Proposal for a Council Regulation (EC) amending 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
Date: 1998-12-21
Institutions: European Commission
Subjects: European Civil Aviation Conference, administrative procedure, civil aviation, harmonisation of standards, transport safety

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

Brussels, 21.12.1998 
COM(1998) 759  final 

98/0349  (SYN) 

Proposal for a 

COUNCIL REGULATION  (EC) 

amending Council Regulation (EEC) N° 3922/91 of 
16 December  1991 on the harmonisation of 
technical  requirements and administrative  procedures 
in the field  of civil aviation 

(presented by the  Commission) 

EXPLANATORY MEMORANDUM 

The  common  air  transport  policy  of  the  European  Community  aims  inter  alia  at 
ensuring a high  level of safety  in civil  aviation  and  at the abolition  of obstacles to 
the  free  movement  of  aviation  products  and  services  within  the  Community. 
Council  Regulation  (EEC)  N°  3922/91 '  on  the  harmonisation  of  technical 
requirements  and  administrative  procedures  in  the  field  of  civil  aviation  provides 
the  instrument  by  which  harmonised  technical  requirements  can  be  incorporated 
into Community legislation in order to achieve these goals. 

2.  This  regulation  provides  for  transposition  into  Community  legislation  of  the 
technical rules and administrative procedures  (JARs) worked  out by the JAA -  an 
association of several European national aviation authorities (including those of all 
the  Community  Member-States)  -  and  listed  in  its  Annex  II.  This  list  is  to  be 
completed  to  cover  all  aspects  of  aviation  safety  and  in  particular,  the  design, 
manufacture,  operation  and  maintenance  of  aircraft,  as  well  as  persons  and 
organisations  involved  in  these  tasks.  Under  this  regulation  and  in  particular  its 
article  11,  the  Commission  shall  make  any  amendments  necessitated  by  scientific 
and  technical  progress  to  the  common  technical  requirements  and  administrative 
procedures listed in the annexes thereto. 

3.  The  incorporation  of  a JAR  or  its  amendments  into  the  annexes  of  the  regulation 
implies however  a full  consistency  of  their  content  with  the provisions  of  Council 
Regulation  (EEC)  3922/91  and  with  the  Treaty  itself.  This  very problem  emerged 
when  considering 
incorporation  of  JAR  145:  Approved  Maintenance 
Organisations.2 

the 

JAR  145  includes  in  its  article  10  (c)  as  revised  by  amendment  145/97/1  (NPA 
145-5)  a  provision  which  would  allow  individual  Member  States  to  accept  a 
foreign  maintenance  organisation  on  the  basis  of  an  approval  granted  by  a  third 
country  provided  that  the  organisation  is  in  compliance  with  special  conditions  to 
ensure equivalence to JAR  145. 

OJN°L373of31.12.91,p4 
JAR  145 is a requirement  that  addresses  the approval  of organisations  to carry  out maintenance  on 
aircraft  or aircraft  components,  including  engines, used  for  commercial  air transport. All aircraft  or 
components  used  for  commercial  air  transport  must  be  maintained  by  appropriately  approved  or 
accepted JAR  145 organisations. 

This type of simplified  procedure is already  largely used in the aviation community to 
ensure  the  most  effective  use  of  staff  resources,  the  acceleration  of  the  approval  of 
foreign  products,  organisations  and  personnel  and  the  reduction  of  administrative 
costs  to  applicants.  Moreover,  these  practices,  when  reciprocal,  facilitate 
the 
continuous  activities  of  European  companies  and  citizens  outside  the  Community. 
Accordingly  the  Commission  considers  it  is  beneficial  to  use  them  with  any  country 
where  a  significant  number  of  organisations  provide  services  or  make  products  used 
by the European aviation  industry. 

