COMMON POSITION (EC) No 37/98 adopted by the Council on 4 June 1998 with a view to adopting Council Directive 98/. . ./EC of establishing a safety assessment of third-country aircraft using Community airports (98/C 227/03)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 84(2) thereof,

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

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

Acting in accordance with the procedure referred to in Article 189c of the Treaty (3),

(1) Whereas the resolutions adopted by the European Parliament on 15 February 1996 (4) and 17 July 1997 (5) and the Council conclusions of 17 June 1996 both point to 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) Whereas the Commission has issued a communication to the European Parliament and the Council entitled 'Defining a Community aviation safety improvement strategy`;

(3) Whereas that communication clearly identifies that safety may be effectively enhanced by ensuring that aircraft comply with the international safety standards contained in the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 and its Annexes;

(4) Whereas there is a need to ensure that international safety standards are always adhered to; whereas compliance with stricter safety standards by Community aircraft is addressed in Council Regulation (EEC) No 3922/91 (6) and therefore falls under Community procedures; whereas Community Member States should carry out inspections of aircraft from third countries at their airports when they have reason to think that they may not comply with international standards;

(5) Whereas, taking into account the principle of subsidiarity, the rules and procedures for ramp inspections, including aircraft grounding, should be harmonised to ensure consistent effectiveness in all airports, which in turn would also reduce the selective use of certain airports of destination to avoid proper control; whereas a harmonised approach to the effective enforcement to these international standards by the Member States will avoid distortions of competition and enhance the strength of a common stance in the relations with third countries;

(6) Whereas for the abovementioned reasons there is a need to establish, at Community level, a procedure for the assessment of foreign aircraft and related cooperation mechanisms between Member States to share and analyse information and draw conclusions;

(7) Whereas aircraft landing in the Community at any given time should undergo an inspection when there is suspicion that they do not comply with international safety standards;

(8) Whereas there should be a system of mutual exchange of information; whereas information gathered in each Member State should be made available, where appropriate, to all other Member States and the Commission in order to ensure the most efficient monitoring of the compliance of foreign carriers with international safety standards;

(9) Whereas the sensitive nature of that information calls for ensuring its proper usage and, where appropriate, extensive de-identification of its sources;

(10) Whereas non-compliance with international safety standards must be rectified; whereas aircraft on which corrective action is required must, where the deficiencies in compliance are clearly hazardous to safety, be grounded until such time as the non-compliance has been rectified;

(11) Whereas the facilities in the airport of inspection may be such that the competent authority will be obliged to authorise the aircraft to proceed to an appropriate airport, provided that conditions for a safe transfer without fare-paying passengers or cargo are complied with;

(12) Whereas it is necessary to provide that safety improvement measures may be taken in relation to specific cases of safety hazards; whereas it must also be possible for the Commission rapidly to take measures to implement the requirements of Articles 4, 5 and 6; whereas a Committee should be created for those purposes and a procedure established for close cooperation between the Member States and the Commission within that Committee;

(13) Whereas the same Committee should exchange information on measures which are deemed necessary 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;

(14) Whereas, no later than two years after the entry into force of this Directive, the Commission should draw up a report on the experience gained from its application; whereas that report may be accompanied by proposals for a revision of this Directive,

HAS ADOPTED THIS DIRECTIVE:

Article 1 Objective

The purpose of this Directive shall be to contribute to the improvement of air safety by ensuring that:

- information is collected and disseminated so that sufficient evidence can be established to decide on measures required to ensure the safety of the travelling public as well as of people on the ground,

- third-country aircraft, their operation and crew are inspected whenever there is reasonable suspicion that international safety standards are not being met and such aircraft are grounded if this is necessary to ensure immediate safety,

- appropriate measures for rectification of identified shortcomings are decided and implemented.

Article 2 Scope

This Directive shall apply to third-country aircraft landing at airports located in the Member States.

State aircraft, as defined in the Convention on International Civil Aviation signed in Chicago on 7 December 1944, (hereinafter referred to as 'the Chicago Convention`), and aircraft of a maximum take off weight of less than 5 700 kg not engaged in commercial air transport shall be excluded from the scope of this Directive.

This Directive shall not, however, limit the Member States' right, with due regard to the applicable law, to carry out inspection of, ground, ban, or impose conditions on, any aircraft landing at its airports.

Article 3 Definitions

For the purpose of this Directive:

- 'grounding` means the formal prohibition of an aircraft to leave an airport, and the taking of such steps as are necessary to detain it,

- 'international safety standards` means the safety standards contained in the Chicago Convention and its Annexes as in force at the time of the inspection,

- 'ramp inspection` means the examination of third-country aircraft in accordance with Annex II,

- 'third-country aircraft` means an aircraft which is not used or operated under the control of a competent authority of a Member State.

