Opinion of the Economic and Social Committee on the "Proposal for a Regulation of the European Parliament and of the Council on establishing common rules in the field of civil aviation and creating a European Aviation Safety Agency"

(2001/C 221/05)

On 22 December 2000 the Council decided to consult the Economic and Social Committee, under Article 80 (2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 8 May 2001. The rapporteur was Mr von Schwerin.

At its 382nd plenary session held on 30 and 31 May 2001 (meeting of 30 May) the Committee adopted the following opinion by 112 votes to one, with one abstention.

1. Introduction

1.1. In its Introduction, the Commission recalls the need to establish, as a logical complement to the rules establishing the internal air transport market, common rules in the field of aviation safety. The current system, based on Regulation (EEC) 3922/91 and the work of the Joint Aviation Authorities(1), has, in the opinion of the Commission, been shown to be not working properly. The current system is seen as lengthy, inflexible and often inconsistent with Community obligations and policies.

1.2. In order to remedy the perceived deficiencies of the current system, and to create a European Safety body comparable to the US Federal Aviation Authorities (FAA), the Council adopted on 16 July 1998 a decision to authorise the Commission to negotiate with non-Community JAA member states an agreement establishing a European Aviation Safety Authority (EASA) with the legal status of an international organisation, covering all tasks related to the regulation of aviation safety.

1.3. The Commission however, expressed doubts about the feasibility of this system in view of constitutional problems with some Member States, the lengthy procedures involved, and the perceived uncertainty of the Parliament and national parliaments willingness to accept the wide delegation of powers involved. At the invitation of the Council, the Commission presented an analysis of a possible Community alternative, which was considered by the Council as the most practicable way forward. The current Proposal contains the Community alternative.

2. Gist of the Commission's Proposal

2.1. The Commission's explanatory memorandum to the proposal makes the following points:

2.2. The achievement of the original objectives and the implementation of related means require the creation of a specialised agency, with a high level of expertise. Moreover, the Commission considers that in order to play its role effectively in protecting public interests internally and promoting European views externally, the agency needs to be vested with real powers and enjoy the necessary independence.

2.3. However, the Commission is also of the opinion that the exercise of executive powers and the control of implementation of rules and regulations is the prerogative of the Commission. Delegation to another body may only be done on the basis of rules limiting its discretion to a technical judgement within the sphere of competence.

2.4. Thus, to remain in line with this described institutional architecture, the Commission proposes a two step approach:

- the proposal contains basic principles for the certification and maintenance of aeronautical products and prescribes essential requirements based on Annex 8 to the Chicago Convention and existing Community legislation applicable to environmental protection;

- as for all other fields of aviation safety, in particular safety aspects of air operations, flight crew licensing, airport operations and air traffic management, basic principles and essential requirements will have to be adopted in due course in accordance with the normal legislative process, to complement the present proposed Regulation.

Thus the proposal limits itself to those aviation safety aspects which relate to products, important for the European aeronautical industry, and does not cover airline operational aspects, airport aspects and air traffic control aspects.

2.5. As regards the system the Commission proposes, it is based on the following principles:

- the European Parliament and the Council set basic principles for regulation and essential requirements defining the level of safety and environmental protection required;

- in the way the essential requirements are to be implemented, in particular the procedure to be followed to obtain the necessary approvals, the privileges attached to such approvals, as well as applicable technical standards, the option of delegation to the Commission has been chosen.

2.6. As noted under 2.4, the Commission envisages to implement this system for products and their maintenance. As regards the basic principles and essential requirements for operations, personnel, airports and ATC services, Article 7 merely determines that the Commission shall, where appropriate and as soon as possible submit proposals thereon. Thus, a two tier approach is introduced, separating for the time being products from other aviation safety aspects.

2.7. In cases where rules are to be applied by Member States they would need to be set by the European Parliament and the Council. The Commission would then be given the capacity to complement them when they refer to very specific technical fields and to adapt them to specific scientific or technical progress. This would in particular apply to air operators' certification requirements or flight crew licensing, which are at this stage, not covered by the proposed legislation, but which will have to be adopted in due course.

2.8. The Commission considers that for products, a different situation applies. Uniformity would be best achieved through centralised certification. Moreover, in view of the rapid technological evolvement, it is considered that over-specification of technical details at legislative level is undesirable. The Commission would thus be empowered to adopt the necessary implementing rules. The agency would have the technical discretion to evaluate the conformity of the product with the essential requirements.

