COMMISSION IMPLEMENTING REGULATION (EU) 2022/2295

of 23 November 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/CE (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) Certain 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 is relevant for updating that list. Third countries and international organisations also provided relevant information. On the basis of the information provided, the list should be updated.

(3) The Commission informed all air carriers concerned, either directly or through the authorities responsible for their regulatory oversight, about the essential facts and considerations, which would form the basis of a decision to impose an operating ban on them within the Union or to modify the conditions of an operating ban imposed on an air carrier, which is included in the list set out in Annex A or B to Regulation (EC) No 474/2006.

(4) The Commission gave the air carriers concerned the opportunity to consult all relevant documentation, to submit written comments and to make an oral presentation to the Commission and to the Committee established by Article 15 of Regulation (EC) No 2111/2005 (the ‘EU Air Safety Committee’).

(5) The Commission has informed the EU Air Safety Committee about the ongoing joint consultations, within the framework of Regulation (EC) No 2111/2005 and Commission Regulation (EC) No 473/2006 (3), with the competent authorities and air carriers of Armenia, Kazakhstan, Nepal, Nigeria and Pakistan. The Commission also informed the EU Air Safety Committee about the aviation safety situation in Argentina, Congo Brazzaville, Equatorial Guinea, Iraq, Madagascar, Russia and South Sudan.

(6) The Agency informed the Commission and the EU Air Safety Committee about the technical assessments conducted for the initial evaluation and the continuous monitoring of third country operator (‘TCO’) authorisations, issued pursuant to Commission Regulation (EU) No 452/2014 (4).

(7) The Agency also informed the Commission and the EU Air Safety Committee about the results of the analysis of ramp inspections carried out under the Safety Assessment of Foreign Aircraft programme (‘SAFA’), in accordance with Commission Regulation (EU) No 965/2012 (5).

(8) In addition, the Agency informed the Commission and the EU Air Safety Committee about the technical assistance projects carried out in third countries affected by an operating ban under Regulation (EC) No 474/2006. Furthermore, the Agency provided information on the plans and requests for further technical assistance and cooperation to improve the administrative and technical capability of civil aviation authorities in third countries with a view to helping them resolve non-compliance with applicable international civil aviation safety standards. Member States were invited to respond to such requests on a bilateral basis in coordination with the Commission and the Agency. In that regard, the Commission reiterated the usefulness of providing information to the international aviation community, particularly through the International Civil Aviation Organisation’s (‘ICAO’) Aviation Safety Implementation Assistance Partnership tool, on technical assistance to third countries provided by the Union and Member States to improve aviation safety around the world.

(9) Eurocontrol provided the Commission and the EU Air Safety Committee with an update on the status of the SAFA and TCO alarming functions, including statistics about alert messages for banned air carriers.

Union air carriers

(10) Following the Agency’s analysis of information resulting from ramp inspections carried out on the aircraft of Union air carriers, as well as standardisation inspections carried out by the Agency, and complemented with information stemming from specific inspections and audits carried out by national aviation authorities, Member States and the Agency, acting as competent authorities, have taken certain corrective and enforcement measures, and informed the Commission and the EU Air Safety Committee about those measures.

(11) Member States and the Agency, acting as competent authorities, reiterated their readiness to act, as necessary, in the event that pertinent safety information indicates imminent safety risks resulting from non-compliance by Union air carriers with relevant safety standards.

Air carriers from Armenia

(12) In June 2020, air carriers certified in Armenia were included in Annex A to Regulation (EC) No 474/2006, by Commission Implementing Regulation (EU) 2020/736 (6).

(13) The Commission and the Agency visited the Civil Aviation Committee of Armenia (‘CAC’) from 27 to 30 September 2022. On that occasion, the Commission reviewed the progress made by the CAC in dealing with the identified safety deficiencies that led to the imposition of the aforementioned ban on the Armenian air carriers. Part of the review carried out during the visit focused on the actions already taken and those planned to address the root causes of the identified safety concerns, notably in terms of the CAC’s capacity to conduct effective oversight of air carriers certified in Armenia.

