COMMISSION REGULATION (EC) No 298/2009
of 8 April 2009
amending Regulation (EC) No 474/2006 establishing the Community list of air carriers which are subject to an operating ban within the Community
(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 2111/2005 of the European Parliament and the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/CE (1), and in particular Article 4 thereof,
Whereas:
(1)
Commission Regulation (EC) No 474/2006 of 22 March 2006 established the Community list of air carriers which are subject to an operating ban within the Community referred to in Chapter II of Regulation (EC) No 2111/2005 (2).
(2)
In accordance with Article 4(3) of Regulation (EC) No 2111/2005, some Member States communicated to the Commission information that is relevant in the context of updating the Community list. Relevant information was also communicated by third countries. On this basis, the Community list should be updated.
(3)
The Commission informed all air carriers concerned either directly or, when this was not practicable, through the authorities responsible for their regulatory oversight, indicating the essential facts and considerations which would form the basis for a decision to impose on them an operating ban within the Community or to modify the conditions of an operating ban imposed on an air carrier which is included in the Community list.
(4)
Opportunity was given by the Commission to the air carriers concerned to consult the documents provided by Member States, to submit written comments and to make an oral presentation to the Commission within 10 working days and to the Air Safety Committee established by Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonization of technical requirements and administrative procedures in the field of civil aviation (3).
(5)
The authorities with responsibility for regulatory oversight over the air carriers concerned have been consulted by the Commission as well as, in specific cases, by some Member States.
(6)
Regulation (EC) No 474/2006 should therefore be amended accordingly.
(7)
Following information resulting from SAFA ramp checks carried out on aircraft of certain Community air carriers, as well as area specific inspections and audits carried out by their national aviation authorities, some Member States have taken certain enforcement measures. They informed the Commission and the Air Safety Committee about these measures: the competent authorities of Sweden have revoked the Air Operator Certificate (AOC) of the carrier Nordic Regional and suspended those of the carriers Fly Excellent and Aero Syncro; the competent authorities of Spain have revoked the AOC of the carrier Bravo Airlines and its operating licence; the competent authorities of Portugal lifted the suspension of the AOC of the carrier Luzair on 22 January 2009 following verification of successful completion of corrective actions by the carrier; the competent authorities of Greece lifted the suspension of the AOC of the carrier Hellenic Imperial Airways on 18 December 2008 following verification of successful completion of corrective actions by the carrier and suspended on 28 January 2009 the AOC of the carrier Euroair Ltd following a request of this carrier and the suspension of the approval of the continuing airworthiness management organisation of the carrier.
(8)
There is verified evidence of serious safety deficiencies on the part of Starline KZ certified in Kazakhstan. These deficiencies have been identified by Bulgaria as well as other ECAC states during ramp inspections performed under the SAFA programme (4). The repetition of these non-compliances shows systemic safety deficiencies in the area of operations and maintenance.
(9)
Starline KZ did not respond adequately and in a timely fashion to an enquiry by the civil aviation authority of Bulgaria regarding the safety aspect of its operation showing a lack of communication, as demonstrated by the absence of adequate response to correspondence from this Member State. Starline KZ demonstrated a lack of ability to address these safety deficiencies, which remain unresolved.
(10)
The Commission, having regard to the above mentioned deficiencies, has entered on 27 January 2009 in consultation with the competent authorities of Kazakhstan, expressing serious concerns about the safety of the operations of Starline KZ and asking pursuant to Article 7 of Regulation (EC) No 2111/2005 for clarifications regarding the actions undertaken by the competent authorities as well as the carrier to respond to these deficiencies.
(11)
These authorities did not respond adequately and in a timely fashion to an enquiry by the Commission regarding the safety oversight of Starline KZ, since by the required date the Commission did not receive the requested information, in particular the carrier’s AOC together with the complete operations specifications, requirements and restrictions attached thereto.
(12)
Starline KZ requested to be heard by the Air Safety Committee and was heard on 24 March 2009. The hearing however, did not provide sufficient evidence of satisfactory completion of the remedial actions. During the hearing the competent authorities of Kazakhstan presented to the Commission their decision of 4 February 2009 to restrict the operations of Starline KZ to outside the European airspace.
(13)
In view of the above, on the basis of the common criteria, it is assessed that Starline KZ does not meet the relevant safety standards and should therefore be included in Annex A.
(14)
There is verified evidence of serious safety deficiencies on the part of East Wing certified in Kazakhstan. These deficiencies have been identified by France and Romania during ramp inspections performed under the SAFA programme (5). The repetition of these inspection findings shows systemic safety deficiencies.
(15)
East Wing did not respond adequately to an enquiry by the civil aviation authority of France regarding the safety aspect of its operation showing a lack of communication, as demonstrated by the absence of adequate response to correspondence from this Member State. East Wing demonstrated a lack of ability to address these safety deficiencies, which remain unresolved.
(16)
The Commission, having regard to the above mentioned deficiencies, has entered into consultation with the competent authorities of Kazakhstan, expressing serious concerns about the safety of the operations of East Wings and asking for clarifications regarding the actions undertaken by the competent authorities as well as the carrier to respond to these deficiencies.
(17)
Evidence exists that East Wing has taken over operations from the air carrier GST Aero, an air carrier which was put on Annex A on 22 March 2006 (6) and which was withdrawn after the competent authorities of Kazakhstan informed the Commission of the withdrawal of the AOC in March 2007 (7).
