Commission working document - In view of the discussions within the Council on the creation of the European aviation safety authority in the Community framework
Date: 2000-03-21
Institutions: European Commission
Subjects: European Aviation Safety Agency, European Commission, air safety, division of powers, transport regulations

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 21.3.2000
COM (2000) 144 final

COMMISSION WORKING DOCUMENT

In view of the discussions within the Council on the creation of the European
Aviation Safety Authority in the Community framework

COMMISSION WORKING DOCUMENT

In view of the discussions within the Council on the creation of the European
Aviation Safety Authority in the Community framework

1.

INTRODUCTION

– At the request of the Council and to contribute to the discussions, the Commission
proposes in this working paper a possible option for a European aviation safety agency.
This document only deals with a purely Community solution without prejudging other
ideas, which might emerge from the future discussions. The Commission’s aim remains
the creation of an authority capable of guaranteeing a high level of safety in Europe and
working with the rapidity an defficiency needed.

2. AIDE-MEMOIRE

– On 16 July 1998 the Council adopted a decision authorising the Commission to open
negotiations with States which are full members of the JAAs1
(Joint Aviation
Authorities), other than European Community Member States, with a view to
concluding an agreement establishing a European Aviation Safety Authority (EASA),
which will have the legal form of an international organisation.

– The main objective of the Community and its Member States was to create a body
comparable to the FAA in the United States, with the prime task of ensuring a uniform
high level of safety in Europe through the gradual integration of the national systems.
This was also designed to help ensure the free movement of aeronautical products, as
well as persons and services, by making possible the automatic recognition, without
any further requirements, of certificates and approvals issued by any duly authorised
national or central administration.

– On the basis of this a draft Convention was prepared with the purpose of setting up an
organisation capable of adopting all the rules necessary for aviation safety in a directly
applicable form. Initially these rules covered the design, production, maintenance and
operation of aircraft and aeronautical products and the qualifications of the personnel
and organisations involved. In a later stage the scope could be enlarged to include the
safety aspects of airport operations and air traffic management services.

– To guarantee uniform application and thereby facilitate automatic recognition, a dual

mechanism is envisaged:

–

on the one hand the EASA itself verifies conformity with the common standards
and issues type certificates for the aeronautical products; it can also carry out

1

Full members of the JAA: the 15 EC Member States, Iceland, Malta, Monaco, Norway and
Switzerland. Candidates: Cyprus, Hungary, Lithuania, Poland, Czech Republic, Slovakia,
Romania, Slovenia and Turkey.

2

tasks normally done at the national level, at the request of one or all of the
contracting parties;

–

for the tasks carried out at the national level, i.e. the issuing of individual
certificates/approvals for products, personnel and organisations,
the EASA
adopts common conformity verification procedures and constantly monitors the
aptitude of the national administrations and their way of working.

– Insofar as the normative rules and individual decisions are directly applicable, a system
of judicial review had to be set up (a court of justice). On the other hand, since the
Convention strictly limits the area of competence of the organisation to what
is
regarded in all the Member States as implementation duties, it was thought sufficient to
exercise democratic control by means of a council on which the contracting parties sit
and vote (including the Community itself).

3. ASSESSMENT OF THE SITUATION

– This institutional architecture therefore requires cumbersome ratification procedures,
which means that some Member States will have to make some constitutional changes.
As regards the Community, the Commission has to consult the Court of Justice. Quite
apart from the length of the process all of this requires in order to arrive at a
ratification by all the Member States and the Community, there is no guaranteeing that
this text can be ratified.

– Since the entry into force of the Treaty of Amsterdam the European Parliament has had
new powers in the transport field, since the legislation concerned is now adopted by
codecision. It therefore has to be borne in mind that Parliament will be obliged to hand
over powers to an international organisation in which it will have a say only when
Community positions are drawn up for presentation to the organisation2. Moreover, the
general
trend of building the Community is towards more transparency and
responsibility towards its citizens, and this the EASA's architecture could assure only if
provision had been made for parliamentary control, which is not the case at present.

– These institutional problems will very likely be felt

just as keenly by our non-
Community partners, since for several of them any transfer of sovereignty is a sensitive
issue as well. With these risks in mind, the Council wanted to look at an alternative
solution, hence the presentation of this document. As for the European Parliament, the
matter has never been formally placed before it, on account of the procedure followed.

