Proposal for a Council Decision on the conclusion by the European Community of the Protocol on the accession of the European Community to the European Organisation for the Safety of Air Navigation (Eurocontrol)
Date: 2003-09-24
Institutions: European Commission
Subjects: Eurocontrol, European Union, accession to an agreement, air safety, air space, air traffic, protocol to an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 24.09.2003
COM(2003) 555 final

2003/0214 (AVC)

Proposal for a

COUNCIL DECISION

on the conclusion by the European Community of the Protocol on the accession of the
European Community to the European Organisation for the Safety of Air Navigation
(Eurocontrol)

(presented by the Commission)

1.

1.1.

1.2.

2.

2.1.

1

2

3

4

5

6

EXPLANATORY MEMORANDUM

OBJECTIVE OF THE PROPOSAL

The Commission proposes that the Community ratify the Protocol on the  accession
of the European Community to the revised Eurocontrol Convention1. Ratification is
the logical consequence of the signing of the Accession Protocol on 8 October 2002
the  Commission's  proposal  of
following 
6 June 20023.

the  Council  Decision2  based  on 

The  Accession  Protocol  sets  out  the  legal  provisions  enabling  the  Community  to
become  a  full  member  of  Eurocontrol.  As  accession  implies  acceptance  by  the
Community of obligations resulting from Eurocontrol instruments in areas in which
the  adoption  of  internal  measures  is  subject  to  the  codecision  procedure,  the
European Parliament must give its assent to the Council Decision, in conformity with
Article 300(3) of the Treaty.

BACKGROUND

Ratification of the Accession Protocol marks the end of a process that began in 1997
and comprised the following steps:

– 

– 

the Parties to Eurocontrol4 adopted the Protocol consolidating the Eurocontrol
Convention in June 1997. The Member States which were party to Eurocontrol
declared  that  this  adoption  did  not  in  any  way  affect  the  Community's
exclusive competence in certain areas covered by the revised Convention; the
Community's  accession  to  Eurocontrol  is  therefore  necessary  in  order  to
exercise such exclusive competence;

at  the  same  time,  the  Commission  launched  the  procedure  to  accede  to
Eurocontrol5 on the basis of Article 40 of the revised Convention. Article 406
authorises  the  accession  of  regional  economic  integration  organisations,  such
as the European Community;

International  Convention  relating  to  cooperation  for  the  safety  of  air  navigation  (Eurocontrol)  of
13 December 1960, as variously amended and as consolidated by the Protocol of 27 June 1997, referred
to as the "revised Convention".
Council Decision 11053/02 Aviation 121 of 17.7.2002.
Proposal  for  a  Council  Decision  on  the  signature  by  the  European  Community  of  the  Protocol  of
accession of the European Community to the European Organisation for the Safety of  Air Navigation
(Eurocontrol) and its provisional application (COM(2002) 292 final, 6.6.2002).
The  European  Organisation  for  the  Safety  of  Air  Navigation  (Eurocontrol)  was  established  by  an
International  Convention  in  1960.  Eurocontrol  now  comprises  31  European  States,  including  the
15 Member States of the Community and six candidates countries.
Recommendation for a Council decision authorising the Commission to enter into negotiations  with a
view to establishing Community participation in Eurocontrol (SEC(96) 2042 final, 13.11.1996).
Article 40(1) of the revised Convention: "The accession to the Convention, as amended by the Protocol
of  12  February  1981  and  by  the  Protocol  opened  for  signature  at  Brussels  in  1997,  shall  be  open  to
regional  economic  integration  organisations  in  terms  and  conditions  to  be  agreed  between  the
Contracting Parties and those organisations, of which one or more signatory States are members, these
terms and conditions to be contained in an additional Protocol to the Convention".

2

                                                
– 

– 

– 

on  20  July  1998,  the  Council  authorised  the  Commission  to  engage  in
negotiations with the Parties to Eurocontrol7. The negotiations were concluded
in October 1999;

the launch at the end of 1999 of the Single European Sky initiative, which took
in
on  firm  shape  with 
October 2001, placed Community accession to Eurocontrol in the context of an
overall objective of reorganising European airspace;

the  Commission's  proposals 

the  adoption  of 

following conclusion of the negotiations, the Accession Protocol was signed by
the contracting parties at a diplomatic conference on 8 October 2002.