(18)
The competent authorities of Kazakhstan informed that they restricted on 4 February 2009 the operations of East Wing to outside the European airspace. These authorities, however, did not respond adequately and in a timely fashion to an enquiry by the Commission regarding the safety oversight of East Wing, failing to provide appropriate evidence regarding the carrier’s AOC together with the complete operations specifications, requirements and restrictions attached thereto.
(19)
East Wing requested to be heard by the Air Safety Committee and was heard on 24 March 2009. However, the hearing did not provide sufficient evidence of satisfactory completion of the remedial actions and revealed that the carrier is not aware of limitations to its operations into the European airspace. In view of the above, on the basis of the common criteria, it is assessed that East Wing does not meet the relevant safety standards and should therefore be included in Annex A.
(20)
There is verified evidence of serious safety deficiencies on the part of ATMA Airlines certified in Kazakhstan. These deficiencies have been identified by Germany, Norway and Turkey during ramp inspections performed under the SAFA programme (8). The repetition of these inspection findings shows systemic safety deficiencies.
(21)
ATMA Airlines did not respond adequately to an enquiry by the civil aviation authority of Germany and Norway regarding the safety aspect of its operation showing a lack of communication, as demonstrated by the absence of adequate response to correspondence from these States. ATMA Airlines demonstrated a lack of ability to address these safety deficiencies, which remain unresolved.
(22)
The Commission, having regard to the above mentioned deficiencies, has entered into consultation with the competent authorities of Kazakhstan, expressing serious concerns about the safety of the operations of ATMA Airlines and asking for clarifications regarding the actions undertaken by the competent authorities as well as the carrier to respond to these deficiencies.
(23)
The competent authorities of Kazakhstan informed that they restricted on 4 February 2009 the operations of ATMA Airlines to outside the European airspace. However, these authorities did not respond adequately and in a timely fashion to an enquiry by the Commission regarding the safety oversight of ATMA Airlines, failing to provide appropriate evidence regarding the carrier’s AOC together with the complete operations specifications, requirements and restrictions attached thereto.
(24)
ATMA Airlines requested to be heard by the Air Safety Committee and was heard on 24 March 2009. The hearings however did not provide sufficient evidence of satisfactory completion of the remedial actions.
(25)
In view of the above, on the basis of the common criteria, it is assessed that ATMA Airlines does not meet the relevant safety standards and should therefore be included in Annex A.
(26)
There is verified evidence of serious safety deficiencies on the part of Berkut Air certified in Kazakhstan. These deficiencies have been identified by France and Romania during ramp inspections performed under the SAFA programme (9). The repetition of these inspection findings shows systemic safety deficiencies.
(27)
Berkut Air did not respond adequately and in a timely fashion to an enquiry by the civil aviation authority of Romania regarding the safety aspect of its operation showing a lack of communication, as demonstrated by the absence of adequate response to correspondence from this Member States. Berkut Air demonstrated a lack of ability to address these safety deficiencies, which remain unresolved.
(28)
The Commission, having regard to the above mentioned deficiencies, has entered into consultation with the competent authorities of Kazakhstan, expressing serious concerns about the safety of the operations of Berkut Air and asking for clarifications regarding the actions undertaken by the competent authorities to respond to these deficiencies.
(29)
The competent authorities of Kazakhstan informed that they suspended in February 2009 the AOC of BEK Air, previously Berkut Air. These authorities however did not respond adequately and in a timely fashion to an enquiry by the Commission regarding the safety oversight of Berkut Air, as they failed to provide the requested documentation and demonstrated by the absence of communication of documentary evidence of enforcement actions undertaken.
(30)
In view of the above, on the basis of the common criteria, it is assessed that Berkut Air does not meet the relevant safety standards and should therefore be included in Annex A.
(31)
There is verified evidence of serious safety deficiencies on the part of Air Company Kokshetau certified in Kazakhstan. These deficiencies have been identified by Italy during ramp inspections performed under the SAFA programme (10). These deficiencies concern aircraft of type IL-62 which are not equipped with TAWS (E-GPWS), not equipped with harness, not equipped with quick donning oxygen masks for flight above FL 250 and not equipped with appropriate system for illuminating the escape path.
(32)
Air Company Kokshetau did not respond adequately and in a timely fashion to an enquiry by the civil aviation authority of Italy regarding the safety aspect of its operation showing a lack of communication, as demonstrated by the absence of adequate response to correspondence from this Member State. Air Company Kokshetau demonstrated a lack of ability to address these safety deficiencies, which remain unresolved.
(33)
The Commission, having regard to the above mentioned deficiencies, has entered into consultation with the competent authorities of Kazakhstan, expressing serious concerns about the safety of the operations of Air Company Kokshetau, and asking for clarifications regarding the actions undertaken by the competent authorities to respond to these deficiencies.
(34)
The competent authorities of Kazakhstan informed the Commission that they decided to remove on 13 February 2009 the aircraft of type IL-62M with serial numbers 1138234 and 1748445 from the AOC of Air Company Kokshetau, and that they further intended to recall as of 24 March the AOC of this carrier due to bankruptcy. However, these authorities did not respond adequately to an enquiry by the Commission regarding the communication of documentary evidence on the revocation of the AOC.
