EN Official Journal of the European Union L 133/12

COMMISSION REGULATION (EU) No 452/2014

of 29 April 2014

laying down technical requirements and administrative procedures related to air operations of third country operators pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC (1), and in particular Article 9(4) thereof,

Whereas:

(1) According to Regulation (EC) No 216/2008, third country operators involved in commercial air transport operations of aircraft have to comply with the relevant standards of the International Civil Aviation Organisation (ICAO).

(2) Regulation (EC) No 216/2008 does not apply to third country operators flying over the territory subject to the provisions of the Treaty.

(3) Regulation (EC) No 216/2008 requires that to the extent that there are no relevant ICAO standards, third country operators have to comply with the relevant essential requirements set out in Annexes I, III, IV and, if applicable, Vb to Regulation (EC) No 216/2008, provided that these requirements are not in conflict with the rights of third countries under international conventions.

(4) Regulation (EC) No 216/2008 requires that a European Aviation Safety Agency (hereafter referred to as ‘the Agency’) issues authorisations and continuously monitors authorisations that it has issued. The authorisation is one prerequisite in the process of obtaining an operating permit or equivalent document from the respective EU Member State under existing Air Service Agreements between EU Member States and third countries.

(5) For the purpose of initial authorisations and continuous monitoring, the Agency is to conduct assessments and is to take any measure to prevent the continuation of an infringement.

(6) The process of authorisation of third country operators should be simple, proportionate, cost effective, efficient and take account of the results of the ICAO Universal Safety Oversight Audit Programme, ramp inspections and other recognised information on safety aspects with regard to third country operators.

(7) Assessments of third country operators subject to an operating ban pursuant to Regulation (EC) No 2111/2005 of the European Parliament and of the Council (2) may include an audit on-site the operator's premises. For the purpose of lifting a suspension of an authorisation, the Agency may consider conducting an audit of the third country operator.

(8) In order to ensure a smooth transition and a high level of civil aviation safety in the European Union, implementing measures should take into consideration the recommended practices and guidance documents agreed under the auspices of ICAO.

(9) It is necessary to provide sufficient time for the aeronautical industry and the Agency's administration to adapt to the new regulatory framework and to recognise under certain conditions operating permits or equivalent documents issued by a Member State to operate into, within or out of its territory.

(10) The European Aviation Safety Agency prepared draft implementing rules and submitted them as an opinion to the Commission in accordance with Article 19(1) of Regulation (EC) No 216/2008.

(11) The measures provided for in this Regulation are compatible with the opinion of the Committee established by Article 65 of Regulation (EC) No 216/2008,

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

This Regulation lays down detailed rules for third country operators of aircraft referred to in Article 4(1)(d) of Regulation (EC) No 216/2008 engaged in commercial air transport operations into, within or out of the territory subject to the provisions of the Treaty, including conditions for issuing, maintaining, amending, limiting, suspending or revoking their authorisations, the privileges and responsibilities of the holders of authorisations as well as conditions under which operations shall be prohibited, limited or subject to certain conditions in the interest of safety.

Article 2

Definitions

For the purposes of this Regulation:

(1) ‘alternative means of compliance’ are those that propose an alternative to an existing Acceptable Means of Compliance (AMC) or those that propose new means to establish compliance with Regulation (EC) No 216/2008 and its Implementing Rules for which no associated AMC have been adopted by the Agency;

(2) ‘commercial air transport (CAT) operation’ means an aircraft operation to transport passengers, cargo or mail for remuneration or other valuable consideration;

(3) ‘flight’ means a departure from a specified aerodrome towards a specified destination aerodrome;

(4) ‘third country operator’ means any operator holding an air operator certificate issued by a third country.

Article 3

Authorisations

Third country operators shall only engage in commercial air transport operations within, into or out of the territory subject to the provisions of the Treaty if they comply with the requirements of Annex 1 and hold an authorisation issued by the Agency in accordance with Annex 2 to this Regulation.

Article 4

Entry into force

1. This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.

It shall apply from the 20th day following that of its publication in the Official Journal of the European Union.

2. By way of derogation from the second subparagraph of paragraph 1, Member States that at the date of entry into force of this Regulation are issuing operating permits or equivalent documents to third country operators in accordance with their national law shall continue to do so. The third country operators shall comply with the scope and privileges defined in the permit or equivalent document granted by the Member State until the Agency has taken a decision in accordance with Annex 2 to this Regulation. Member States shall inform the Agency of the issue of such operating permits or equivalent documents.

After the date the Agency has taken a decision for the relevant third country operator, or after a maximum period of 30 months after entry into force of this Regulation, whichever comes sooner, the Member State shall no longer perform a safety assessment of that third country operator in accordance with their national law when issuing operating permits.