5.  Making  such  simplified  approval  procedures  official  through  the  mere  incorporation 
of JARs, such as JAR  145, in the  annexes  of Regulation  3922/91  would  not  however 
be consistent  with the external  competencies  of the European  Community.  The  Court 
of  Justice  has  already  stated  indeed  that  "the  Community  enjoys  the  capacity  to 
establish  contractual  links  with  third  countries  over  the  whole  field  of  objectives 
defined  by  the  Treaty.  This  authority  arises  not  only  from  an  express  conferment  by 
the  Treaty,  but  may  equally  flow  from  other  provisions  of  the  Treaty  and  from 
measures  adopted,  within  the  framework  of  those  provisions,  by  the  Community 
Institutions".  This  position  has  been  reiterated  when  the  Court  considered  that  an 
international  agreement  preventing  technical  obstacles  to  international  trade  belongs 
to  the  common  commercial  policy  and  then  to  the  exclusive  competence  of  the 
Community3. 

6.  The  Community  has  already  concluded  with  Australia4  and  New  Zealand3  mutual 
recognition  agreements  on  the  basis  of  the  Council's  mandate6  which  includes 
airworthiness: the Parties agreed to insert within the two years following  the entry into 
force  of  the  agreement  an  annex  on  aircraft  certification  and  certificates  of 
airworthiness. 

7.  To develop this policy the Community  will have to negotiate the appropriate  bilateral 
agreements that require a day to day management  capacity which is not possible in the 
near future.  As a consequence,  and as long as the Community  itself has not  concluded 
such agreements, it is proposed  that Member  States could be empowered  to  recognise 
the approvals  granted  to  foreign  products,  organisations  and personnel.  Such  practice 
could be allowed and be subject  to Community surveillance in order to ensure that: 
- 
negotiations or compromise  safety; 
-  approvals  given  in  this  context  are  of  an  interim  nature  and  can  be  terminated  at 
reasonable short notice in view of their substitution by a Community  agreement; 
- it does not confer  unfair  advantages on third parties. 

it  does  not  prejudice  Community  competence  in  this  field,  nor  affect  ongoing 

Opinion  1/94  of ECJ of  15.11.94 
Council Decision 98/508/EC of  18.06.98  O.J. N° L229 of  17.08.98 
Council Decision 98/509/EC of  18.06.98  O.J. N° L229 of  17.08.98 
Council Decision of 21.09.92 

lo*-

In  order  to  ensure  the  necessary  Community  surveillance,  such  approvals  should 
be notified  to the Commission  and the Member States in order to allow an a priori 
examination of their compatibility  with Community  interest  ; and the  Commission 
should  be  entitled  to  require,  as  appropriate,  a  Member  State  to  modify  the 
envisaged  approval,  or  not  to  grant  it  or  to  suspend  it,  to  meet  the  above 
mentioned  criteria. 

When  doing  so  the  Commission  should  be  assisted  by  a  committee  of  Member 
States  representatives.  As  in  this  task,  the  Commission  will  monitor  the 
conformity  of  national  measures  with  Community  obligations.  This  committee 
may have only a consultative power. 

9.  Regulation  (EEC)  3922/91  has  set  up  a  committee  which  acts  under  a  regulatory 
procedure.  For  the  application  of  the  above  mentioned  community  control 
mechanism  a consultative  procedure has  to be  added.  As  a consequence  articles  9, 
11 and  12 of the Regulation have to be redrafted  to correct this position. 

10.  Therefore,  the  Commission  proposes  that  the  Council  amend  Council  Regulation 
N° (EEC) 3922/91 by introducing  a new article which would  allow Member  States 
to continue, under appropriate Community control, to grant the necessary  approvals 
on  the  basis  of  approvals  granted  by  a  third  country  according  to  simplified 
procedures,  pending  the  conclusion  by  the  Community  of  mutual  recognition 
agreements.  At  the  same  time  it  is necessary  to  clarify  the  comitology  aspects  of 
this  Regulation  to  accord  with  Decision  87/373/EEC  on  the  procedures  for  the 
exercise  of  implementing  powers  conferred  to  the  Commission.  Such  are  the 
purposes of the present initiative. 