(14) In this respect, the Commission reviewed the actions already taken by the CAC to fulfil its responsibilities for the implementation of the State Safety Program, the Occurrence Reporting System, the Quality Management System and the Air Operators Certification (‘AOC’) process. The visit also reviewed not only the CAC’s ability to comply with relevant safety regulations and standards, but also its ability to detect any significant safety risk within a certified air carrier and act in an effective manner to contain such risk.

(15) The visit confirmed that the CAC made limited progress in addressing the identified safety deficiencies and observations raised during the 2020 Union on-site assessment visit. While a Corrective Action Plan (‘CAP’) has been defined and enacted, it should however be reopened, reviewed and additional actions should be included in order to make the CAP fit-for-purpose. This will be a key activity under a technical assistance project, which the Agency is providing.

(16) At this occasion, the CAC also informed the Commission that a new air carrier Fly Arna (AM AOC No. 075) has been certified. Since the CAC has not demonstrated a sufficient ability to implement and enforce the relevant safety standards, the issuance of an AOC to this new air carrier does not guarantee sufficient compliance with the relevant international safety standards.

(17) The visit also provided an opportunity to reiterate to the Armenian competent authorities and government representatives, that a proper and effective safety oversight can only be guaranteed if the CAC is supported by the appropriate resources and expertise, notably in terms of adequate number of qualified staff, as well as by ensuring the stability of senior management.

(18) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that with respect to air carriers from Armenia, the list of air carriers, which are subject to an operating ban within the Union should be amended to include Fly Arna in Annex A to Regulation (EC) No 474/2006.

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

Air carriers from Kazakhstan

(20) In December 2016, air carriers certified in Kazakhstan were removed from Annex A to Regulation (EC) No 474/2006, by Commission Implementing Regulation (EU) 2016/2214 (7), with the exception of Air Astana, which had been removed from Annex B to Regulation (EC) No 474/2006 already in 2015 by Commission Implementing Regulation (EU) 2015/2322 (8).

(21) On 20 October 2022, the Commission, the Agency, Member States and representatives of the Civil Aviation Committee of Kazakhstan (‘CAC KZ’) and the Aviation Administration of Kazakhstan Joint Stock Company (‘AAK’) held a technical meeting.

(22) During that meeting, the CAC KZ and the AAK presented the progress made with respect to the implementation and further development of their CAP, and provided the Commission with evidence of the actions taken to address and/or close a number of the observations and recommendations raised during the 2021 Union on-site assessment visit. The meeting was also an opportunity for the CAC KZ and the AAK to provide an update on the ongoing developments in the Kazakh aviation legislative framework, notably in terms of amendments to the Kazakh Primary Aviation Law, which are expected to be adopted in December 2022. The AAK also informed about the actions taken to develop secondary aviation legislation, which can only be adopted after the Primary Aviation Law has been adopted.

(23) Based on a review of the CAP submitted prior to the meeting, as well as the discussions and evidence provided during the meeting, note was taken of the progress made in addressing the observations and recommendations stemming from the 2021 Union on-site assessment visit. All of the observations and recommendations have been addressed and a number of them have been closed. However, further action needs to be taken to close all the remaining observations in a satisfactory manner and necessary resources should be provided to ensure an adequate safety oversight. A number of additional specific issues were identified, requiring further attention, including the development and implementation of a procedure to carry out unannounced inspections, notably for AOC holders and Approved Maintenance Organizations, and the recruitment of a qualified expert to ensure the supervision of designated flight examiners.

(24) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that at this time there are no grounds for amending the list of air carriers, which are subject to an operating ban within the Union with respect to air carriers from Kazakhstan.

(25) Member States should continue verifying the effective compliance of air carriers certified in Kazakhstan with the relevant international safety standards through prioritisation of ramp inspections of all those carriers, pursuant to Regulation (EU) No 965/2012.