3.

3.1.

3.2

3.3.

CONTEXT

Community  accession  to  Eurocontrol  is  justified  by  the  fact  that  the  revised
Convention  authorises  Eurocontrol  to  adopt  measures  which  are  binding  on  the
Member States. The Community must participate in this organisation to enable such
measures to be adopted in areas where the Community has competence.

The  situation  in  this  respect  has  evolved  as  a  result  of  the  Single  European  Sky
initiative: the Commission proposals in the  process of adoption  by Council and the
European  Parliament8  envisage  an  active  role  for  the  Community,  backed  by
Eurocontrol's technical expertise.

Close cooperation will therefore have to be developed between the Community and
Eurocontrol  on  two  levels,  in  order  to  ensure  that  the  rules  and  strategies  are
consistent and to avoid duplication of efforts by the two parties:

– 

– 

Community accession to Eurocontrol will enable the Community to contribute
to  Eurocontrol's  political  activities  in  order  to  align  them  on  the  Community
initiative  –  the  Single  European  Sky  –  and  to  place  this  initiative  in  a
pan-European context;

the specialist work needed to prepare the Community rules in the context of the
Single  European  Sky  initiative  will  be  entrusted  to  Eurocontrol  (i.e.  the
Agency) in respect of matters for which it has competence, with due regard to
conditions to be included in a cooperation agreement between the Commission
and  Eurocontrol.  This  (administrative)  cooperation  agreement  between  the
Commission and Eurocontrol will have to specify those conditions.

7

8

Council Decision 10208/98 Aviation 38 of 15.7.1998.
Commission  Communication  on  an  action  programme  on  the  creation  of  the  Single  European  Sky
(COM(2001)  123  final/2,  30.11.2001).  Commission  Communication  on  the  creation  of  the  Single
European Sky with proposals for a regulation on the provision of air navigation services in the Single
European  Sky,  on  the  interoperability  of  the  European  Air  Traffic  Management  network  and  on  the
interoperability  of  the  European  Air  Traffic  Management  network  (COM(2001)  564  final/2,
11.12.2001).

3

                                                
4.

4.1.

4.2.

4.3.

4.4.

4.5.

5.

5.1.

5.2

THE ACCESSION PROTOCOL

The Accession Protocol sets out the arrangements for applying the provisions of the
revised  Convention  to  the  European  Community  and  its  Member  States.  These
concern  Community  representation  in  the  bodies  of  Eurocontrol  (Article  5)  and  its
voting  rights  (Article  6).  They  enable  the  Community  to  exercise,  within
Eurocontrol,  the  competences  conferred  on  it  by  its  Member  States  in  matters
covered by the revised Convention.

The  Accession  Protocol  provides  for  joint  membership  of  the  Community  and  its
Member  States  in  Eurocontrol,  with  voting  rights  shared.  The  voting  rights  will  be
exercised  by  the  Community  or  by  the  Member  States,  depending  on  whether  a
particular  decision  concerns  matters  in  which  competence  lies  with  the  former  or
with the latter. The Member States will have to coordinate their position on matters
in which the Community exercises the voting rights. In such matters, the Community
will  exercise  its  voting  rights  by  cumulating  the  votes  of  its  Member  States
(Article 6(1)).

Under  the  terms  of  the  revised  Convention  the  Community,  after  enlargement  in
May 2004, will, in respect of its voting rights, have the majority of votes (22 out of
31), and the simple and qualified majority (three-quarters) of the weighted votes. The
Accession  Protocol  has  a  provision  designed  to  safeguard  the  voting  rights  of  the
minority,  i.e.  those  States  which  are  not  part  of  the  European  Community.  These
States may thus ask for the vote on matters in which the Community has competence
to be postponed for a maximum period of six months. (Article 6(2)).

These  arrangements  for  exercising  voting  rights  do  not  give  Member  States
additional  weight  within  Eurocontrol.  Consequently,  accession  will  not  involve  a
financial contribution by the Community (Article 4).

