Common Position (EC) No 47/2003

adopted by the Council on 13 June 2003

with a view to adopting Directive 2003/.../EC of the Parliament and of the Council of ... on the safety of third country aircraft using Community airports

(2003/C 233 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the Opinion of the European Economic and Social Committee(2),

After consulting the Committee of Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1) The Resolution on the air disaster off the coast of the Dominican Republic adopted by the European Parliament on 15 February 1996(4) highlights the need for the Community to take a more active stance and develop a strategy to improve the safety of its citizens travelling by air or living near airports.

(2) The Commission has issued a Communication to the European Parliament and the Council entitled "Defining a Community Aviation Safety Improvement Strategy".

(3) That Communication clearly states that safety may be effectively enhanced by ensuring that aircraft comply fully with the international safety standards contained in the Annexes to the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 ("the Chicago Convention").

(4) In order to establish and maintain a high uniform level of civil aviation safety in Europe, a harmonised approach to the effective enforcement of international safety standards within the Community should be introduced. To that end, it is necessary to harmonise the rules and procedures for ramp inspections of third-country aircraft landing at airports located in the Member States.

(5) A harmonised approach to the effective enforcement of international safety standards by the Member States will avoid distortions of competition. A common stance on third-country aircraft that fail to comply with international safety standards will be of benefit to the position of the Member States.

(6) Aircraft landing in the Member States should undergo an inspection when it is suspected that they do not comply with international safety standards.

(7) Inspections may also be carried out in accordance with a spot-check procedure in the absence of any particular suspicion, provided that Community and international law is observed. In particular, the inspections should be carried out in a non-discriminatory way.

(8) Inspections could be stepped up in the case of aircraft in which defects have already been identified frequently in the past, or on aircraft belonging to airlines whose aircraft have frequently attracted attention.

(9) Information gathered in each Member State should be made available to all the other Member States and the Commission in order to ensure the most efficient monitoring of the compliance of third country aircraft with international safety standards.

(10) For these reasons there is a need to establish, at Community level, a procedure for the assessment of third-country aircraft and related cooperation mechanisms between the competent authorities of the Member States to exchange information.

(11) The sensitive nature of safety related information requires that Member States should take necessary measures, in accordance with their national law, to ensure appropriate confidentiality of the information received by them.

(12) Without prejudice to the public's right of access to the Commission's documents as laid down in Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(5), the Commission should adopt measures for the dissemination to interested parties of such information and the associated conditions.

(13) Aircraft on which corrective measures are required should, where the identified deficiencies are clearly hazardous to safety, be grounded until the non-compliance with international safety standards has been rectified.

(14) The facilities in the airport of inspection may be such that the competent authority will be obliged to authorise the aircraft to transfer to an appropriate airport, provided that conditions for a safe transfer are complied with.

(15) In order to carry out its tasks under this Directive, the Commission should be assisted by the committee instituted by Article 12 of Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation(6).

(16) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7).

(17) The Commission should place at the disposal of the committee instituted by Article 12 of Regulation (EEC) No 3922/91 statistics and information collected in compliance with other Community measures concerning specific incidents that could be relevant to uncovering deficiencies representing a threat to civil aviation safety.

(18) It is necessary to take into account the cooperation and information exchanges occurring within the framework of the Joint Aviation Authorities (JAA) and the European Civil Aviation Conference (ECAC). Moreover, the greatest possible use should be made of existing expertise in procedures of Safety Assessment of Foreign Aircraft (SAFA).

(19) Account should be taken of the role of the European Aviation Safety Agency (EASA) in civil aviation safety policy, including the establishment of procedures that aim to establish and maintain a high uniform level of civil aviation safety in Europe.

(20) Arrangements for greater cooperation over the use of Gibraltar airport were agreed in London on 2 December 1987 by the Kingdom of Spain and the United Kingdom in a joint declaration by the Ministers of Foreign Affairs of the two countries, and such arrangements have yet to come into operation,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope and objective

1. Within the framework of the Community's overall strategy to establish and maintain a high uniform level of civil aviation safety in Europe, this Directive introduces a harmonised approach to the effective enforcement of international safety standards within the Community by harmonising the rules and procedures for ramp inspections of third-country aircraft landing at airports located in the Member States.

2. This Directive shall be without prejudice to the Member States' right to carry out inspections not covered by this Directive and to ground, ban, or impose conditions on any aircraft landing at its airports in accordance with Community and international law.

3. State aircraft, as defined in the Chicago Convention, and aircraft of a maximum take-off weight of less than 5700 kg not engaged in commercial air transport are excluded from the scope of this Directive.

4. The application of this Directive to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.

5. The application of this Directive to Gibraltar airport shall be suspended until the arrangements in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 have come into operation. The Governments of Spain and the United Kingdom will inform the Council of such date of entry into operation.

