COMMISSION IMPLEMENTING REGULATION (EU) 2022/594

of 8 April 2022

amending Regulation (EC) No 474/2006 as regards the list of air carriers banned from operating or subject to operational restrictions within the Union

(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 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 carrier, and repealing Article 9 of Directive 2004/36/EC (1), and in particular Article 4(2) thereof,

Whereas:

(1) Commission Regulation (EC) No 474/2006 (2) establishes the list of air carriers, which are subject to an operating ban within the Union.

(2) Air carriers certified by the Russian Federal Air Transport Agency (‘FATA’) are not included in Annex A or B to Regulation (EC) No 474/2006, with the exception of the air carrier SKOL Airline LLC which was added to Annex A by Commission Implementing Regulation (EU) 2021/2070 (3).

(3) Certain European Union (‘EU’) Member States and the European Union Aviation Safety Agency (‘the Agency’) communicated to the Commission, pursuant to Article 4(3) of Regulation (EC) No 2111/2005, information that may be relevant in the context of updating that list. Third countries and international organisations also provided relevant information. The information provided has been duly considered by the Commission in its determination whether it is appropriate to update the list.

(4) Pursuant to the Agreement concluded in 1999 between Bermuda and Russia on the implementation of Article 83bis of the Convention on International Civil Aviation signed in Chicago on 7 December 1944 (‘Chicago Convention’) as regards aircraft on the Bermuda Registry operated by air carriers certified by FATA, which concerns the transfer of regulatory oversight functions and duties contained in Annexes 1, 2 and 6 to the Chicago Convention, the Bermuda Civil Aviation Authority (‘BCAA’) advised on 14 March 2022, by way of General Notice GEN-01-2022, to FATA that the Certificates of Airworthiness (‘CoA’) of all leased aircraft registered in Bermuda and operated by air carriers certified by FATA would be suspended with effect from 12 March 2022, at 23.59 UTC, based on the determination that the continued airworthiness of these aircraft can no longer be assured.

(5) Pursuant to the Agreement concluded in 2002 between Ireland and Russia on the implementation of Article 83bis of the Chicago Convention as regards aircraft on the Irish Registry operated by air carriers certified by FATA, which concerns the transfer of regulatory oversight functions and duties contained in Annexes 1, 2 and 6 to the Chicago Convention, the Irish Aviation Authority (‘IAA’) issued on 15 March 2022 its Aeronautical Notice A.114 in which it declared the cessation of validity of all CoA for aircraft operated by air carriers certified by FATA , with effect from the date of that notice, based on the determination that the airworthiness of these aircraft cannot be assured.

(6) Despite these decisions of the BCAA and IAA, acting in their capacity as competent authorities of the States of Registry, a number of affected aircraft are still being operated by air carriers certified by FATA, both within Russia as well as to certain other third countries. The International Civil Aviation Organisation (‘ICAO’), by its Electronic Bulletin 2022/12 of 11 March 2022, recalled that such action was a direct violation of Articles 29 and 31 of the Chicago Convention. According to that Electronic Bulletin, FATA, in its capacity as the authority responsible for ensuring compliance by Russian certified air carriers with relevant international safety standards, should not have permitted such operations to take place. Moreover, the air carriers certified by FATA operating such flights with the aircraft referred to in recitals (4) and (5) have knowingly done so in breach of relevant international safety standards, notably ICAO Annex 6, Part I, Chapter 5, Standard 5.2.3 ‘An aeroplane shall be operated in compliance with the terms of its certificate of airworthiness and within the approved operating limitations contained in its flight manual’, with the understanding that such CoA is issued by the State of Registry.

(7) Furthermore, a large number of those aircraft have been entered in the aircraft registry of Russia without the consent of the owners and without subsequent safety related collaboration of either the BCAA or the IAA. As also stated in the ICAO Electronic Bulletin referred to in recital (6), such action is in breach of Articles 17 and 18 of the Chicago Convention.

(8) On 18 March 2022, ICAO released its State Letter AN 3/1.1-22/41 in which it reminds all Contracting States of the Chicago Convention of the oversight responsibilities and obligations stemming from that Convention and Annexes thereto as regards the adequate performance of safety oversight.

(9) On 18 March 2022, Russia announced to Bermuda that it was suspending the Article 83bis Agreement, referred to in recital (4), with immediate effect. As a result, in accordance with the relevant international civil aviation safety standards, any regulatory oversight responsibilities formerly transferred to Russia under that Agreement reverted back to Bermuda as the State of Registry.

(10) In breach of the applicable international civil aviation safety standards, FATA has retained the transferred regulatory oversight responsibilities referred to in recitals (4) and (5), and assumed, without any coordination with Bermuda and Ireland as States of Registry, the regulatory functions and duties contained in Annex 8 to the Chicago Convention. There is no verifiable evidence to conclude that FATA has developed the necessary safety oversight capacity to adequately perform such an extended oversight responsibility on such short notice, and over such an extensive number of aircraft.

(11) On 21 March 2022, pursuant to Article 3(2) of Regulation (EC) No 473/2006 (4), the Commission informed FATA about its serious concerns regarding the aviation safety oversight situation in Russia, and informed it about the essential facts and considerations, which could form the basis of a decision to impose an operating ban on air carriers certified by FATA within the Union.

(12) The Commission gave FATA opportunity to submit written comments and to make an oral presentation on 5 April 2022 to the Commission and the EU Air Safety Committee. FATA was requested to indicate by 1 April 2022 whether it intends to use its right of defence and wanted to appear before the EU Air Safety Committee.

(13) On 21 March 2022, the Commission informed the EU Air Safety Committee about the ongoing joint consultations with FATA, within the framework of Regulation (EC) No 2111/2005 and Commission Regulation (EC) No 473/2006.

