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'
Date: 1997-10-29
Institutions: European Economic and Social Committee
Subjects: air safety, air traffic control, aircraft, exchange of information, third country

C 19/20

EN

Official Journal of the European Communities

21. 1. 98

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’ (1)

(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

For some time,

1.1.
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
to establish oversight and assistance pro-
(ICAO)
grammes 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 them-
selves 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 (2) and
the Council (3) 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

(1) OJ C 124, 21. 4. 1997, p. 39.
(2) Resolution B4-0150/96, OJ C 65, 4. 3. 1996, p. 172.
(3) 1907th Meeting of the Council — Transport — Brussels,

11 March 1996 (PRES 96/55).

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.

Council Directive 94/56/EEC on the investi-
1.4.1.
gation of civil aviation accidents and incidents states
that: ‘Each Member State shall ensure that technical
investigations are conducted or supervised by a perma-
nent civil aviation body or entity which shall be
functionally independent in particular of the national
aviation authorities responsible for airworthiness, certi-
fication, ... 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

21. 1. 98

EN

Official Journal of the European Communities

C 19/21

that are not already applicable to those of Member
States.

1.4.4. Whilst existing regulations may allow appro-
priate 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 auth-
orities, 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’ (1). That Report contains a whole range of
proposals, but the description that follows concerns
only those relevant to the current Opinion.

The High Level Group, having considered the
2.2.
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.

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

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 Confer-
ence (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 consider-
ations of the inevitable risks of retaliation or other
adverse diplomatic consequences.

C 19/22

EN

Official Journal of the European Communities

21. 1. 98

3. The Commission Proposal

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

3.1.
This Commission proposal for a directive ‘estab-
lishing 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 infor-
mation 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 improve-
ment and implementation measures.

The Commission’s intention is to set a legal
3.5.
framework while leaving enough margin to the Member
States to build the corresponding mechanisms individu-
ally 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.

4. General Comments

4.1.
The Committee welcomes the Commission pro-
posal. 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.

The JAA is likely to have a major role to play,
4.4.
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,

21. 1. 98

EN

Official Journal of the European Communities

C 19/23

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.

5.2.3.

Paragraph 3 add at the end

‘..., including those of Member States.’

Competent authorities of Member States should
4.6.
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. Consider-
ation 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 Prac-
tices/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.’

5.3. Article 3 (Definitions)

5.3.1.
dards). Add after 1944:

Fourth definition (International safety stan-

‘... or any other internationally agreed safety stan-
dard ...’

5.3.2.
end:

Fifth definition (Ramp inspections). Add to the

‘... 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.
indent of Article 4(1):

The following should be added to the first

‘— 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. P a r a g r a p h 1

5.2.2.

Paragraph 2 to start:

‘Only state aircraft...’.

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

C 19/24

EN

Official Journal of the European Communities

21. 1. 98

5.5.3. P a r a g r a p h 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). Para-
graph 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.

Brussels, 29 October 1997.

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.
appeal against a grounding might be made.

It should be made clear to whom a right of

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)

Paragraph 1 (first

5.10.1.
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.

sentence)

The President

of the Economic and Social Committee

Tom JENKINS