COMMISSION REGULATION (EC) No 375/2007
of 30 March 2007
amending Regulation (EC) No 1702/2003 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (1), and in particular Articles 5 and 6 thereof,
Whereas:
(1)
Aircrafts subject to the provisions of Regulation (EC) No 1592/2002 must all be issued an airworthiness certificate or permit to fly in accordance with Commission Regulation (EC) No 1702/2003 of 24 September 2003 laying down implementing rules for the airworthiness and environmental certification of aircrafts and related products, parts and appliances, as well as for the certification of design and production organisations (2) before 28 March 2007. In the absence of such a certificate or permit to fly they are not entitled to be used after that date by Community operators in the territory of Member States.
(2)
According to article 2(3)(c) of Commission Regulation (EC) No 1702/2003, the European Aviation Safety Agency (hereinafter the Agency) is required to determine before 28 March 2007 the approved design necessary to issue the airworthiness certificates or permits to fly of aircrafts registered in Member States, which do not meet the requirements of its Article 2(3)(a). Such determination could not be done by the Agency within that time period for many aeronautical products because it had not received the necessary applications by their designers.
(3)
While airworthiness certificates should only be issued when the Agency has been able, following a technical evaluation of the product, to approve their design restricted certificates of airworthiness can be issued for a limited period of time to allow the continued operation of these aircrafts and to enable the Agency to review their design.
(4)
Time did not permit the adoption of specific airworthiness specifications by the Agency before 28 March 2007. It is however possible to determine an approved design by reference to that of the State of design as this was done for most aircrafts for which a type certificate had been issued by Member States before 28 September 2003.
(5)
Such a determination should only be made for those aircrafts to which Member States had issued certificates of airworthiness, excluding restricted certificates of airworthiness and permits to fly, in order to ensure that such aircrafts meet at least the safety requirements as specified by the Convention on International Civil Aviation in its Annex 8.
(6)
In order to minimise safety risks and limit distortions of competition the envisaged measure should apply only with respect to aircrafts to which a Member State had issued a certificate of airworthiness, and which was on the register of that Member State, by the date when Regulation (EC) No 1702/2003 became applicable in that Member State (3). The owners of such aircrafts were not aware, at the time of registration, of the risk that it would not be allowed to continue operations after 28 March 2007. In contrast, the owners of aircrafts registered in a Member State after the date on which Regulation (EC) No 1703/2003 became applicable in that Member State were aware, at the time of registration, that such aircrafts would not be allowed to continue operating after 28 March 2007, unless the Agency was able to approve their design by that date.
(7)
It is considered necessary to ensure that aircrafts eligible for the envisaged measure should exclusively be aircrafts for which the representative authority of the State of design accepts through a working arrangement in accordance with Article 18 of Regulation (EC) No 1592/2002 to assist the Agency in ensuring the continued oversight of the so determined approved design.
(8)
The envisaged measure should be of a temporary nature to mitigate the risks associated to the limited technical knowledge that the Agency has of the design of the affected products. It is also necessary to create an incentive for designers to assist the Agency in determining the necessary approved design to fully integrate their aircrafts in the Community system. In addition, the application of different regulatory regimes to aircrafts involved in the same operations raises issues of unfair competition in the internal market and cannot be perpetuated indefinitely. Therefore the validity of the measure should be limited to a 12-month period, which may be extended by a maximum of 18 months, provided that a certification process has been undertaken and can be concluded during that period.
(9)
Article 2(3)(a) of Regulation (EC) No 1702/2003 only refers to aircrafts that were issued a type-certificate. However a number of aircrafts that should be eligible for the measure specified in that Article have never been issued a type-certificate because such documents were not required by ICAO Standards applicable at the time they were designed and certificated. Clarification is therefore needed to ensure that such aircrafts can continue to be issued a certificate of airworthiness.
(10)
Regulation (EC) No 1702/2003 should be amended to avoid confusion and legal uncertainty with regard to Part 21A.173(b)(2) and Part 21A.184 of the Annex to that Regulation, which refer to ‘specific certification specification’ instead of ‘specific airworthiness specification’ as specified in Articles 5(3)(b) and 15(1)(b) of Regulation (EC) No 1592/2002.
(11)
By derogation from the rules for issuance of certificates of airworthiness, Article 5 (3)(a) of Regulation (EC) No 1592/2002 provides for the issuance of a permit to fly. Such a permit is generally issued when a certificate of airworthiness is temporarily invalid, for example as the result of a damage, or when a certificate of airworthiness cannot be issued for instance when the aircrafts does not comply with the essential requirements for airworthiness or when compliance with those requirements has not yet been shown, but the aircrafts is nevertheless capable of performing a safe flight.
(12)
Following the end of the transition period for permits to fly, it is necessary to adopt common requirements and administrative procedures for the issuance of these permits which will contain all the conditions necessary to mitigate the risk of deviations from the essential requirements, therefore ensuring recognition of the permits to fly by all Member States in accordance with Article 8 of Regulation (EC) No 1592/2002.
