Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on common rules in the field of civil aviation security
Date: 2006-12-12
Institutions: European Commission
Subjects: European standard, air safety, approximation of laws, civil aviation, fight against crime, safety standard, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.12.2006 
COM(2006) 810 final 

2005/0191 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on common rules in the field of civil aviation security 

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2005/0191 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on common rules in the field of civil aviation security 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2005) 429 final – 2005/0191 COD): 

22.09.2005 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

20.04.2006 

Date of the opinion of the European Parliament, first reading: 

15.06.2006 

Date of adoption of the common position: 

11.12.2006 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

Regulation  (EC)  No  2320/2002  of  the  European  Parliament  and  of  the  Council  establishing 
common  rules  in  the  field  of  civil  aviation  security  has  been  in  force  since  January  2003. 
Experience  gained  on  the  basis  of  Commission  inspections  and  the  daily  application  of  the 
Regulation by Member States shows that the swift transformation into legislation of a set of 
non-binding  recommendations  developed  by  the  Member  States  has  led,  due  to  the  quick 
drafting and adoption of the Regulation as a response to the events of 11 September 2001, to a 
number of problems affecting its implementation in a more solid manner.  

The  Commission  has  therefore  proposed  a  revision  of  this  Regulation  in  order  to  clarify, 
simplify and harmonise further the legal requirements with the aim of enhancing the overall 
security  in  civil  aviation.  The  new  framework  regulation  should  solely  lay  down  the  basic 
principles of what has to be done in order to safeguard civil aviation against acts of unlawful 
interference,  whereas  implementing  acts  should  lay  down  the  technical  and  procedural 
decisions on how this is to be achieved. 

3. 

COMMENTS ON THE COMMON POSITION 

Intensive contacts have taken place between the three institutions in order to facilitate an early 
agreement  in  second  reading  on  this  file.  However,  this  could  not  be  achieved  primarily 
because  of  the  issue  of  financing  of  security  for  which  the  European  Parliament  had 

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introduced  in  first  reading  several  amendments  seeking  to  commit  Member  States  to  pay  at 
least some of the costs of aviation security.  

The  Council's  common  position  adopted  by  unanimity  does  not  undermine  the  essential 
objectives and the underlying approach of the Commission's proposal.  

Two specific issues have arisen in the Council which are worth to be mentioned. 

The first issue concerns the application of new comitology rules. Coherence had to be made 
with  the  newly  adopted  rules  laid  down  in  Council  Decision  2006/512/EC  of  17  July  2006 
amending  Decision  1999/468/EC  that  gives  the  European  Parliament  greater  powers  of 
scrutiny  over  autonomous  acts  adopted  by  comitology.  In  the  view  of  the  Council,  the 
regulatory procedure with scrutiny laid down in Article 5a of Decision 1999/468/EC should 
apply  to  both  Article  4(3)  setting  the  criteria  to  allow  Member  States  to  derogate  from  the 
common  basic  standards  for  small  airports  /  small  aircraft  and  Article  9(2)  establishing  the 
specifications for the national quality control programme of Member States. The Commission 
shares the view of the Council on this. 

The  second  issue  concerns  the  deletion  of  the  provision  on  the  examination  by  the 
Commission of more stringent measures applied by Member States. In Article 5(2) of the 
Commission proposal, the Commission proposed that it should be in the position to examine 
whether  more  stringent  measures  applied  by  a  Member  State  are  indeed  based  on  a  risk 
assessment and are relevant, objective, non-discriminatory and proportional to the risk that is 
being  addressed.  Where  this  would  not  be  the  case,  the  Commission  after  consulting  the 
Committee –and ultimately the Council– should be in the position to decide that the Member 
State  concerned  is  not  allowed  to  continue  to  apply  these  more  stringent  measures.  This 
provision  was  deleted  by  the  Council  which  the  Commission  resisted  through  a  statement. 
(see Annex) 

Finally,  in  order  for  a  political  agreement  on  the  common  position  to  be  reached,  the 
Commission also made statements on how it will interpret Article 6, Article 18 and Chapter 
10 as well as on the Commission's intentions as regards Chapter 6. (see Annex) 

4. 

