COMMON POSITION (EC) No 66/98 adopted by the Council on 16 November 1998 with a view to adopting Council Regulation (EC) No .../98 of ... on the registration and operation within the Community of certain types of civil subsonic jet aeroplanes which have been modified and recertificated as meeting the standards of Volume I, Part II, Chapter 3 of Annex 16 to the Convention on International Civil Aviation, third edition (July 1993)
Date: 1998-11-16
Institutions: Council of the European Union
Subjects: International Civil Aviation Organisation, aircraft, civil aviation, quality standard, vehicle registration

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I

(Information)

COUNCIL

COMMON  POSITION  (EC)  No  66/98

adopted  by  the  Council  on  16  November  1998

with  a  view  to  adopting  Council  Regulation  (EC)  No  . . ./98  of  . . .  on  the  registration  and
operation  within  the  Community  of  certain  types  of  civil  subsonic  jet  aeroplanes  which  have
been  modified  and  recertificated  as  meeting  the  standards  of  Volume  I,  Part  II,  Chapter  3  of
Annex  16  to  the  Convention  on  International  Civil  Aviation,  third  edition  (July  1993)

(98/C 404/01)

THE  COUNCIL  OF  THE  EUROPEAN  UNION,

which  contribute  to  the  achievement  of  sustainable
mobility;

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  one  of  the  key  objectives  of  the  common
transport  policy  is  sustainable  mobility;  whereas
such  a  policy  can  be  defined  as  a  global  approach
the  effective
which  aims  at  ensuring  both 
functioning  of  the  Community’s  transport  systems
and  the  protection  of  the  environment;  whereas
technical  measures
it 

is  appropriate 

take 

to 

(1) OJ  C  118,  17.4.1998,  p.  20,  and
OJ  C  329,  27.10.1998,  p.  10.

(2) Opinion  delivered  on  1  July  1998  (OJ  C  284,  14.9.1998,

p.  1).

(3) Opinion  of  the  European  Parliament  of  16  September  1998
(OJ C 313, 12.10.1998, p. 94), Council common position of
16 November 1998 and Decision of the European Parliament
of  . . .  (not  yet  published  in  the  Official  Journal).

(2) Whereas  the  Commission  communication  on  the
future  development  of  the  common  transport
policy: a global framework to the construction of a
Community  framework  for  sustainable  mobility
explicitly 
introduction  of  a
the 
non-addition  rule  for  the  noisiest  aeroplanes;

refers 

to 

the  Council, 

(3) Whereas the fifth action programme of 1992 on the
environment,  the  general  approach  of  which  was
endorsed  by  the  Council  and  the  representatives  of
the  Governments  of  the  Member  States,  meeting
within 
resolution  of
in 
1  February  1993 (4)  envisages  further  legislative
measures  aimed  at  reducing  noise  emissions  from
aeroplanes; whereas the said programme lays down
the  objective  that  no  person  should  be  exposed  to
noise  levels  which  endanger  health  and  quality  of
life;

their 

(4) Whereas  the  growth  in  air  transport  activities  at
Community  airports 
increasingly  subject  to
is 
environmental constraints; whereas the operation of
these  airports  can
less  noisy  aeroplanes  at 
contribute  to  a  better  use  of  available  airport
capacity;

(5) Whereas  older  types  of  aeroplanes  modified  to
improve  their  noise  certification  level  have  a  noise

(4) OJ  C  138,  17.5.1993,  p.  1.

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performance  which  is  significantly  worse,  mass  for
mass,  than  that  of  modern  types  of  aeroplanes
originally  certificated  to  meet  the  standards  of
Volume  I,  Part  II,  Chapter  3  of  Annex  16  to  the
Convention  on  International  Civil  Aviation,  third
edition  (July  1993);  whereas  those  modifications
life  of  an  aeroplane  that  would
prolong  the 
normally  have  been 
such
modifications tend to worsen the gaseous emissions
performance  and  fuel  burn  of  earlier  technology
aero engines; whereas aeroplanes may be re-engined
to  achieve  a  noise  performance  comparable  to  that
of  those  originally  certificated  to  meet  Chapter  3
requirements;

retired;  whereas 

Civil  Aviation,  second  edition  1988 (1),  as  well  as
the  extent  of  the  non-addition  provisions  for
Chapter  2  aeroplanes  as  laid  down  in  Council
Directive  89/629/EEC  of  4  December  1989  on  the
limitation  of  noise  emission  from  civil  subsonic  jet
aeroplanes (2);