(13)
The measures provided for in this Regulation are based on the opinions issued by the Agency (4) in accordance with Articles 12(2)(b) and 14(1) of Regulation (EC) No 1592/2002.
(14)
The measures provided for in this Regulation are in accordance with the opinion of the Committee referred to in Article 54(3) of Regulation (EC) No 1592/2002,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1702/2003 is amended as follows:
1.
Article 2 is replaced by the following:
‘Article 2
Products, parts and appliances certification
1. Products, parts and appliances shall be issued certificates as specified in Part 21.
2. By way of derogation from paragraph 1, aircrafts, including any installed product, part and appliance, which are not registered in a Member State shall be exempted from the provisions of Subparts H and I of Part 21. They shall also be exempted from the provisions of Subpart P of Part 21 except when aircrafts identification marks are prescribed by a Member State.
3. Where reference is made in the Annex (Part 21) to apply and/or to comply with the provisions of Annex I (Part M) to Commission Regulation (EC) No 2042/2003 and a Member State has elected, pursuant to Article 7(3)(a) and (b) of that Regulation, not to apply that Part until 28 September 2008, the relevant national rules shall apply instead until that date.
Article 2a
Continued validity of type-certificates and related certificates of airworthiness
1. With regard to products which had a type-certificate, or a document allowing the issuing of a certificate of airworthiness, issued before 28 September 2003 by a Member State, the following provisions shall apply:
(a)
the product shall be deemed to have a type-certificate issued in accordance with this Regulation when:
(i)
its type-certification basis was:
-
the JAA type-certification basis, for products that have been certificated under JAA procedures, as defined in their JAA data sheet, or
-
for other products, the type-certification basis as defined in the type-certificate data sheet of the State of design, if that State of design was:
-
a Member State, unless the Agency determines, taking into account, in particular, airworthiness codes used and service experience, that such type-certification basis does not provide for a level of safety equivalent to that required by the Basic Regulation and this Regulation, or
-
a State with which a Member State had concluded a bilateral airworthiness agreement or similar arrangement under which such products have been certificated on the basis of that State of design airworthiness codes, unless the Agency determines that such airworthiness codes or service experience or the safety system of that State of design do not provide for a level of safety equivalent to that required by Regulation (EC) No 1592/2002 and this Regulation.
The Agency shall make a first evaluation of the implication of the provisions of the second indent in view of producing an opinion to the Commission including possible amendments to this Regulation;
(ii)
the environmental protection requirements were those laid down in Annex 16 to the Chicago Convention, as applicable to the product;
(iii)
the applicable airworthiness directives were those of the State of design.
(b)
The design of an individual aircrafts, which was on the register of a Member State before 28 September 2003, shall be deemed to have been approved in accordance with this Regulation when:
(i)
its basic type design was part of a type-certificate referred to in point (a);
(ii)
all changes to this basic type design, which were not under the responsibility of the type-certificate holder, had been approved; and
(iii)
the airworthiness directives issued or adopted by the Member State of registry before 28 September 2003 were complied with, including any variations to the airworthiness directives of the State of design agreed by the Member State of registry.
(c)
The Agency shall determine the type-certificate of the products not meeting the requirements of point (a) before 28 March 2007.
(d)
The Agency shall determine the type-certificate data sheet for noise for all products covered by point (a) before 28 March 2007. Until such determination, Member States may continue to issue noise certificates in accordance with applicable national regulations.
2. With regard to products for which a type-certification process was proceeding through the JAA or a Member State on 28 September 2003, the following shall apply:
(a)
if a product is under certification by several Member States, the most advanced project shall be used as the reference;
(b)
21A.15(a), (b) and (c) of Part 21 shall not apply;
(c)
by way of derogation from 21A.17(a) of Part 21, the type-certification basis shall be that established by the JAA or, where applicable, the Member State at the date of application for the approval;
(d)
compliance findings made under JAA or Member State procedures shall be deemed to have been made by the Agency for the purpose of complying with 21A.20(a) and (b) of Part 21.
3. With regard to products that have a national type-certificate, or equivalent, and for which the approval process of a change carried out by a Member State was not finalised at the time when the type-certificate had to be in accordance with this Regulation, the following shall apply:
(a)
if an approval process is being carried out by several Member States, the most advanced project shall be used as the reference;
(b)
21A.93 of Part 21 shall not apply;
(c)
the applicable type-certification basis shall be that established by the JAA or, where applicable, the Member State at the date of application for the approval of change;
(d)
compliance findings made under JAA or Member State procedures shall be deemed to have been made by the Agency for the purpose of complying with 21A.103(a)(2) and (b) of Part 21.