1. 

COMMISSION DETAILED COMMENTS 

EP amendments accepted by the Commission and incorporated in full or in part 
in the common position 

Amendments 2, 4, 11, 15, 17, 23-30, 33, 34, 37, 40, 46-49, 53-56, 58, 65-68, 73, 77-79 and 82 
are all related to clarification, better drafting, more precise drafting or consistencies with other 
provisions in the text. This includes the distinction to be made between cargo and mail as well 
as setting criteria for small airports / small aircraft. 

Amendment 7 states that the goal of "one-stop security" for all flights within the EU should 
be advanced. 

Amendments 8 and 12 relate to Gibraltar Airport, for which a new Ministerial Statement was 
agreed in Cordoba on 18 September 2006.  

Amendment  51  relates  to  the  recognition  of  Community  air  carrier  security  programmes  by 
the Member States other than the one that has validated the programme.  

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2. 

EP amendments rejected by the Commission and not incorporated in full or in 
part in the common position 

Amendments 3, 35, 43 and 44 on the financing of security are rejected by the Council. The 
Commission shares the view of the Council, namely that it is not appropriate for a technical 
regulation to contain requirements or obligations pertaining to the financing of security.  

Amendments  6  and  part  of  57  require  the  European  Aviation  Safety  Agency  (EASA)  to 
conduct  inspections  in  the  field  of  aviation  security.  However,  there  is  a  clear  distinction 
between  safety  and  security  that  should  be  kept  –  safety  is  concerned  with  the  construction 
and  use  of  aircraft,  whereas  security  is  concerned  with  preventing  acts  of  unlawful 
interference.  As  security  is  clearly  outside  the  remit  of  EASA,  it  is  not  appropriate  in  this 
Regulation to change the scope of EASA. 

Amendments 19,  36 and 85 relate to background checks on personnel. In the Commission's 
view  these  amendments  go  beyond  the  scope  of  this  Regulation,  as  the  work  of  national 
intelligence services would be involved. In accordance with the principle of subsidiarity, the 
Community  should  not  act  in  setting  harmonised  rules  on  background  checks.  As  regards 
obliging  background  checks  for  pilots,  the  Commission  can  support  the  aim,  but  pilot 
licensing goes beyond the scope of this Regulation. 

Part of amendments 20 and 21 change the definition of both transfer- and transit passengers, 
baggage, cargo and mail in an unacceptable manner. Only the change of aircraft, and not the 
change of flight number, changes the security status of passengers, baggage, cargo and mail. 
If these amendments would be accepted, it would imply that passengers, baggage, cargo and 
mail on transit stops have to disembark or off-loaded, respectively, in order to be rescreened 
simply  because  the  flight  number  changes  at  the  transit  point.  This  is  neither  necessary  nor 
desirable. 

Amendment 22 broadening the definition of potentially disruptive passengers is considered to 
be unnecessary and unenforceable. An air carrier always has the right to refuse badly behaved 
passengers  from  boarding  for  safety  reasons.  Furthermore,  it  is  ambiguous  how  to  judge  in 
advance that a person's behaviour will threaten the safety of a flight – how does one identify a 
potential hijacker in the airport? 

Amendment 32 adds a definition of 'continuous random check'. However, as the term does not 
appear in the Regulation, there is no need to define it. 

Amendment  38  requires  a  risk-  and  impact  assessment  to  be  performed  for  each  of  the 
detailed implementing measures and procedures to be adopted, including the estimated costs. 
While the overall policy on aviation security will be subject to a risk- and impact assessment, 
it  would  not  be  appropriate  to  do  this  for  the  individual  measures  and  procedures.  The 
creation of a Stakeholders' Advisory Group (see amendment 61) will provide a forum for the 
detailed assessment of the implementing measures and procedures. 

Amendments  41  and  42  require  that  Member  States  shall  notify  and  consult  the  Committee 
before applying more stringent measures. From an institutional point of view, it is not for the 
Member  States  to  notify  or  consult  a  Regulatory  Committee  for  measures  that  they  want  to 
take; it is a Committee assisting the Commission in its regulatory task.  