(35)
In view of the above, on the basis of the common criteria, it is assessed that Air Company Kokshetau does not meet the relevant safety standards and should therefore be included in Annex A.
(36)
There is verified evidence of serious safety deficiencies on the part of Sayat Air certified in Kazakhstan. These deficiencies have been identified by an ECAC state during ramp inspections performed under the SAFA programme (11). These deficiencies concern aircraft of type IL-62 which are not equipped with a) TAWS (E-GPWS) b) quick donning oxygen masks for the crew, c) flotation devices, and d) an appropriate system for illuminating the escape path. In addition, the aircraft was operated without emergency checklists on board, with a NAV database outdated for more than 2 years and without a maintenance release on board.
(37)
Sayat Air demonstrated a lack of ability to address these safety deficiencies, which remain unresolved.
(38)
The competent authorities of Kazakhstan did not respond adequately and in a timely fashion to an enquiry by the Commission regarding the safety oversight of Sayat Air, showing a lack of communication, as demonstrated by the absence of adequate response to correspondence from the Commission, in particular regarding the communication of the carrier’s AOC together with the complete operations specifications, requirements and restrictions attached thereto.
(39)
The competent authorities of Kazakhstan have not demonstrated that they exercise an appropriate oversight of this carrier in accordance with their obligations under the Chicago Convention.
(40)
In view of the above, on the basis of the common criteria, it is assessed that Sayat Air does not meet the relevant safety standards and should therefore be included in Annex A.
(41)
There is verified evidence of serious safety deficiencies on the part of Scat certified in Kazakhstan. In particular, aircraft of type Yak-42 with registration marks UP-Y4205 is not equipped with TAWS (E-GPWS) as required by ICAO provisions. These deficiencies have been identified by an ECAC state during ramp inspections performed under the SAFA programme (12).
(42)
The Commission, having regard to the above mentioned deficiencies, has entered into consultation with the competent authorities of Kazakhstan, expressing serious concerns about the safety of the operations of Scat and asking for clarifications regarding the actions undertaken by the competent authorities to respond to these deficiencies.
(43)
The competent authorities of Kazakhstan provided evidence that they removed from the register the aircraft of type Yak-42 with registration marks UP-Y4205.
(44)
Scat requested to be heard by the Air Safety Committee and, during its hearing on 24 March 2009, confirmed that this aircraft was not operated anymore.
(45)
In view of that, the Commission considers that no further action is needed with regard to this carrier.
(46)
The Commission drew the attention of the competent authorities of Kazakhstan to the fact that the monitoring of the performance of a number of other air carriers licensed in Kazakhstan keeps showing disquieting results in ramp inspections. The competent authorities of Kazakhstan were invited to provide clarifications and to take the necessary measures, where appropriate.
(47)
The competent authorities of Kazakhstan communicated a series of enforcement measures taken on a number of Kazakh carriers. These authorities informed in particular that they restricted on 4 February 2009 the operations of Investavia, Skybus and Aytirau Aye Zholy to outside the European airspace. The Commission will launch urgent consultations with the Kazakh authorities and will initiate the procedure provided in Article 7 of Regulation (EC) No 2111/2005 in relation to these carriers.
(48)
The Commission strongly requests the competent authorities of Kazakhstan to increase their efforts to reform the civil aviation system and strengthen the safety oversight of all carriers certified in this country. The Commission will continue the consultations with these authorities to evaluate the situation of Kazakh carriers and is ready to assess, together with the Member States, all evidence provided in a timely fashion in that respect.
(49)
Following the accident of One Two Go flight OG 269 in Phuket on 16 September 2007, which resulted in the total loss of the aircraft, an MD-80, and to 90 fatalities, including many European passengers, the Commission started the consultation with the competent authorities of Thailand in charge of the safety oversight of this carrier.
(50)
The Commission sent on 5 March 2009 a letter to these carriers pursuant to Article 7 of Regulation (EC) No 2111/2005.
(51)
The competent authorities of Thailand (the Thai Department of Civil Aviation - Thai DCA) informed the Commission that investigations conducted after the accident revealed that both Orient Thai and its subsidiary One Two Go violated the law on air navigation, in particular by the falsification of Pilot Proficiency Checks of nine pilots of the carriers. Consequently, the Thai DCA suspended the MD-80 operations of One Two Go and Orient Thai and requested these carriers carry out a series of corrective actions.
(52)
The Thai DCA has also informed the Commission that it decided on 25 November 2008 to re-activate the AOC of One Two Go. Its parent company Orient Thai had already been authorised to restart its operations with aircraft of type MD-80 since 7 October 2008.
(53)
A team of European experts conducted a fact-finding visit to the Kingdom of Thailand from 10 to 13 March 2009 covering the areas of Flight Operations and Flight Crew Licenses, so as to verify the implementation by the air carriers of corrective actions meant to address the safety deficiencies previously identified by the Thai DCA. The visiting team could assess that One Two Go does not conduct any aircraft operations. One Two Go is responsible for retailing flights which are actually operated by Orient Thai under a wet-lease agreement, whereby One Two Go is the lessee and Orient Thai the lessor. Orient Thai provides aircraft, complete crew, maintenance, and insurance to One Two Go. All staff involved in Orient Thai operations on behalf of One Two Go are employed by Orient Thai.