Proposal for a 

COUNCIL REGULATION  (EC)  ... 

amending Council Regulation (EEC) N° 3922/91 of 
16 December  1991 on the harmonisation  of 
technical requirements and administrative  procedures 
in the field  of civil aviation 

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  of  the  Commission;  Acting  in  accordance  with  the 
procedure referred  to in Article  189C of the Treaty; 

Having regard to the opinion of the Economic and Social  Committee; 

Whereas  Council  Regulation  (EEC)  N°  3922/91  of  16  December  19911  on  the 
harmonisation  of technical  requirements  and  administrative  procedures  in the  field  of 
civil  aviation  lays  down  procedures  relating  to  recognition  of  certifications  of  the 
conformity  of products, services and persons; 

Whereas  these technical  requirements  and  administrative  procedures  apply  equally  to 
products,  organisations  and  personnel  from  the  European  Community  and  third 
countries; 

Whereas  it  may  be  necessary  to  facilitate  approval  of  third  countries'  products, 
organisations  and personnel  by  using  the  findings  made  by  the  competent  authorities 
of these countries; 

Whereas  such  an  approval  mechanism  relates  to  the  exchange  of  goods  or  services 
with third countries and affects  the approval  conditions  set out  by Council  Regulation 
(EEC) N° 3922/91, and falls therefore  in the field  of Community  competence; 

OJN°L373of31.12.91,p4 

4 

Whereas pending the conclusion by the Community  of mutual recognition  agreements 
covering  these  products,  organisations  and  personnel,  it  is  appropriate  to  allow 
Member  States  to  give  the  necessary  approval  on  the  basis  of  the  findings  made  by 
third countries' competent  authorities; 

Whereas  it is necessary  to  ensure  that  such  approvals  are  granted  in  accordance  with 
Community  policies  and  obligations  and  do  not  give  unfair  advantages  to  third 
parties;  they  should  therefore  be  granted  only  on  a  temporary  basis  pending  the 
conclusion  by  the  Community  of  mutual  recognition  agreements  with  a  concerned 
third country; 

Whereas  it  is  appropriate  to  entrust  the  Commission  with  the  task  of  monitoring  the 
granting  of  such  approvals  by  Member  States  in  order  to  safeguard  Community 
a  Committee  acting  in  a 
interests  and  for  the  Commission  to  be  assisted  by 
consultative capacity; 

HAS ADOPTED THIS  REGULATION 

Article 1 

Council  Regulation  (EEC) N°  3922/91  is hereby  amended  by  the  inclusion  of  a new 
Article 7bis: 

"Article 7 bis 

(a)  Where, under the common  technical  requirements  and  administrative  procedures, 
a  Member  State  or  a  body  acting  on  its  behalf,  intends  to  grant  an  approval  or 
accept  an  organisation  on  the  basis  of  approvals  granted  by  the  competent 
authorities  of  a  third  country,  it  shall  notify  the  Commission  and  the  Member 
States  of  the  scope  and  the  detailed  conditions  under  which  such  an  approval 
would be granted. 

(b)  If,  within three months from  the notification  the Commission  considers that 

- 

the conditions under which such approval would be  granted do not provide a 
level  of  safety  equivalent  to  that  specified  by  the  present  Regulation  and  its 
annexes  ; and/or 

-  such  approval  would  give  an  unfair  advantage  to  a  third  country,  or  is 

contrary to Community policy vis-à-vis this third country; 

it may, in accordance with the procedure  laid  down  in paragraph  4 of Article  12, 
require  the Member  State concerned  to modify  the  approval  it proposes  to  grant 
or not to grant such approval. 

5" 

(c)  Approvals  granted  on  the  basis  of  this  article  shall  expire  upon  the  entry  into 
force  of an agreement between  the Community  and the third  country  in  question, 
but riot later than two years after the grants of such approvals. Upon request of the 
Member State concerned, in respect of the grant of any approval, the  Commission 
may,  in  accordance  with  the  procedure  laid  down  in  paragraph  4  of  Article  12, 
authorise the extension of such a two year period as appropriate, provided  that the 
situations in paragraph (b) do not arise." 

