COMMISSION WORKING DOCUMENT in view of the discussions within the Council on the creation of the European Aviation Safety Authority in the Community framework

COMMISSION WORKING DOCUMENT

In view of the discussions within the Council on the creation of the European Aviation Safety Authority in the Community framework

1. Introduction

- At the request of the Council and to contribute to the discussions, the Commission proposes in this working paper a possible option for a European aviation safety agency. This document only deals with a purely Community solution without prejudging other ideas, which might emerge from the future discussions. The Commission's aim remains the creation of an authority capable of guaranteeing a high level of safety in Europe and working with the rapidity an defficiency needed.

2. Aide-memoire

- On 16 July 1998 the Council adopted a decision authorising the Commission to open negotiations with States which are full members of the JAAs [1] (Joint Aviation Authorities), other than European Community Member States, with a view to concluding an agreement establishing a European Aviation Safety Authority (EASA), which will have the legal form of an international organisation.

[1] Full members of the JAA: the 15 EC Member States, Iceland, Malta, Monaco, Norway and Switzerland. Candidates: Cyprus, Hungary, Lithuania, Poland, Czech Republic, Slovakia, Romania, Slovenia and Turkey.

- The main objective of the Community and its Member States was to create a body comparable to the FAA in the United States, with the prime task of ensuring a uniform high level of safety in Europe through the gradual integration of the national systems. This was also designed to help ensure the free movement of aeronautical products, as well as persons and services, by making possible the automatic recognition, without any further requirements, of certificates and approvals issued by any duly authorised national or central administration.

- On the basis of this a draft Convention was prepared with the purpose of setting up an organisation capable of adopting all the rules necessary for aviation safety in a directly applicable form. Initially these rules covered the design, production, maintenance and operation of aircraft and aeronautical products and the qualifications of the personnel and organisations involved. In a later stage the scope could be enlarged to include the safety aspects of airport operations and air traffic management services.

- To guarantee uniform application and thereby facilitate automatic recognition, a dual mechanism is envisaged:

- on the one hand the EASA itself verifies conformity with the common standards and issues type certificates for the aeronautical products; it can also carry out tasks normally done at the national level, at the request of one or all of the contracting parties;

- for the tasks carried out at the national level, i.e. the issuing of individual certificates/approvals for products, personnel and organisations, the EASA adopts common conformity verification procedures and constantly monitors the aptitude of the national administrations and their way of working.

- Insofar as the normative rules and individual decisions are directly applicable, a system of judicial review had to be set up (a court of justice). On the other hand, since the Convention strictly limits the area of competence of the organisation to what is regarded in all the Member States as implementation duties, it was thought sufficient to exercise democratic control by means of a council on which the contracting parties sit and vote (including the Community itself).

3. Assessment of the situation

- This institutional architecture therefore requires cumbersome ratification procedures, which means that some Member States will have to make some constitutional changes. As regards the Community, the Commission has to consult the Court of Justice. Quite apart from the length of the process all of this requires in order to arrive at a ratification by all the Member States and the Community, there is no guaranteeing that this text can be ratified.

- Since the entry into force of the Treaty of Amsterdam the European Parliament has had new powers in the transport field, since the legislation concerned is now adopted by codecision. It therefore has to be borne in mind that Parliament will be obliged to hand over powers to an international organisation in which it will have a say only when Community positions are drawn up for presentation to the organisation [2]. Moreover, the general trend of building the Community is towards more transparency and responsibility towards its citizens, and this the EASA's architecture could assure only if provision had been made for parliamentary control, which is not the case at present.

[2] This institutional problem was overcome in 1997 (Council Decision 97/836) for the Community's accession to an existing organisation in the vehicle standardisation field, on the basis of complex mechanisms for involving Parliament in the preparation of standards which are not necessarily directly applicable.

- These institutional problems will very likely be felt just as keenly by our non-Community partners, since for several of them any transfer of sovereignty is a sensitive issue as well. With these risks in mind, the Council wanted to look at an alternative solution, hence the presentation of this document. As for the European Parliament, the matter has never been formally placed before it, on account of the procedure followed.

