Proposal for a Council Decision on the signature and provisional application of a memorandum of cooperation between the International Civil Aviation Organization and the European Community regarding security audits / inspections and related matters
Date: 2008-06-05
Institutions: European Commission
Subjects: European Community, International Civil Aviation Organisation, air safety, common transport policy, harmonisation of standards, safety standard, transport safety

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 5.6.2008 
COM(2008) 335 final 

2008/0111 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of a Memorandum of Cooperation between 
the International Civil Aviation Organization and the European Community regarding 
security audits / inspections and related matters 

Proposal for a 

COUNCIL DECISION 

on the conclusion of a Memorandum of Cooperation between the International Civil 
Aviation Organization and the European Community regarding security audits / 
inspections and related matters 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1) 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

Since 2002, ICAO conducts security audits in all its Contracting States, including the 
EC Member States, in order to monitor the application of Annex 17 to the Chicago 
Convention.  Since  2004,  on  the  basis  of  Regulation  (EC)  No  2320/2002,  the 
Commission  conducts  security  inspections  in  order  to  monitor  the  application  by 
Member  States  of  this  Regulation.  Annex  17  and  Regulation  (EC)  No  2320/2002 
contain, to a large extent, similar standards. As a consequence, Member States are to 
date  confronted  with  two  compliance  monitoring  systems  with  the  same  objective 
and – broadly – the same scope. Both Member States and ICAO could make better 
use of limited resources if the ICAO audits in the Community would be significantly 
reduced. 

To  that  end,  on  30  November  2007,  the  Council  adopted  the  Commission 
recommendation "to authorise the Commission to open negotiations on an agreement 
regarding  aviation  security  audits  /  inspections  and  related  matters  between  the 
European Community and the International Civil Aviation Organization (ICAO)". 

The objective of the agreement would be a significant reduction of individual audits 
to  be  carried  out  by  ICAO  under  its  Universal  Security  Audit  Programme  (USAP) 
within the territory of the European Community by recognising that most standards 
contained in Annex 17 to the Chicago Convention are also covered by Community 
legislation (Regulation (EC) No 2320/2002) and that the Commission is required to 
conduct  inspections  in  order  to  monitor  the  application  by  Member  States  of  this 
Regulation. 

The negotiations for an agreement have been prepared in close cooperation with the 
Special  Committee,  which  was  set  up  by  the  Council  when  approving  the 
Commission's  negotiating  mandate.  The  negotiations  with  ICAO  took  place  on  25 
January  2008,  and  resulted  in  a  draft  MoC  between  ICAO  and  the  European 
Community regarding security audits / inspections and related matters. 

The  current  proposals  aim  at  a  decision  by  the  Council  on  the  signature  and 
provisional application as well as on the conclusion of the MoC. 

Existing provisions in the area of the proposal 

Annex  17  to  the  Chicago  Convention  and  Regulation  (EC)  No  2320/2002  contain 
standards  on  civil  aviation  security  with  the  same  objective  and  broadly  the  same 
scope. Both ICAO and the Commission perform audits / inspections in EC Member 
States to verify compliance with these standards. 

Consistency with the other policies and objectives of the Community 

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In  accordance  with  the  aims  of  the  Community  civil  aviation  policy,  the  MoC  will 
strengthen the relationship between the Community and ICAO, and allow for a better 
use of limited resources of Member States in the field of compliance monitoring. 

2) 

CONSULTATION  OF 
ASSESSMENT 

INTERESTED 

PARTIES  AND 

IMPACT 

Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

The  draft  MoC  was  developed  in  consultation  with  a  Special  Committee  appointed 
by the Council. Meetings of the Special Committee were convened on 22 January, 25 
January and 11 March.  

Since  duplication  of  assessments  at  airports  will  be  reduced,  the  whole  aviation 
industry,  in  particular  airports  and  air  carriers  in  the  Community,  will  benefit  from 
this MoC. 

Summary of responses and how they have been taken into account 

Comments  made  by  Member  States  forwarded  during  meetings  of  the  Special 
Committee have been taken into account. 