2.9. For products, implementing rules would be mainly procedural requirements as contained in applicable Joint Airworthiness Requirements(2) (JAR) of the JAA. The agency would be empowered with the granting of certificates attesting the conformity of products with the essential requirements, because this is considered to be a purely technical judgement.

2.10. For maintenance, where centralisation is not envisaged, the Commission proposes a mixed approach, where the Commission is empowered to adopt the necessary implementing rules in a sufficiently detailed manner, based on the applicable existing JAR.

2.11. In Article 46, the Agency is awarded investigative powers (also referred to as "inspections") for the purpose of carrying out the duties assigned to it by the Regulation. Two specific types of investigative powers are further defined in Articles 47 and 48. In order to ensure the correct application of the safety rules, the Agency is empowered to inspect Member States (Article 47), in assistance to the Commission, and undertakings (Article 48).

2.12. Finally, the Commission has included a judicial control mechanism. In order to prevent that technical cases are presented to the Court of Justice, a specialised level of boards of appeal is proposed as a place of first instance. The members of such a Board (or Boards) will be appointed by the Agency Administrative Board from a list of candidates prepared by the Commission (Articles 31-36).

3. General comments

3.1. General aim

3.1.1. The Committee endorses the objective of the Community policy on aviation safety and welcomes the proposal of the Commission.

3.1.2. The Committee shares the view that there is a need for a strong organisation with extended powers in all fields of aviation safety and the potential for taking over executive tasks currently exercised at national level when collective action appears more efficient. It endorses the view expressed by the European Parliament that a single aviation safety regulatory authority should be established, with the prime task of ensuring a uniform high level of safety in Europe through the gradual integration of the national systems. The Committee agrees with the Commission, that in order to attain such a body, the best possible use should be made of the framework provided for by the European Union. The Committee welcomes the proposal of the Commission to establish common rules in the field of civil aviation and to create a European Aviation Safety Agency (EASA).

3.2. Nevertheless, the Committee does have a number of critical points which would need to be addressed. The Committee considers it vital that the proposed Regulation should indeed achieve its stated goals. Although the current Commission's proposal is a creative and novel first step, it does not yet appear to fulfil its promise. It still contains a number of uncertainties and inconsistencies that need to be eliminated. More importantly, on a number of points the proposal could be enhanced substantially. The Committee recalls the comment made in an earlier Opinion that it is important that the Agency would be able to set up all the rules governing aviation safety(3). The proposal would need to ensure that this goal is indeed achieved in due course.

3.3. The proposed approach

3.3.1. The Committee notes that the proposal of the Commission builds on the work and experience gained with Regulation (EEC) No 3922/91 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation.

3.3.2. The Committee welcomes that the proposal takes due account of the views expressed by the European Parliament and the Council in the earlier discussions on the draft Convention and has worked closely with the Council in preparing the current proposal.

3.3.3. The Committee is pleased that the Commission has presented a creative and studied approach that contains novel concepts to attain the stated goals.

3.4. Criticisms and suggestions

3.4.1. The autonomy of the agency

3.4.1.1. As regards products and their maintenance the proposal envisages to implement a system of delegation of powers to the Commission. The Committee acknowledges that when it comes to implementing rules, delegation to the Commission is both useful and desirable. Nevertheless, the proposal could further clarify those cases where the necessary supervising role of European Parliament and Council would remain intact.

3.4.1.2. Moreover, while the Committee welcomes the efforts made by the Commission to accommodate an autonomous agency, the Committee wonders whether the current institutional framework could not accommodate a more independent position for EASA, particularly when it comes to establishing highly technical implementing rules and standards.

3.4.1.3. The Committee notes that the proposal does contain some scope for the Agency in its ability to provide guidance material and acceptable means of compliance. Whether this can be seen as rulemaking or policy could be a matter for debate. The Committee notes that there is certainly some room for manoeuvre in the proposal in this respect to claim that the Agency indeed does have independent powers to implement technical rules. The Commission has included an in itself welcome amount of independence in the proposal.

3.4.1.4. The Committee welcomes the principle embodied in the proposal that the legislator would not have complete and detailed technical responsibility, which would enhance its oversight and policy function. The Committee wonders whether while this is indeed relevant for the Parliament and Council, it would also not be relevant to the Commission. Particularly in the field of aviation safety, it is important that the basic system for safety is determined at the right political level (thus, there is a clear task for the European Parliament and the Council to take their responsibility). The basis on which individual safety elements are arranged is also a task for the regulator, either directly the European Parliament and the Council or, through delegation, the Commission. However, it would seem undesirable for the regulator to be too specific on technical detail, which could entail automatic political responsibility in case of accident. It is here that the role of the Agency, expert in these matters, would come into play. What under normal circumstances under a national legislation would be further delegation of rulemaking powers to an Agency, would not seem to be possible under the Treaty.