(11) Whereas,  in  order  to  ensure  equal  treatment  of
country  of
aeroplanes 
regardless  of 
the
in 
registration,  non-complying  aeroplanes 
registers  of  Member  States  should  also  be  stopped
in  accordance  with  the  terms
from  operating 
imposed  on  non-complying  aeroplanes 
in  the
registers  of  third  countries;

their 

types  of  aeroplanes 

(6) Whereas  a  rule  which  prohibits  the  addition  of
those  older  modified 
to
Member  States’  registers  as  from  1  April  1999  can
be  considered  as  a  protective  measure  aimed  at
preventing  a  deterioration  of  the  noise  situation
around  Community  airports  as  well  as  improving
the  situation  regarding  fuel  burn  and  gaseous
emissions;

(7) Whereas in a Community without internal frontiers
it  is  appropriate  to  exclude  from  this  non-addition
rule  aeroplanes  entered  in  any  Member  State’s
register  prior  to  1  April  1999;

(8) Whereas, in view of existing Community legislation
on  aeroplane  noise,  the  present  initiative  needs
to  be  taken  at  Community 
level  by  binding
Community  rules;

(9) Whereas  a  non-addition  rule,  and  a  non-operation
transition  period,
rule  with  an  appropriate 
combines  technical  feasibility  with  environmental
benefits  without 
imposing  an  undue  economic
burden;

(10) Whereas 

it 

by 

is  necessary  to  minimise  possible
distortions 
establishing
of 
competition 
equivalent  requirements  applicable  to  aeroplanes
registered  in  third  countries;  whereas,  since  the
Community  has  no  competence  over  third-country
registers,  that  objective  can  be  achieved  only
by  restricting  the  operation  of  non-complying
aeroplanes registered as from 1 April 1999 in third
countries;  whereas  the  date  for  introducing  such
restrictions  should  take  account  of  the  final  cut-off
date  for  the  operation  of  Chapter  2  aeroplanes  as
provided  for  in  Council  Directive  92/14/EEC  of
2 March 1992 on the limitation of the operation of
aeroplanes covered by Part II, Chapter 2, Volume I
of  Annex  16  to  the  Convention  on  International

(12) Whereas,  given  that  the  main  objective  of  the
measure  is  to  limit  noise  at  Community  airports,
aeroplanes may be exempted from the non-addition
they  are  not
and  non-operation  rules  when 
operated  in  the  Community  territory;  whereas,  in
order 
full
environmental  benefits,  temporary  exemptions  may
be  possible  only  for  operations  of  an  exceptional
nature;

to  produce 

these  rules 

their 

for 

(13) Whereas the provisions of this Regulation shall not
the  overseas  departments
be 
referred  to  in  Article  227(2)  of  the  Treaty,  in  view
of  their  geographical  location;

implemented 

in 

(14) Whereas  it  is  necessary  to  gather  information
concerning  the  exemptions  granted  by  the  Member
States;

(15) Whereas 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;
whereas  such  arrangements  have  yet  to  come  into
operation,

HAS  ADOPTED  THIS  REGULATION:

Article  1

Objective

The  objective  of  this  Regulation  is  to  lay  down  rules  to
prevent  deterioration  in  the  overall  noise  impact  in  the

(1) OJ  L  76,  23.3.1992,  p.  21.  Directive  as  amended  by

Directive  98/20/EC  (OJ  L  107,  7.4.1998,  p.  4).

(2) OJ  L  363,  13.12.1989,  p.  27.

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Community  of  recertificated  civil  subsonic  jet  aeroplanes
while  at  the  same  time  limiting  other  environmental
damage.

Article  3

Non-complying aeroplanes

Article  2

Definitions

For  the  purposes  of  this  Regulation:

1.

2.

3.

4.

5.