(54)
The report of the fact-finding visit also shows that corrective actions have been taken to date by the carrier Orient Thai, as well as measures taken by the Thai DCA to resolve the safety deficiencies detected previously. The Commission will closely monitor the safety situation of Orient Thai. To this end, the Thai DCA should provide the Commission, within a period not exceeding two months, with all the necessary information regarding the effectiveness of the said measures.
(55)
On 19 March 2009, the Thai DCA informed the Commission that One Two Go has the intention to conduct own air operations by the month of July 2009. However, the report of the EU team shows that the Thai DCA granted One Two Go an AOC, despite the fact that it was not in a position to properly assess the capability of the company to safely conduct aircraft operations, since this carrier never produced the detailed evidence documents, requested under Thai Regulations which implement ICAO standards. The Thai DCA also announced its intention to revoke the AOC of One Two Go on 29 March 2009; however, the carrier would continue chartering scheduled flights from Orient Thai by virtue of its Air Operator Licence.
(56)
In view of the above, on the basis of the common criteria, it is assessed that the carrier One Two Go does not meet the relevant safety standards. This carrier should be subject to an operating ban and therefore included in Annex A.
(57)
There is verified evidence of lack of ability of the authorities responsible for the oversight of air carriers licensed in Benin to address safety deficiencies, as demonstrated by the results of the audit of Benin carried out by ICAO in the framework of the Universal Safety Oversight Audit Programme (USOAP) in March 2007. This audit reported a large number of significant deficiencies with regard to the capability of the civil aviation authorities of Benin to discharge their air safety oversight responsibilities. At the time of the completion of the ICAO audit, 80,22 % of ICAO standards were not implemented. On certain critical elements such as the provision for qualified technical personnel, more than 98 % of ICAO standards were not effectively implemented. Regarding the resolution of safety concerns, more than 93 % of ICAO standards were not effectively implemented.
(58)
There is evidence of insufficient ability from the competent authorities of Benin to remedy effectively the non-compliance findings made by ICAO, as demonstrated by the fact that ICAO considers in its final report dated December 2007 that a significant part of the corrective actions proposed or implemented by these authorities do not actually address the deficiencies observed. In the area of aircraft operations in particular, 50 % of the actions proposed by Benin were not considered as fully acceptable by ICAO.
(59)
The Commission, having regard to the ICAO final report, has entered into consultation with the competent authorities of Benin, expressing serious concerns about the safety of the operations of air carriers licensed in the country, and asking for clarifications regarding the actions undertaken by the competent authorities of Benin to respond to ICAO findings and observations on the acceptability of the remedial actions.
(60)
During the hearing before the Air Safety Committee on 25 March 2009, the competent authorities of Benin indicated that the implementation of the corrective actions whose completion was expected in 2008 has been actually postponed to August/December 2009.
(61)
The documentation presented by the competent authorities of Benin provides evidence that the AOC issued to carriers certified in Benin do not comply with ICAO standards for international flights, which confirms that the ICAO findings made have not been yet effectively addressed. A review of the situation of the AOCs and attached operations specifications of the air carriers Aero Benin, Africa Airways, Benin Golf Air, Benin Littoral Airways, Cotair, Royal Air and Trans Air Benin reveals serious concerns. The AOC of Africa Airways was not provided. The other AOCs do not mention the applicable regulations used as a basis for the certification, and the area of operations permits worldwide operations although the competent authorities of Benin affirm that these are limited to Benin and/or the sub-region. Furthermore, the operations of Aero Benin, Benin Golf Air, Benin Littoral Airways, Cotair and Trans Air Benin appear to be limited to visual flight rules (VFR), which would be inadequate to operate safely in Europe, and do not include the necessary specific authorisations RVSM, RNAV and RNP, as appropriate for the navigation into European airspace. The competent authorities of Benin have indicated that they have limited the validity of the AOC to 6 months and intend to clarify the situation rapidly. The Commission considers that, pending the expected re-certification of these carriers in full compliance with ICAO standards, on the basis of the common criteria, they should be subject to an operating ban and therefore included in Annex A.
(62)
The carrier Alafia Jet requested to be heard by the Air Safety Committee; it was so given the opportunity to make oral presentations to the Air Safety Committee on 24 March 2009 and transmitted documentation regarding its operations in writing. The carrier stated during its presentation that it operates flights into the European Union limited to on-demand emergency medical services, and provided information on a series of actions it has undertaken to respond to the deficiencies identified by France during ramp inspections performed under the SAFA programme (13). However, the repetition of significant safety deficiencies during ramp checks on aircraft operated into the Community indicates that there are systemic safety deficiencies affecting the operations of that carrier. The actions taken by the company to date have not been able to remedy these deficiencies.
(63)
Taking into account the numerous and repeated safety deficiencies detected during ramp checks of aircraft operated by Alafia Jet and the insufficient ability of the competent authorities of Benin to exercise appropriately oversight of carriers certified in Benin, the Commission considers that the continuation of operations of the carrier Alafia Jet into the Community should not be permitted. On the basis of the common criteria, it is therefore assessed that Alafia Jet should be included in Annex A.