Third parties will be informed about the exercise of voting rights by the Community
and  its  Member  States  at  the  sessions  of  Eurocontrol's  deliberating  bodies.
(Article 6(3)).  This  will  enable  the  other  Contracting  Parties  to  identify  the
appropriate interlocutor in the decision-making process.

PROCEDURAL MATTERS

There  are  two  stages  in  the  process  of  approving  the  Accession  Protocol,  in
conformity with the normal provisions on the signature, approval and entry into force
of  international  treaties  (Article  300  of  the  Treaty).  The  first  stage  concerning  the
signature  of  the  agreement  on  behalf  of  the  Community  was  concluded  on
8 October 2002.  The  second  stage  concerning  the  conclusion  of  the  agreement  on
behalf  of  the  Community,  which  is  equivalent  to  ratification,  is  the  subject  of  this
proposal.

The Accession Protocol will enter into force when 31 countries and the Community
have  deposited  their  instruments  of  ratification.  The  Commission  intends  to  liaise
closely  with  the  Member  States  to  speed  up  this  process,  in  order  to  enable  the
Community to work to achieve its own objectives in Eurocontrol's decision-making
bodies, in cooperation with its European partners.

4

5.3.

5.4.

5.5.

The  legal  basis  of  the  Accession  Protocol  is  Article  40  of  the  revised  Convention.
The  Protocol  can  take  effect  only  after  the  Convention  enters  into  force9.  The
Member  States  should 
instruments  of
ratification of the revised Convention and of the Accession Protocol. This will have
to take place at the same time as the deposition by the Community of its instrument
of ratification of the Accession Protocol.

therefore  deposit  simultaneously 

the 

In the interim, Articles 1 to 7 of the Accession Protocol will apply provisionally in
conformity  with  Article  300(2)  of  the  Treaty  and  with  the  Council  Decision5.  The
permanent Eurocontrol commission confirmed this approach by decision no 98. The
Accession Protocol has thus applied provisionally since 10 April 2003.

The Community undertook when signing the Accession Protocol to provide the other
parties, upon deposit of its ratification instrument, with a note explaining the scope of
its  competence  with  regard  to  the  matters  governed  by  the  revised  Convention.  A
declaration to that effect is included in the annex. It was prepared on the basis of the
Community's  current  competence  and  will  have  to  the  revised  at  the  time  of
ratification to take account of any development in the Community's powers.

In  the  light  of  these  considerations  and  according  to  the  established  procedures,  the
Commission proposes that the Council adopt the attached decision.

9

The revised Convention will enter into force when the 27 countries Party to Eurocontrol at the time of
signing  the  Protocol  consolidating  the  Eurocontrol  Convention  have  deposited  their  instruments  of
ratification. To date, 13 States have ratified, accepted or approved the revised Convention and deposited
their ratification instruments, among them Finland, Portugal and Luxembourg.

5

                                                
2003/0214 (AVC)

Proposal for a

COUNCIL DECISION

on the conclusion by the European Community of the Protocol on the accession of the
European Community to the European Organisation for the Safety of Air Navigation
(Eurocontrol)

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Article 80(2) in conjunction with the first sentence of the first subparagraph of Article 300(2)
and the second subparagraph of Article 300(3) thereof,

Having regard to the proposal from the Commission10,

Having regard to the assent of the European Parliament11,

Whereas:

(1)

(2)

(3)

(4)

(5)

10

11

12

The  congestion  of  airspace  and  the  forthcoming  implementation  of  the  Single
European  Sky  call  for  urgent  measures  to  be  undertaken  at  Community  level  and
within the framework of the European Organisation for the Safety of  Air Navigation
(Eurocontrol).

The  Community  has  exclusive  competence  or  competence  shared  with  its  Member
States in certain areas covered by the Eurocontrol International Convention relating to
Cooperation  for  the  Safety  of  Air  Navigation  of  13  December  1960,  as  variously
amended, and as consolidated by the Protocol opened for signature on 27 June 1997,
known as the "revised Convention". The accession of the Community to Eurocontrol
for  the  purpose  of  exercising  such  competence  is  permitted  under  Article  40  of  that
revised Convention.