3. Third country operators that at the date of entry into force hold an operating permit or equivalent document, shall submit an application for an authorisation to the Agency no later than 6 months after entry into force of this Regulation. The application shall contain information about any operating permits granted by a Member State.

4. Upon receiving an application, the Agency shall assess the third country operator's compliance with the applicable requirements. The assessment shall be completed no later than 30 months after entry into force of this Regulation.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 29 April 2014. For the Commission The President José Manuel BARROSO

(1) OJ L 79, 19.3.2008, p. 1.

(2) Regulation (EC) No 2111/2005 of the European Parliament and of 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/EC (OJ L 344, 27.12.2005, p. 15).

ANNEX 1 PART-TCO THIRD COUNTRY OPERATORS SECTION I General requirements TCO.100 Scope This Annex (hereafter referred to as ‘Part-TCO’) establishes requirements to be followed by a third country operator engaged in commercial air transport operations into, within or out of the territory subject to the provisions of the Treaty. TCO.105 Means of compliance (a) Alternative means of compliance to the AMC adopted by the Agency may be used by a third country operator to establish compliance with Regulation (EC) No 216/2008 (1) and Part-TCO. (b) When a third country operator subject to an authorisation wishes to use an alternative means of compliance to the AMC adopted by the Agency to establish compliance with Regulation (EC) No 216/2008 and Part-TCO, it shall, prior to implementing it, notify it to the Agency with a full description of the alternative means of compliance. The description shall include any revisions to manuals or procedures that may be relevant, as well as an assessment demonstrating that the Implementing Rules are met. The third country operator may implement these alternative means of compliance subject to prior approval by the Agency and upon receipt of the notification as prescribed in ART.105 in Annex 2 (hereafter referred to as ‘Part-ART’). TCO.110 Mitigating measures (a) When the State of operator or the State of registry have notified differences to ICAO standards that have been identified by the Agency in accordance with ART.200(d) in Part-ART, the third country operator may propose mitigating measures to establish compliance with Part-TCO. (b) The third country operator shall demonstrate to the Agency that these measures ensure an equivalent level of safety to that achieved by the standard to which differences have been notified. TCO.115 Access (a) The third country operator shall ensure that any person authorised by the Agency or the Member State in whose territory one of its aircraft has landed will be permitted to board such aircraft, at any time, with or without prior notice to: (1) inspect the documents and manuals to be carried on board and to perform inspections to ensure compliance with Part-TCO; or (2) carry out a ramp inspection as referred to in Annex II to Commission Regulation (EU) No 965/2012 (2). (b) The third country operator shall ensure that any person authorised by the Agency is granted access to any of its facilities or documents related to its activities, including any subcontracted activities, to determine compliance with Part-TCO. SECTION II Air operations TCO.200 General requirements (a) The third country operator shall comply with: (1) the applicable standards contained in the Annexes to the Convention on International Civil Aviation, in particular Annexes 1 (Personnel licensing), 2 (Rules of the Air), 6 (Operation of Aircraft, Part I (International Commercial Air Transport — Aeroplanes) or Part III (International Operations- Helicopters)), as applicable, 8 (Airworthiness of Aircraft), 18 (Dangerous Goods), and 19 (Safety Management); (2) the mitigating measures accepted by the Agency in accordance with ART.200(d); (3) the relevant requirements of Part-TCO; and (4) the applicable Union rules of the air. (b) The third country operator shall ensure that an aircraft operated into, within or out of the territory subject to the provisions of the Treaty is operated in accordance with: (1) its air operator certificate (AOC) and associated operations specifications; and (2) the authorisation issued in accordance with this Regulation and the scope and privileges defined in the specifications attached to it. (c) The third country operator shall ensure that an aircraft operated into, within or out of the Union has a certificate of airworthiness of the aircraft (CofA) issued or validated by: (1) the State of registry; or (2) the State of the operator, provided that the State of the operator and the State of registry have entered into an agreement under Article 83bis of the Convention on International Civil Aviation that transfers the responsibility for the issue of the CofA. (d) The third country operator shall, upon request, provide the Agency with any information relevant for verifying compliance with Part-TCO. (e) Without prejudice to Regulation (EU) No 996/2010 of the European Parliament and of the Council (3), the third country operator shall without undue delay report to the Agency any accident as defined in ICAO Annex 13, involving aircraft used under its AOC. TCO.205 Navigation, communication and surveillance equipment When undertaking operations within the airspace above the territory to which the Treaty applies the third country operator shall equip its aircraft with and operate such navigation, communication and surveillance equipment as required in that airspace TCO.210 Documents, manuals and records to be carried The third country operator shall ensure that all documents, manuals and records that are required to be carried on board are valid and-up-to-date. TCO.215 Production of documentation, manuals and records Within a reasonable time of being requested to do so by a person authorised by the Agency or the competent authority of the Member State where the aircraft has landed, the