4. Towards a European Aviation Safety Authority

(1) Models

- Together with eleven other administrations (the Federal Highway Administration, etc.), the US Federal Aviation Administration (FAA) is an integral part of the Department of Transportation and accordingly directly responsible to the government (in particular the Transportation Secretary) and Congress, which approves its budget. The FAA adopts and implements, entirely on its own authority, rules and safety standards applicable to the production, operation, certification and maintenance of aircraft; it licenses airports, air carriers and cockpit crew. Safety decisions are made independently by the FAA administrator or his staff by means of Notices of Proposed Rule Making (NPRM), the procedure for which is laid down in US law. The FAA, which runs a network of airport control towers and air traffic control centres, develops rules for air traffic management and use of airspace, making sure that air traffic control safety is in line with national defence requirements. The FAA also has responsibilities in the area of construction and use of air navigation aids. Lastly, it includes as one of its tasks the promotion of aviation safety throughout the world. The FAA's annual budget is almost entirely financed by a tax on air tickets (for fiscal year 1999 the budget was raised to USD 9753 million; the FAA has about 49.000 employees).

- In a number of cases the Commission itself has wide executive powers conferred on it by the Treaty (competition) or secondary legislation (food safety). It can therefore adopt rules of general application and/or individual decisions with or without close control (committee procedure). For carrying out its tasks the Commission has provided itself with human resources with the necessary technical expertise and has set up independent scientific committees capable of making technical appraisals (risk assessment) on the basis of which it makes decisions (risk management). This is, incidentally, the spirit in which Regulation 3922/91, which acknowledges the Commission's power to adapt JARs (Joint Aviation Requirements) previously introduced by the Council in the annexes to the Regulation, was adopted. The shortcomings of this Regulation and the lack of resources in the Commission's departments have meant, however, that the Commission has been unable to satisfy the industry's expectations.

- Due to the amount of expertise or resources required the Community has occasionally been obliged to set up external bodies to assist the Commission: Community agencies. Of the Community agencies in place, three are of particular interest in the present exercise: the Office for Harmonisation in the Internal Market (OHIM), the Community Plant Variety Office (CPVO) and the European Agency for the Evaluation of Medicinal Products (EMEA). They exercise powers to implement specific sets of rules and provide services to industrial sectors, in return for fees which make them more or less financially independent. Two of them (OHIM and CPVO) enjoy decision-making powers of their own inasmuch as they decide on the basis of criteria laid down in the legislation whether a trade mark or variety is original, which presupposes a certain degree of technical discretion. In order to safeguard the rights of third parties who might be affected by their decisions, a system of internal boards of appeal is provided. The decisions of these boards may in turn be made the subject of proceedings before the European Court of Justice [3]. The agencies were set up pursuant to regulations which have their legal basis in Article 308 (former Article 235) of the EC Treaty; they have legal personality and are run by internal bodies.

[3] See also the Commission's additional contribution to the intergovernmental conference on institutional reform (COM(2000)109) in which proposals are made concerning the possible role of the OHIM's boards of appeal as specialised tribunals of first instance.

- None of the above models seems entirely suited to the case in point, that of aviation safety. Nevertheless, the experience gained in the Community framework allows us to form a picture of an alternative capable of fulfilling the tasks envisaged for the EASA with the requisite independence and efficiency. It is briefly outlined below.

- A basic regulation to replace Regulation 3922/91 and to be adopted by codecision on the basis of Article 80(2) would:

- establish the scope, objective and means for Community action in the field of aviation safety (equivalent to Chapters 1 (General), 2 (Establishment and purpose of the organisation) and 3 (Tasks of the authority) of the EASA Convention);

- possibly grant the Commission the power to adopt common rules and procedures and to make individual decisions, notably for implementing the following indent;

- set up a system of close control of the action of Member States (equivalent to Chapters 4 (Membership) and 9 (Enforcement) and Article 16 (Immediate safety action) of the EASA Convention);

- create an agency capable of preparing Commission decisions and itself adopting certain individual decisions under the control of the Commission;

- lay down an obligation to recognise automatically (Article 5 of the Convention) and subject to no further requirements any certificate issued in accordance with the common rules and procedures either by the agency or by the Member States.

Like all Community acts, decisions of the Commission and of the agency would be subject to review by the Court of Justice.