The  Commission  has  negotiated  a  Protocol  on  the  accession  of  the  European
Community  to  Eurocontrol  with  the  Contracting  Parties  to  Eurocontrol  on  behalf  of
the Community.

That Protocol was signed in Brussels on 8 October 2002 on behalf of the Community,
subject  to  possible  conclusion  at  a  later  date,  in  accordance  with  Council
Decision ……/…../EC12.

In keeping with the mutual cooperation obligations of the Community and the Member
States,  the  Community  and  the  Member  States  must  simultaneously  ratify  the

OJ C […] […], p. […]
OJ C […] […], p. […]
OJ L […] […], p. […]

6

                                                
accession  Protocol  and  the  revised  Convention  in  order  to  ensure  the  full,  uniform
application of the provisions thereof within the Community.

(6)

The Protocol should be approved,

HAS DECIDED AS FOLLOWS:

Article 1

The Protocol on the accession of the European Community to the European Organisation for
the  Safety  of  Air  Navigation  (Eurocontrol)  is  hereby  approved  on  behalf  of  the  European
Community.

The text of the Protocol is attached to this Decision.

Article 2

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person  empowered  to
deposit  the  instrument  of  ratification  with  the  Government  of  the  Kingdom  of  Belgium  on
behalf of the European Community, in accordance with Article 9(2) of the Protocol, together
with the declaration of competence attached to this Decision.

The instrument of ratification of the Protocol by the European Community shall be deposited
simultaneously  with  the  instruments  of  ratification  of  the  Protocol  and  of  the  revised
Convention by all the Member States.

Done at Brussels, [...]

For the Council
The President
[...]

7

PROTOCOL

ON  THE  ACCESSION  OF  THE  EUROPEAN  COMMUNITY  TO  THE  EUROCONTROL
INTERNATIONAL CONVENTION RELATING TO COOPERATION FOR THE SAFETY
OF AIR NAVIGATION OF 13 DECEMBER 1960, AS VARIOUSLY AMENDED AND AS
CONSOLIDATED BY THE PROTOCOL OF 27 JUNE 1997

THE REPUBLIC OF ALBANIA,
THE FEDERAL REPUBLIC OF GERMANY,
THE REPUBLIC OF AUSTRIA,
THE KINGDOM OF BELGIUM,
THE REPUBLIC OF BULGARIA,
THE REPUBLIC OF CYPRUS,
THE REPUBLIC OF CROATIA,
THE KINGDOM OF DENMARK,
THE KINGDOM OF SPAIN,
THE REPUBLIC OF FINLAND,
THE FRENCH REPUBLIC,
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,
THE HELLENIC REPUBLIC,
THE REPUBLIC OF HUNGARY,
IRELAND,
THE ITALIAN REPUBLIC,
THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA,
THE GRAND DUCHY OF LUXEMBOURG,
THE REPUBLIC OF MALTA,
THE REPUBLIC OF MOLDOVA,
THE PRINCIPALITY OF MONACO,
THE KINGDOM OF NORWAY,
THE KINGDOM OF THE NETHERLANDS,
THE PORTUGUESE REPUBLIC,
ROMANIA,
THE SLOVAK REPUBLIC,
THE REPUBLIC OF SLOVENIA,
THE KINGDOM OF SWEDEN,
THE SWISS CONFEDERATION,
THE CZECH REPUBLIC,
THE REPUBLIC OF TURKEY,

AND

THE EUROPEAN COMMUNITY,

Having  regard  to  the  Eurocontrol  International  Convention  relating  to  Cooperation  for  the
Safety  of  Air  Navigation  of  13  December  1960,  as  amended  by  the  Additional  Protocol  of
6 July  1970,  in  turn  amended  by  the  Protocol  of  21  November  1978,  all  amended  by  the
Protocol  of  12  February  1981,  and  as  amended  and  consolidated  by  the  Protocol  of
27 June 1997, hereinafter referred to as "the Convention", and in particular Article 40 thereof;

8

Having  regard  to  the  responsibilities  granted  by  the  Treaty  establishing  the  European
Community of 25 March 1957, as revised by the Amsterdam Treaty of 2 October 1997, to the
European Community in certain areas covered by the Convention;