Article 2

Definitions

For the purpose of this Directive:

(a) "grounding" means the formal prohibition of an aircraft to leave an airport, and the taking of such steps as are necessary to detain it;

(b) "international safety standards" means the safety standards contained in the Chicago Convention and its Annexes, as in force at the time of the inspection;

(c) "ramp inspection" means the examination of third-country aircraft in accordance with Annex II;

(d) "third-country aircraft" means an aircraft which is not used or operated under the control of a competent authority of a Member State.

Article 3

Collection of information

Member States shall put in place a mechanism to collect any information deemed useful for the fulfilment of the objective stated in Article 1, including:

(a) important safety information accessible, especially through:

- pilot reports,

- maintenance organisation reports,

- incident reports,

- other organisations, independent from the competent authorities of the Member States,

- complaints;

(b) information on action taken subsequent to a ramp inspection, such as:

- aircraft grounded,

- aircraft or operator banned from the Member State concerned,

- corrective action required,

- contacts with operator's competent authority;

(c) follow-up information concerning the operator, such as:

- corrective action implemented,

- recurrence of discrepancy.

This information shall be kept, using a standard report form containing the items described, in the form set out in Annex I.

Article 4

Ramp inspection

1. Each Member State shall put in place the appropriate means to ensure that third-country aircraft suspected of non-compliance with international safety standards landing at any of its airports open to international air traffic shall be subject to ramp inspections. In implementing such procedures, particular attention shall be given by the competent authority to aircraft:

- where information has been received indicating poor maintenance condition or obvious damage or defects;

- which have been reported as performing abnormal manoeuvres since entering the airspace of a Member State such as to give rise to serious safety concerns;

- in respect of which a previous ramp inspection has revealed deficiencies which give rise to serious concern that the aircraft does not comply with international safety standards and where the Member State is concerned that the defects may not have been corrected;

- where there is evidence that the competent authorities of the country of registration may not be exercising proper safety oversight; or

- where information collected under Article 3 gives cause for concern about the operator or where a previous ramp inspection of an aircraft used by the same operator has revealed deficiencies.

2. Member States may establish rules in order to carry out ramp inspections in accordance with a spot-check procedure in the absence of any particular suspicion, provided that such rules comply with Community and international law. Such a procedure shall, however, be carried out in a non-discriminatory way.

3. Member States shall ensure that appropriate ramp inspections and other surveillance measures as decided within the framework of Article 8(3) will be implemented.

4. The ramp inspection shall be performed in accordance with the procedure described in Annex II and using a ramp inspection report form containing at least the items described in the form appended to Annex II. On completion of the ramp inspection, the commander of the aircraft or a representative of the aircraft operator shall be informed of the ramp inspection findings and, if significant defects have been found, the report shall be sent to the operator of the aircraft and to the competent authorities concerned.

5. When performing a ramp inspection under this Directive, the competent authority concerned shall make all possible efforts to avoid an unreasonable delay of the aircraft inspected.

Article 5

Exchange of information

1. The competent authorities of the Member States shall participate in a mutual exchange of information. Such information shall at the request of a competent authority include a list of airports of the Member State concerned that are open to international air traffic, with an indication, for each calendar year, of the number of ramp inspections performed and the number of movements of third-country aircraft at each airport on that list.

2. All standard reports referred to in Article 3 and the ramp inspection reports referred to in Article 4(4) shall be made available without delay to the Commission and, at their request, to the competent authorities of the Member States.

3. Whenever a standard report shows the existence of a potential safety threat, or a ramp inspection report shows that an aircraft does not comply with international safety standards and may pose a potential safety threat, the report will be communicated without delay to each competent authority of the Member States and the Commission.

Article 6

Protection and dissemination of information

1. Member States shall, in accordance with their national legislation, take the necessary measures to ensure appropriate confidentiality of the information received by them under Article 5. They shall use this information solely for the purpose of this Directive.

2. The Commission shall publish yearly an aggregated information report available to the public containing an analysis of the information received in accordance with Article 5. In the analysis, the source of that information shall be disidentified.

3. Without prejudice to the public's right of access to the Commission's documents as laid down in Regulation (EC) No 1049/2001, the Commission shall adopt on its own initiative and, in accordance with the procedure referred to in Article 10(2), measures for the dissemination to interested parties of the information referred to in paragraph 1 and the associated conditions. These measures, which may be general or individual, shall be based on the need:

- to provide persons and organisations with the information they need to improve civil aviation safety;

- to limit the dissemination of information to what is strictly required for the purposes of its users, in order to ensure appropriate confidentiality of that information.

