EN Official Journal of the European Communities L 355/1

REGULATION (EC) No 2320/2002 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 16 December 2002

establishing common rules in the field of civil aviation security

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the conclusions of the Transport Council of 16 October 2001, and in particular paragraph 9 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the Opinion of the European Economic and Social Committee (2),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3), in the light of the joint text approved by the Conciliation Committee on 15 November 2002,

Whereas:

(1) The criminal acts committed in New York and Washington on 11 September 2001 show that terrorism is one of the greatest threats to the ideals of democracy and freedom and the values of peace, which are the very essence of the European Union.

(2) The protection of the citizen within the European Community should at all times be ensured in civil aviation by preventing acts of unlawful interference.

(3) Without prejudice to rules of the Member States in the field of national security and of measures to be taken on the basis of Title VI of the Treaty on European Union, such objective should be achieved by the adoption of appropriate provisions in the field of air transport policy establishing common basic standards, based on the current recommendations of the European Civil Aviation Conference (ECAC) Document 30. Executive powers should be delegated to the Commission to adopt the related detailed implementation measures. In order to prevent unlawful acts, certain of these implementation measures should be secret and not be published.

(4) This Regulation respects fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union.

(5) The various types of civil aviation activities are not necessarily subject to the same type of threat. It is therefore necessary for the detailed implementation measures to be duly adjusted to the special circumstances of each activity and to the sensitivity of certain measures.

(6) At small airports, the application of common basic standards might be disproportionate or their implementation might be impossible for objective practical reasons. In such case the appropriate authorities of the Member States should have the possibility to apply alternative measures providing an adequate level of protection. The Commission should examine whether these measures are justified for objective practical reasons and whether they provide an adequate level of protection.

(7) The Convention on International Civil Aviation, signed in Chicago on 7 December 1944, (Chicago Convention) provides for minimum standards to ensure the security of civil aviation.

(8) In order to achieve the objectives of this Regulation, each Member State should adopt a national civil aviation security programme, as well as a corresponding quality control programme and a training programme.

(9) In view of the diversity of the parties involved in the implementation of security measures at national level, it is necessary for each Member State to designate a single appropriate authority responsible for the coordination and the monitoring of the implementation of aviation security programmes.

(10) Member States should be given the possibility to apply more stringent measures.

(11) The monitoring of security measures requires the setting up at national level of appropriate quality control systems and the organisation of inspections under the supervision of the Commission, so as to verify the effectiveness of each national system.

(12) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (4).

(13) Arrangements for greater cooperation over the use of Gibraltar airport were agreed in London on 2 December 1987 by the Kingdom of Spain and the United Kingdom in a joint declaration by the Ministers of Foreign Affairs of the two countries, and such arrangements have yet to come into operation.

(14) Since the objectives of the proposed action, namely the establishment and application of appropriate provisions in the field of air transport policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of the Europe-wide scope of this Regulation, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation confines itself to the common basic standards required in order to achieve the objectives of aviation security and does not go beyond what is necessary for that purpose,

HAVE ADOPTED THIS REGULATION:

Article 1

Objectives

1. The main objective of this Regulation is to establish and implement appropriate Community measures, in order to prevent acts of unlawful interference against civil aviation.

2. The additional objective is to provide a basis for a common interpretation of the related provisions of the Chicago Convention, in particular its Annex 17.

3. The means of achieving the objectives set out in paragraphs 1 and 2 shall be:

(a) the setting of common basic standards on aviation security measures;

(b) the setting up of appropriate compliance monitoring mechanisms.

Article 2

Definitions

For the purpose of this Regulation:

1. ‘airport’ shall mean any area in a Member State which is open for commercial air transport operations;

2. ‘Chicago Convention’ shall mean the Convention on International Civil Aviation and its annexes, signed in Chicago on 7 December 1944;

3. ‘aviation security’ shall mean the combination of measures and human and natural resources intended to safeguard civil aviation against acts of unlawful interference.

Article 3

Scope

1. The measures laid down in this Regulation shall apply to any airport located in the territories of the Member States to which the Treaty applies.

2. The application of this Regulation to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.

3. Application of this Regulation to Gibraltar airport shall be suspended until the arrangements in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 have come into operation. The Governments of Spain and the United Kingdom will inform the Council of such date of entry into operation.

Article 4

Common standards

1. The common basic standards on aviation security measures are based on the current recommendations of European Civil Aviation Conference (ECAC) Document 30 and are laid down in the Annex.

2. The necessary measures for the implementation and the technical adaptation of these common basic standards shall be adopted in accordance with the procedure referred to in Article 9(2), due consideration being given to the various types of operation and to the sensitivity of the measures relating to:

(a) performance criteria and acceptance tests for equipment;

(b) detailed procedures containing sensitive information;

(c) detailed criteria for exemption of security measures.

3. The appropriate authority of a Member State may, on the basis of a local risk assessment, and where the application of the security measures specified in the Annex to this Regulation may be disproportionate, or where they can not be implemented for objective practical reasons, adopt national security measures to provide an adequate level of protection, at airports:

(a) with a yearly average of 2 commercial flights per day; or

(b) with only general aviation flights; or

(c) with commercial activity limited to aircraft with less than 10 tonnes of Maximum Take Off Weight (MTOW) or less than 20 seats,

taking into account the particularities of such small airports.

The Member State concerned shall inform the Commission of these measures.

4. The Commission shall examine whether the measures adopted by a Member State in accordance with paragraph 3 are justified for objective practical reasons and provide an adequate level of protection. If the measures do not comply with these criteria, the Commission shall take a decision in accordance with the procedure referred to in Article 9(3); in such case the Member State shall revoke or adapt them.