Whereas the European Community Member States, Members of Eurocontrol, when adopting
the Protocol consolidating the Convention which was opened for signature on 27 June 1997,
declared that their signature was without prejudice to the Community's exclusive competence
in  certain  areas  covered  by  that  Convention  and  to  the  Community's  membership  of
Eurocontrol for the purpose of exercising such exclusive competence;

Whereas  the  purpose  of  the  accession  of  the  European  Community  to  the  Convention  is  to
assist the European Organisation for the Safety of Air Navigation, hereinafter  referred to  as
"EUROCONTROL", in achieving its objectives as set out in the Convention, notably that of
being a single and efficient body for Air Traffic Management policy-making in Europe;

Whereas  the  European  Community's  accession  to  Eurocontrol  requires  clarification  of  the
way in which the provisions of the Convention will apply to the European Community and its
Member States;

Whereas  the  terms  and  conditions  of  the  accession  of  the  European  Community  to  the
Convention  shall  enable  the  Community  to  exercise  within  Eurocontrol  such  competencies
that have been transferred to it from its Member States;

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, and  such arrangements
have yet to come into operation,

HAVE AGREED AS FOLLOWS:

Article 1

The  European  Community,  within  the  framework  of  its  competence,  accedes  to  the
Convention  on  the  terms  and  conditions  laid  down  in  this  Protocol,  in  accordance  with
Article 40 of the Convention.

Article 2

For the European Community, within the framework of its competence, the Convention shall
apply to en-route air navigation services and related approach and aerodrome services for air
traffic  in  the  Flight  Information  Regions  of  its  Member  States  listed  in  Annex  II  to  the
Convention,  which  are  within  the  limits  of  the  territorial  applicability  of  the  Treaty
establishing the European Community.

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

Application of this Protocol 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

9

United  Kingdom  will  inform  the  other  Contracting  Parties  to  this  Protocol  of  such  date  of
entry into operation.

Article 3

Subject to the provisions of this Protocol, provisions in the Convention shall be so interpreted
as  to  also  include  the  European  Community  within  the  framework  of  Community
competence,  and  the  various  terms  used  to  designate  the  Contracting  Parties  to  the
Convention and their representatives are to be understood accordingly.

The European Community will not contribute to the budget of Eurocontrol.

Article 4

Article 5

Without  prejudice  to  the  exercise  of  its  voting  rights  under  Article  6,  the  European
Community  shall  be  entitled  to  be  represented  and  involved  in  the  work  of  all  bodies  of
Eurocontrol in which any of its Member States is entitled to be represented as a Contracting
Party, and where matters falling within its competence may be dealt with, with the exception
of bodies which have an audit function.

In all bodies of Eurocontrol where it may participate, the European Community will present
its  positions,  within  the  framework  of  its  competence,  in  accordance  with  its  institutional
rules.

The European Community may not submit candidates for membership of elected Eurocontrol
bodies,  nor  may  it  submit  candidates  for  office  on  the  bodies  in  which  it  is  entitled  to
participate.

Article 6

6.1.

For decisions in matters where the European Community has exclusive competence
and  for  the  purpose  of  the  application  of  the  rules  provided  for  in  Article  8  of  the
Convention, the European Community shall exercise the voting rights of its Member
States  under  the  Convention,  and  the  votes  and  weighted  votes  so  cast  by  the
European  Community  shall  be  cumulated  for  the  determination  of  the  majorities
provided for in the said Article 8 of the Convention. When the Community votes, its
Member States shall not vote.

For the purpose of deciding on the number of Contracting Parties to the Convention
required for a request for decision-making by a three-quarters majority, as stipulated
at  the  end  of  the  first  sub-paragraph  of  Article  8.2,  the  Community  shall  be
considered as representing its Member States, which are Members of Eurocontrol.

6.2.

A decision proposed with respect to a specific item to be voted on by the European
Community shall be postponed if a Contracting Party to the Convention that is not a
member  of  the  European  Community  so  requests.  The  postponement  shall  be  used
for consultations between the Contracting Parties to the Convention, assisted by the

10

Eurocontrol  Agency,  on  the  decision  proposed.  In  the  event  of  such  a  request,  the
taking of the decision may be postponed for a maximum period of six months.