3) 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

In accordance with the mandate given to the Commission to open negotiations with 
ICAO,  the  draft  MoC  aims  to  significantly  reduce  individual  audits  by  ICAO  in 
Member  States.  To  that  end,  ICAO  will  assess  the  European  Commission  aviation 
security  inspection  system,  e.g.  the  reports  of  the  inspections  of  the  national 
appropriate  authorities  together  with  the  data  received  from  the  Member  State 
concerned, the inspection methodology and the follow up audits. 

In  order  to  ensure  the  appropriate  handling  of  EU  classified  information,  ICAO  is 
bound  to  comply  with  Commission  Decision  2001/844/EC,  ECSC,  Euratom,  of  29 
November  2001  amending  its  internal  Rules  of  Procedure.  The  Commission  is 
authorised  to  verify  in  situ  which  protection  measures  have  been  put  in  place  by 
ICAO. 

Legal basis 

EC Treaty Art. 80(2), 300 (1) 

Subsidiarity principle 

Only  through  an  agreement  between  the  Community  and  ICAO  can  the  burden  of 
duplication of security audits / inspections at Member State level be reduced. 

Proportionality principle 

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The  draft  MoC  covers  only  those  standards  of  Annex  17  that  are  also  covered  by 
Regulation  (EC)  No  2320/2002.  The  draft  MoC  does  in  principle  not  preclude  the 
possibility of ICAO conducting audits in Member States for those parts of Annex 17 
not  covered  by  Community  legislation;  ICAO  did  however  indicate  that  it  will  see 
such  audits  as  no  priority,  in  view  of  the  MoC  covering  most  of  the  standards  of 
Annex  17.  Nevertheless,  ICAO  will  continue  to  have  a  direct  relationship  with 
Member States. 

Choice of instruments 

Since  the  draft  MoC  contains  binding  elements  for  both  Parties,  an  agreement  in 
accordance with Art. 300 of the EC Treaty is required. 

4) 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

Avoiding duplication of work 

The  proposal  aims  at  significantly  reducing  the  number  of  individual  audits  in 
Member States, at national and at airport level, thereby avoiding duplication of work 
and  allowing  for  a  better  use  of  limited  resources.  Both  Member  States  and  the 
aviation  industry  in  the  Community,  in  particular  airports  and  airlines,  will  benefit 
from this MoC. 

Detailed explanation of the proposal 

In  accordance  with  the  standard  procedure  for  the  signature  and  conclusion  of 
international agreements, the Council is asked to approve the decisions on both the 
signature and the provisional application as well as the conclusion of the draft MoC 
between ICAO and the European Community regarding security audits / inspections 
and  related  matters,  and  to  designate  the  persons  authorised  to  sign  the  MoC  on 
behalf of the Community. 

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Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of a Memorandum of Cooperation between 
the International Civil Aviation Organization and the European Community regarding 
security audits / inspections and related matters 

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) 
thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

The Council authorised the Commission on 30 November 2007 to open negotiations 
on  an  agreement  regarding  aviation  security  audits  /  inspections  and  related  matters 
between  the  European  Community  and  the  International  Civil  Aviation  Organization 
(ICAO) 

On  behalf  of  the  Community,  the  Commission  has  negotiated  a  Memorandum  of 
Cooperation  (MoC)  with  ICAO  regarding  security  audits  /  inspections  and  related 
matters in accordance with the directives set out in Annex I and the ad hoc procedure 
set  out  in  Annex  II  of  the  Council  Decision  authorising  the  Commission  to  open 
negotiations 

(3) 

Subject  to  its  possible  conclusion  at  a  later  date,  the  MoC  negotiated  by  the 
Commission should be signed and provisionally applied, 

HAS DECIDED AS FOLLOWS: 

Sole Article 

1. 

2. 

3. 

Subject  to  its  conclusion  at  a  later  date,  the  President  of  the  Council  is  hereby 
authorised  to  designate  the  person  or  persons  empowered  to  sign  on  behalf  of  the 
Community the Memorandum of Cooperation (MoC) between the International Civil 
Aviation  Organization  (ICAO)  and  the  European  Community  regarding  security 
audits / inspections and related matters. 

Pending its entry into force, the MoC shall be applied provisionally from the date of 
signature. 

The text of the MoC is annexed to this decision. 