3.4.1.5. In its Explanatory Memorandum, the Commission adheres to a strict interpretation of the jurisprudence of the Court which determined that delegation of powers is permissible only when "it involves clearly defined executive powers, the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority".

3.4.1.6. Thus, the Commission only limits the delegation of powers for EASA on the issue of type certification. The initial focus of the proposal is on products. It is submitted by the Commission that products need centralised certification. Moreover, since technological advances evolve rapidly, it is not good to over-specify technical details. Although no specific motivation of this claim is offered, the Committee considers that this could indeed be the case.

3.4.1.7. The Committee does not see however, why such a conclusion would not also be applicable to all aviation operations, maintenance or personnel requirements. Similarly, this would seem to apply to airport and air traffic management aspects.

3.4.1.8. The conclusion of the Commission would thus seem to be valid for all fields of technical safety.

3.4.1.9. The Committee considers that implementing rules of a strictly technical nature (guidance and recommended - or rather: acceptable - practices) could be well seen to fall within the scope of the jurisprudence. Much will depend on the wording of the basic regulations put forward by the Commission and the technical detail involved. In this respect the Committee feels that, in line with the call of the European Parliament and in accordance with the stated desire of the Commission to provide the necessary independence, more could be done to award the agency with the necessary technical implementing powers, including specific technical rulemaking powers, provided the wording is precise enough and indeed limited to the technical rules only, and submitted to strict review by the delegating authority. Much depends on the interpretation of the word "rulemaking". It would be hard to delegate the power to adopt legally binding regulations. However, when it comes to implementing rules, like standards and guidance material, technical specifications, there would seem to be room for improvement. There is no reason not to view them as binding, certainly in the sense that individuals and undertakings can rely on them and invoke them in Court.

3.4.1.10. Moreover, this independent position could be more emphasised in the other Articles of the proposed Regulation, where it is noted that the independence is not reflected and the agency would rather be seen to be fully part of the Commission. At this stage, the role of EASA seems to be mainly assisting and support the Commission and providing technical expertise to the Commission.

3.4.1.11. EASA is clearly closely linked to the Commission, staffed with people who have the status of Commission temporary and permanent staff. As regards the use of temporary staff, the proposal would need to consider the necessity to maintain continuity both in staff levels and expertise. Where possible longer-term contracts should be considered.

3.4.1.12. In preparing draft legislation the Agency has no option but to follow the instructions of the Commission. It is doubtful whether the text allows the Agency any possibility to refuse or initiate. The Agency would at least need to have the right to refuse to prepare regulations that it does not support from the point of view of aviation safety.

3.4.1.13. In international affairs, the Agency is obliged to assist the Commission, and thus must of necessity, bear or at least share the burden of responsibility, even if it would not agree with something.

3.4.1.14. The emphasis of the position of the Executive Director of EASA is on independence. He/she is not to take instruction from any government or body. But as far as the Commission is concerned, that is clearly not the case. Since the Commission is the main regulator, this would seem to be confusing at least.

On the independent position of the Agency and its ability to act in international matters, the Council in particular would be in a position to strengthen the Regulation.

3.4.2. Scope of the proposal

3.4.2.1. The proposal initially focuses on products and appliances only. Operations, personnel, airports and air traffic management are not dealt with at all or not completely. It would seem that on these issues, the Commission considers that political agreement would be feasible, while for the other elements that would be more complicated.

3.4.2.2. The Committee considers that as regards airports and Air Traffic Management, this would indeed seem to be the case. In these areas, views and concepts are still in need of further development before effective inclusion could be contemplated. However, as for operational and personnel issues and to a certain extent related operational maintenance issues, this is seen as a major deficiency. The stated goal of a high uniform level of safety in aviation is thus not reached.

3.4.2.3. The Committee welcomes therefore Article 7 that states that the Commission shall, with regard to the basic principles and essential requirements, where appropriate and as soon as possible, submit proposals to the Parliament and the Council for adoption on the basis of Article 80(2) of the Treaty.

