COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council establishing common rules in the field of civil aviation security

2001/0234 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council establishing common rules in the field of civil aviation security

1- BACKGROUND

Date of transmission of the proposal to the EP and the Council (document COM(2001) 575 final - 2001/0234(COD)): // 11 October 2001

Date of the opinion of the Economic and Social Committee: // 28 November 2001

Date of the opinion of the European Parliament, first reading: // 29 November 2001

Date of political agreement by Council: // 7 December 2001

Date of adoption of the common position: // 28 January 2002

2- OBJECTIVE OF THE COMMISSION PROPOSAL

2.1 Following the terrorist attacks committed in New York and Washington on 11 September 2001, the Council of the European Union, asked at its meeting of 12 September 2001 the Ministers of Transport to evaluate the measures taken to ensure air transport security and any additional measures which should be taken. The Council, at a special meeting of Transport ministers on 14 September 2001 considered it necessary to implement fully and update the key measures on civil aviation security contained in Document 30 of the European Civil Aviation Conference (ECAC). The European Council, meeting in extra-ordinary session on 21 September 2001, called upon the Transport Council to take the necessary measures to strengthen air transport security. It is against these requests that the Commission adopted on 10 October its proposal for this Regulation aimed at establishing common rules to prevent unlawful acts against civil aviation

2.2 This proposal incorporates the provisions of ECAC Document 30 into the Community legal order for both international and domestic flights. In view of the degree of technical detail of the common standards to be implemented, the Commission proposes to be given the appropriate executive powers, with the assistance of a committee of representatives of Member States, to adopt the necessary implementing measures and to adapt the measures to technological progress. The Regulation further introduces an inspection mechanism for controlling the effective application of the common security rules. The Regulation contains a provision authorising Member States to take additional measures in order to address any specific threat.

3 COMMENTS ON THE EUROPEAN PARLIAMENTS'S AMENDMENTS

3.1 Parliament approved the Commission's proposal subject to 14 amendments on first reading. The Commission rejected 2 of those amendments and agreed to the other 12 (amendments 1, 2, 3, 4, 8, 10, 13, 14 first part, 19, 20, 21 and 22), in some cases with suggestions for redrafting or giving an agreement in principle.

3.2 The 2 rejected amendments concern the transposition by reference of standards produced by an external organisation (ECAC) (amendment 5) and the deletion of a Community control mechanism aimed at verifying that more stringent measures adopted by Member States remain proportionate and do not affect the proper functioning of the internal market (amendment 7). The Commission also rejected the last paragraph of amendment 14, referring to derogations for measures involving changes in infrastructure.

4- COMMENTS ON THE COMMON POSITION

4.1 In its Common Position adopted unanimously, the Council accepts the 2 amendments rejected by the Commission, while rejecting 10 amendments that the Commission had accepted, albeit that the Commission gave its agreement in principle to some of these amendments. The Council agrees to 2 amendments agreed by the Commission.

4.2 In agreeing to the Council's Common Position the Commission accepts the Council's agreement of 2 amendments the Commission has previously refused, as well as the Council's refusal of 10 amendments the Commission had previously accepted.

The 2 amendments accepted by the Council and rejected by the Commission are described under 3.2.

The 10 amendments rejected by the Council and previously accepted by the Commission may be placed into 4 groups:

- Firstly, where they raise the important issue of public financing of security measures (amendments 1, 10, 19 and 22)

- Secondly, where they refer to current budgetary practice (amendments 2 and 3).

- Thirdly, where the Council had modified the text of the original proposal in a way that largely responds to Parliament's amendment (amendment 4 and 13).

- Fourthly, 2 amendments which seek to enhance the effectiveness of security measures in general (amendments 8 and 20).

4.3 In its Common Position the Council does not accept 12 amendments proposed by the European Parliament. These are as follows:

* Amendment 1 {recital 9a (new)}, amendment 22 {recital 9d (new)}, amendment 10 {(Article 7, paragraph 5a (new)} and amendment 19 {(Article 7a (new)}. In its Common Position the Council does not consider it appropriate to include a reference to the financing of additional security measures. The Commission could accept these amendments in principle, since these would be in line with the position set out in the Commission Communication of 10 October 2001 on the economic impact of terrorist attacks. In this Communication the Commission stated that it would be ready to consider positively public financing for the compensation of additional security measures. From a legal point of view, however, it can be argued that provisions that are not directly related to the objective of improving aviation security should not be in the Regulation. The Commission will analyse the needs for harmonisation of the way the security controls are organised and financed in the Member States and take the necessary initiatives for the implementation of the outcome of this analysis.

* Amendment 2 {recital 9b (new) and amendment 3 {recital 9d (new)}. The rejection by Council in its Common Position is again in line with the Council's view not to have a reference to the financial aspects of enhanced security in the Regulation. The Commission could accept these amendments in principle. However, from a legal point of view it can be argued that being "whereas" clauses, they do not have a corresponding provision in the Regulation.

* Amendment 4 (Article 1, paragraph 1). The Common Position reflects the notion of "appropriate" as suggested by Parliament.

* Amendment 13 (Article 9). The Common Position addresses the confidentiality aspect in an new Article 8 "Dissemination of information".

* Amendment 8 (Article 7, paragraph 3). The Common Position does not include the Parliament's idea to have unannounced inspections. The Commission is of the opinion that this would enhance the effectiveness of the inspections. However, it can accept that unannounced inspections may be very difficult to organise and that a minimum of prior information to the appropriate national authorities is necessary in order to obtain the related credentials with a view to accessing the restricted areas. Experience, including that in third countries with a well established tradition of efficient inspection, shows that it is not really possible to do otherwise.

* Amendment 20 (Article 9 a). The Common Position does not address the third country dimension, which might pose the problem of extra-territorial application of control if it cannot be organised on a bilateral or multilateral basis. Therefore, creating a legal obligation for the Commission can be considered as being excessive.

* Amendment 5 (Article 4, paragraph 1). The Common Position accepts the reference of standards produced by an external organisation (ECAC), in the "whereas" clause and not in the core of the text. This is also acceptable to the Commission.

* Amendment 7 (Article 6). For reasons of national sovereignty the Common Position rejects the idea of a Community control Community control mechanism aimed at verifying that more stringent measures adopted by Member States remain proportionate and do not affect the proper functioning of the internal market. The Commission still regrets this position which is in line with the position of the European Parliament, but can accept it for the sake of compromise, in particular since the Common Position explicitly states that the more stringent measures should be taken in respect of Community law. The Commission hopes that in the future, with the progressive building of confidence, an amendment to the Regulation can be adopted with a view to re-establishing a Community control mechanism that is essential for the implementation of the "one stop security" concept.

5- CONCLUSION

5.1 The Commission notes that the Common Position largely follows the opinion of the European Parliament in first reading. As the diverging issues are not directly related to the objective of improving aviation security, the Commission is in a position to accept the Common Position as unanimously adopted by Council.