‘civil  subsonic  jet  aeroplane’  shall  mean  a  civil
subsonic  jet  aeroplane  with  a  maximum  certificated
take  off  mass  of  34 000  kg  or  more,  or  with  a
certified  maximum  internal  accommodation  for  the
aeroplane  type  in  question  consisting  of  more  than
19 passenger seats, excluding any seats for crew only,
and  powered  by  engines  with  a  by-pass  ratio  of  less
than  three;

‘recertificated  civil  subsonic  jet  aeroplane’  shall  mean
a  civil  subsonic  jet  aeroplane  initially  certificated
to  Chapter  2  or  equivalent  standards,  or  initially
not  noise-certificated  which  has  been  modified  to
meet  Chapter  3  standards  either  directly  through
technical  measures  or  indirectly  through  operational
jet  aeroplanes  which
restrictions;  civil  subsonic 
the
initially  could  only  be  dual-certificated 
standards  of  Chapter  3  by  means  of  weight
restrictions,  have  to  be  considered  as  recertificated
aeroplanes;  civil  subsonic  jet  aeroplanes  which  have
been  modified  to  meet  Chapter  3  standards  by  being
completely  re-engined  with  engines  having  a  by-pass
ratio  of  three  or  more  are  not  to  be  considered  as
recertificated aeroplanes;

to 

‘Chapter  2’  and  ‘Chapter  3’  shall  mean  the  noise
standards  as  defined  in  Volume  I,  Part  II,  Chapter  2
and  Chapter  3  respectively,  of  Annex  16  to  the
Convention  on  International  Civil  Aviation,  third
edition  (July  1993);

restrictions’ 
imposed  on 

shall  mean  weight
‘operational 
restrictions 
the  aeroplane  and/or
operational  limitations  within  the control of the pilot
or  the  operator,  such  as  reduced  flap  setting;

‘registration  of  an  aeroplane’  shall  mean  the  formal
is
act  whereby  the  nationality  of  an  aeroplane 
established  through  its  entry  on  the  national  register
of  a  Member  State  or  a  third  country;

6.

‘the  territory  of  the  Community’  shall  mean  the
territory  of  the  Community  subject  to  the  provisions
of  the  Treaty.

1.
Recertificated  civil  subsonic  jet  aeroplanes  shall  not
be registered in the national register of a Member State as
from  1  April  1999.

2.
Paragraph  1  shall  not  affect  civil  subsonic  jet
aeroplanes  which  were  already  on  the  register  of  any
Member  State  on  1  April  1999  and  have  been  registered
in  the  Community  ever  since.

3. Notwithstanding 
the  provisions  of  Directive
92/14/EEC and in particular Article 2(2) thereof, as from
1  April  2002  recertificated  civil  subsonic  jet  aeroplanes
registered  in  a  third  country  shall  not  be  allowed  to
operate  at  airports  in  the  territory  of  the  Community
unless  the  operator  of  such  aeroplanes  can  prove  that
they were on the register of that third country on 1 April
1999 and prior to that date have been operated, between
1  April  1995  and  1  April  1999,  into  the  territory  of  the
Community.

Recertificated  civil  subsonic  jet  aeroplanes  which
4.
are  on  the  registers  of  Member  States  may  not  be
operated at airports in the territory of the Community as
from 1 April 2002 unless they have been operated in that
territory  before  1  April  1999.

Article  4

Exemptions

1. Member  States  may  grant  temporary  exemptions
from  Article  3  for  civil  subsonic  jet  aeroplanes  whose
operations  are  of  such  an  exceptional  nature  that  it
would  be  unreasonable 
temporary
exemption,  such  as  for  emergencies.  On  a  transparent
and  non-discriminatory  basis,  Member  States  may  limit
such  exemptions  to  certain  airports  and/or  certain
specified  periods  of  the  day.

to  withhold  a 

from
2. Member  States  may  grant  exemptions 
Article  3  for  civil  subsonic  jet  aeroplanes  which  are
exclusively  operated  outside 
the
Community.

territory  of 

the 

3. Member  States  may  grant  exemptions 
from
Article  3  for  civil  subsonic  jet  aeroplanes  leased  to  an
operator  which  for  that  reason  have  been  temporarily
removed  from  the  register  of  the  Member  State  in  which
they  were  registered  during  the  6  months  before  1  April
1999, provided that legal and economic ownership of the
aircraft  remains  in  the  Member  State.

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4. Once  a  year  Member  States  shall  inform  the
Commission  of  exemptions  granted  under  this  Article.

Article  5

Overseas  departments

to 

This  Regulation  shall  not  apply 
the  overseas
departments  referred  to  in  Article  227(2)  of  the  Treaty,
neither  with  regard  to  the  provisions  concerning  the
registration  of  recertificated  civil  subsonic  jet  aeroplanes
in 
the  national  registers  of  Member  States,  nor
concerning  the  operation  of  such  aeroplanes  at  airports
located  in  the  said  departments.