3.4.2.4. The Committee considers that Article 8 (jo. Article 56) where the Regulation repeals Regulation (EEC) 3922/91 creates a difficult situation, particularly when the proposed JAR/OPS amendment of Regulation (EEC) No 3922/91 enters into force before the adoption of this proposed Regulation(4). The JAR/OPS amendment of Regulation (EEC) No 3922/91 after all ensures harmonised implementation of the JAR/OPS in the Community and is a valuable first step in the direction of a truly Community wide harmonisation of operational safety. Abandoning this with the implementation of the proposed Regulation on EASA, would mean that all operational aspects of 3922/91 could be lost. Although Article 56 of the proposal does contain a provision which could be interpreted to prevent this, it would need further clarification. Moreover, the proposal, in particular its Annex, would need to ensure that the benefits of the JAR-OPS amendment of Regulation (EEC) No 3922/91 would be preserved(5). The Committee agrees that if the JAR-OPS amendment is not implemented, withdrawal of Regulation (EEC) No 3922/91 would not matter greatly, since it currently covers mainly airworthiness elements, adequately covered by the proposed Regulation.

3.4.2.5. Apart from safeguarding this important element, the Committee considers that it is important that the proposed Regulation would do more and already would include two issues:

- a clear time-frame and schedule should be provided for the mentioned proposals of the Commission required to fully cover the operational, maintenance and personnel issues essential for air transport operations in the Community;

- a clear and detailed transitional arrangement should be included that acknowledges the work and position of the JAA and its relation with the Community framework.

The Committee acknowledges that it would need to be a specific point of concern of the Council to provide the Commission with the political support to include these.

3.4.2.6. The Committee is of the opinion that, particularly when it comes to safety, it is important that concurring competence and authority are clearly identified and defined, particularly on all that concerns the investigating powers(6) of the Agency, and that a complicated and non-transparent situation is avoided as much as possible.

3.4.2.7. Finally, in this respect, the Committee is of the opinion that the transition period and the relationship with the JAA work should also more clearly specify what the position would be of the European States that are not bound by the Acquis Communautaire. This means further clarification of Article 54, including the introduction of the possibility for a meaningful transition period for countries acceding to the acquis communautaire.

3.4.3. The position of directly involved parties

3.4.3.1. Both the worker unions and industry have emphasised that there is a need to closely involve stakeholders in all phases of the rulemaking process. There is indeed reason to do so. Aviation is a highly complex technical world and much of the know-how lies with industry and the individuals that work there. Because of this, much of the actual responsibility in for implementation is delegated to the "workfloor", naturally under strict supervision. The Committee is of the opinion that both on all levels of implementation (i.e. comitology and EASA) such representation and participation of worker unions, industry and users could be enhanced.

3.4.3.2. Overall, the proposal would benefit from more transparency, not only as regards those stakeholders directly falling under the applicability of the safety rules, but also as regards consumers and, should environmental concerns be maintained in the proposed Regulation, environmental interests.

3.4.3.3. Moreover, as regarded the Appeals Board, it is considered that the required expertise in the field of aviation safety would need to be a major consideration for the selection of possible candidates. Such expertise would be a requirement in most, if not all, of the positions of the Agency's staff.

The Committee considers that next to the Commission and the technical representatives, also the political responsible should be included in an appropriate manner.

3.4.4. ICAO basic requirements

3.4.4.1. The Commission considers that adding Annex 8 to the Chicago Convention to the Regulation, sufficiently establish the essential requirements referred to in the proposal. It is the view of the Committee that ICAO Annex 8 only contains a minimum standard, which needs to be met by the required detailed national standards. On a number of product categories Annex 8 provides no guidance at all, and changes might be incorporated in Annex 8 in future.

3.4.4.2. Therefore, the Committee considers this is an issue of great concern, because it directly affects the goal of maintaining a high level of aviation safety and also influences the credibility of the EASA - indeed of the whole system - with our international partners. Nevertheless, the Committee acknowledges that in order for Annex 8 to apply within a Community context, and in the absence of Community membership of ICAO, including Annex 8 under the proposed Regulation would be unavoidable.

3.4.5. Safety and the environment

3.4.5.1. The Committee notes that the proposal does not only limit itself to safety issues, but also to environmental protection. While the proposal as yet is limited to ensuring that products and appliances shall be certified to comply with agreed noise standards in the Community, this element puts a fundamental question on the table, the role and responsibility of EASA, and moreover, the purpose of this Regulation. Economic and environmental considerations may well conflict with safety. The balance and possible choices that need to be made belong to the political and regulatory level, not to the level of implementation or implementing rules. The Committee considers that this combination should be re-considered, also in view of the possible extension of the scope of EASA, which could lead to such conflict and also, confusion in the perception of the public.