For  decisions  in  matters  where  the  European  Community  has  no  exclusive
competence,  Member  States  of  the  European  Community  shall  vote  in  accordance
with  their  voting  rights  as  provided  for  in  Article  8  of  the  Convention,  and  the
European Community shall not vote.

6.3.

The European Community shall inform on a case-by-case basis the other Contracting
Parties to the Convention of the cases where, with regard to the various items of the
agendas of the General Assembly, the Council and other deliberating bodies to which
the  General  Assembly  and  the  Council  have  delegated  powers,  it  will  exercise  the
voting  rights  provided  for  in  paragraph  1  above.  This  obligation  shall  also  apply
when decisions are taken by correspondence.

Article 7

The scope of the competence transferred to the Community is indicated in general terms in a
written  declaration  made  by  the  European  Community  at  the  time  of  the  signature  of  this
Protocol.

This  declaration  may  be  modified  as  appropriate  by  notification  from  the  European
Community to Eurocontrol.  It does not  replace or in any  way  limit  the  matters  that  may  be
covered  by  the  notifications  of  Community  competence  to  be  made  prior  to  Eurocontrol
decision-making by means of formal voting or otherwise.

Article 8

Article  34  of  the  Convention  shall  apply  to  any  dispute  arising  between  two  or  more
Contracting  Parties  to  this  Protocol  or  between  one  or  more  Contracting  Parties  to  this
Protocol  and  Eurocontrol  relating  to  the  interpretation,  application  or  performance  of  this
Protocol, including its existence, validity and termination

Article 9

9.1.

This Protocol shall be opened for signature by all States signatories to the  Protocol
consolidating  the  Eurocontrol  International  Convention  relating  to  Cooperation  for
the  Safety  of  Air  Navigation  of  13  December  1960,  as  variously  amended,  opened
for  signature  on  27  June  1997,  hereinafter  referred  to  as  "the  Consolidating
Protocol", and the European Community.

It  shall  also  be  open,  prior  to  the  date  of  its  entry  into  force,  for  signature  by  any
State, duly authorised to sign the Consolidating Protocol, in accordance with Article
II of that Protocol.

9.2.

This Protocol shall be subject to ratification, acceptance or approval. The instruments
of ratification, acceptance or approval shall be deposited with the Government of the
Kingdom of Belgium.

11

9.3.

9.4.

9.5.

This Protocol shall enter into force when it has been ratified, accepted or approved,
on the one hand, by all signatory States that are also signatories to the Consolidating
Protocol and whose ratification, acceptance or approval is required for the entry into
force  of  the  Consolidating  Protocol,  and  on  the  other  hand,  by  the  European
Community,  on  the  first  day  of  the  second  month  after  the  deposit  of  the  last
instrument  of  ratification,  acceptance  or  approval,  provided  that  the  Consolidating
Protocol has  come into force on that date.  Where this condition  is  not met,  it  shall
enter into force on the same date as the Consolidating Protocol.

This  Protocol  shall  enter  into  force  with  respect  to  such  signatories  that  have
deposited their instruments of ratification, acceptance or approval after its entry into
force  on  the  first  day  of  the  second  month  following  the  deposit  of  the  relevant
instruments of ratification, acceptance or approval.

The  Government  of  the  Kingdom  of  Belgium  shall  notify  the  Governments  of  the
other  signatory  States  of  this  Protocol  and  the  European  Community  of  each
signature,  each  deposit  of  an  instrument  of  ratification,  acceptance  or  approval  and
each date of entry into force of this Protocol pursuant to paragraphs 3 and 4 above.

Article 10

Each accession to the Convention after its entry into force shall represent also consent to be
bound  by  this  Protocol.  The  provisions  of  Articles  39  and  40  of  the  Convention  shall  also
apply to this Protocol.

Article 11

11.1.

This Protocol shall remain in force for an indefinite period.

11.2.

If  all Eurocontrol  Member  States  which  are  Members  of  the  European  Community
withdraw from Eurocontrol, notification of withdrawal from the Convention, as well
as  from  this  Protocol,  shall  be  considered  to  have  been  given  by  the  European
Community  together  with  the  notification  of  withdrawal  under  Article  38(2)  of  the
Convention of the last Member State of the European Community withdrawing from
Eurocontrol.