4. TOWARDS A EUROPEAN AVIATION SAFETY AUTHORITY

(1)

Models

2

This institutional problem was overcome in 1997 (Council Decision 97/836) for the Community's
accession to an existing organisation in the vehicle standardisation field, on the basis of complex
mechanisms for involving Parliament in the preparation of standards which are not necessarily
directly applicable.

3

– Together with eleven other administrations (the Federal Highway Administration, etc.),
the US Federal Aviation Administration (FAA) is an integral part of the Department of
Transportation and accordingly directly responsible to the government (in particular
the Transportation Secretary) and Congress, which approves its budget. The FAA
adopts and implements, entirely on its own authority, rules and safety standards
applicable to the production, operation, certification and maintenance of aircraft; it
licenses airports, air carriers and cockpit crew. Safety decisions are made independently
by the FAA administrator or his staff by means of Notices of Proposed Rule Making
(NPRM), the procedure for which is laid down in US law. The FAA, which runs a
network of airport control towers and air traffic control centres, develops rules for air
traffic management and use of airspace, making sure that air traffic control safety is in
line with national defence requirements. The FAA also has responsibilities in the area of
construction and use of air navigation aids. Lastly, it includes as one of its tasks the
promotion of aviation safety throughout the world. The FAA's annual budget is almost
entirely financed by a tax on air tickets (for fiscal year 1999 the budget was raised to
USD 9753 million; the FAA has about 49.000 employees).

– In a number of cases the Commission itself has wide executive powers conferred on it
by the Treaty (competition) or secondary legislation (food safety). It can therefore
adopt rules of general application and/or individual decisions with or without close
control (committee procedure). For carrying out its tasks the Commission has provided
itself with human resources with the necessary technical expertise
and has set up
independent scientific committees capable of making technical appraisals (risk
assessment) on the basis of which it makes decisions (risk management). This is,
in which Regulation 3922/91, which acknowledges the
incidentally,
Commission's power
JARs (Joint Aviation Requirements) previously
introduced by the Council in the annexes to the Regulation, was adopted. The
shortcomings of this Regulation and the lack of resources in the Commission's
departments have meant, however, that the Commission has been unable to satisfy the
industry's expectations.

the spirit

to adapt

– Due to the amount of expertise or resources required the Community has occasionally
been obliged to set up external bodies to assist the Commission: Community agencies.
Of the Community agencies in place, three are of particular interest in the present
exercise: the Office for Harmonisation in the Internal Market (OHIM), the Community
Plant Variety Office (CPVO) and the European Agency for the Evaluation of Medicinal
Products (EMEA). They exercise powers to implement specific sets of rules and
provide services to industrial sectors, in return for fees which make them more or less
financially independent. Two of them (OHIM and CPVO) enjoy decision-making
powers of their own inasmuch as they decide on the basis of criteria laid down in the
legislation whether a trade mark or variety is original, which presupposes a certain
degree of technical discretion. In order to safeguard the rights of third parties who
might be affected by their decisions, a system of internal boards of appeal is provided.
The decisions of these boards may in turn be made the subject of proceedings before
the European Court of Justice3. The agencies were set up pursuant to regulations

3

See also the Commission's additional contribution to the intergovernmental conference on
institutional reform (COM(2000)109) in which proposals are made concerning the possible role
of the OHIM's boards of appeal as specialised tribunals of first instance.

4

which have their legal basis in Article 308 (former Article 235) of the EC Treaty; they
have legal personality and are run by internal bodies.

– None of the above models seems entirely suited to the case in point, that of aviation
safety. Nevertheless, the experience gained in the Community framework allows us to
form a picture of an alternative capable of fulfilling the tasks envisaged for the EASA
with the requisite independence and efficiency. It is briefly outlined below.