(2) Tasks

- In order to guarantee a high level of safety in Europe and free movement of products, persons and services in the field, all the the Community's institutional players would have to assume the following tasks (very similar to those provided for in the EASA Convention):

a) Adoption of common technical rules and administrative procedures for the design, certification, construction, continuing airworthiness, maintenance and operation of aircraft and the certification of personnel and organisations occupied in these activities; airport safety and air traffic management will be included in these tasks but, as in the EASA Convention, collective action in this area may be suspended pending a positive decision from the Council.

b) Development of technical requirements and administrative procedures for the application [4] of environmental standards.

[4] This concerns the application and not the establishment of these standards, which continues to be the responsibility of the environmental protection organisations.

c) Technical inspections and issuing of type certificates for aeronautical products. Individual approvals of products, organisations and personnel could be issued on behalf of all the Member States subject to a positive decision from the Council.

d) Verification of application of the common rules by the Member States and harmonisation of their working methods in order to guarantee the mutual recognition of certificates.

e) Development of international cooperation conducive to the harmonisation of rules and the mutual recognition of certifications.

f) Coordination of research and financing of research activities.

(3) Execution of tasks

- As Community law is currently interpreted, the exercise of executive powers and control of the implementation of rules and regulations is the preserve of the Commission, which may delegate it only on the basis of rules removing any discretion from the body delegated, or at the very least restricting it to a technical appraisal within its sphere of competence. Bearing in mind these constraints powers are delegated as follows for each of the tasks described above (see also the table in the annex):

a) and b) Rules of general scope

- By virtue of the discretionary powers which they imply, adopting common rules of general scope are clearly the prerogative of the Community institutions. The agency may assist the Commission in preparing such rules. Given the highly technical nature of the rules and the fact that they are implementation measures, Parliament and the Council should generally delegate the adoption of common rules to the Commission. As in the EASA Convention we can envisage a hierarchy of texts, so that the common rules concern only general technical requirements. The agency would be given the task of determining the technical modalities of checking compliance - on the lines of the practice of the EMEA which issues "guidelines" - which would not be mandatory but would serve as an indication of how compliance would be verified, leaving it up to those concerned to prove whether they satisfy the general technical requirements by any equivalent means acceptable.

c) Centralised application of general rules

- Three functions are to be taken into consideration:

- Issuing of type certificates: With the advance of technology it is practically impossible to develop an exhaustive set of common rules for certifying new aeronautical products. The agency should therefore in some cases be allowed a certain scope for technical appreciation in defining the basis of certification for the products presented to it. Thus the certifying authority applies, within the defined regulatory framework, the general technical requirements, adapting them to the individual case. These adaptations may be made right up to the point when the type certificate attesting to compliance with the common rule is finally delivered. When there is a risk of such an adaptation departing from the regulatory framework, the Commission should intervene according to the methods defined in the basis regulation.

The type certificate could be issued by the agency itself inasmuch as it is an attestation of compliance with the final basis of certification.

- Issuing of individual certificates (for aeronautical products, organisations and personnel) attesting to compliance with the common rules would normally be carried out by the Member States; nevertheless the agency should also be able to issue such certificates if the Council so decides (cf (2)c) above). Its scope for technical appraisal should therefore be narrowly circumscribed by the common rules, which themselves must be sufficiently clear, precise and exact not to delegate any discretionary authority to the agency.

The issuing of such certificates which will be directly applicable by the agency also presupposes the existence of an appropriate system of safeguards for third parties and therefore the establishment of boards of appeal similar to those set up by the OHIM and the CPVO, whose role is to verify whether the agency has applied the common rules properly without going beyond the scope for technical appraisal which these texts allow it (judicial review).

- Surveillance of the market, which includes the monitoring of airworthiness, aims on the one hand to ensure that the common rules are proportionate to the safety objectives to be reached and on the other hand to trigger immediate action where necessary to preserve the safety of goods and persons [5].. This surveillance may lead either to amendment of the common rules or to the adoption of safety measures such as the suspension or withdrawal of licences or modification of the conditions for issuing a type certificate (airworthiness directive).