Article 2 

Articles  9,  11, and  12  of  Council  Regulation  (EEC)  N°  3922/91  are  replaced  by  the 
following provisions: 

Article 9: 

"Member  States  shall  take  the  necessary  steps  to  co-ordinate 
their  research 
programmes  to  improve  the  safety  of  civil  aircraft  and  their  operation  and  to  inform 
the Commission thereof. The Commission may take any relevant  initiative to promote 
such national research programmes." 

Article 11: 

1.  The Commission,  following  the procedure  laid  down  in paragraph  2 of Article  12, 
shall make the amendments  necessitated  by scientific  and technical  progress  to the 
common technical requirements and administrative procedures listed in Annex II... 

2.  Where  the  amendments  referred  to  in paragraph  1 contain  a national  variant  for  a 
Member  State the  Commission,  following  the procedure  laid  down  in paragraph  2 
of  Article  12,  shall  decide  whether  or  not  to  include  that  variant  in  the  common 
technical requirements and administrative procedures. 

Article  12: 

Replace the first paragraph by the  following: 

"1. 

The  Commission 

shall  be  assisted  by  a  Committee  composed  of 
representatives  of  the  Member  States  and  chaired  by  the  representative  of  the 
Commission." 

<r 

Add a new paragraph: 

"4. 

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, if necessary by taking a vote. 

The  Commission  shall  take  the  utmost  account  of  the  opinion,  delivered  by  the 
committee.  It  shall  inform  the  committee  of  the  manner  in  which  its  opinion  has 
been taken into  account." 

Article 3 

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

Done at Brussels,  ... 

For the Council. 

? 

IMPACT  ASSASSMENT 

Impact of the proposal on business with special reference  to small and  medium 
sized enterprises  (SMEs) 

Title of the proposal: 

Proposal  for  a  Council  Regulation  amending  Council  Regulation  (EEC)  N°  3922/91 
of  16  December  1991  on  the  harmonisation  of  technical  requirements  and 
administrative procedures in the field of civil aviation. 

What is the main justification  for this proposal? 

The  proposal  will  facilitate  the  acceptance  of  the  findings  of  third  countries' 
authorities for the approval of products, organisations and personnel. 

Who will be affected  by the proposal? 
Air  operators,  aircraft  maintenance  organisations,  flight  training  organisations, 
licensed workers,  ... 

In particular 

- are there a great number of SMEs concerned? 
- are there concentrations in regions? 

Yes 
No 

What constraints will be imposed on business?  None 

What constraints  are likely to be imposed indirectly  on the enterprises  by way  of 
local authorities? 

None 

Are there special measures for SMEs? 

No 

What economic effects  is the proposal likely to have? 

Such  simplified  procedures  will  ensure  the  most  effective  use  of  staff  resources, 
accelerate  the  approval  of  foreign  products,  organisations  and  personnel  and  reduce 
administrative  costs. This will also facilitate  the activities of European  companies  and 
citizens when they operate outside the Community. Therefore  the impact on 

employment 
investment and creation of new business 
competitive position of business 

will be  significant. 

Does  the  proposal  contain  measures  to  take  account  of  the  specific  situation  of 
small and medium-sized  firms? 

Indirectly  yes, because  SMEs'  often  don't  have  the  necessary  structured  relationship 
with  third  country  markets  and  will  therefore  benefit  from  a  simplification  of  the 
approvals process, be it for  the use of imported  products  or services, or  for  their  own 
access to foreign  markets. 

What industrial organisations  have been consulted  and what are their views? 

All JAA proposals are the result  of extensive  consultations  with all  interested  parties. 
Therefore  and  as  the  proposal  does  not  introduce  any  additional  burden  on  affected 
parties  but  only  simplifies  the  approvals  needed  for  the  importation  of  products  and 
services, the  Commission  services  in charge  have  not  felt  necessary  to  make  another 
specific  consultation. 

3 

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