensuring close cooperation and coordination. The modalities for such
participation shall be established in working arrangements agreed by the
Parties.

7.         Regulatory
matters

7.1       Each
Party shall ensure that the other Party is kept informed of all its relevant
laws, regulations, standards, requirements and recommended practices, which may
affect the implementation of this Annex, as well as any modification thereof.

7.2       The
Parties shall notify each other in a timely manner of any proposed
modifications to their relevant laws, regulations, standards, requirements and
recommended practices, insofar as these modifications may have an impact on
this Annex.

7.3       With
a view to the global harmonisation of aviation security regulations and standards,
the Parties shall inform each other on technical regulatory matters in the
field of aviation security during the different stages of the rule-making or
SARP-development processes, and may be invited to participate in the associated
technical bodies, when appropriate.

7.4       The Parties
shall provide each other with timely information on decisions and
recommendations affecting aviation security.

7.5       The
EU shall, where appropriate, engage in dialogue with ICAO to provide technical
information in instances where issues related to compliance with ICAO Standards
and adherence to ICAO Recommended Practices emerge pursuant to the application
of EU legislation.

8.         Technical
Assistance

8.1       The
Parties shall coordinate assistance to States in an effort to ensure the
effective use of resources and prevent a duplication of effort, and shall exchange
information on aviation security-related technical assistance projects and
programmes.

8.2       The
Parties shall cooperate closely in assisting EU States and other States as
deemed necessary in improving their level of effective implementation of the
critical elements of State security oversight systems and their level of
compliance with ICAO SARPs. Such cooperation shall include but not be limited
to the exchange of information, facilitating dialogue between the Parties
concerned, and the coordination of any technical assistance activities.

9.         Regional
Cooperation

9.1       The
Parties shall give priority to activities aimed at accelerating implementation
of SARPs where the regional approach offers opportunities for improved
cost-efficiency, oversight and/or standardisation processes.

10.       Expert
Assistance

10.1     Without
prejudice to expert assistance schemes developed outside the scope of this
Annex, the Parties shall endeavour to make experts with technical expertise in
relevant fields of aviation security available to each other, upon request, to
perform tasks and participate in activities falling within the scope of this
Annex. The conditions of such expert assistance shall be specified in a working
arrangement between the Parties.

11.       Training

11.1     Where
appropriate, each Party shall facilitate the participation of staff of the
other Party in any aviation security-related training programmes which it
provides.

11.2     The
Parties shall exchange information on materials relating to aviation
security-related training programmes and, where appropriate, coordinate and
cooperate in the development of training programmes.

11.3     In
the framework of the activities covered in Article 9 of this Annex, the Parties
shall cooperate in facilitating and coordinating the participation in training
programmes of trainees who come from States or regions to which technical
assistance is being provided by either Party.

12.       Review

12.1     The
Parties shall review the implementation of this Annex on a regular basis and,
as necessary, take into account any relevant policy or regulatory developments.

12.2     Any
review of this Annex shall be conducted by the Joint Committee established
pursuant to Article 7 of the MOC.

13.       Entry
into Force, Amendments and Termination

13.1     This
Annex shall enter into force on the date of its adoption by the Joint Committee
and shall remain in force until terminated.

13.2     Working
arrangements agreed pursuant to this Annex shall enter into force on the date
of their adoption by the Joint Committee.

13.3     Any
amendments to, or termination of, working arrangements adopted pursuant to this
Annex shall be agreed by the Joint Committee.

13.4     This
Annex may be terminated at any time by either Party. Such termination shall be
effective 6 months following receipt of written notification of termination by
one party from the other party, unless the said notice of termination has been
withdrawn by mutual consent of the Parties before the six-month period has
expired.

13.5     Notwithstanding
any other provision of this Article, if the MOC is terminated, this Annex and
any working arrangement adopted pursuant to it shall terminate simultaneously.'

[1]               OJ L 232, 9.9.2011, p. 2 and OJ L 121, 8.5.2012,
p.16.

[2]               OJ L 232, 9.9.2011, p. 1.

[3]               OJ L 121, 8.5.2012, p. 16.

[4]               OJ L 121, 8.5.2012, p. 16.

[5]               The Memorandum of Cooperation was endowed with a
budget of €500,000 per year for the period 2011-2013.

[6]               OJ L 121, 8.5.2012, p. 16.