3.4.6. International relations

3.4.6.1. The beginning of the Regulation does not provide for the conclusion of any sort of Agreement with third countries, only for what is described as co-operation. Yet in Article 9 the concept of Mutual Recognition Agreements (MRAs) appears. As yet, MRAs are mainly used in the context of trade discussions. The Committee considers that the proposal would need to contain a broader wording covering co-operation, agreements and other international arrangements.

3.4.6.2. No specific independent role is envisaged for EASA. All contacts with third countries (including the FAA) would have to be through the Commission. The EASA can of course assist the Commission, but it is always under the full control of, and working on behalf of, the Commission. The Committee considers that this should be further enhanced. The agency can co-operate under the working arrangements concluded by the Commission. The Committee notes that is a very vague and uncertain description, which may provide some administrative flexibility, but does not bring clarity or enhance the independence of the agency.

4. Conclusions

4.1. The Committee feels that it is essential to establish the planned European Aviation Safety Authority (EASA) as quickly as possible. This authority would need to be able to issue all the rules governing aviation safety(7).

4.2. The Committee does consider it vital that the proposed Regulation indeed reaches its stated goals. The current proposal by the Commission is a creative and novel first step, but would as yet not seem to fulfil its promise.

4.3. The Committee is of the opinion that the proposal still has a number of flaws and inconsistencies that need to be eliminated. More importantly, on a number of elements, the proposal should be substantially enhanced.

4.4. The Committee feels that, in line with the call of the European Parliament and in accordance with the stated desire of the Commission to provide the necessary independence, more could be done to award the Agency with the necessary technical implementing powers, including specific technical rulemaking powers, provided the wording is precise enough and indeed limited to the technical rules only, and submitted to strict review by the delegating authority.

4.5. The independent position of the Agency could be more emphasised in the Articles of the proposed Regulation, where it is noted that the independence is not reflected and the Agency would rather be seen to be fully part of the Commission

4.6. On the independent position of the Agency and its ability to act in international matters, the Council in particular would be in a position to strengthen the Regulation.

4.7. The Committee considers that Article 8 (jo. Article 56) where the Regulation repeals Regulation (EEC) No 3922/91 creates a difficult situation, particularly when the proposed JAR/OPS amendment of Regulation (EEC) No 3922/91 enters into force before the adoption of this proposed Regulation. The Committee considers that Article 56 should be further clarified in order to ensure that the benefits of EU-OPS are preserved.

4.8. The Committee feels that much would be gained by including the following points:

- a clear time-frame and schedule should be provided for the mentioned proposals of the Commission required to fully cover the operational, maintenance and personnel issues essential for air transport operations in the Community;

- a clear and detailed transitional arrangement should be included that acknowledges the work and position of the JAA and its relation with the Community framework.

4.9. The Committee acknowledges that it would need to be a specific point of concern of the Council to provide the Commission with the political support to include these.

4.10. Finally, the Committee considers that on the points of transparency, stakeholder participation, transition and relations with third countries, the proposal could be substantially enhanced and clarified.

Brussels, 30 May 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) The JAA consists of a number of civil aviation regulatory authorities who have agreed to co-operate in developing and implementing safety regulatory standards and procedures. For this purpose, they develop and adopt Joint Aviation Requirements (JARs) and undertake to implement these in a co-ordinated and uniform manner.

(2) The JAA are committed to the joint certification of new aircraft, engines, and propellers and have established a joint system of approval. Apart from the JAR-21 "Certification Procedures for Aircraft and Related Products and Parts", the JAA has currently adopted, amongst others, codes for the certification of large aeroplanes (JAR-25), small aeroplanes (JAR-23) and powered/sail planes (JAR-22), helicopters (JAR-27/29) engines/APU (JAR-APU), props (JAR-P) and equipment (JAR-TSO).

(3) OJ C 14 of 16.1.2001, p. 33, see conclusions regarding Regulation (EEC) 3922/91.

(4) OJ C 14, 16.1.2001, p. 33.

(5) The Committee would like to quote its final observation mentioned in its Opinion CES 1179/2000 of 19.10.2000,OJ C 14, 16.1.2001, p. 35: "The Committee feels it is essential to establish the planned European Air Safety Authority (EASA) as quickly as possible. This authority would then be able to issue all the rules governing air traffic - including the EU OPS".

(6) The ESC notes that the Proposal for a Regulation of the EP and the Council establishing a European Maritime Safety Agency, COM(2000) 802 final, refers to "visits" as opposed to "inspections".

(7) OJ C 14, 16.1.2001, p. 33, see conclusions regarding Regulation (EEC) No 3922/91.