4. With regard to products that had a national type-certificate, or equivalent, and for which the approval process of a major repair design carried out by a Member State was not finalised at the time when the type-certificate had to be determined in accordance with this Regulation, compliance findings made under JAA or Member State procedures shall be deemed to have been made by the Agency for the purpose of complying with 21A.433(a) of Part 21.
5. A certificate of airworthiness issued by a Member State attesting conformity with a type-certificate determined in accordance with paragraph 1 shall be deemed to comply with this Regulation.
Article 2b
Continued validity of supplemental type-certificates
1. With regard to supplemental type-certificates issued by a Member State under JAA procedures or applicable national procedures and with regard to changes to products proposed by persons other than the type-certificate holder of the product, which were approved by a Member State under applicable national procedures, if the supplemental type-certificate, or change, was valid on 28 September 2003, the supplemental type-certificate, or change shall be deemed to have been issued under this Regulation.
2. With regard to supplemental type-certificates for which a certification process was being carried out by a Member State on 28 September 2003 under applicable JAA supplemental type-certificate procedures and with regard to major changes to products, proposed by persons other than the type-certificate holder of the product, for which a certification process was being carried out by a Member State on 28 September 2003 under applicable national procedures, the following shall apply:
(a)
if a certification process was being carried out by several Member States, the most advanced project shall be used as the reference;
(b)
21A.113 (a) and (b) of Part 21 shall not apply;
(c)
the applicable certification basis shall be that established by the JAA or, where applicable, the Member State at the date of application for the supplemental type-certificate or the major change approval;
(d)
the compliance findings made under JAA or Member State procedures shall be deemed to have been made by the Agency for the purpose of complying with 21A.115(a) of Part 21.
Article 2c
Continued operation of certain aircrafts registered by Member States
1. With regard to an aircrafts that cannot be deemed to have a type-certificate issued in accordance with Article 2a (1)(a) of this Regulation, that has been issued a certificate of airworthiness by a Member State before Regulation (EC) No 1702/2003 became applicable in that Member State (5), was on its register on that date, and was still on the register of a Member State on 28 March 2007, the combination of the following shall be deemed to constitute the applicable specific airworthiness specifications issued in accordance with this Regulation:
(a)
the type-certificate data sheet and type-certificate data sheet for noise, or equivalent documents, of the State of design, provided that the State of design has concluded the appropriate working arrangement in accordance with Article 18 of Regulation (EC) No 1592/2002 with the Agency covering the continued airworthiness of the design of such an aircrafts;
(b)
the environmental protection requirements laid down in Annex 16 to the Chicago Convention, as applicable to that aircrafts; and
(c)
the mandatory continuing airworthiness information of the State of design.
2. The specific airworthiness specifications shall allow the continuation of the type of operations that the aircrafts concerned was entitled to perform on 28 March 2007 and shall be valid until 28 March 2008, unless these specifications are replaced before that date by a design and environmental approval issued by the Agency in accordance with this Regulation. Restricted certificates of airworthiness for the aircrafts concerned shall be issued by Member States pursuant to Part 21 Subpart H when conformity with these specifications is attested.
3. The Commission may extend the period of validity referred to in paragraph 2 by a maximum of 18 months for aircrafts of a certain type, provided that a certification process of that type of aircrafts has been undertaken by the Agency before 28 March 2008 and that the Agency determines that such process can be concluded within the additional period of validity. In such case the Agency will notify its determination to the Commission.
Article 2d
Continued validity of parts and appliances certificates
1. Approvals of parts and appliances issued by a Member State and valid on 28 September 2003 shall be deemed to have been issued in accordance with this Regulation.
2. With regard to parts and appliances for which an approval or authorisation process was being carried out by a Member State on 28 September 2003, the following shall apply:
(a)
if an authorisation process was being carried out by several Member States, the most advanced project shall be used as the reference;
(b)
21A.603 of Part 21 shall not apply;
(c)
the applicable data requirements under 21A.605 of Part 21 shall be those established by the relevant Member State, at the date of application for the approval or authorisation;
(d)
compliance findings made by the relevant Member State shall be deemed to have been made by the Agency for the purpose of complying with 21A.606(b) of Part 21.
Article 2e
Permit to fly
The conditions determined before 28 March 2007 by the Member States for permits to fly or other airworthiness certificate issued for aircrafts which did not hold a certificate of airworthiness or restricted certificate of airworthiness issued under this Regulation, are deemed to be determined in accordance with this Regulation, unless the Agency determines before 28 March 2008 that such conditions do not provide for a level of safety equivalent to that required by Regulation (EC) No 1592/2002 or this Regulation.
The permit to fly or other airworthiness certificate issued by Member States before 28 March 2007 for aircrafts which did not hold a certificate of airworthiness or restricted certificate of airworthiness issued under this Regulation, are deemed to be a permit to fly issued in accordance with this Regulation until 28 March 2008.’
2.
The Annex (Part 21) to Commission Regulation (EC) No 1702/2003 is amended as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 March 2007.