Article 12

The  Government  of  the  Kingdom  of  Belgium  shall  have  this  Protocol  registered  with  the
Secretary General of the United Nations pursuant to Article 102 of the Charter of the United
Nations  and  with  the  Council  of  the  International  Civil  Aviation  Organisation  pursuant  to
Article  83  of  the  Convention  on  International  Civil  Aviation  signed  in  Chicago  on
7 December 1944.

IN  WITNESS  WHEREOF,  the  undersigned  Plenipotentiaries,  having  presented  their  Full
Powers, found to be in good and due form, have signed this Protocol.

DONE  at  Brussels,  this  ______________day  of  (month)  (year)  in  each  of  the  official
languages  of  the  signatory  States,  in  a  single  original,  which  shall  remain  deposited  in  the
archives of the Government of the Kingdom of Belgium, which shall transmit certified copies

12

to the Governments of the other signatory States and to the European Community. In the case
of any inconsistency, the text in the French language shall prevail.

13

Declaration concerning the competence of the European Community in respect of
matters covered by the Eurocontrol International Convention

In  accordance  with  the  relevant  Articles  of  the  EC  Treaty,  as  interpreted  by  the  Court  of
Justice  of  the  European  Communities,  this  declaration  indicates  the  competence  of  the
European Community in matters covered by the Eurocontrol International Convention.

A.

1.

2.

B.

1.

(a)

GENERAL PRINCIPLES

The  exercise  of  competence  which  the  Member  States  have  transferred  to  the
Community pursuant to the EC Treaty is, by its nature, liable to develop constantly.
In the framework of the Treaty, the competent institutions may take decisions which
determine the extent of the competence of the European Community. The European
Community  therefore  reserves  the  right  to  amend  this  declaration  accordingly,
without  this  constituting  a  prerequisite  for  the  exercise  of  its  competence  in
Eurocontrol.

In relation to Eurocontrol, only the external competence of the European Community
is  relevant.  It  follows  that,  unless  the  competent  institutions  explicitly  decide  to
exercise directly an external competence on the basis of the Treaty in a given area,
the  European  Community  has  exclusive  competence  only  to  the  extent  that  its
internal legislation is affected by international agreements or other rules established
in the framework of international cooperation13.

COMPETENCE EXERCISED BY THE EUROPEAN COMMUNITY

Areas of competence in the field of Air Traffic Management

Standardisation: this covers the harmonisation of technical specifications in general
and  those  related  to  equipment  and  systems  used  for  the  provision  of  air  traffic
services in particular (Articles 95 and 80 of the EC Treaty).

In  this  area,  the  most  important  legal  instruments  adopted  by  the  European
3922/9114,  Council
Community 
Directive 93/65/EEC15  and  Directive  98/34/EC  of  the  European  Parliament  and  of
the Council16.

are  Council  Regulation 

(EEC)  No 

(b)

Policy  on  research  and  technological  development  (Articles  163  to  173  of  the
EC Treaty).

In this area, currently, the most important legal instruments adopted by the European
Community are Decision No  1513/2002/EC  of  the  European  Parliament  and  of  the

13

14

15

16

As established by the Court of Justice in Opinions 1/94 [1994] ECR I-5267, 2/91 [1993] ECR I-1061
and 1/76 [1977] ECR 741, and in Case 22/71 [1971] ECR 949.
OJ  L  373,  31.12.1991,  p.  4.  Regulation  as  last  amended  by  Regulation  (EC)  No  1592/2002  of  the
European Parliament and of the Council (OJ L 240,7.9.2002, p. 1).
OJ L 187, 29.7.1993 p. 52. Directive as last amended by Commission Regulation (EC) No 2082/2000
(OJ L 254, 9.10.2000, p. 1).
OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18).

14

                                                
(c)

(d)

Council17,  Council  Decision  2002/834/EC18
  and  Council  Decision  2002/835/EC19.
These  mainly  cover  basic  research  (universities,  research  institutes)  and  both
research  and  technological  development  relating  to  aeronautics  and  telematics,
including air traffic management systems and equipment.

