Opinion of the Economic and Social Committee on the 'Proposal for a Council directive establishing a Safety Assessment of Third Countries' Aircraft using Community Airports` () (98/C 19/06)

On 17 March 1997 the Council decided to consult the Economic and Social Committee, under Article 84(2) of the Treaty on the above-mentioned proposal.

The Section for Transport and Communications, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 15 October 1997. The rapporteur was Mr Mobbs.

At its 349th plenary session (meeting of 29 October 1997), the Economic and Social Committee adopted the following opinion by 105 votes for, one vote against and 2 abstentions.

1. Introduction

1.1. For some time, increasing concern has been expressed about levels of aviation safety in various parts of the world. This has led the Government of the USA and the International Civil Aviation Organization (ICAO) to establish oversight and assistance programmes to identify possible deficiencies and take corrective measures to ensure the safety of the travelling public, the crew as well as people both inside and outside an airport.

1.2. The European civil aviation authorities themselves realized that Europe also had to act in this field and the European Civil Aviation Conference (ECAC) undertook to develop the Safety Assessment of Foreign Aircraft (SAFA) programme. ECAC directors-general adopted, in June 1996, a specific European programme. This was to be integrated, as far as possible, in an ICAO framework and avoid any duplication with ICAO actions. Whilst the EU is developing a directive to give stronger legal and political basis to the ramp checks, some Member States are already operating ramp safety checks albeit not in a uniform EU manner.

1.3. In February 1996, 176 European passengers were killed in an aircraft accident in the Dominican Republic. As a consequence, both the European Parliament () and the Council () asked the Commission to study possible measures to improve safety, in particular addressing the problem of sub-standard carriers operating to and from Europe.

1.4. The Commission has therefore submitted a proposal which aims at rationalization and coordination into one Directive of the actions that all Member States can already take that are based on existing ICAO Standards and Recommended Practices. In order to clearly understand this, it is necessary to appreciate the current position in the Member States.

1.4.1. Council Directive 94/56/EEC on the investigation of civil aviation accidents and incidents states that: 'Each Member State shall ensure that technical investigations are conducted or supervised by a permanent civil aviation body or entity which shall be functionally independent in particular of the national aviation authorities responsible for airworthiness, certification, ... and, in general, of any other body whose interests could conflict with the task entrusted to the investigating body or entity.`

1.4.2. ICAO Annex 8 'Airworthiness of Aircraft` requires that all aircraft must be maintained in an airworthy condition. Where a contracting state has reason to doubt that this is the case, then that state is no longer obliged to accept the validity of the airworthiness certificate, and is able to carry out a check of the aircraft, grounding it if necessary. National laws vary but some agency of each Member State has the authority to ground any aircraft of its own, of any other Member State and of any Third Country when there is reason to doubt its airworthiness. ICAO Annex 13 'Aircraft Accident and Incident Investigation`, operates in a similar manner when an incident is believed to have occurred.

1.4.3. Therefore each Member State already has the authority, that should be recognized by all ICAO signatories, to inspect and if appropriate ground any aircraft of its own, of any other Member State and of any Third Country. Moreover existing regulations governing the aircraft of Member States are equal to or more strict than those governing the aircraft of Third Countries, thus there is no intention to introduce regulations governing the aircraft of Third Countries that are not already applicable to those of Member States.

1.4.4. Whilst existing regulations may allow appropriate action to be taken in respect of all aircraft from all over the world, aircraft from Third Countries may in fact be treated differently by different Member States. At present action by one Member State is NOT necessarily duplicated or supported by other Member States. Thus an aircraft classified as being not fully airworthy by one Member State but that has permission to fly out of that state without passengers (or freight) in order to have its faults rectified, may at present be able to land in another Member State and be allowed to pick up passengers (or freight) without the faults being rectified.

1.4.5. At present a Third Country airline that has had an aircraft grounded in a Member State may take retaliatory action against an airline of that Member State while continuing to enjoy the use of other Member States' airports. Such action, involving the UK and Nigeria, is already occurring.

1.5. In view of the continuing need for improving safety, the Commission established a High Level Group - comprising of Member States civil aviation authorities, ECAC, the JAA (Joint Aviation Authorities) and the Commission - to assist it in considering various relevant issues in the context of aviation safety.

2. The High Level Group

2.1. The High Level Group issued a report which was attached to a Communication from the Commission to the European Parliament and the Council entitled 'Defining a Community Aviation Safety Improvement Strategy` (). That Report contains a whole range of proposals, but the description that follows concerns only those relevant to the current Opinion.

2.2. The High Level Group, having considered the USA/FAA (Federal Aviation Administration) procedure (which checks whether national regulatory authorities have the legal means and the resources, workforce and expertise to meet their international safety supervisory responsibilities properly) concluded that the USA system would not be suited to Europe.

2.3. Europe has many more aviation partners with nearly all countries in the world having air connection to European airports. Checking all would be out of proportion to European resources, in many instances wastefully unnecessary, and a duplication of work being done by others.

2.4. Instead Europe should have its own step-by-step procedure triggered by evidence of safety shortcomings of a foreign airline. This would take the form of a Safety Assessment of Foreign Aircraft (SAFA) procedure.