Article 4 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:

- pilots reports,

- maintenance organisation reports,

- incidents 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 country,

- 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 5 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 usually 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 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 standards and where the Member State is concerned that the defects may not have been corrected,

- 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 4 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 shall ensure that appropriate ramp inspections and other surveillance measures as decided within the framework of Article 9(3) will be implemented.

3. The ramp inspection shall be performed according to 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 shall be informed of the contents of the ramp inspection report, and if defects have been found, the report shall be sent to the operator of the aircraft and to the competent authority concerned.

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

Article 6 Exchange of information

1. The competent authorities of the Member States shall participate in a mutual exchange of information.

2. All standard reports referred to in Article 4 and the ramp inspection reports referred to in Article 5(3) shall be made available without delay to the competent authorities of the Member States and the Commission, at their request.

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 7 Protection of information

1. The information exchanged in accordance with Article 6 shall be used solely for the purpose of this Directive. If this information has been received from a Member State in confidence, its access shall be limited to the participating competent authorities and the Commission. Each Member State shall decide whether information collected in its territory can be passed on to other international organisations.

2. Confidentiality of information given voluntarily, in particular by the crew of aircraft subjected to ramp inspections, will be ensured by de-identifying extensively the source of such information.

Article 8 Grounding of aircraft

1. Where non-compliance with international safety standards is clearly hazardous to safety, the competent authority performing the ramp inspection shall ground the aircraft until the hazard is removed.

2. In the event that an aircraft grounded, the competent authority of the Member State where the inspection took place shall immediately inform the competent authorities of the operator concerned and of the state of registration of the aircraft.

3. If the hazard is such that the aircraft may be safely flown without fare-paying passengers or cargo, the competent authority of the Member State where the inspection took place shall, 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 fly safely, without fare-paying passengers or cargo, to an airport at which the deficiencies could be corrected, and inform the States which will be overflown by such aircraft.

Article 9 Safety improvement and implementation measures

1. Member States shall report to the other Member States and to the Commission on the operational measures taken and the resources allocated to implementing the requirements of Articles 4, 5 and 6.

2. On the basis of the information collected under paragraph 1, the Commission may, in accordance with the procedure laid down in Article 11, take any appropriate measures to facilitate the implementation of Articles 4, 5 and 6 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 4, 5 and 6, and a accordance with the procedure laid down in Article 11, a decision may be taken:

- on appropriate ramp inspection and other surveillance measures, in particular 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,

- on the establishment of contacts with third countries to offer a safety assessment of their competent authorities.

Article 10 Imposition of a ban or conditions on operation

If a Member State decides to ban 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;

(b) the Committee referred to in Article 12 shall consider what measures Member States deem necessary.

Article 11 Committee procedure

Whenever reference is made to the procedure laid down in this Article, the Commission shall be assisted by the committee referred to in Article 12.

The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft, within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.

If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.

If, on the expiry of three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.

Article 12 Committee

1. The Commission shall be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission.

The committee, acting in accordance with the procedure laid down in Article 11, shall assist the Commission in:

- taking any appropriate measures referred to in Article 9(2),

- taking any decision referred to in Article 9(3).

2. In addition, the task of the committee shall be to exchange information on the measures related to aviation safety taken by Member States as provided for in Article 10.

Article 13 Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than one year after the entry into force of this Directive or 31 December 1999, whichever is sooner. 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 reference on the occasion of their official publication. The method of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of domestic law which they adopt in the field governed by this Directive.

Article 14 Report

Not later than . . . (7*), the Commission shall draw up a report on its application, and in particular on Article 10, which, inter alia, takes into account developments in the Community and in international forums. The report may be accompanied by proposals for a revision of this Directive.

Article 15 Entry into force

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

Article 16

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ C 124, 21.4.1997, p. 39, and OJ C 122, 21.4.1998, p. 10.

(2) OJ C 19, 21.1.1998, p. 20.

(3) Opinion of the European Parliament of 19 November 1997 (OJ C 371, 8.12.1997, p. 64), Council common position of 4 June 1998 and Decision of the European Parliament of . . . (not yet published in the Official Journal).

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

(5) OJ C 286, 22.9.1997, p. 251.

(6) 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 (OJ L 373, 31.12.1991, p. 4), as amended by Regulation (EC) No 2176/96 (OJ L 291, 14.11.1996, p. 15).