[5] As in the EASA Convention, the Member States will of course retain the right to take safety measures in the framework of a Community control mechanism.

d) Application of the common rules at national level)

- The Commission is responsible for monitoring the application of common rules at national level. However, the agency could help it to do this. It would have at its disposal teams of inspectors for monitoring the national administrations and checking their working methods on its own initiative or at the Commission's request. The agency would thus verify in the national administrations that Community law has been correctly implemented and applied; it would report back to the Commission which could then decide whether to institute infringement proceedings for incorrect application of the common rules and procedures.

- Insofar as the Member States, as in the EASA Convention, have to be allowed a certain degree of flexibility in their assessment of application of the common rules (safety action in an emergency, derogations of scope or limited duration, equivalent safety level), it is also necessary to include in the Community regulation creating the EASA a mechanism for controlling this flexibility (ex ante or ex post). The agency would be required to examine the measures proposed or adopted by the Member States and recommend to the Commission what action to take.

e) International relations

- As regards both harmonisation of the rules and mutual recognition, the agency, which would assist the Commission in preparing the relevant proposals, wouldl be able within the bounds of its commercial mandate and if authorised to do so by the Commission to discuss directly with third countries and send its contribution to the Commission. It would also assist the Commission in the negotiation and implementation of mutual recognition agreements.

f) Research

- The recent White Paper on food safety [6] recommends that the authority should have its own research budget in order to be able to finance ad-hoc research in response to health emergencies; the authority would work in close liaison with the JRC and the national administrations and in coordination with the Community research programmes.

[6] COM(99)719 final, 12 January 2000

- This is a scheme which might equally be envisaged for aviation safety. To carry out activities in this area the agency should therefore have a budget for the purpose. The task of coordinating research activities, given by the Treaty to the Commission, could be delegated to the agency provided that it concerns research falling strictly in the competence of the agency, as defined in the basic regulation. Moreover, a mechanism must be found to allow interaction between the research undertaken by the agency and that conducted at national or Community level, whether research paid directly or with shared costs.

(4) Decision-making mechanisms

- Throughout the discussion process on the EASA dossier it was abundantly clear that both the national administrations and the industry want decision-making on safety matters to be free from any political interference or national considerations. The failure of the present system of JAAs is often put down to the fact that their activities, basically decided by committee, have been unable to avoid these stumbling blocks. Everyone therefore wants an effective system where the decisions are in the hands of a single decision-maker, like in the US system:

a) At the agency level

- Decisions on safety (contributions to the Commission on rules and safeguards, individual decisions: individual type certificates, withdrawal of certificates) should be made by the executive director of the agency [7] and not by a scientific committee. These decisions should be based on a codified consultation process ensuring transparency and the right of all the parties to present their opinions. In view of the sensitivity of certain matters the director himself would be able to decide what committees to set up to take them on, while consultation of these committees would remain optional.

[7] The executive director is usually appointed either by the management board, made up of representatives of the Member States, the Commission and sometimes the European Parliament, on a proposal from the Commission, or by the Council of Ministers, again on a proposal from the Commission.

- For administrative decisions, however, the traditional agency model where decisions are made by a management board (within the limits set in the regulation setting up the agency) consisting of representatives of the Member States, the Commission and the European Parliament could be adopted.

- Individual decisions on safety being made exclusively by the executive director, the only forum where Member States would be able to give their opinion is the management board, so for this reason it is desirable that the executive director should be appointed by the management board (on a proposal from the Commission), so as to have the requisite legitimacy.

b) At the Commission level

- The Commission will either make proposals or adopt the general technical requirements (depending on how far Parliament and the Council are prepared to delegate) on the basis of the agency's preparatory work. As for adoption, as they are technical measures that do not involve political choices, for example by means of a committee, the most efficient solution would be to entrust the Commission with their adoption.

4. Participation by non-member States

- It is in the interest of our Member States, European citizens and industry for all to enjoy a high level of safety on as wide a geographical scale as possible. The long-standing cooperation between European countries in this field, in particular in the JAAs, has always allowed non-member States to take part in the work and the decision-making process under acceptable conditions. Any system that is set up in this area will therefore need to have a pan-European dimension and allow these countries to continue to participate under the same terms.

