Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Regulation of the European Parliament and of the Council on common rules in the field of civil aviation security
Date: 2007-08-03
Institutions: European Commission
Subjects: European standard, air safety, approximation of laws, civil aviation, piracy, safety standard

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 3.8.2007 
COM(2007) 475 final 

2005/0191 (COD) 

OPINION OF THE COMMISSION 
pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the 
European Parliament's amendments to the Council's common position regarding the 
proposal for 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) 

OPINION OF THE COMMISSION 
pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the 
European Parliament's amendments to the Council's common position regarding the 
proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
on common rules in the field of civil aviation security 

amending the Proposal of the Commission pursuant to Article 250 (2) of the EC Treaty 

1. 

Introduction 

Article  251(2),  third  subparagraph,  point  (c)  of  the  EC  Treaty  requires  the  Commission  to 
deliver an opinion on amendments proposed by the European Parliament at second reading. 
The Commission sets out its opinion below on the amendments proposed by Parliament. 

2. 

Background 

Date  of  transmission  of  the  proposal  to  the  EP  and  the  Council 
(document COM(2005) 0429 final – C6-0290/2005 - 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: 

Date of adoption of the common position: 

15.06.2006 

11.12.2006 

Date of the opinion of the European Parliament, second reading  

25.04.2007 

3. 

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.  

4. 

Opinion of the Commission on the amendments adopted by the Parliament 

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The Commission can accept in their entirety, partly or in principle most of the amendments 
adopted by the European Parliament in second reading. The amendments the Commission can 
agree  with  confirm  the  original  proposal  of  the  Commission,  introduce  minor  drafting 
changes without negatively affecting the proposal, add reporting requirements and introduce a 
very welcome provision on the cooperation with the International Civil Aviation Organization 
(ICAO). 

The Commission can accept in full (if needed subject to redrafting) amendments 1, 4, 5, 9, 11, 
14, 16, 18, 19, 24, 27, 28, 30, 35, 40, 41, 42, 43, 45, 48, 50, 52, 53, 55, 58, 59, 61, 64, 65, 69, 
71, 76, 80, 83, 91 and 93. It can accept in principle amendments 12, 17, 20, 23, 25, 26, 38, 46, 
49, 56, 68, 92, 94 and 96, and in part amendments 6, 7, 13, 15, 29, 34, 51, 54, 70 and 72. The 
remaining amendments 2, 3, 8, 10, 21, 22, 31, 32, 33, 36, 37, 39, 44, 47, 57, 60, 62, 63, 66, 
67, 73, 74, 75, 77, 78, 79, 81, 82, 84, 85, 86, 87, 88, 89, 90, 95 and 97 are to be rejected.  

Amendments accepted in principle: 

Amendment  12  on  the  creation  of  a  solidarity  mechanism  to  offer  assistance  following 
terrorist acts is a new concept, raised only in the preamble. The  Commission  acknowledges 
the importance of this issue while recognising that the consequences go beyond the transport 
sector. 

Amendment  17  incorporating  a  definition  of  "airport"  is  not  strictly  necessary  in  this 
regulation but can be accepted in principle by the Commission.  

Amendment 20 changing the definition of "demarcated area" is not necessary since all airside 
areas of airports are not accessible to the general public. In order to clarify this, it would be 
better to add the term "airside" before "area".  

Amendment 23 changing the definition of "mail" is acceptable but it should be clarified that 
"air carrier mail" is excluded.  

Amendments  25  and  26  changing  the  definition  of  "known  consignor"  and  "account 
consignor" are in accordance with the Commission's original proposal. However, it would be 
useful  to  add  "for  its  own  account"  as  this  would  make  the  text  clearer.  In  amendment  26, 
moreover,  it  would  be  useful  to  use  "or  mail  on  all-mail  aircraft"  as  this  is  more  consistent 
with the rest of the Regulation. 

Amendment 38 on transparency in charging states that security costs shall be indicated to the 
passenger. Whilst not strictly relevant to the Regulation, this could be considered as a means 
of ensuring greater transparency for citizens. 

Amendment 46 on cooperation with ICAO is welcomed but should be inserted in a separate 
article as Article 6 deals only with third countries, which ICAO is not. 

Amendment 49 on security programmes, even if superfluous, can be accepted.  

Amendment 56 on recognition of Community air carrier security programmes is acceptable 
but the drafting should be changed to include local requirements.  

Amendment 68 on the date of application will depend on when the Regulation is adopted.  

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Amendment 92 on the principle that guns carried  in the hold are safe is acceptable but the 
wording could be improved.  

Amendment  94  on  defining  responsibilities  clearly  in  the  event  of  an  act  of  unlawful 
interference can be accepted. 

Amendment 96 on security equipment is acceptable only if the word "approved" is replaced 
with "defined", since no EU-wide approval system is in place. 

Amendments accepted in part: 

Amendment 6 incorporating minor drafting changes can be accepted, but not the change "this 
Regulation" into "the new act". 

Amendment 7 is acceptable, but not the change "this Regulation" into "the new act". 

Amendment  13  limits  the  version  of  Annex  17  to  the  existing  one.  Although  it  was  in  the 
Commission's original proposal, the Commission accepted the Council's argument in order to 
keep  this  competence  whenever  there  are  new  versions.  The  same  argument  applies  for 
amendment 15 as regards the reference of the Chicago Convention.  

Amendment 29 on 'in-flight security officers' should include both Member State's and third 
country's officers, so 'Member' should be deleted. 

Amendments 34 and 51 which suppress the possibility to use the urgency procedure for the 
adoption of implementing measures via comitology cannot be accepted.  