– A basic regulation to replace Regulation 3922/91 and to be adopted by codecision on

the basis of Article 80(2) would:

–

–

–

–

–

establish the scope, objective and means for Community action in the field of
aviation safety (equivalent to Chapters 1 (General), 2 (Establishment and purpose
of the organisation) and 3 (Tasks of the authority) of the EASA Convention);

possibly grant the Commission the power to adopt common rules and procedures
and to make individual decisions, notably for implementing the following indent;

set up a system of close control of the action of Member States (equivalent to
Chapters 4 (Membership) and 9 (Enforcement) and Article 16 (Immediate safety
action) of the EASA Convention);

create an agency capable of preparing Commission decisions and itself adopting
certain individual decisions under the control of the Commission;

lay down an obligation to recognise automatically (Article 5 of the Convention)
and subject to no further requirements any certificate issued in accordance with
the common rules and procedures either by the agency or by the Member States.

Like all Community acts, decisions of the Commission and of the agency would
be subject to review by the Court of Justice.

(2)

Tasks

– In order to guarantee a high level of safety in Europe and free movement of products,
persons and services in the field, all the the Community's institutional players would
have to assume the following tasks (very similar to those provided for in the EASA
Convention):

a)

Adoption of common technical rules and administrative procedures for the
design, certification, construction, continuing airworthiness, maintenance and
operation of aircraft and the certification of personnel and organisations
occupied in these activities; airport safety and air traffic management will be
included in these tasks but, as in the EASA Convention, collective action in
this area may be suspended pending a positive decision from the Council.

5

b)

c)

d)

e)

Development of technical requirements and administrative procedures for the
application4 of environmental standards.

inspections and issuing of

Technical
type certificates for aeronautical
products. Individual approvals of products, organisations and personnel could
be issued on behalf of all the Member States subject to a positive decision
from the Council.

Verification of application of the common rules by the Member States and
harmonisation of their working methods in order to guarantee the mutual
recognition of certificates.

Development of international cooperation conducive to the harmonisation of
rules and the mutual recognition of certifications.

f)

Coordination of research and financing of research activities.

(3)

Execution of tasks

– As Community law is currently interpreted, the exercise of executive powers and
control of the implementation of rules and regulations is the preserve of the
Commission, which may delegate it only on the basis of rules removing any discretion
from the body delegated, or at the very least restricting it to a technical appraisal within
its sphere of competence. Bearing in mind these constraints powers are delegated as
follows for each of the tasks described above (see also the table in the annex):

a) and b) Rules of general scope

– By virtue of the discretionary powers which they imply, adopting common rules of
general scope are clearly the prerogative of the Community institutions. The agency
may assist the Commission in preparing such rules. Given the highly technical nature of
the rules and the fact that they are implementation measures, Parliament and the
Council should generally delegate the adoption of common rules to the Commission.
As in the EASA Convention we can envisage a hierarchy of texts, so that the common
rules concern only general technical requirements. The agency would be given the task
of determining the technical modalities of checking compliance - on the lines of the
practice of the EMEA which issues "guidelines" - which would not be mandatory but
would serve as an indication of how compliance would be verified, leaving it up to
those concerned to prove whether they satisfy the general technical requirements by
any equivalent means acceptable.

c)

Centralised application of general rules

– Three functions are to be taken into consideration:

–

is practically
Issuing of type certificates: With the advance of technology it
impossible to develop an exhaustive set of common rules for certifying new

4

This concerns the application and not the establishment of these standards, which continues to be
the responsibility of the environmental protection organisations.

6

aeronautical products. The agency should therefore in some cases be allowed a
certain scope for technical appreciation in defining the basis of certification for the
products presented to it. Thus the certifying authority applies, within the defined
regulatory framework, the general technical requirements, adapting them to the
individual case. These adaptations may be made right up to the point when the type
certificate attesting to compliance with the common rule is finally delivered. When
there is a risk of such an adaptation departing from the regulatory framework, the
Commission should intervene according to the methods defined in the basis
regulation.

The type certificate could be issued by the agency itself inasmuch as it
attestation of compliance with the final basis of certification.

is an

– Issuing of individual certificates (for aeronautical products, organisations and
personnel) attesting to compliance with the common rules would normally be
carried out by the Member States; nevertheless the agency should also be able to
issue such certificates if the Council so decides (cf (2)c) above). Its scope for
technical appraisal should therefore be narrowly circumscribed by the common
rules, which themselves must be sufficiently clear, precise and exact not to delegate
any discretionary authority to the agency.