(64)
The Commission fully supports the efforts undertaken by the competent authorities of Benin to improve the safety oversight of its carriers, and considers that the substantial donation announced by the World Bank in favour of the Republic of Benin will pave the way for substantial progress towards compliance with ICAO standards.
(65)
Gabon Airlines was allowed since July 2008 to operate in the EU only with the aircraft of type Boeing 767-200 with registration marks TR-LHP under the conditions presented in the recital (15) of Regulation (EC) No 715/2008 (14).
(66)
Since then, there is verified evidence of safety deficiencies on the part of Gabon Airlines certified in Gabon. These deficiencies have been identified by France during ramp inspections performed under the SAFA programme (15).
(67)
Gabon Airlines has however responded adequately and in a timely fashion to enquiries by the civil aviation authority of France regarding the safety aspect of its operation.
(68)
Gabon Airlines requested to be heard by the Air Safety Committee and was heard on 25 March 2009. The Commission took note that Gabon Airlines was subject to a recertification audit by the competent authorities of Gabon in February 2009, revealing certain non-compliance findings, the closure of which had not been satisfactorily demonstrated at the time of the hearing. The competent authorities of Gabon indicated that the aircraft is currently grounded for base maintenance purposes and that they intend to verify the satisfactory closure of these findings before the aircraft with registration marks TR-LHP is eventually returned to service.
(69)
In view of the above, on the basis of the common criteria, it is assessed that Gabon Airlines should remain in Annex B, and that this Annex should be amended to reflect the situation of the aircraft with registration marks TR-LHP and ensure the current level of operations into the Community is preserved.
(70)
Afrijet certified in Gabon was allowed since July 2008 to operate in the Community only a number of aircraft of type Falcon 50 with registration marks TR-LGV and TR-LGY as well as aircraft of type Falcon 900 registered TR-AFJ under the conditions presented in the recital (15) of Regulation (EC) No 715/2008 (16).
(71)
Since then, there is verified evidence of serious safety deficiencies on the part of Afrijet. These deficiencies have been identified by France during ramp inspections performed under the SAFA programme (17).
(72)
Afrijet has however responded adequately and in a timely fashion to enquiries by the civil aviation authority of France regarding the safety aspect of its operation.
(73)
The Commission took note that Afrijet was subject to a recertification audit by the competent authorities of Gabon in January 2009. After the verification of closure of all findings arising from this audit, the carrier was re-issued a new AOC in February 2009, which includes a second aircraft of type Falcon 900 with registration marks TR-AFR.
(74)
In view of the above, on the basis of the common criteria, it is assessed that Afrijet should remain in Annex B and that this Annex should be amended to reflect the change of the AOC and ensure that the current level of operations into the Community is preserved.
(75)
SN2AG requested to be heard by the Air Safety Committee, and was heard on 25 March 2009. The Commission took note that this carrier has undertook further re-organisation and had initiated a series of remedial actions in order to progress in the compliance with international standards. The Commission also noted that SN2AG was subject to a recertification audit by the competent authorities of Gabon in February 2009. After the verification of closure of all findings arising from this audit, the carrier was re-issued a new AOC in February 2009.
(76)
There is verified evidence that certain safety requirements of ICAO have not yet been complied with. For instance, at the time of the hearing the carrier has not yet effectively implemented the required Flight Data Monitoring for the aircraft of type Fokker 28-0100 (Fokker 100).
(77)
There is verified evidence of a lack of transparency and timely communication on the part of SN2AG in response to enquiries by the Commission. SN2AG stated it has not been subject to any reports showing serious deficiencies identified by ramp inspections carried out under the Safety Assessment of Foreign Aircraft (SAFA) programme, whilst several deficiencies had actually been identified by France during ramp inspections performed under the SAFA programme (18).
(78)
Consequently, on the basis of the common criteria, it is assessed that SN2AG should remain in Annex A.
(79)
Nevertheless, the Commission is ready to re-examine the situation of this carrier in the light of any new developments providing sufficient evidence that the safety deficiencies have been addressed.
(80)
The Commission takes note that the new competent authority of Gabon (‘Agence Nationale de l’Aviation Civile’, ANAC hereafter) established by the Republic of Gabon in July 2008 has effectively commenced its activities on 23 January 2009. ANAC is at the beginning of its growth and is currently in the process of securing sufficient financial resources and of hiring sufficient qualified technical personnel to effectively discharge its responsibilities towards ICAO.
(81)
The Commission drew the attention of the competent authorities of Gabon to the fact that, despite increased oversight activities of these authorities, monitoring of the performance of air carriers licensed in Gabon keep showing disquieting results in ramp inspections. The competent authorities of Gabon were invited to provide clarifications and to take the necessary measures, where appropriate.
(82)
The Commission encourages the efforts of the competent authorities of Gabon to reform the civil aviation system and in particular the on-going recertification of all airlines to ensure full compliance with ICAO safety standards. The Commission is ready to consider a visit on site in due time to verify the progress effectively accomplished.
(83)
There is verified evidence of serious safety deficiencies on the part of Motor Sich certified in Ukraine. These deficiencies have been identified by France and an ECAC state (Turkey) during ramp inspections performed under the SAFA programme (19). The repetition of these inspection findings shows systemic safety deficiencies.
(84)
The competent authorities of Turkey decided to impose an immediate operating ban of this carrier on 27 November 2008.