Amendment 54 on air carrier security programmes should refer both to EU legal obligations 
and  the  national  civil  aviation  security  programme  obligations,  not  just  the  latter.  Also,  the 
original  proposal  gives  carriers,  airports  and  other  entities  similar  obligations  which  would 
change with this amendment. 

Amendment  70  changing  "persons"  into  "all  staff"  is  to  be  rejected,  as  it  should  not  be 
possible that a person who is not staff is issued with an ID card authorising unescorted access 
to security restricted area without having successfully completed a background check. 

Amendment 72 deleting the word "mail" brings inconsistency in the part of the text related to 
cargo and mail. 

Amendments rejected by the Commission: 

Amendment 2 changing "this Regulation" into "the new act" is not acceptable, as in a couple 
of years this act is no longer new.  

Amendments 3, 31, 39 and 44 on the financing of security seek to oblige Member States to 
pay  some  of  the  costs  of  aviation  security  –  those  measures  required  by  Member  States  in 
addition to the EU Regulation (‘more stringent measures’, as permitted under Article 5 of the 
Regulation).  Whereas  the  Commission  could  show  some  sympathy  with  the  issue,  it  should 
not be dealt with in this proposed regulation which concerns technical standards. 

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Amendments 8 and 60 on EASA require the European Aviation Safety Agency to perform 
security  inspections.  It  is  inappropriate  to  substantially  change  by  means  of  such  an 
amendment the scope of EASA by giving it security responsibilities. 

Amendments 10, 67, 77, 78, 79 and 81 on agreements with third countries seek to advance 
the  goal  of  "one-stop  security"  for  flights  between  the  Community  and  third  countries. 
Although  the  intention  of  the  amendments  is  good,  these  amendments  have  the  effect  of 
making the task more difficult, and not easier as intended. As the rules on transfer passengers 
and  transfer  baggage  are  to  be  applied  at  Community  airports,  there  are  as  such  no  extra-
territorial  elements  involved  and  therefore  no  need  for  agreements.  It  should  be  possible  to 
recognise security standards in third countries following the 'comitology' procedure.  

Amendments  21  and  32  on  background  checks  seek  to  harmonise  rules  governing 
background  checks  on  airport  staff  and  flight  crew.  This  goes  beyond  the  scope  of  this 
legislation, as work of national intelligence services would be included (subsidiarity). 

Amendment 22 on transit passengers is not acceptable, as passengers departing on the same 
aircraft where the flight number changes would fall outside the scope of the regulation. 

Amendment  33  introduces  a  'sunset  clause'  requiring  all  implementing  legislation  to  be 
reviewed  and  readopted  after  6  months.  This  would  create  legislative  uncertainty,  as  there 
would  be  no  longer  any  stability  in  the  measures  to  be  applied,  from  which  industry  would 
suffer the most. 

Amendment 36 introduces risk-, impact- and costs assessments: While the definition of the 
standards and overall policy will be subject to a risk- and impact assessment, it would not be 
appropriate  to  do  this  for  the  individual  measures  and  procedures.  Furthermore,  the 
stakeholder  group  (amendment  65  which  is  acceptable  to  the  Commission)  will  be  able  to 
provide a forum for the detailed assessment of implementing measures and procedures. 

Amendment 37 introduces an 'opt-out' possibility for Member States for those measures that 
they  deem  disproportionate.  This  would  destroy  the  entire  concept  of  harmonised  baseline 
levels  of  aviation  security  across  the  Community,  reverting  to  the  old  situation  where 
uncoordinated sets of national rules applied. 

Amendment  47  requiring  the  Commission  to  consult  a  third  country  before  drawing  up  a 
response to that third country is inappropriate for an EC Regulation. 

Amendment  57  reducing  the  scope  to  regulated  agents  is  not  acceptable  as  the  rule  should 
apply to more than just regulated agents.  

Amendment 62 which foresees that every European airport that falls within the scope of this 
Regulation  is  inspected  at  least  once  within  four  years  of  the  entry  into  force  of  this 
Regulation  is  unrealistic.  This  would  either  mean  that  the  Commission  undertakes  200 
inspections  a  year  or,  conversely,  that  the  Commission  compels  Member  States  to  a  4-year 
cycle for inspecting its airports which is not frequent enough. 

Amendment  63  seeks  to  reduce  the  number  of  provisions  referred  to.  However,  for  any 
measures  and  procedures  containing  sensitive  security  information,  it  should  be  possible  to 
regard these as "EU classified information".  

Amendment 66 duplicates amendment 64, already accepted by the Commission.  

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Amendments 73, 75, 86 and 90 are of a degree of detail that should be left to implementing 
legislation. 

Amendments  74  is  duplicating  rules  because  the  issue  is  already  covered  by  paragraph 
4.1.3b)  of  the  Annex.  Amendment  82  on  the  identification  of  hold  baggage  as  either 
accompanied or unaccompanied comes back to the Commission' original proposal but should 
be changed as there was an inconsistency with ICAO Annex 17 (guidance). 

Amendments 84, 85, 87, 88 and 89 deleting the word "mail" brings inconsistency in the part 
of  the  text  related  to  cargo  and  mail.  Furthermore,  as  regards  amendment  85,  the  text 
proposed by the Council is more precise. 

Amendment  95  on  training  applies  only  to  staff  with  airport/crew  cards,  neither  of  which 
would be issued to temporary staff or visitors.  

Amendment 97 on background checks before pilot  licensing goes beyond the scope of this 
Regulation.  

5. 

Conclusion 

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out 
above.  

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