The issuing of such certificates which will be directly applicable by the agency also
presupposes the existence of an appropriate system of safeguards for third parties
and therefore the establishment of boards of appeal similar to those set up by the
OHIM and the CPVO, whose role is to verify whether the agency has applied the
common rules properly without going beyond the scope for technical appraisal
which these texts allow it (judicial review).

– Surveillance of the market, which includes the monitoring of airworthiness, aims on
the one hand to ensure that the common rules are proportionate to the safety
objectives to be reached and on the other hand to trigger immediate action where
necessary to preserve the safety of goods and persons5. This surveillance may lead
either to amendment of the common rules or to the adoption of safety measures
such as the suspension or withdrawal of licences or modification of the conditions
for issuing a type certificate (airworthiness directive).

d)

Application of the common rules at national level)

– The Commission is responsible for monitoring the application of common rules at
national level. However, the agency could help it to do this. It would have at its
disposal teams of inspectors for monitoring the national administrations and checking
their working methods on its own initiative or at the Commission's request. The agency
would thus verify in the national administrations that Community law has been
correctly implemented and applied; it would report back to the Commission which
incorrect
could then decide whether
application of the common rules and procedures.

to institute infringement proceedings for

5

As in the EASA Convention, the Member States will of course retain the right to take safety
measures in the framework of a Community control mechanism.

7

– Insofar as the Member States, as in the EASA Convention, have to be allowed a
certain degree of flexibility in their assessment of application of the common rules
(safety action in an emergency, derogations of scope or limited duration, equivalent
safety level), it is also necessary to include in the Community regulation creating the
EASA a mechanism for controlling this flexibility (ex ante or ex post). The agency
would be required to examine the measures proposed or adopted by the Member States
and recommend to the Commission what action to take.

e)

International relations

– As regards both harmonisation of the rules and mutual recognition, the agency, which
would assist the Commission in preparing the relevant proposals, wouldl be able within
the bounds of its commercial mandate and if authorised to do so by the Commission to
discuss directly with third countries and send its contribution to the Commission. It
would also assist the Commission in the negotiation and implementation of mutual
recognition agreements.

f)

Research

– The recent White Paper on food safety6 recommends that the authority should have its
own research budget in order to be able to finance ad-hoc research in response to
health emergencies; the authority would work in close liaison with the JRC and the
national administrations
and in coordination with the Community research
programmes.

– This is a scheme which might equally be envisaged for aviation safety. To carry out
activities in this area the agency should therefore have a budget for the purpose. The
task of coordinating research activities, given by the Treaty to the Commission, could
be delegated to the agency provided that it concerns research falling strictly in the
competence of the agency, as defined in the basic regulation. Moreover, a mechanism
must be found to allow interaction between the research undertaken by the agency and
that conducted at national or Community level, whether research paid directly or with
shared costs.

(4)

Decision-making mechanisms

– Throughout the discussion process on the EASA dossier it was abundantly clear that
both the national administrations and the industry want decision-making on safety
matters to be free from any political interference or national considerations. The failure
of the present system of JAAs is often put down to the fact that their activities,
basically decided by committee, have been unable to avoid these stumbling blocks.
Everyone therefore wants an effective system where the decisions are in the hands of a
single decision-maker, like in the US system:

a)

At the agency level

6

COM(99)719 final, 12 January 2000

8

– Decisions on safety (contributions to the Commission on rules and safeguards,
individual decisions: individual type certificates, withdrawal of certificates) should be
made by the executive director of the agency7 and not by a scientific committee. These
decisions should be based on a codified consultation process ensuring transparency and
the right of all the parties to present their opinions. In view of the sensitivity of certain
matters the director himself would be able to decide what committees to set up to take
them on, while consultation of these committees would remain optional.

– For administrative decisions, however, the traditional agency model where decisions
are made by a management board (within the limits set in the regulation setting up the
agency) consisting of representatives of the Member States, the Commission and the
European Parliament could be adopted.

– Individual decisions on safety being made exclusively by the executive director, the
only forum where Member States would be able to give their opinion is the
management board, so for this reason it is desirable that the executive director should
be appointed by the management board (on a proposal from the Commission), so as to
have the requisite legitimacy.

b)

At the Commission level

– The Commission will either make proposals or adopt

technical
requirements (depending on how far Parliament and the Council are prepared to
delegate) on the basis of the agency's preparatory work. As for adoption, as they are
technical measures that do not involve political choices, for example by means of a
committee, the most efficient solution would be to entrust the Commission with their
adoption.

the general

4.