(85)
Motor Sich responded to the enquiry by the civil aviation authority of Turkey by indicating their decision to stop the operation of aircraft of type AN-24 to this State, which they did.
(86)
Motor Sich responded in a timely fashion to an enquiry by the civil aviation authority of France stating what corrective actions had been undertaken by the company following the ramp check carried out on 12 March 2008 France. However, this response was not adequate as there has been no supporting evidence material submitted by the carrier.
(87)
The Commission received information from the competent authorities of Turkey that after non-scheduled inspection of the operator, the decision was taken by the competent authorities of Ukraine to revoke the AOC of this operator. These authorities decided afterwards to authorise the continuation of the operations of Motor Sich to this country with some limitations on the operations of AN-24.
(88)
The competent authorities of Ukraine responded on 16 March 2009 to an enquiry by the Commission regarding the safety oversight of Motor Sich, stating that the AOC of the carrier was revoked on 22 January and that, upon completion of corrective actions by the carrier, the State aviation Administration authorised the continuation of operations except for the aircraft of type AN-24 on its fleet. No date has been stated regarding such issuance of an AOC with limitations neither any evidence of inspection of the company to ensure that the relevant safety requirements are respected for any part of the fleet. Finally, according to the aforementioned correspondence of the State Aviation Administration, these authorities renewed the AOC allowing the carrier to operate with AN-24 after performing inspections with positive results demonstrating that the carrier had eliminated deficiencies on this aircraft.
(89)
The information provided in this correspondence is not considered to be an adequate response as the information transmitted therein does not correspond to the information transmitted by the competent authorities of Ukraine on 2 February 2009, according to which the AOC of Motor Sich Airlines was issued on 8 November 2008 with validity until 8 November 2010 and the operation specifications were issued on 23 December 2008 with validity until 8 November 2010.
(90)
Motor Sich requested to be heard by the Commission and the Air Safety Committee and did so on 24 March 2009. During its presentation to the Air Safety Committee, Motor Sich demonstrated a lack of ability to address the safety deficiencies detected through a lack of transparency and of adequate communication regarding its operations into the Community.
(91)
In view of the above, the Commission considers that the competent authorities of Ukraine have shown an insufficient ability to oversee the operations of the air carrier in accordance with their obligations under the Chicago Convention.
(92)
On the basis of the common criteria, it is assessed that Motor Sich has not shown the ability to take all the required measures to conform to relevant safety standards and should therefore be included in Annex A.
(93)
The carrier Ukraine Cargo Airways (UCA) requested to be heard by the Commission and the Air Safety Committee, and did so on 24 March 2009.
(94)
On the basis of documentation submitted by the company to the Commission on 16 March 2009 there is evidence that the company had undertaken measures to redress previously detected deficiencies on its aircraft operated in the Community. According to the information presented by the company, UCA has been audited by the State Aviation Administration of Ukraine in November 2008. Following this audit its AOC was renewed for a period of two years until November 2010. However, the Commission has not received any information from the competent authorities of Ukraine about the audit they conducted and its results before renewing the AOC of the carrier.
(95)
Furthermore, the carrier has stated in its presentation to the Commission and the Air Safety Committee that it has received written confirmation from various Member States that the safety deficiencies detected by the inspecting authorities of these Member States had been adequately addressed by UCA. However, with the exception of one Member State concerning the operation of one aircraft of type AN-12 which was removed from the AOC, the statements of UCA were not affirmed by the other Member States concerned.
(96)
The Commission considers that in order to fully assess the ability of the carrier to put in place an appropriate corrective action plan and to implement it effectively it is necessary to perform an on-site visit. Unfortunately such a visit could not take place before the meeting of the Air Safety Committee on 24 March 2009 due to a lack of cooperation of the competent authorities of Ukraine. During the meeting of the Air Safety Committee on 24 March 2009, the State Aviation Administration of Ukraine expressed its willingness to receive this visit by the Commission and Member States. The Commission will decide any modification of the operating ban imposed on the carrier on the basis of evidence gathered during this future visit.
(97)
On the basis of the common criteria, it is assessed that, at this stage, this carrier cannot be removed from Annex A.
(98)
The carrier Ukrainian Mediterranean Airlines (UMAir) requested to be heard by the Commission and the Air Safety Committee and did so on 24 March 2009.
(99)
On the basis of documentation submitted by the company to the Commission on 16 October 2008, there is evidence that the company had undertaken measures to redress previously detected deficiencies on its aircraft operated in the Community.
(100)
The competent authorities of Ukraine sent on 5 November 2008 to the Commission a letter stating that the validity of the AOC of the air carrier had been prolonged until 15 December 2008, pending the completion of the procedure to renew it after that date for a period of two years until 15 December 2010. With this letter they also transmitted a document containing the act of certification of UMAir following an audit carried out on 31 October 2008. However, neither the company nor the competent authorities of Ukraine submitted the audit report for the issuance of the AOC of the carrier.
(101)
Furthermore, the carrier has stated in its presentation to the Commission and the Air Safety Committee that it has implemented the necessary measures to resolve all safety deficiencies which had led to the imposition of the operating ban in September 2007.