4. Whenever information concerning aircraft deficiencies is given voluntarily, the ramp inspection reports referred to in Article 4(4) shall be disidentified regarding the source of such information.

Article 7

Grounding of aircraft

1. Where non-compliance with international safety standards is clearly hazardous to flight safety, measures should be taken by the aircraft operator to rectify the deficiencies before flight departure. If the competent authority performing the ramp inspection is not satisfied that corrective action will be carried out before the flight, it shall ground the aircraft until the hazard is removed and shall immediately inform the competent authorities of the operator concerned and of the State of registration of the aircraft.

2. The competent authority of the Member State performing the ramp inspection may, in coordination with the State responsible for the operation of the aircraft concerned or the State of registration of the aircraft, prescribe the necessary conditions under which the aircraft can be allowed to fly to an airport at which the deficiencies can be corrected. If the deficiency affects the validity of the Certificate of Airworthiness for the aircraft, the grounding may only be lifted if the operator obtains permission from the State or States which will be overflown on that flight.

Article 8

Safety improvement and implementation measures

1. Member States shall report to the Commission on the operational measures taken to implement the requirements of Articles 3, 4 and 5.

2. On the basis of the information collected under paragraph 1, the Commission may, in accordance with the procedure laid down in Article 10(2), take any appropriate measures to facilitate the implementation of Articles 3, 4 and 5 such as:

- establish the list of information to be collected;

- detail the content of, and procedures for, ramp inspections;

- define the format for the storage and dissemination of data;

- create or support the appropriate bodies for managing or operating the tools necessary for the collection and exchange of information.

3. On the basis of the information received under Articles 3, 4 and 5, and in accordance with the procedure laid down in Article 10(2), a decision may be taken on appropriate ramp inspection and other surveillance measures, in particular those of a specific operator or of operators of a specific third country, pending the adoption by the competent authority of that third country of satisfactory arrangements for corrective measures.

4. The Commission may take any appropriate measures to cooperate with and assist third countries to improve their aviation safety oversight capabilities.

Article 9

Imposition of a ban or conditions on operation

If a Member State decides to ban from its airports or impose conditions on the operation of a specific operator or operators of a specific third country from its airports pending the adoption by the competent authority of that third country of satisfactory arrangements for corrective measures:

(a) that Member State shall notify the Commission of the measures taken, which shall transmit the information to the other Member States;

(b) the Commission, acting in accordance with the procedure referred to in Article 10(3), may issue a recommendation to the other Member States to extend the measures notified under (a) to the airports located in their respective territories.

Article 10

Committee procedure

1. The Commission shall be assisted by the committee set up by Article 12 of Regulation (EEC) No 3922/91.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

4. The Committee shall adopt its rules of procedure.

5. The Committee may furthermore be consulted by the Commission on any other matter concerning the application of this Directive.

Article 11

Implementation

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...(8). They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Article 12

Amendment of Annexes

The Annexes to this Directive may be amended in accordance with the procedure referred to in Article 10(2).

Article 13

Report

By ...(9) the Commission shall draw up a report on the application of the Directive, and in particular on Article 9, which, inter alia, takes into account developments in the Community and in international fora. The report may be accompanied by proposals for an amendment of this Directive.

Article 14

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 15

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 103 E, 30.4.2002, p. 351.

(2) OJ C 241, 7.10.2002, p. 33.

(3) Opinion of the European Parliament of 3 September 2002 (not yet published in the Official Journal) and Council Decision of ...

(4) OJ C 65, 4.3.1996, p. 172.

(5) OJ L 145, 31.5.2001, p. 43.

(6) OJ L 373, 31.12.1991, p. 4. Regulation as last amended by Commission Regulation (EC) No 2871/2000 (OJ L 333, 29.12.2000, p. 47).

(7) OJ L 184, 17.7.1999, p. 23.

(8) Three years after the entry into force of this Directive.

(9) Five years after the entry into force of this Directive.

ANNEX I

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ANNEX II

I. The ramp inspection should cover all or a selection of the following aspects, according to the time available.

1. Check for presence and validity of the documents necessary for international flights such as: registration certificate, log book, certificate of Airworthiness, crew licences, radio licence, list of passengers and freight.

2. Check that flight crew composition and qualifications comply with the requirements of Annex 1 and Annex 6 to the Chicago convention (ICAO annexes).

3. Check of operational documentation (flight data, operational flight plan, technical log), and of flight preparation necessary to show that the flight is prepared in accordance with ICAO Annex 6.

4. Check for presence and status of items required for international navigation in accordance with ICAO Annex 6.

- Air operator certificate

- Noise and Emission Certificate

- Operation manual (including Minimum Equipment List) and flight manual

- Safety equipment

- Security cabin equipment

- Equipment necessary for the specific flight including radio communication and radio navigation equipment

- Flight data recorders.