(26) Where any relevant safety information reveals imminent safety risks resulting from non-compliance with the relevant international safety standards, further action by the Commission may become necessary, in accordance with Regulation (EC) No 2111/2005.

Air carriers from Nepal

(27) In December 2013, air carriers certified in Nepal were included in Annex A to Regulation (EC) No 474/2006, by Commission Implementing Regulation (EU) 1264/2013 (9).

(28) As part of its continuous monitoring activities, on 14 September 2022, the Commission met with the representatives of the Civil Aviation Authority of Nepal (‘CAAN’). At that occasion, the CAAN provided the Commission with information regarding the safety oversight in Nepal and notably their revised considerations about the functional separation of the regulatory and service provider roles of CAAN, which is a longstanding issue identified during the Commission consultations with Nepal, as well as by the ICAO Universal Safety Oversight Audit Programme (‘USOAP’).

(29) As a follow up to that meeting, on 10 November 2022, the CAAN submitted to the Commission the information and documentary evidence about the adoption of a new CAAN Regulation, which in CAAN’s view ensures the functional separation of CAAN’s regulatory and service provider roles, namely by preventing the transfer of staff between regulatory and service provider sections of the CAAN. The implementation of this new regulation and progress in aligning the CAAN’s safety oversight with the relevant international safety standards would allow the Commission to consider whether a Union on-site assessment visit to Nepal should be organised in 2023. On the basis of evidence gathered during such a visit the Commission could assess if a removal of air carriers certified in Nepal from the Annex A to Regulation (EC) No 474/2006 would be justified.

(30) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that at this time there are no grounds for amending the list of air carriers, which are subject to an operating ban within the Union with respect to air carriers from Nepal.

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

Air carriers from Nigeria

(32) In May 2017, the air carrier Med-View Airline was included in Annex A to Regulation (EC) No 474/2006, by Commission Implementing Regulation (EU) 2017/830 (10).

(33) By letter of 25 May 2022, the Nigerian Civil Aviation Authority (‘NCAA’) confirmed in writing the cessation of activities by the air carrier Med-View Airline.

(34) On 7 November 2022, the Commission, with the participation of the Agency, organised a meeting with the NCAA, at its request, for the purpose of being updated on key safety oversight developments that have taken place in Nigeria between 2019 and 2022, notably in light of the safety oversight support provided by the Agency to the NCAA in 2019.

(35) During that meeting, the NCAA provided a comprehensive presentation of the safety oversight improvements made, notably in the areas of primary aviation legislation, qualification of technical staff, and surveillance obligations.

(36) Of particular note are the legislative changes to the Nigerian Civil Aviation Act, the re-organisation of the regional offices, the efforts to obtain an ISO 9001 certification for the NCAA, the development of plans for the digitalisation and automation of NCAA processes, the improvements to staff training, and the establishment of an occurrence reporting system.

(37) The NCAA emphasized its commitment to continuous improvement, including in safety oversight and in regularly informing the Commission and the Agency. The Commission noted this positive development, and stressed that the NCAA should be given all necessary support and resources to fulfil its safety oversight obligations.

(38) 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, should be amended to remove the air carrier Med-View Airline from Annex A to Regulation (EC) No 474/2006.

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

(40) Where any relevant safety information reveals imminent safety risks resulting from non-compliance with the relevant international safety standards, further action by the Commission may become necessary, in accordance with Regulation (EC) No 2111/2005.

Air carriers from Pakistan

(41) In March 2007, Pakistan International Airlines was included in Annex B to Regulation (EC) No 474/2006 by Commission Regulation (EC) No 235/2007 (11) and subsequently removed from that Annex in November 2007 by Commission Regulation (EC) No 1400/2007 (12).