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Amendment 45 on drawing up a response to a third country that requires security measures in 
respect  of  flights  from  an  EU  airport  is  incorporated  in  part.  However,  the  requirement  to 
consult the third country concerned prior to the response is considered to be inappropriate for 
incorporation into a Community Regulation. 

Amendment  50  changes  the  responsibility  for  air  carrier  security  programmes  from  the  air 
carrier to the Member State and limits the obligations of this programme to the national civil 
aviation  security  programme.  However,  air  carriers  should  meet  the  obligations  of  both  this 
Regulation  and  the  national  civil  aviation  security  programme,  not  just  the  latter.  Also,  the 
Commission proposal gives air carriers, airports and other entities similar obligations which 
would change with this amendment. 

Amendment 52 is not consistent with amendment 53 which was incorporated in the common 
position of the Council. The Commission agrees with the Council that the title of Article 12 
should be 'entity security programme'. 

Amendment 59 requires the Commission to ensure that every European airport is inspected at 
least  once  within  four  years  of  the  entry  into  force  of  this  Regulation.  This  would  not  be 
realistic,  as  it  would  either  mean  that  the  Commission  undertakes  200  inspections  a  year 
(compared  to  around  30  inspections  in  2005)  or,  conversely,  that  the  Commission  compels 
Member States to a 4-year cycle for inspecting its airports which is not frequent enough for 
inspections by the national authorities. 

Amendment 63 seeks more aviation agreements with third countries. Not only has Article 17 
been deleted by the Council as it is considered to be superfluous given the reference to Article 
300  of  the  Treaty,  but  also  the  conclusion  of  mutual  recognition  agreements  should  not  be 
linked necessarily to the conclusion of air services agreements. 

Amendments  69,  70,  71,  75,  76  and  83  go  into  a  degree  of  detail  that  should  be  left  to 
implementing  legislation,  although  the  Commission  has  supported  the  aim  behind  these 
amendments. 

Amendment 74 ensures that air carriers do not have to be regulated agents. However, if an air 
carrier ensures security controls for another air carrier, the former must always be a regulated 
agent. The reference to air carrier is therefore also explicitly incorporated in the definition of 
'regulated agent' - definition (24). 

Amendment  80  seeks  to  extend  the  scope  beyond  Community  air  carriers.  Contrary  to  the 
principles  of  international  law,  in-flight  security  rules  are  determined  by  the  State  of 
registration of the aircraft, not according to the place of business of the carrier.  

3. 

EP amendments acceptable to the Commission but not incorporated in full or in 
part in the common position 

Amendments 1, 10, 13, 16, 31 and 33 seek to emphasise why rules on aviation security are 
needed. They do not negatively affect the content of the Regulation, although the wording is 
not in line with the internationally accepted terminology – security is a means of preventing 
acts of unlawful interference with civil aircraft and thus safeguards civil aviation. 

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Part  of  amendment  5  replaces  'quality'  with  'level'.  A  quality  control  programme  can  check 
both the quality and level of security. For consistency reasons in relation to amendments 49 
and 56, it has thus been recommended to keep the word 'quality' as well. 

Amendment  9  expresses  the  wish  to  have  a  terrorist-incident  solidarity  mechanism.  The 
Commission  acknowledges  the  importance  of  this  issue  while  recognising  that  the 
consequences go beyond the transport sector. 

Amendment 14 adds a definition of an airport. The Commission could accept this amendment, 
although it is not strictly necessary to define an airport in this Regulation.  

Amendment  18  modifies  the  definition  of  a  demarcated  area.  This  modification  could  be 
accepted, although it is not necessary since all airside areas of airports are not accessible to 
the general public. 

Amendment 39 on the indication of security costs on the ticket or otherwise could be accepted 
by the Commission, although it is not strictly relevant to this Regulation. 

Amendments 60 and 62 require the Commission to write an annual report. The Commission 
had  preferred  amendment  62  as  it  is  very  similar  to  the  wording  of  Article  11  of  existing 
Regulation 2320/2002. 