PARTICIPATION BY NON-MEMBER STATES

– It is in the interest of our Member States, European citizens and industry for all to
enjoy a high level of safety on as wide a geographical scale as possible. The long-
standing cooperation between European countries in this field, in particular in the
in the work and the
JAAs, has always allowed non-member States to take part
decision-making process under acceptable conditions. Any system that is set up in this
area will therefore need to have a pan-European dimension and allow these countries
to continue to participate under the same terms.

– Since the basic regulation creating the agency is a Community act which can have no
extra-territorial effects, it would be necessary to make provision, on similar lines to the
Regulation establishing the European Environment Agency8, for participation by non-

7

8

The executive director is usually appointed either by the management board, made up of
representatives of the Member States, the Commission and sometimes the European Parliament,
on a proposal from the Commission, or by the Council of Ministers, again on a proposal from the
Commission.
OJ No L 120, 11.5.1990.

9

member States9 by the conclusion of international agreements with each of them.
Participation in the agency would confer on non-member States the same rights and
obligations that are enjoyed by the Member States of the Community, apart from the
right to vote and the possibility of assuming chairmanship functions. In the case in
point the management board is the only body where States can make their attitude
known. It would therefore be a question of associating non-member States as closely
as possible with the work of this body, whose decision-making powers cannot extend
into the safety field, and involving them in any bodies which the executive director
might set up to assist him in his decision-making.

– As regards the application in non-member States of the acts adopted:

– by the Commission and the agency (common rules, bases of certification and safety
action), since these acts form part of the "acquis communautaire",
the various
mechanisms provided in the different agreements which the Community has concluded
or is about to conclude with the central European countries (European Common
Aviation Area, ECAA) and Switzerland and in the framework of the EEA, could be
used. In these agreements, proper implementation and judicial review are generally the
responsibility of national courts. These courts sometimes have the possibility (EEA et
ECAA agreements) of requesting an interpretation from the Court of Justice of the
European Communities, which would be a way of preserving a uniform interpretation
of the rules;

– by the agency (individual certificates, including type certificate). Since these certificates
are simply a declaration of conformity with the basic rules, the agency could issue them
on behalf of non-member States also if the "single pillar" principle (used for
Commission decisions in competition matters), can be applied.

5. BUDGET

The use of an agency does not alter any of the budgetary responsibilities which
might be placed on the EASA. The main change concerns funding which, in the
EASA Convention, it was possible to arrange in a scale of contributions by the
in an agency, could come in part from the
contracting parties and which,
Community budget.

(1)

Expenditure

– For carrying out the tasks described above, the proposed agency would have to be
provided with a budget which will allow it to maintain a sufficient number of high-
quality staff, since its certification duties will require the setting up of joint teams
largely calling on experts from the national administrations without having to recruit
them.

9

See also the Commission's Communication to the Council of 20 December 1999 concerning the
participation of candidate countries in Community programmes, agencies and Committees
(COM(1999)710).

10

– To take the JAAs (currently being reorganised) as an example: these could soon have
about 80 staff for carrying out tasks similar to those envisaged for the new agency. A
ballpark figure for the number of staff the agency might require would therefore be
around 100.

– The agency would need a budget allocation large enough to enable it to undertake

research activities and have the common standards translated and published.

– The Commission should have additional funds to allow it to process quickly acts
arising out of the decision-making power not delegated to the agency and exercise
control over the acts of the agency.

(2)

Funding

– The agency's budget could be financed to an extent by a subsidy from the Community,
in particular as far as its contribution to legislative tasks is concerned. Also, services it
provides (such as certification, training and documentation) would have to be paid for
in the form of fees, which must be charged uniformly and without discrimination to all
the States participating in the system. The level of these fees would have to be in line
with international practice so as not to affect the competitiveness of our industry.

7. CONCLUSION

– The present system of aviation safety, essentially based on cooperation between the
Member States in the framework of the JAAs, has been unable to satisfy the legitimate
aspirations of all the parties concerned with regard to its effectiveness. This failure is
due in part to the JAAs' inability to free themselves from political interference in their
decision-making.