pilot-in-command shall produce to that person the documentation, manuals and records required to be carried on board. SECTION III Authorisation of third country operators TCO.300 Application for an authorisation (a) Prior to engaging in commercial air transport operations under Part-TCO the third country operator shall apply for and obtain an authorisation issued by the Agency. (b) An application for an authorisation shall be: (1) submitted at least 30 days before the intended starting date of operation; and (2) made in a form and manner established by the Agency. (c) Without prejudice to applicable bilateral agreements, the applicant shall provide the Agency with any information needed to assess whether the intended operation will be conducted in accordance with the applicable requirements of TCO.200(a). Such information shall include: (1) the duly completed application; (2) the official name, business name, address, and mailing address of the applicant; (3) a copy of the applicant's AOC and associated operations specifications, or equivalent document, that attests the capability of the holder to conduct the intended operations, issued by the State of the operator; (4) the applicant's current certificate of incorporation or business registration or similar document issued by the Registrar of Companies in the country of the principal place of business; (5) the proposed start date, type and geographic areas of operation. (d) When necessary, the Agency may request any other additional relevant documentation, manuals, or specific approvals issued or approved by the State of the operator or State of registry. (e) For those aircraft not registered in the State of the operator the Agency may request: (1) details of the lease agreement for each aircraft so operated; and (2) if applicable, a copy of the agreement between the State of the operator and the State of registry pursuant to Article 83bis of the Convention on International Civil Aviation that covers the aircraft. TCO.305 Non-scheduled Flights — one-off notification (a) By way of derogation of TCO.300(a) a third country operator may perform air ambulance flights or a non-scheduled flight or a series of non-scheduled flights to overcome an unforeseen, immediate and urgent operational need without first obtaining an authorisation, provided that the operator: (1) notifies the Agency prior to intended date of the first flight in a form and manner established by the Agency; (2) is not being subject to an operating ban pursuant to Regulation (EC) No 2111/2005 of the European Parliament and of the Council (4); and (3) applies for an authorisation within 10 working days after the date of notification to the Agency pursuant to TCO.300. (b) The flight(s) specified in the notification prescribed in (a)(1) may be performed for a maximum period of six consecutive weeks after the date of notification or until the Agency has taken a decision on the application in accordance with Part-ART, whichever comes sooner. (c) A notification may be filed only once every 24 months by an operator. TCO.310 Privileges of an authorisation holder The privileges of the operator shall be listed in the specifications to the authorisation and not exceed the privileges granted by the State of the operator. TCO.315 Changes (a) Any change, other than those agreed under ART.210(c), affecting the terms of an authorisation or associated specifications shall require prior authorisation by the Agency. (b) The application for prior authorisation by the Agency shall be submitted by the third country operator at least 30 days before the date of implementation of the intended change. The third country operator shall provide the Agency with the information referred to in TCO.300, restricted to the extent of the change. After submission of an application for a change, the third country operator shall operate under the conditions prescribed by the Agency pursuant to ART.225(b). (c) All changes not requiring prior authorisation, as agreed in accordance with ART.210(c), shall be notified to the Agency before the change takes place. TCO.320 Continued validity (a) The authorisation shall remain valid subject to: (1) the third country operator remaining in compliance with the relevant requirements of Part-TCO. The provisions related to the handling of findings, as specified under TCO.325, shall also be taken into account; (2) the validity of the AOC or equivalent document issued by the State of the operator and the related operations specifications, if applicable; (3) the Agency being granted access to the third country operator as specified in TCO.115; (4) the third country operator not being subject to an operating ban pursuant to Regulation (EC) No 2111/2005; (5) the authorisation not being surrendered, suspended or revoked; (6) the third country operator having carried out at least one flight every 24 calendar months, into, within or out of the territory subject to the provisions of the Treaty under the authorisation. (b) Upon surrender or revocation, the authorisation shall be returned to the Agency. TCO.325 Findings After receipt of a notification of findings pursuant to ART.230 raised by the Agency, the third country operator shall: (a) identify the root cause of the non-compliance; (b) establish a corrective action plan to address the root cause of the non-compliance within an acceptable time frame and submit it to the Agency; (c) demonstrate corrective action implementation to the satisfaction of the Agency within the period agreed with the Agency as defined in ART.230(e)(1). (1) Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC (OJ L 79, 19.3.2008, p. 1). Regulation as last amended by Commission Regulation (EU) No 6/2013 of 8 January 2013 (OJ L 4, 9.1.2013, p. 34). (2) Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ L 296, 25.10.2012, p. 1). (3) Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC (OJ L 295, 12.11.2010, p. 35). (4) Regulation (EC) No 2111/2005 of the European Parliament and of 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/EC (OJ L 344, 27.12.2005, p. 15).