Article 5

National civil aviation security programme

1. Within 3 months following the entry into force of this Regulation, each Member State shall adopt a national civil aviation security programme in order to ensure the application of the common standards referred to in Article 4(1) and the measures adopted in accordance with Article 4(2) by the date specified in these measures.

2. Notwithstanding that, within a Member State, one or more bodies or entities may be involved in aviation security, each Member State shall designate an appropriate authority responsible for the coordination and the monitoring of the implementation of its national civil aviation security programme.

3. Within 6 months following the entry into force of this Regulation, each Member State shall require its appropriate authority to ensure the development and implementation of a national civil aviation security quality control programme so as to ensure the effectiveness of its national civil aviation security programme.

4. Each Member State shall ensure that their airports and air carriers providing service from that State establish, implement and maintain airport and air carrier security programmes appropriate to meet the requirements of its the national civil aviation security programme. These programmes shall be submitted for approval to and monitored by the appropriate authority.

5. Each Member State shall require the appropriate authority to ensure the development and implementation of a national civil aviation security training programme.

Article 6

More stringent measures

Member States may apply, in compliance with Community law, more stringent measures than those laid down in this Regulation. As soon as possible after their application, Member States shall inform the Commission of the nature of these measures.

Article 7

Compliance monitoring

1. The specifications for the national civil aviation security quality control programme to be implemented by the Member States shall be adopted in accordance with the procedure referred to in Article 9(2). Such programme shall be based on best practices and allow for the swift detection and correction of failures. Each programme shall provide that all airports situated in the Member State concerned shall be regularly audited under the responsibility of the appropriate authority referred to in Article 5(2). These audits shall use a common methodology and shall be carried out by auditors that are qualified according to common criteria.

2. Beginning 6 months after the entry into force of the provisions of this Regulation in accordance with Article 12, the Commission shall conduct, in cooperation with the appropriate authority referred to in Article 5(2), inspections, including inspections of a suitable sample of airports, to monitor the application by Member States of this Regulation. Such inspections shall take into account the information obtained from national civil aviation security quality control programmes, in particular audit reports. The procedures for conducting such inspections shall be adopted in accordance with the procedure referred to in Article 9(2).

3. The officials mandated by the Commission to conduct inspections in accordance with paragraph 2 shall exercise their powers upon production of an authorisation in writing specifying the subject-matter, the purpose of the inspection and the date on which it is to begin. Inspections of airports shall be unannounced. The Commission shall in good time before scheduled inspections inform the Member States concerned of the inspections

The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections.

4. The inspection reports shall be communicated by the Commission to the concerned Member State which shall, within three months of notification, indicate the measures taken to remedy any possible shortcoming. The report and the answer of the appropriate authority referred to in Article 5(2) shall be communicated to the Committee set up by Article 9(1).

Article 8

Dissemination of information

1. Without prejudice to the public right of access to documents as laid down in Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (5),

(a) the measures relating to (i) performance criteria and acceptance tests for equipment; (ii) detailed procedures containing sensitive information; (iii) detailed criteria for exemption from security measures; referred to in Article 4(2);

(b) the specifications referred to in Article 7(1); and

(c) the inspection reports and the answers of the Member States referred to in Article 7(4), shall be secret and not be published. They shall only be made available to the authorities referred to in Article 5(2), which shall communicate them only to interested parties on a need-to-know basis, in accordance with applicable national rules for dissemination of sensitive information.

2. Member States shall as far as possible and in accordance with applicable national law treat as confidential information arising from inspection reports and answers of Member States when it relates to other Member States.

3. Unless it is clear that the inspection reports and answers shall or shall not be disclosed, Member States or the Commission shall consult with the Member State concerned.

Article 9

Committee

1. The Commission shall be assisted by a committee composed of representatives of the Member States and chaired by the representative of the Commission.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month.

3. Where reference is made to this paragraph, Articles 6 and 7 of Decision 1999/468/EC shall apply having regard to the provisions of Article 8 thereof.

4. The Committee shall adopt its rules of procedure.

Article 10

Third countries

Without prejudice to the Member States' responsibilities respecting the risk assessment and the security clause of the civil aviation agreements, the Commission should, assisted by the Security Committee, consider, together with the International Civil Aviation Authority (ICAO) and ECAC, the possibility to develop a mechanism to assess whether flights coming from third country airports meet the essential security requirements.

Article 11

Publication of information

Subject to Regulation (EC) No 1049/2001, the Commission shall publish each year a report on the implementation of this Regulation and on the situation in the Community as far as aviation security is concerned, drawing conclusions from the inspection reports.

Article 12

Penalties

Penalties for breaching the provisions of this Regulation shall be effective, proportionate and dissuasive.

Article 13

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities, except for the following provisions of the Annex:

— those on screening of hold baggage (point 5.2),

— those on cargo, courier and express parcels (Part 6), and

— those on mail (Part 7),

which shall enter into force on 31 December 2002.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 16 December 2002. For the European Parliament The President P. COX For the Council The President M. FISCHER BOEL

(1) OJ C 51 E, 26.2.2002, p. 221.

(2) OJ C 48, 21.2.2002, p. 70.

(3) Opinion of the European Parliament of 29 November 2001 (not yet published in the Official Journal), Council Common Position of 28 January 2002 (OJ C 113 E, 14.5.2002, p. 17) and Decision of the European Parliament of 14 May 2002 (not yet published in the Official Journal). Decision of the European Parliament of 5 December 2002 and Decision of the Council of 9 December 2002.

(4) OJ L 184, 17.1.1999, p. 23.

(5) OJ L 145, 31.5.2001, p. 43.