Article  6

The  airport  of  Gibraltar

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.

2.
Application  of  the  provisions  of  this  Regulation
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  shall  inform  the  Council  of  that  date.

Article  7

Entry  into  force

1.
The  application  of  this  Regulation  to  the  airport  of
Gibraltar  is  understood  to  be  without  prejudice  to  the

This  Regulation  shall  enter  into  force  on  the  20th  day
following that of its publication in the Official Journal of
the  European  Communities.

This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  all  Member  States.

Done  at  . . .

For  the  Council

The  President

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STATEMENT  OF  THE  COUNCIL’S  REASONS

I.

INTRODUCTION

On  10  March  1998,  the  Commission  submitted  to  the  Council  a  proposal  for  a  Council
Directive  on  the  registration  and  operation  within  the  Community  of  certain  types  of  civil
subsonic  jet  aeroplanes  which  have  been  modified  and  recertificated  as  meeting  the
standards of Volume I, Part II, Chapter 3 of Annex 16 to the Convention on International
Civil  Aviation,  third  edition  (July  1993) (1).  The  proposal  is  based  on  Article  84(2)  of  the
EC  Treaty.

The  European  Parliament  delivered  its  opinion  at  first  reading  on  16  September  1998 (2).

The  Economic  and  Social  Committee  delivered  its  opinion  on  1  July  1998 (3).

The  Commission  amended  its  proposal  in  the  light  of  the  opinion  of  the  European
Parliament  and  transmitted  it  to  the  Council  on  30  September  1998 (4).

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

II. PURPOSE  OF  THE  PROPOSAL

The  proposal  aims  at  preventing  the  deterioration  of  the  overall  noise  impact  around
Community  airports  by  laying  down  a  regime  for  the  operation  and  registration  of
acoustically  modified  older  aircraft,  commonly  referred  to  as  ‘hushkitted  aircraft’.

III. ANALYSIS  OF  THE  COMMON  POSITION

The  common  position  follows  the  proposal  in  its  two  main  elements:

(i) a  ‘non-addition’  rule,  aimed  at  prohibiting  Member  States  from  adding  acoustically

modified  older  aeroplanes  to  their  registers  as  from  1  April  1999;  and

(ii) a  ‘non-operation’  rule  as  from  1  April  2002,  aimed  at  stopping  the  operation,  in  the
in  third

territory  of  the  Community,  of  non-complying  aeroplanes  registered 
countries.

In  order  to  ensure  a  non-discriminatory  treatment  of  all  aeroplanes  irrespective  of  their
country  of  registration,  the  common  position  also  contains  a  third  element  concerning  the
aeroplanes  registered  in  Member  States,  i.e.:

(iii) a  ‘non-operation’  rule  as  from  1  April  2002,  aimed  at  stopping  the  operation,  in  the
territory  of  the  Community,  of  non-complying  aeroplanes  registered  in  Member
States.

Exemptions  of  a  temporary  and  exceptional  nature  may  be  granted  by  Member  States.

(1) OJ  C  118,  17.4.1998,  p.  20.
(2) OJ  C  313,  12.10.1998,  p.  94.
(3) OJ  C  284,  14.9.1998,  p.  1.
(4) OJ  C  329,  27.10.1998,  p.  10.

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In  view  of  their  geographical  location,  the  airports  in  the  French  overseas  departments  are
not  covered  by  the  Regulation.

The application of the Regulation to the airport of Gibraltar is suspended pending bilateral
agreement  between  the  Member  States  concerned  about  the  use  of  this  airport.

IV. AMENDMENTS  BY  THE  EUROPEAN  PARLIAMENT

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

Commission

(i) The  following  amendment  was  accepted  in  its  entirety:

— amendment  1,  the  conversion  of  the  Directive  into  a  Regulation.

(ii) The  following  amendments  were  accepted  in  substance,  while  using  a  slightly

different  wording  and  presentation:

— amendments 2, 3 and 4 concerning new recitals expressing the need to monitor
the  development  of  the  aircraft  noise  situation  and,  if  necessary,  propose  new
measures,  as  well  as  the  need  to  prohibit  the  abuse  of  exemptions,  were
incorporated  as  Commission  and  Council  statements  to  be  included  in  the
minutes  of  the  Council  at  which  the  Regulation  is  adopted.  The  definite  dates
for  the  Commission  to  submit  new  proposals  were  removed  in  order  to  allow
some flexibility.