2.5. The operational aspects of the SAFA procedure are being developed by the Joint Aviation Authorities (JAA) on behalf of the European Civil Aviation Conference (ECAC).

2.6. The High Level Group recognizes the need to comply with the principles contained in the Convention on International Civil Aviation signed in Chicago in December 1944. The main points of the High Level Group report are:

2.6.1. A safety improvement strategy targeted at third-country carriers and aircraft must be compatible with principles governing international civil aviation.

2.6.2. Each contracting state is responsible for issuing or rendering valid certificates of airworthiness and of competency in respect of every aircraft or operation crew registered in that state. Such certification has to be accepted by all other contracting states so long as certification is equal or above minimum international standards. As a consequence a contracting state may not recognize certificates which it considers not to be in compliance with ICAO standards. When this occurs it is possible to consider that unilateral action may be taken to protect a state's citizens. However it cannot be implied that collective action is possible.

2.6.3. Bilateral agreements, whilst recognizing the right of each party to designate carriers, do not usually include explicit provisions for safety oversight nor unilateral action which could allow one party to deprive the other of its recognized rights.

2.6.4. Thus it is very difficult, in terms of international aviation law, to establish 'black lists` of particular third-country airlines - quite apart from considerations of the inevitable risks of retaliation or other adverse diplomatic consequences.

3. The Commission Proposal

3.1. This Commission proposal for a directive 'establishing a Safety Assessment of Third Countries' Aircraft using Community Airports` is intended to contribute to the improvement of safety by checking aircraft of third countries whenever there is suspicion that they are not operated in accordance with international safety standards.

3.2. Whilst the proposal is basically intended to apply to third country aircraft, it shall not affect Member State's right, with due regard to Community law, to inspect any aircraft landing at its airports.

3.3. The procedure includes in particular:

3.3.1. Identifying the data that is required to be collected by the Member States in order to obtain enough information to undertake any subsequent action.

3.3.2. Member States are required to exchange information on their actions so that safety improvements can be decided upon at a Community level.

3.3.3. If, as a result, there is reason to believe that an aircraft does not comply with international standards, the Member State will carry out a ramp inspection.

3.3.4. If this proves that an unsatisfactory safety situation exists then the Member State will be obliged to ground the aircraft until the safety hazard has been removed. The owner/operator shall have the right of appeal. In circumstances where the deficiency cannot be rectified, the Member State where the inspection took place may, in coordination with the state responsible for the operation of the aircraft concerned, prescribe the necessary conditions under which the aircraft could be allowed to be flown without fare-paying passengers, to an airport where the deficiencies can be dealt with.

3.4. The Commission proposes that it shall be assisted by an Advisory Committee to work on safety improvement and implementation measures.

3.5. The Commission's intention is to set a legal framework while leaving enough margin to the Member States to build the corresponding mechanisms individually or collectively, for example using ECAC and or the JAA, as they think fit. The Commission considers this course of action to be compatible with the principles of subsidiarity.

3.6. Member States are to bring laws into force to comply with the proposed directive no later than 1 July 1998.

4. General Comments

4.1. The Committee welcomes the Commission proposal. However the proposal should be seen as part of global action towards increasing safety rather than as a final answer in itself. The Committee stresses that Community action should not be limited to improving safety of Third Country carriers and aircraft but should continue efforts to increase safety standards in Europe as a whole.

4.2. The Committee agrees with the Commission intention that actions on inspections and groundings and, where appropriate on restrictions of landing rights, must be common within all Member States. Unless this is achieved, the unsatisfactory situation regarding traffic rights described in point 1.4.4 will undoubtedly continue. The Committee considers that the possibility of this happening must not be allowed. Unless effective uniform Community action is taken as soon as possible, the value of the Commission proposal will become questionable.

4.3. It is worth noting that ICAO Annex 13 defines an operator as a 'person, organization or enterprise engaged in or offering to engage in aircraft operation` and that the JAA requirements give detailed definitions of the terminology used in various leasing arrangements. However there is no similar clear definition for 'owner`. The Committee considers that the Commission should clarify any outstanding aspects with those involved in order to avoid the possibility of loopholes which could put safety at risk.

4.4. The JAA is likely to have a major role to play, especially in setting standards and work schedules. The Committee supports this but is aware that the JAA has, currently, no legal status. By agreement of its 27 members, it is a rule-making body - but not a law-making body. All JAA members have signed up in principle to the concept of enacting all JAA rules as national law (there being no other European body capable of undertaking the work done by the JAA, especially since it is accepted as Europe's centre of excellence in this field). The Committee considers that the Commission should recognize this de facto situation and find ways for the JAA and the Commission to efficiently cooperate.

4.5. The development of cooperation and assistance programmes, and the appropriate training of third countries' personnel will improve safety standards in these countries. Conditions within third countries, and in particular their airports (approach aids standards, communications, Air Traffic Control) are also of direct relevance to the safety of all (including European) travellers. These are matters which are referred to in the High Level Report but it is not intended that they form part of the present Commission proposal.