Trans-European  networks  (Articles  154  to  156  of  the  EC  Treaty):  these  include
transport, telecommunications and energy with the aim to ensure interoperability and
compatibility  of  national  networks  by  means  of  collective  planning,  financial
incentives and interoperability standards.

In  this  area,  the  most  important  legal  instruments  adopted  by  the  European
Community  are  Decision  No  1692/96/EC  of  the  European  Parliament  and  of  the
Council20 and Council Regulation (EC) No 2236/9521.

Policy  on  harmonisation  of  radio  spectrum:  the  aim  in  particular  is  to  establish  a
policy and legal framework in order to ensure the coordination of policy approaches
and  harmonised  conditions  with  regard  to  the  availability  and  efficient  use  of  the
radio spectrum necessary for the establishment and functioning of the internal market
in  Community  policy  areas  such  as  electronic  communications,  transport  and
research and development.

In  this  area,  the  most  important  legal  instrument  adopted  by  the  European
Community  is  Decision  No  676/2002/EC  of  the  European  Parliament  and  of  the
Council 22.

2.

Areas of competence in the field of air transport

The air transport policy (Article 80(2) of the EC Treaty  and subsequent legislation)
has  the  objective  to  facilitate  the  provision  of  transport  services  within  the
Community, promote safety and security  and  contribute to the efficient functioning
of the internal market.

In  this  area,  the  most  important  legal  instruments  adopted  by  the  European
Community  are  Council  Regulations  (EEC)  No  2407/9223,  (EEC)  No  2408/9224,
(EEC) No 2409/9225 and (EEC) No 95/9326., and Regulations (EC) No 1592/200227
and  (EC)  No  2320/200228  of  the  European  Parliament  and  of  the  Council,
implemented  by  Commission  Regulation  (EC)  No  622/200329,  Regulation  (EC)

17

18

19

20

21

22

23

24

25

26

27

28

29

OJ L 232, 29.8.2002, p. 1.
OJ L 294, 29.10.2002, p. 1.
OJ L 294, 29.10.2002, p. 44.
OJ L 228, 9.9.1996, p. 1. Decision as amended by Decision 1346/2001/EC (OJ L 185, 6.7.2001, p. 1).
OJ L 228, 23.9.1995, p. 1. Regulation as amended by Regulation (EC) No 1655/1999 of the European
Parliament and of the Council (OJ L197, 29.7.1999, p. 1).
OJ L 108, 24.4.2002, p. 1.
OJ L 240, 24.8.1992, p. 1.
OJ  L  240,  24.8.1992,  p.  8.  Regulation  as  amended  by  the  Act  of  Accession  of  Austria,  Finland  and
Sweden.
OJ L 240, 24.8.1992, p. 15.
OJ  L  14,  22.1.1993,  p.  1.  Regulation  as  last  amended  by  Regulation  (EC)  No  1554/2003  of  the
European Parliament and of the Council (OJ L 221, 4.9.2003, p.1).
OJ L 240, 7.9.2002, p. 1.
OJ L 355, 30.12.2002, p. 1.
OJ L 89, 5.4.2003, p. 9.

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No 437/2003  of 
Directive 2003/42/EC of the European Parliament and of the Council31.

the  European  Parliament  and  of 

the  Council30  and

3.

C.

1.

2.

It may also occur that a measure to be taken by Eurocontrol affects established rules
of  general  Community  policies  such  as  competition,  free  movement  of  goods  and
services  (including  public  procurement  and  data  protection),  environmental
protection, social policy and economic and social cohesion.

MEMBER STATES’ COMPETENCE

When the European Community has not established internal rules and it has not been
decided  to  exercise  directly  an  external  competence,  the  competence  rests  with  its
Member States.

The Treaty does not confer to the European Community competence with regard to
issues  of  national  security  and  defence;  the  design  and  use  of  airspace  for  military
purposes  therefore  fall  outside  the  scope  of  the  competence  of  the  European
Community.

30

31

OJ  L  66,  11.3.2003,  p.  1.  Regulation  as  amended  by  Commission  Regulation  (EC)  No  1358/2003
(OJ L 194, 1.8.2003, p. 9).
OJ L 167, 4.7.2003, p. 23.

16