(14) On 31 March 2022, FATA informed in a letter addressed to the Commission that it rejects the allegations pertaining to the safety performance of air carriers certified by FATA, and that it considers that it discharges to the full extent the responsibilities imposed on ICAO Contracting States. FATA did not, however, provide any evidence or information to support its statements, and did not demonstrate how it discharges its responsibilities for the regulatory functions and duties contained in Annex 8 to the Chicago Convention, notably with regard to the air carriers operating the aircraft referred to in recitals (4) and (5).

(15) On 1 April 2022, the Commission noted that FATA had not indicated, as requested in the letter of the Commission transmitted to FATA on 21 March 2022, its intent to use its right of defence, as provided for in Regulation (EC) No 2111/2005.

(16) On 5 April 2022, the EU Air Safety Committee met to discuss the situation of the safety performance of the air carriers certified by FATA, as well as the ability of FATA to comply with the international aviation safety standards. The EU Air Safety Committee noted the breaches of the Chicago Convention referred to in recitals (6) and (7), as well as the violation of the applicable international civil aviation safety standards referred to in recital (10). It also noted the absence of willingness to cooperate with the Commission and the EU Member States, on the question of the capacity of FATA and the air carriers it has certified, to ensure the continuing airworthiness and operational safety of the air carriers’ fleet, including the aircraft referred to in recitals (4) and (5).

(17) Further consideration was also given to the consequential impact of the restrictive measures resulting from Council Regulation (EU) 2022/328 (5) amending Regulation (EU) No 833/2014, and notably the short term operational impact of having only limited access to updates of Navigation databases, and Ground Proximity Warning Systems Databases, thus seriously impairing the safe navigation abilities of the aircraft operated by air carriers certified by FATA.

(18) Note was taken of the fact that, as a result of the applicable restrictive measures, engineering and technical support to air carriers certified by FATA has become limited. Moreover, the lack of this engineering and technical support, coupled with the increased surveillance activity stemming from the addition of the significant number of new aircraft on the Russian registry, will increase FATA’s workload and the need for expertise, which is unlikely to be immediately achievable considering, on the one hand, the Article 83bis Agreement conditions under which such activity have been handled in Russia to date, and the consequences of the applicable restrictive measures on the other hand.

(19) In view of the aforementioned violations and the lack of willingness to cooperate with the Commission and the EU Member States by addressing the specific points and concerns raised by the Commission in its letter of 21 March 2022, the Commission and the EU Air Safety Committee concluded, in line with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, including notably the third criterion, that there is no evidence that FATA is able to discharge its responsibilities under the Chicago Convention and the standards contained in the Annexes thereto as regards the air carriers certified by FATA operating aircraft referred to in recitals (4) and (5).

(20) Furthermore, in line with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, and particularly with the first criterion, the air carriers certified by FATA which have operated one or more of the aircraft mentioned in recital 4 and 5 have, by doing so, demonstrated serious safety deficiencies by allowing flight operations to take place in breach of relevant international safety standards applicable to commercial air transportation.

(21) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that the list of air carriers, which are subject to an operating ban within the Union, as set out in Annex A to Regulation (EC) No 474/2006, should be amended to include all air carriers certified in Russia operating aircraft referred to in recitals (4) and (5).

(22) Member States should continue verifying the effective compliance of air carriers certified by FATA with the relevant international safety standards, through prioritisation of ramp inspections of those air carriers pursuant to Commission Regulation (EU) No 965/2012 (6).

(23) The situation as regards the ability and capacity of FATA to discharge its role and responsibilities in terms of surveillance of its aviation industry, as well as all the air carriers certified in Russia, including notably the air carriers operating aircraft referred to in recitals (4) and (5), will be monitored closely, and will be subject to further scrutiny by the Commission, assisted by the Agency, for review at the next meetings of the EU Air Safety Committee.

(24) Regulation (EC) No 474/2006 should therefore be amended accordingly.

(25) Articles 5 and 6 of Regulation (EC) No 2111/2005 recognise the need for decisions to be taken swiftly and, where appropriate, urgently, given the safety implications. It is therefore essential, for the protection of sensitive information and the traveling public, that any decisions in the context of updating the list of air carriers, which are subject to an operating ban or restriction within the Union, are published and enter into force immediately after their adoption.

(26) The measures provided for in this Regulation are in accordance with the opinion of the EU Air Safety Committee established by Article 15 of Regulation (EC) No 2111/2005,

HAS ADOPTED THIS REGULATION:

Article 1 Regulation (EC) No 474/2006 is amended as follows: (1) Annex A is replaced by the text in Annex I to this Regulation; (2) Annex B is replaced by the text in Annex II to this Regulation.

Article 2 This Regulation shall enter into force on the day following that of 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 2022. For the Commission, On behalf of the President, Adina VĂLEAN Member of the Commission

(1) OJ L 344, 27.12.2005, p. 15.

(2) Commission Regulation (EC) No 474/2006 of 22 March 2006 establishing 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 of the European Parliament and of the Council (OJ L 84, 23.3.2006, p. 14).

(3) Commission Implementing Regulation (EU) 2021/2070 of 25 November 2021 amending Regulation (EC) No 474/2006 as regards the list of air carriers banned from operating or subject to operational restrictions within the Union (OJ L 421, 26.11.2021, p. 31).

(4) Commission Regulation (EC) No 473/2006 of 22 March 2006 laying down implementing rules for 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 of the European Parliament and of the Council (OJ L 84, 23.3.2006, p. 8).

(5) Council Regulation (EU) 2022/328 of 25 February 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ L 49, 25.2.2022, p. 1).

(6) 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).