2. Amendments  by  Parliament,  not  accepted  by  the  Commission,  nor  by  the  Council

Amendment  5  on  the  wording  of  Article  3(1)  was  not  accepted  as  its  substance  was
considered  to  be  already  covered  by  the  draft  text.

Amendment  7  on  the  possibility  of  Member  States  to  regulate  the  operation  of  certain
Chapter  3  aeroplanes  operating  at  their  airports  between  11  pm  and  7  am  was  not
accepted  since  Member  States  already  are  entitled  to  impose  these  kind  of  operational
restrictions  based  on  existing  Regulation  (EEC)  No  2408/92.

V. AMENDMENTS  BY  THE  COUNCIL,  NOT  PROPOSED  BY  PARLIAMENT

Apart  from  the  modifications  already  outlined  above  and  certain  smaller  changes  of  an
editorial nature, in particular with a view to the conversion of the proposal for a Directive
into  Regulation,  the  Council  carried  out  the  following  amendments  to  the  Commission’s
proposal:

The recitals

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

Definitions  (Article  2)

The  Council  improved  the  definition  of  ‘recertificated  aeroplane’  by  referring  more
explicitly  to  dual  certification  thereby  also  mentioning,  in  particular,  aeroplanes  that  could
only be initially dual certificated by means of weight restrictions, as this was considered to
be  in  line  with  the  purpose  of  the  Regulation  to  prevent  the  deterioration  of  efficiency  of
aeroplanes  due  to  recertification.  In  addition,  the  Council  explicitly  excluded  re-engined

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aeroplanes  (i.e.  aeroplanes  whose  engines  have  been  completely  replaced)  as  these
aeroplanes  have  noise  performance  comparable  to  those  originally  certificated  to  meet
Chapter  3  standards.

Non-operation  rule  of  non-complying  aeroplanes  in  the  registers  of  third  countries
(Article  3(3))

In  order  to  simplify  the  implementation  of  the  Regulation  concerning  aeroplanes  on  the
registers  of  third  countries,  the  Council  specified  a  more  precise  time  period  during  which
the  recertificated  aeroplanes  should  have  been  operated  in  the  Community  in  order  to  be
able to continue operation after the non-operation rule takes effect. It is up to the operator
of  such  aeroplanes  to  prove  that  they  were  operated  according  to  the  rules  set  out  in
Article  3(3).

Non-operation  rule  for  aeroplanes  registered  in  Member  States  (new  Article  3(4)  of  the
common  position)

In order to ensure non-discriminatory treatment of aeroplanes regardless of their country of
registration,  the  Council  extended  the  non-operation  rule  imposed  on  aeroplanes  in  the
registers  of  third  countries  also  to  those  registered  in  Member  States  by  adding  a
paragraph  4  in  Article  3.

Exemptions  (Article  4)

The Council removed direct reference to humanitarian aid flights as it considered that those
flights are already sufficiently covered by the draft text referring to flights of an exceptional
nature. Exemptions may be limited to certain airports and/or certain specified periods of the
day  so  that  local  conditions  may  be  taken  into  account.

The  Council  introduced  a  new  paragraph  3  to  allow  the  exemption  of  leased  aeroplanes
temporarily  removed  from  the  register  of  a  Member  State  as  this  practice  would  not  be
considered  detrimental  to  the  objective  of  the  Regulation.

French  overseas  departments  (new  Article  5  of  the  common  position)

The  Council  introduced  a  new  article  to  exclude  the  airports  of  French  overseas
departments from the Regulation, as this was not considered a temporary exemption in the
meaning  of  Article  4  to  be  granted  by  Member  States  on  a  case-by-case  basis.

Penalties  (Article  5  of  the  proposal)

The  Council  deleted  the  Article  concerning  penalties  as  it  considered  this  irrelevant  in  a
Regulation  exclusively  concerning  Member  States’  administrations.

Reporting  on  exemptions  (new  Article  4(4)  of  the  common  position)

The  Council,  at  the  request  of  the  Commission,  added  a  paragraph  obliging  the  Member
States  to  provide  information  to  the  Commission  on  the  exemptions  granted.

The  airport  of  Gibraltar  (new  Article  6  of  the  common  position)

The Council suspended the application of the Regulation in the airport of Gibraltar pending
agreement  between  the  Member  States  concerned  on  the  use  of  this  airport.