4.6. Competent authorities of Member States should consider, in the interests of safety, how Third Country airlines ensure that their air crew have an adequate understanding of civil aviation languages, particularly English.

4.7. When an aircraft is grounded, the travelling public (and freight) will be affected and compensation in respect of any delays caused may be sought. Consideration needs to be given to this matter and how passengers (and freight) should reach their destinations.

5. Specific Comments

5.1. Recitals

5.1.1. In order to make clear to Third Country Owners and/or Operators that this proposed directive is non-discriminatory, additional recitals along the following lines should be included after the third recital:

'Whereas Community airlines and aircraft are already subject to rigorous inspections in accordance with ICAO Standards and Recommended Practices/JAA Requirements:`

'Whereas Member States have the authority, under regulations based on Standards and Recommended Practices set out in Annexes 8 and 13 of the ICAO Convention, to ground any aircraft where there is reason to doubt that it is in an airworthy condition or where an event has occurred which affects or could affect the safety of operation`,

5.2. Article 2 (Scope)

5.2.1. Paragraph 1 to read:

'This Directive shall apply to aircraft landing at or taking off from airports located in the Member States of the Community, the aircraft not being wholly owned and/or operated by an organization within a Member State of the Community.`

5.2.2. Paragraph 2 to start:

'Only state aircraft...`.

5.2.3. Paragraph 3 add at the end

'..., including those of Member States.`

5.3. Article 3 (Definitions)

5.3.1. Fourth definition (International safety standards). Add after 1944:

'... or any other internationally agreed safety standard ...`

5.3.2. Fifth definition (Ramp inspections). Add to the end:

'... and the fitness or competence of the crew.`

5.4. Article 4 (Collection of information)

5.4.1. The meaning of 'competent authority` is not sufficiently clear in the context of this Article and may cause confusion. The Committee recommends that the words '... competent authorities of the ...` be deleted.

5.4.2. The following should be added to the first indent of Article 4(1):

'- Cabin staff reports

- Maintenance staff reports.`

5.5. Article 5 (Ramp Inspection)

5.5.1. The detailed and prescriptive wording of this article does not accord with the more general framework intention described in the explanatory memorandum - paragraph 7 - reference to subsidiarity. This Article should be reviewed with a view to clarification as to the exact extent of work required and the frequency. The Commission should also make clear (here or in Annex II) that checks should not always be the same or undertaken in the same sequence if they cannot be completed within an acceptable time limit.

5.5.2. Paragraph 1

Add to the third line '... is subject to ramp inspections without delay as follows.` This will emphasize the need for urgency.

5.5.3. Paragraph 2

Where there is a notifiable defect the ramp inspection report must be sent to the civil aviation authority formally acting as the supervisory body.

5.6. Article 6 (Exchange of information)

5.6.1. The Committee is concerned that there does not seem to be a sufficient sense of urgency in the actions proposed either in the initial reporting, or in subsequent handling by Member States, the Commission, or the Advisory Committee (established under Article 9). Paragraph 2 refers to the availability of ramp inspection reports but does not give adequate indication on how the existence of such reports will be known. The Committee considers it should be made absolutely clear that common action by all Member States is essential. No loopholes should exist that would enable an operator to continue to use any Community airport until all faults found at another Community airport have been fully rectified.

5.6.2. The Committee considers that once a ramp inspection (Article 5) has taken place and information collected (Article 4), it is imperative that appropriate action is initiated immediately. Action required by this proposed directive is only required because it is considered that an unsatisfactory safety situation prevails and therefore any delay in taking remedial action is unacceptable. This concern about delay would be even more worrying if a Member State were to be prevented from taking action on its own if it considered circumstances demanded it.

5.6.3. The removal of the last three words ('..., at their request.`) from the end of paragraph 2 would help. The sense of urgency might increase if all reports were sent automatically to all other competent authorities.

5.7. Article 7 (Protection of information)

5.7.1. The intentions of this article are clear but may in practice be difficult to implement. Confidential information might need to be produced to justify the grounding of an aircraft if an airline appealed against grounding.

5.7.2. Amend paragraph 2 to read

'... particular by the crew or maintenance personnel, will be ensured ...`

5.8. Article 8(5) (Grounding of aircraft)

5.8.1. It should be made clear to whom a right of appeal against a grounding might be made.

5.9. Articles 9, 10, 11 (Safety improvement measures, Implementation measures, Committee)

5.9.1. The Commission should review these articles and bring the wording in line with any changes made as a result of this Opinion.

5.10. Annex 2 (concerned with ramp inspection)

5.10.1. Paragraph 1 (first sentence) should be amended by adding at the end 'and to reports on previous inspections`. This should help reduce the repetition of work already done and known to competent authorities.

Brussels, 29 October 1997.

The President of the Economic and Social Committee

Tom JENKINS

() OJ C 124, 21. 4. 1997, p. 39.

() Resolution B4-0150/96, OJ C 65, 4. 3. 1996, p. 172.

() 1907th Meeting of the Council - Transport - Brussels, 11 March 1996 (PRES 96/55).

() SEC(96) 1083 final, 12. 6. 1996.