Amendment 61 establishes a Stakeholders' Advisory Group, in the same way as Article 6 of 
Regulation  (EC)  No  549/2004  laying  down  the  framework  for  the  creation  of  the  single 
European  sky.  It  formalises  the  current  situation,  where  a  Stakeholder  Advisory  Group 
unofficially already exists.  

Amendment  64  on  the  date  of  application  (one  year  from  the  date  of  entry  into  force)  was 
acceptable  to  the  Commission,  depending  on  when  this  Regulation  is  adopted  by  the 
European Parliament and the Council. 

Amendment  72  requires  unaccompanied  hold  baggage  to  have  'adequate'  instead  of 
'additional' security controls. The Commission accepts this wording, since it would still leave 
it to implementing legislation to determine the security requirements. 

Amendment  81  requires  responsibilities  for  taking  action  in  the  event  of  an  act  of  unlawful 
interference to be clearly defined. This new mandate to the Commission could be accepted. 

Amendment 84 requiring security equipment to meet approved specifications was acceptable 
to  the  Commission,  if  the  word  'approved'  was  replaced  with  'defined'  since  no  Community 
wide approval system for equipment is yet in place. 

5. 

CONCLUSION 

The Commission considers that the common position of the Council adopted on 11 December 
2006 by unanimity does not contradict the essential objectives and the underlying approach of 
its proposal, and can therefore support it. 

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ANNEX 

Statements of the Commission for inclusion in the minutes of the Council  

Article 5(2) and (3) (changed), 'More stringent measures applied by Member States' 

'The  Commission  does  not  consider  it  appropriate  to  amend  its  proposal  until  the  European 
Parliament  has  delivered  its  opinion  on  the  change  of  Article  5(2)  and  (3)  in  the  common 
position  when  compared  to  the  Commission's  original  proposal,  particularly  as  regards  the 
provisions on implementation of the committee procedure as regards the examination of and 
authorisation for the application of stricter measures by the Member States.' 

Article 6, 'Security measures required by third countries' 

'In deciding whether or not to act on its own initiative under Article 6(2), the Commission will 
take into account whether the request concerns specifically the notifying Member State or has 
been or is likely to be addressed also to other Member States.' 

Article 18, 'Entry into force' 

'During the period running from the date of entry into force of this Regulation until the date of 
application  of  Article  11,  the  Commission  will  interpret  and  construe  Article  5(4)  of 
Regulation (EC) No 2320/2002 in the light of Article 11 of this Regulation.' 

Annex – Chapter 6, 'Cargo and mail' 

'The Commission recognises that mail is a specific form of cargo and, therefore, should have 
specific  security  controls.  Such  controls  should  be  proportionate  to  the  degree  of  risk  and 
should  also  seek  not  to  adversely  prejudice  both  the  commercial  and  public  service 
obligations in the mail sector. 

The  precise  requirements  for  security  controls  for  mail  will  be  laid  down  in  implementing 
legislation,  but  the  Commission  recognises  the  wish  of  the  postal  sector  for  stable  rules. 
Consequently, the Commission intends that the implementing legislation will be based on the 
existing  EC  security  requirements  for  mail  and  will,  in  particular,  initially  maintain  the 
specific rules for mail which is to be carried on all-mail flights.  

Furthermore,  the  Commission  intends  that  the  draft  implementing  rules  for  mail  will  be 
brought forward prior to the repealing of Regulation (EC) No 2320/2002 and its implementing 
acts, with the aim of ensuring that there is continuity by having the repealed acts immediately 
replaced.' 

Annex – Chapter 10, 'In flight security measures'  

'In  relation  to  paragraphs  3  and  4  of  Chapter  10  as  contained  in  the  common  position,  the 
Commission  wishes  to  clarify  that  it  neither  seeks  to  oblige  Member  States  to  accept  the 
carriage of weapons on flights, nor seeks to prohibit them. The Commission recognises that 
the decision as to when weapons will be carried on board aircraft for potential use by State 
officials is a matter for each Member State to decide upon.'  

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