(102)
The Commission considers that in order to fully assess the ability of the carrier to put in place an appropriate corrective action plan and to implement it effectively it is necessary to perform an on-site visit. Unfortunately such a visit could not take place before the meeting of the Air Safety Committee on 24 March 2009 due to a lack of cooperation of the competent authorities of Ukraine. During the meeting of the Air Safety Committee on 24 March 2009, the State Aviation Administration of Ukraine expressed its willingness to receive this visit by the Commission and Member States. The Commission will decide any modification of the operating ban imposed on the carrier on the basis of evidence gathered during this visit.
(103)
On the basis of the common criteria, it is assessed that, at this stage, this carrier cannot be removed from Annex A.
(104)
The Commission drew the attention of the competent authorities of Ukraine to the fact that, despite increased oversight activities of these authorities, monitoring of the performance of air carriers licensed in Ukraine keep showing disquieting results in ramp inspections. During the meeting of the Air Safety Committee in November 2008, the competent authorities of Ukraine were invited to provide clarifications and to take the necessary measures; also, these authorities had agreed to be subject to a safety assessment to be organised by the Commission in association with Member States. However, the State Aviation Administration of Ukraine did not submit to the Commission the progress report on the implementation of the corrective action plan put in place to enhance and reinforce the exercise of safety oversight in the Ukraine, which it is required to submit on a 3-month basis as per Regulation (EC) No 715/2008 (20).
(105)
Also, the competent authorities showed a lack of cooperation in the preparation of the assessment visit as shown by the absence of submission of the required documentation for airworthiness and the refusal of the visit programme proposed by the Commission. Consequently, the Commission had to cancel the safety assessment visit which was foreseen from 9 to 13 February 2009.
(106)
The Commission takes note of the statements of the competent authorities of Ukraine agreeing to receive a joint visit of the Commission, Member States and EASA and reaffirming their readiness to cooperate for the successful organisation of such safety assessment to demonstrate their ability to carry out the oversight of all air carriers licensed in Ukraine in full compliance with applicable ICAO requirements.
(107)
A team of European experts conducted a fact-finding mission to the Kingdom of Thailand from 10 to 13 March 2009 to obtain factual information about the current safety level of the operating standards of the carrier Bangkok Airways, as well as on oversight activities conducted by the Thai Department of Civil Aviation (DCA) on the air carrier. In particular, purpose of the mission has been to determine if any aircraft of the carrier are being operated by the carrier Siem Reap Airways International, licensed by the competent authorities of the Kingdom of Cambodia, and which has been included in Annex A of the Community list by Commission Regulation (EC) 1131/2008 of 14 November 2008 (21).
(108)
The report shows that currently the air carrier has the actual control of its operations, and that all staff members are duly licensed by the competent authorities of Thailand. In addition, it shows that the Thai DCA is conducting adequate oversight activities on the carrier. Therefore, the Commission considers that, on the basis of the common criteria, no further action is needed at this stage.
(109)
The competent authorities of Cambodia have informed the Commission that they are progressing in the implementation of the action plan aimed at resolving the deficiencies identified by ICAO in its last USOAP report, focusing in particular on those pertaining to air operations, in order to make sure that the safety oversight of air carriers in Cambodia is complying with ICAO standards.
(110)
The competent authorities of Cambodia have informed the Commission they have suspended the AOC of the following air carriers: Siem Reap Airways International in December 2008 and Cambodia Angkor Airways in February 2009. They further confirmed that all AOCs issued are now either revoked or suspended, with the exception of Helicopter Cambodia and Sokha Airlines.
(111)
Siem Reap Airways International has applied for the lifting of the suspension of its AOC. However, since the competent authorities of Cambodia have declared that they have not yet completed the evaluation of compliance with the applicable requirements, the air carrier should remain in Annex A.
(112)
By letter dated 4 March 2009, the Director General of Civil Aviation of the Democratic Republic of Congo informed the Commission that certain airlines listed in Annex A of Commission Regulation (EC) No 1131/2008 do not operate anymore and that the following carriers have been granted an AOC: Air Katanga, Busy Bee Congo, Entreprise World Airways (EWA), Gilembe Air Soutenance (Gisair), Kin Avia, Swala Aviation. Those carriers which are still operating air services will be submitted to an evaluation with a view to renewing their AOCs.
(113)
In view of the above, Annex A of the Community list should be accordingly updated to include those air carriers to which the competent authorities of the Democratic Republic of Congo have granted an AOC. However, in the absence of evidence demonstrating the revocation, cancellation or surrender of the AOC of those air carriers which have ceased to operated, none of them can be removed from the Community list.
(114)
Furthermore, in his letter, the Director General of Civil Aviation of the Democratic Republic of Congo also requested the Commission to move the carrier Hewa Bora from Annex A to Annex B to allow it to resume operations of the route between Kinshasa and Brussels with one aircraft type Boeing 767 with registration marks 9Q-CJD. Since no evidence was provided that the relevant safety standards are complied with by the operator and the authority with responsibility for regulatory and safety oversight, no decision can be taken at this stage and, as a consequence, Hewa Bora Airways should be retained in Annex A.