(42) On 1 July 2020, the Commission opened consultations with the Pakistan Civil Aviation Authority (‘PCAA’) pursuant to Article 3(2) of Regulation (EC) No 473/2006, on the basis of the TCO authorisation suspensions of Pakistan International Airlines and Vision Air, and a statement made by the Pakistan Transport Minister about fraudulently obtained pilot licenses in Pakistan.

(43) In that context, the Commission, in cooperation with the Agency and Member States, has organised a number of technical and information meetings with the PCAA on 9 July and 25 September 2020, 15 and 16 March 2021, 15 October 2021 and 16 March 2022. Those discussions focused on efforts made by the PCAA in dealing with the safety oversight concerns previously identified by the Commission and the Agency experts, as well as those identified by ICAO during its USOAP visit that took place between 29 November and 10 December 2021.

(44) As part of its continuous monitoring activities, on 25 October 2022, the Commission, the Agency, Member States and representatives of the PCAA held a technical meeting. During that meeting, the PCAA informed the participants about the actions and measures already implemented, as well as about those planned, to address the identified safety oversight concerns.

(45) The information and data presented during the meeting indicate the commitment and efforts of the PCAA to resolve the safety oversight situation in Pakistan, notably through the adoption of an amended Civil Aviation Authority Ordinance by the end of 2022, as well as the associated secondary legislation planned for the first quarter of 2023. Overall, the proposed plans, as presented during the meeting, appear to be fit-for-purpose to comply with and effectively implement the relevant safety standards. However, this can be assessed only after the relevant regulations are adopted.

(46) On this basis, whilst acknowledging the actions taken to date, the Commission will continue its monitoring of Pakistan’s safety oversight system in order to determine whether further action is required pursuant to Regulation (EC) No 2111/2005. In this context, the Commission intends to carry out, with the Agency and Member States, a Union on-site assessment visit to Pakistan in 2023.

(47) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that at this time there are no grounds for amending the list of air carriers, which are subject to an operating ban within the Union with respect to air carriers certified in Pakistan.

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

(49) Where any relevant safety information reveals imminent safety risks resulting from non-compliance with the relevant international safety standards, further action by the Commission can become necessary, in accordance with Regulation (EC) No 2111/2005.

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

(51) 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.

(52) The measures provided for in this Regulation are in accordance with the opinion of the EU Air Safety Committee established pursuant to 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, 23 November 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 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).

(4) 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 (OJ L 133, 6.5.2014, p. 12).

(5) 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).

(6) Commission Implementing Regulation (EU) 2020/736 of 2 June 2020 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 172, 3.6.2020, p. 7).

(7) Commission Implementing Regulation (EU) 2016/2214 of 8 December 2016 amending Regulation (EC) No 474/2006 as regards the list of air carriers which are subject to an operating ban within the Union (OJ L 334, 9.12.2016, p. 6).

(8) Commission Implementing Regulation (EU) 2015/2322 of 10 December 2015 amending Regulation (EC) No 474/2006 establishing the Community list of air carriers which are subject to an operating ban within the Community (OJ L 328, 12.12.2015, p. 67).

(9) Commission Implementing Regulation (EU) No 1264/2013 of 3 December 2013 amending Regulation (EC) No 474/2006 establishing the Community list of air carriers which are subject to an operating ban within the Community (OJ L 326, 6.12.2013, p. 7).

(10) Commission Implementing Regulation (EU) 2017/830 of 15 May 2017 amending Regulation (EC) No 474/2006 as regards the list of air carriers which are banned from operating or are subject to operational restrictions within the Union (OJ L 124, 17.5.2017, p. 3).

(11) Commission Regulation (EC) No 235/2007 of 5 March 2007 amending Regulation (EC) No 474/2006 establishing the Community list of air carriers which are subject to an operating ban within the Community (OJ L 66, 6.3.2007, p. 3).

(12) Commission Regulation (EC) No 1400/2007 of 28 November 2007 amending Regulation (EC) No 474/2006 establishing the Community list of air carriers which are subject to an operating ban within the Community (OJ L 311, 29.11.2007, p. 12).