(7*) Two 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, etc.;

2. check that flight crew composition and qualification 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 according to ICAO, Annex 6;

4. check for presence and status of items required for international navigation according to ICAO, Annex 6:

- air operator certificate,

- noise and emission certificate,

- operation manual (including minimum equipment list (MEL)) and flight manual,

- safety equipment,

- security cabin equipment,

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

- maintenance release;

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

II. A ramp inspection report must be drawn up after the ramp inspection and must include standard general information described hereunder and a list of items checked, together with an indication of any deficiencies found for each of these items, and any specific remark as is necessary.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 19 February 1997, the Commission submitted to the Council a proposal for a Council Directive establishing a safety assessment of third-country aircraft using Community airports ('ramp inspections`) (1).

The European Parliament issued its opinion at first reading on 19 November 1997 (2). The Economic and Social Committee issued its opinion on 30 October 1997 (3).

The Commission amended its proposal in the light of the opinion of the European Parliament and transmitted it to the Council on 5 March 1998 (4).

The Council adopted its common position in accordance with Article 189c of the Treaty on 4 June 1998.

II. PURPOSE OF THE PROPOSAL

This proposal aims to set, within the Community, the legal framework for the introduction and the operational application of a safety assessment of third-country aircraft using Community airports, while leaving enough room to the Member States to build the corresponding mechanisms, individually or collectively, as they see fit.

The main purpose of the proposal is to improve the safety of the travelling public as well as of people living near airports, by ensuring that aircraft comply fully with the relevant international safety standards.

III. ANALYSIS OF THE COMMON POSITION

The scope of the common position is restricted to third-country aircraft, i.e. aircraft which are not used or operated under the control of a competent authority of a Member State, taking into account that aircraft registered in the Community do not only have to comply with the relevant international safety standards, but also with the stricter standards contained in Council Regulation (EEC) No 3922/91 (Articles 1 and 2).

In order to ensure efficient monitoring of the compliance of foreign carriers with international safety standards, the common position provides for a system to collect and exchange any information deemed useful for the fulfilment of that objective, while ensuring an adequate degree of protection of the information collected (Articles 4, 6 and 7, as well as Annex I).

The Common position also obliges Member States to put in place a system to ensure that aircraft suspected of non-compliance with the relevant safety standards are subject to ramp inspections, which are to be performed according to a standardised procedure (Article 5 and Annex II).

If a ramp inspection reveals that non-compliance by a certain carrier with an international safety standard is clearly hazardous to safety, the aircraft concerned must be 'grounded`, i.e. prohibited from leaving the airport, until the hazard is removed (Article 8).

In cooperation with a committee composed of the representatives of the Member States, the Commission may take appropriate measures to facilitate the implementation of the provisions concerning the collection and exchange of information as well as the carrying out of ramp inspections. Under the same procedure, inspections and other surveillance measures may be targeted to an operator, or operators, of a specific third country (Articles 9, 11 and 12).

The Committee referred to above is also requested to exchange information on individual Member States' decisions to ban from their airports, or to impose conditions on the operation of, an operator (or operators) of a specific third country. On the basis of that exchange of information, the Committee is to consider what measures Member States deem necessary (Articles 10, 11 and 12).

Given the likelihood of further relevant developments in the area of aviation safety, both in the European Community and in international forums, the common position also contains a review clause in which the Commission is requested, within two years from the date of entry into force of the Directive, to draw up a report which may be accompanied by proposals for a revision of the Directive (Article 14).

IV. AMENDMENTS BY THE EUROPEAN PARLIAMENT

1. Amendments by the Parliament, wholly or partly accepted by the Council and Commission

(i) The following amendments were accepted in their entirety:

- amendment 1 (concerning recital 1),

- amendment 3, first paragraph (concerning the definition of 'international safety standards` in Article 3),

- amendment 10 (concerning Article 9, first paragraph, first indent),

- amendment 11 (concerning Article 10, paragraph 1),

- amendment 14 (concerning a revision clause): the Council accepted this clause, while adding a specific reference to experience gained with regard to the application of Article 10.

(ii) The following amendments were accepted in substance, while using a slightly different wording and/or presentation:

- amendment 15 (concerning Article 1): the Council restructured Article 1 with a view to bringing its provisions in a more logical order,

- amendment 3, third paragraph (concerning the definition of 'third-country aircraft` in Article 2): the Council accepted the addition suggested by Parliament, while deleting the text contained in the original Commission proposal in order to avoid any ambiguity with regard to the scope of the Directive,

- amendment 4 (concerning Article 4): in order to broaden the range of sources from which complaints may be received, the Council deleted the term 'passenger`,

- amendment 5 (concerning Article 5),

- amendment 8 (concerning Article 8, paragraph 2): the Council accepted the second part of that amendment, but felt that it was too bureaucratic to inform the operator in writing as well

2. Amendments by the Parliament, accepted by the Commission, but not accepted by the Council

Amendment 6 (concerning Article 6, heading and paragraph 1) was rejected, because it was felt that the scope of Article 6 should be restricted to the exchange of information, while a system of cooperation is provided for in the relevant Articles dealing with safety improvement and implementation measures (Articles 9 to 12 of the common position).