(115)
The competent authorities of Angola have requested to present a progress report to the Commission and the Air Safety Committee on the implementation of the corrective action plan they have drawn up to address the safety deficiencies detected by ICAO in the framework of its Universal Safety Oversight Audit Programme (USOAP). In their presentation on 26 March 2009, the competent authorities of Angola presented in particular with regard to the changes in primary legislation and civil aviation legislation, organisation, structure and staffing in the authority, issuance of standards in the areas of personnel licenses and training, aircraft operations and airworthiness. In this respect, they have already launched the process of re-certification of all carriers established in Angola. Furthermore, the competent authorities informed about changes in their legislation regarding accident and incident investigation.
(116)
The competent authorities of Angola also stated that the carrier TAAG continued to undergo significant changes at various levels including: operational, managerial, quality and cost rationalisation.
(117)
The Commission takes note of the progress report presented by the competent authorities of Angola and will examine the situation of air carriers certified in Angola at a next meeting of the Air Safety Committee.
(118)
Following the adoption of the new Law on Aviation on 12 January 2009, the competent authorities of Indonesia have transmitted to the Commission the applicable Civil Aviation Safety Regulations (CASRs) and guidance material, as well as a detailed update on the progress of implementation of the corrective action plan aimed at addressing the findings raised by ICAO in the framework of its Universal Safety Oversight Audit Program (USOAP).
(119)
Upon request of the Indonesian Directorate General for Civil Aviation (DGCA), a team of European experts conducted a fact-finding visit to Indonesia from 23 to 27 February 2009. In this framework, four air carriers (Garuda Indonesia, Mandala Airlines, Airfast Indonesia, and Ekspres Transportasi Antarbenua) have also been visited, so as to verify the capability of DGCA Indonesia to ensure their safety oversight in compliance with the relevant standards.
(120)
The report of the visit shows considerable improvements in the structure and staffing of the DGCA, which would appear to allow DGCA to perform appropriately its regulatory and supervisory tasks. However, the report also shows that, despite these improvements, oversight activities are not fully conducted at this stage. The current system for the oversight activities does not allow for an adequate follow-up of findings raised by the DGCA on any Indonesian carrier. In particular, it appears that DGCA is currently not in a position to track the target date for the closure of a finding, the actual date of its closure, and if any extension for the closure has been granted. As a consequence, the current level of effectiveness of DGCA surveillance on Indonesian carriers is considered at this stage, still unsatisfactory and in need of improvement.
(121)
The Commission takes note of the substance of the differences to Annex 6 to the Chicago Convention, which Indonesia has notified to ICAO on 20 February 2009. These differences include the lack of implementation of a number of ICAO requirements concerning Annex 6 which, in some cases, have a direct impact on the safety of the operations of Indonesian carriers. The Commission, however, takes also note that the carriers visited by the team of European experts (with a few exceptions which concern specific aircraft) are equipped in accordance with ICAO requirements, on a voluntary basis.
(122)
On the basis of the common criteria, it is assessed that the current level of effectiveness of surveillance activities conducted by the DGCA does not allow for the adequate enforcement and respect of the relevant safety standards by carriers certified in Indonesia. As a consequence, none of the Indonesian carriers can be, at this stage, withdrawn from the Community list. The Commission will closely liaise with the competent authorities of Indonesia with a view to re-assessing the effectiveness of surveillance activities at the next meeting of the Air Safety Committee.
(123)
The competent authorities of Indonesia have also provided the Commission with an updated list of air carriers holding an AOC. At present, the air carriers certified in Indonesia are the following: Garuda Indonesia, Merpati Nusantara, Kartika Airlines, Mandala Airlines, Trigana Air Service, Metro Batavia, Pelita Air Service, Indonesia Air Asia, Lion Mentari Airlines, Wing Adabi Nusantara, Riau Airlines, Transwisata Prima Aviation, Tri MG Airlines, Ekspress Transportasi Antar Benua, Manunggal Air Service, Megantara Airlines, Linus Airways, Indonesia Air Transport, Sriwijaya Air, Cardig Air, Travel Ekspress Aviation Service, Republic Expres Airlines, KAL Star, Airfast Indonesia, Sayap Garuda Indah, Survei Udara Penas, Nusantara Buana Air, Nyaman Air, Travira Utama, Derazona Air Service, National Utility Helicopter, Deraya Air Taxi, Dirgantara Air Service, SMAC, Kura-Kura Aviation, Gatari Air Service, Intan Angkasa Air Service, Air Pacific Utama, Transwisata Prima Aviation, Asco Nusa Air, Atlas Delta Satya, Pura Wisata Baruna, Penerbangan Angkasa Semesta, ASI Pudjiastuti, Aviastar Mandiri, Dabi Air, Balai Kalibrasi Penerbangan, Sampoerna Air Nusantara, Mimika Air, ALFA Trans Dirgantara, and Eastindo. The Community list should be updated accordingly and these carriers should be included in Annex A.
(124)
No evidence of the full implementation of appropriate remedial actions by the other carriers included in the Community list updated on 14 November 2008 and by the authorities with responsibility for regulatory oversight of these air carriers has been communicated to the Commission so far in spite of specific requests submitted by the latter. Therefore, on the basis of the common criteria, it is assessed that these air carriers should continue to be subject to an operating ban (Annex A) or operating restrictions (Annex B), as the case may be.
(125)
The measures provided for in this Regulation are in accordance with the opinion of the Air Safety Committee,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 474/2006 is amended as follows:
1.
Annex A is replaced by Annex A to this Regulation.
2.
Annex B is replaced by Annex B 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, 8 April 2009.