5. Check that the condition of the aircraft and its equipment (including damage and repairs) ensures continuous compliance with ICAO Annex 8 standards.

II. An inspection report must be drawn up after the ramp inspection and must include standard general information described above and a list of items checked, together with an indication of any deficiencies found for each of these items and/or any specific remark that may be necessary.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In the framework of the codecision procedure (Article 251 EC-Treaty), the Council reached on 27/28 March 2003 a political agreement on the draft Directive of the European Parliament and of the Council on the safety of third country aircraft using community airports.

The Directive envisages introducing a harmonised approach to the effective enforcement of international safety standards within the Community by harmonising the rules and procedures for ramp inspections of third-country aircraft landing at airports located in the Member States.

In taking its position, the Council took account of the opinion of the European Parliament in first reading, as well as of the opinion of the Economic and Social Committee.

II. ANALYSIS OF THE COMMON POSITION

1. General

It is recalled that the text of the Commission proposal was greatly inspired by that of the common position(1) which was reached by the Council in the framework of an earlier legislative procedure on the same subject that could eventually not be finalised because of the Gibraltar issue. Given this context, the Council could from the outset agree to several elements of the Commission proposal. On a few points, however, the Council decided to modify the text of this proposal, generally in order to make it simpler, clearer and easier to understand. The modifications often resulted from amendments presented by the European Parliament.

The main modifications operated by the Council are the following:

- Article 1 (objective) and Article 2 (scope) have been merged in one single Article 1 (Scope and objective). The Council reinforced the provision according to which the Directive is without prejudice to the Member States' right to carry out inspections not covered by this Directive and to ground, ban, or impose conditions on any aircraft landing at its airports in accordance with Community and international law (Article 1(2)). This modification allows Member States, in accordance with Community and international law, to continue to carry out safety checks regarding Community aircraft, without extending the scope of the Directive to such aircraft, which would encounter legal problems.

- Article 4 (ramp inspection): the new paragraph 2 allows Member States to establish rules in order to carry out ramp inspections in accordance with a spot-check procedure in the absence of any particular suspicion, provided that such rules comply with Community and international law, and provided that the spot-check procedure is carried out in a non-discriminatory way. This paragraph was inserted further to amendment 16 of the European Parliament, which was much welcomed by the Council.

- Article 6 (protection and dissemination of information):

- the first paragraph was brought in line with the text of Article 8(1) of the Directive of the European Parliament and of the Council on occurrence reporting in civil aviation (2000/0343 COD), as it has been agreed on 9 April 2003 by the Conciliation Committee;

- the second paragraph was changed so that, instead of the Member States publishing half yearly information to the public, it is now for the Commission to publish yearly an aggregated information report available to the public containing an analysis of the information received in accordance with Article 5. In the analysis, the source of that information shall be disidentified;

- the third paragraph, in which reference is made to Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(2), is again largely inspired by the Directive on occurrence reporting in civil aviation, see Article 7(2) thereof.

- Article 7 (Grounding of aircraft): the text of this Article was revised in order to take account of international practice in this field.

- Article 9 (Imposition of ban or conditions on operation): the Council decided to modify this Article in the sense that the Commission will have the possibility to issue a recommendation to the other Member States to extend a measure taken by one Member State against an operator or operators of a third country to the airports located in their respective territories. In the view of the Council, this modification is needed in order to assure a balanced division of responsibilities between the Commission and the Member States with respect to safety matters.

- Article 11 (Implementation): the delay for implementation of the Directive has been extended to three years.

2. Amendments of Parliament

As regards the amendments of Parliament, the Council endeavoured to incorporate them to the greatest extent possible. However, in various cases it was impossible to integrate an amendment literally and to the full, because the relevant texts had been substantially modified or had even been deleted.

This being so, the Council was able to accept in its common position, to the letter or in substance, (part of) amendments:

No 2 - see Article 1(2);

No 4 - see recital 4;

No 5 - see recital 5;

No 8 - see recital 19;

No 9 - see recital 7;

No 11 - see recital 17;

No 12 - see recital 18;

Nos 13 and 16 - see Article 4(2);

Nos 18 and 20 - see Article 6(2).

III. CONCLUSION

The Council submits that the text of its common position is appropriate and balanced. With respect to the amendments proposed by the European Parliament in first reading, the Council observes that a large majority of these amendments have been integrated - to the letter or in spirit, partially or in full - in the common position. The Council holds therefore that the text of its common position ensures by and large that the aim sought by the amendments of Parliament is achieved.

(1) Common Position 37/98 of 4 June 1998 (OJ C 227, 20.7.1998, p. 18).

(2) OJ L 145, 31.5.2001, p. 43.