Amendments 7 and 12 (concerning the publication of groundings) were rejected on the grounds that the diversity of reasons that may lead to the grounding of aircraft as well as the varying degrees of safety risks connected to such groundings cannot be properly communicated to the general public. The Council therefore felt that any publication of groundings without accompanying reasons of a generally comprehensible nature would run the risk of being misinterpreted.

Amendment 9 (concerning Article 8a) was rejected, because the Council deleted the provision on a 'right of appeal` altogether, arguing that, in accordance with the principle of subsidiarity, such rights are provided for in national legislations anyway.

3. Amendments by the Parliament, not accepted by the Commission, but accepted by the Council

Amendment 13, concerning the deletion of Article 12 on 'penalties`, was accepted, since the Directive will impose obligations only on Member States, and not on individuals.

V. AMENDMENTS BY THE COUNCIL, NOT PROPOSED BY THE PARLIAMENT

Apart from the modifications already outlined above and certain smaller changes of an editorial nature, the Council carried out the following amendments to the Commission's proposal:

Re the recitals

The Council redrafted the preamble in the light of the amendments carried out with regard to the Commission's proposal. The Council also added certain recitals in order to reflect new provisions introduced into the text.

Re Article 3 (definitions)

The Council deleted the definition of 'competent authority` because that term is not used for the same type of authority throughout the Directive. Moreover, in accordance with the principle of subsidiarity, it would be up to the Member States to designate authorities to perform tasks on their behalf. Therefore, in several Articles, 'competent authorities of the Member States` was replaced by 'Member States`.

The Council deleted the definition of 'confidential report` since that notion was deleted from the relevant Article as well. All provisions concerning the protection of information are contained in Article 7.

The Council added the words 'and the taking of such steps as are necessary to detain it` to the definition of 'grounding`, since the original definition was considered to be incomplete.

In the definition of 'ramp inspection`, the Council replaced the phrase generally describing the contents of a ramp inspection by a cross reference to Annex II which precisely outlines the relevant procedure.

Re Article 5 (ramp inspection)

In addition to the changes suggested in Parliament amendment 5 (see above), the Council limited the scope of ramp inspections to 'airports usually open to international air traffic` in order to take account of the restricted resources of smaller airports in terms of personnel and inspection facilities. Moreover, smaller local airports would not normally be the destination of third-country aircraft.

Re Article 7 (protection of information)

The Council redrafted the first paragraph of Article 7 with a view to striking a balance between the respect for confidentiality and the need for a maximum degree of transparency.

Re Article 8 (grounding of aircraft)

The Council, by merging and restructuring paragraphs 3 and 4, streamlined the provisions dealing with the situation where deficiencies cannot be fully rectified at the airport of inspection.

Re Articles 9 and 10 (safety improvement measures and implementation measures)

The Council merged Articles 9 and 10, because the measures foreseen in those Articles are to be taken in accordance with the same procedure (under which the Commission is assisted by a regulatory Committee).

The second indent of original Article 9, which provides for the banning of aircraft or the imposing of conditions on their operation, was transformed into a separate Article 10 and thus subjected to a different procedure. Given the political sensitivity of such measures, the need for compatibility with the international obligations of Member States, and the need for rapid action in the case of significant safety hazards, the Council replaced the provision foreseeing a decision under the Committee procedure by an information and cooperation mechanism which leaves Member States more room for manoeuvre (see also paragraph 2 of new Article 12).

Re Articles 11 and 12 (Committee)

Given the political significance of measures taken in accordance with Articles 9 and 10, the Council replaced the committee of an advisory nature by a regulatory committee.

Re Article 13 (implementation of the Directive)

In view of the time needed to adopt and implement this Directive, the Council replaced '1 July 1998` by 'no later than one year after the entry into force of this Directive or 31 December 1999, whichever is sooner.`

(1) OJ C 124, 21.4.1997, p. 39.

(2) OJ C 371, 8.12.1997, p. 64.

(3) OJ C 19, 21.1.1998, p. 20.

(4) OJ C 122, 21.4.1998, p. 10.