– The draft Convention, through its intergovernmental nature, does not put an end to
negotiation between the parties on safety conditions on account of the central role
which the Governing Body plays in any decision made by the EASA. This central role
is justified by the need for political control over an organisation which has full decision-
making powers with all the political, institutional and legal consequences that entails.

– The Community alternative set out above, designed to fit into the Community system
of institutions and so arranged as to guarantee the executive director autonomy in his
decision-making, has to reconcile the desired effectiveness with the indispensable
political control. It aims also to secure a stable balance between the need for
centralisation and the use of expertise available in the national administrations and the
JAAs, while maintaining the institutional balance sought by the Treaty. This will make
it possible to limit the costs of setting up this new structure while at the same time
preserving the privileged relationships which the national administrations have been
able to develop with those concerned, as the experience of the medicinal products
agency shows.

– These options concerning the sharing of responsibilities for decision-making between
the Commission and the agency are based on the current
the legislative bodies,
interpretation of the institutional system of the Treaty and on the case law. The

11

Commission reserves the right to consider, when proposing legislation, other options
that would help ensure greater rapidity and efficiency.

12

Annex 1 : Community system

Codecision (EP-
Council)

Commission
Decision

Confirmation

by the

Commission¹¹

Basic Regulation 10

Commission proposal

Common rules

Agency
recommandation

Agency decision

Product certification
(adoption of
certification basis and
airworthiness
directives)

Individual decisions
(including product
type certificates)

Agency decision

Publication or
notification

Boards of appeal

Safeguard measures

Member State initiative

Agency opinion

Commission
Decision

Inspection decisions

At the Commission's
request or on the
agency's initiative

Agency inspection

Action taken by the

Commission

Appeal

before

the

Court

of

Justice

10

¹¹

Constitutes both the basic text and the institutional text (in accordance with the definition in the July 1998 mandate) and define the limits to individual freedoms and
specifies the powers of the Commission, the agency and the Member States).
Explicit confirmation in the form of an ex-ante decision or implicit confirmation by tacit approval.

13

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TASKS

I Decision-making

1. Basic rules

Community system

EASA

Annex 2

- Laid down by the Regulation establishing the Community
system. Adopted by Parliament and the Council (codecision)

- Laid down by the Convention establishing the EASA: adopted by ratification

2. General technical requirements

- Laid down by the Commission Regulation on the agency's
contribution

- Laid down by the Governing Body (GB) on a proposal from the "Executive Agency" (EA)

3. Technical
bases of certification

requirements and

- Adopted by the agency, confirmed by the Commission

- Adopted by the EA with a right of appeal to the GB

4. Individual decisions and type
certificate

- Agency decision

- Adopted by the EA with a right of appeal to the GB

II Institutional aspects

1. Judicial review

- Appeal to the Boards of Appeal (individual decisions)

- Appeal to the GB

- Appeal to the EC Court of Justice

- Appeal to an EASA Court of Justice

2. Scope of decisions

- Directly applicable in the Community. A transposition
mechanism has to be developed by non-member States on the
basis of
the agreements concluded (EEA, EC/Switzerland
bilateral agreement, ECAA for the CCEE)

- Directly applicable

3. Democratic control

- The basic regulation creating the agency is adopted by codecision

- The EP and the national parliaments intervene at the time of ratification of the EASA Convention

- The budget and the activity report are examined by the
Community institutions (COM, C and EP)

- Audit by the Court of Auditors

- The positions to be defended on the GB by the Community and its Member States are the subject o
common positions worked out in accordance with the applicable Community procedures involving th
three institutions.

14

III Non-member States

Association with the agency's work on the basis of agreements
with the Community

- Contracting parties to the Convention if they satisfy the terms of accession.

IV Timetable

- Consultation document: April 2000

- Start of negotiations with non-member States: April 2000

- End of consultation: May 2000

- Commission proposal: June 2000

- Signature: summer 2001

- Ratification by the contracting parties, including the Community

- Adoption by the Council and EP: December 2001

(at least 16 ratifications): 2006

- Establishment of the agency: mid-2002

15