- Since the basic regulation creating the agency is a Community act which can have no extra-territorial effects, it would be necessary to make provision, on similar lines to the Regulation establishing the European Environment Agency [8], for participation by non-member States [9] by the conclusion of international agreements with each of them. Participation in the agency would confer on non-member States the same rights and obligations that are enjoyed by the Member States of the Community, apart from the right to vote and the possibility of assuming chairmanship functions. In the case in point the management board is the only body where States can make their attitude known. It would therefore be a question of associating non-member States as closely as possible with the work of this body, whose decision-making powers cannot extend into the safety field, and involving them in any bodies which the executive director might set up to assist him in his decision-making.

[8] OJ No L 120, 11.5.1990.

[9] See also the Commission's Communication to the Council of 20 December 1999 concerning the participation of candidate countries in Community programmes, agencies and Committees (COM(1999)710).

- As regards the application in non-member States of the acts adopted:

- by the Commission and the agency (common rules, bases of certification and safety action), since these acts form part of the "acquis communautaire", the various mechanisms provided in the different agreements which the Community has concluded or is about to conclude with the central European countries (European Common Aviation Area, ECAA) and Switzerland and in the framework of the EEA, could be used. In these agreements, proper implementation and judicial review are generally the responsibility of national courts. These courts sometimes have the possibility (EEA et ECAA agreements) of requesting an interpretation from the Court of Justice of the European Communities, which would be a way of preserving a uniform interpretation of the rules;

- by the agency (individual certificates, including type certificate). Since these certificates are simply a declaration of conformity with the basic rules, the agency could issue them on behalf of non-member States also if the "single pillar" principle (used for Commission decisions in competition matters), can be applied.

5. Budget

The use of an agency does not alter any of the budgetary responsibilities which might be placed on the EASA. The main change concerns funding which, in the EASA Convention, it was possible to arrange in a scale of contributions by the contracting parties and which, in an agency, could come in part from the Community budget.

(1) Expenditure

- For carrying out the tasks described above, the proposed agency would have to be provided with a budget which will allow it to maintain a sufficient number of high-quality staff, since its certification duties will require the setting up of joint teams largely calling on experts from the national administrations without having to recruit them.

- To take the JAAs (currently being reorganised) as an example: these could soon have about 80 staff for carrying out tasks similar to those envisaged for the new agency. A ballpark figure for the number of staff the agency might require would therefore be around 100.

- The agency would need a budget allocation large enough to enable it to undertake research activities and have the common standards translated and published.

- The Commission should have additional funds to allow it to process quickly acts arising out of the decision-making power not delegated to the agency and exercise control over the acts of the agency.

(2) Funding

- The agency's budget could be financed to an extent by a subsidy from the Community, in particular as far as its contribution to legislative tasks is concerned. Also, services it provides (such as certification, training and documentation) would have to be paid for in the form of fees, which must be charged uniformly and without discrimination to all the States participating in the system. The level of these fees would have to be in line with international practice so as not to affect the competitiveness of our industry.

7. Conclusion

- The present system of aviation safety, essentially based on cooperation between the Member States in the framework of the JAAs, has been unable to satisfy the legitimate aspirations of all the parties concerned with regard to its effectiveness. This failure is due in part to the JAAs' inability to free themselves from political interference in their decision-making.

- The draft Convention, through its intergovernmental nature, does not put an end to negotiation between the parties on safety conditions on account of the central role which the Governing Body plays in any decision made by the EASA. This central role is justified by the need for political control over an organisation which has full decision-making powers with all the political, institutional and legal consequences that entails.

- The Community alternative set out above, designed to fit into the Community system of institutions and so arranged as to guarantee the executive director autonomy in his decision-making, has to reconcile the desired effectiveness with the indispensable political control. It aims also to secure a stable balance between the need for centralisation and the use of expertise available in the national administrations and the JAAs, while maintaining the institutional balance sought by the Treaty. This will make it possible to limit the costs of setting up this new structure while at the same time preserving the privileged relationships which the national administrations have been able to develop with those concerned, as the experience of the medicinal products agency shows.

- These options concerning the sharing of responsibilities for decision-making between the legislative bodies, the Commission and the agency are based on the current interpretation of the institutional system of the Treaty and on the case law. The Commission reserves the right to consider, when proposing legislation, other options that would help ensure greater rapidity and efficiency.

Annex 1 : Community system

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Annex 2

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