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Done at Brussels,  

For the Council 
The President 

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2008/0111 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of a Memorandum of Cooperation between the International Civil 
Aviation Organization and the European Community regarding security audits / 
inspections and related matters 

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 
first subparagraph of Article 300(3) thereof, 

Having regard to the proposal of the Commission, 

Having regard to the opinion of the European Parliament1, 

Whereas: 

(1) 

(2) 

The Council authorised the Commission on 30 November 2007 to open negotiations 
on  an  agreement  regarding  aviation  security  audits  /  inspections  and  related  matters 
between  the  European  Community  and  the  International  Civil  Aviation  Organization 
(ICAO) 

On  behalf  of  the  Community,  the  Commission  has  negotiated  a  Memorandum  of 
Cooperation  (MoC)  with  ICAO  regarding  security  audits  /  inspections  and  related 
matters in accordance with the directives set out in Annex I and the ad hoc procedure 
set  out  in  Annex  II  of  the  Council  Decision  authorising  the  Commission  to  open 
negotiations 

(3) 

The MoC was signed on behalf of the Community subject to its possible conclusion at 
a later date, in conformity with Decision …/…/EC of the Council on … 2  

(4) 

The MoC should be approved 

(5) 

Paragraph 6(3) of the MoC provides that the MoC shall enter into force on the first day 
of  the  second  month  following  the  last  of  the  two  notifications  through  which  the 
parties  have  informed  each  other  of  the  termination  of  their  respective  internal 
procedures.  Accordingly,  the  President  of  the  Council  should  be  authorised  to  make 
the required notification on behalf of the Community, 

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OJ C , , p. . 
OJ C , , p. . 

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HAS DECIDED AS FOLLOWS: 

Article 1 

1. 

The Memorandum of Cooperation (MoC) between the European Community and the 
International Civil Aviation Organization regarding security audits / inspections and 
related matters is hereby approved on behalf of the Community. 

2. 

The text of the MoC is annexed to this Decision. 

Article 2 

The  President  of  the  Council  is  authorised  to  designate  the  person  empowered  to  make  the 
notification provided in paragraph 6(3) of the MoC. 

Done at Brussels,  

For the Council 
The President 

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ANNEX 

MEMORANDUM OF COOPERATION  
BETWEEN THE INTERNATIONAL CIVIL AVIATION ORGANIZATION AND 
THE EUROPEAN COMMUNUTY REGARDING SECURITY AUDITS / 
INSPECTIONS AND RELATED MATTERS 

The International Civil Aviation Organization (''ICAO'') and 

The European Community (''EC''); 

Hereinafter referred to as “the Parties”; 

Recalling the Convention on International Civil Aviation signed at Chicago on 7 December 
1944, hereinafter referred to as the “Chicago Convention”, and in particular Annex 17 thereto, 
hereinafter referred to as "Annex 17"; 

Bearing in mind ICAO Assembly Resolution A35-9, which directed the Secretary General to 
continue  the  ICAO  Universal  Security  Audit  Programme  (USAP),  comprising  regular, 
mandatory, systematic and harmonized security audits of all Contracting States to the Chicago 
Convention (hereinafter referred to as the ''Contracting States''); 

Recalling Regulation (EC) No 2320/2002 of the European Parliament and of the Council of 
16 December  2002  establishing  common  rules  in  the  field  of  civil  aviation  security3, 
hereinafter referred to as "Regulation 2320/2002", and Regulation (EC) No 300/2008 of the 
European Parliament and of the Council of 11 March 2008 on common rules in the field of 
civil aviation security and repealing Regulation (EC) No 2320/20024, hereinafter referred to 
as ''Regulation 300/2008'' which will replace Regulation 2320/2002 upon the adoption of the 
necessary implementing measures; 

Noting  Commission  Regulation  (EC)  No  1486/2003  of  22  August  2003  laying  down 
procedures for conducting Commission inspections in the field of civil aviation security5, and 
in  particular  Article 16  thereof  establishing  that  the  European  Commission  shall  take  into 
consideration  the  planned  or  recently  undertaken  security  audits  of  intergovernmental 
organisations in order to ensure the overall effectiveness of the various security inspection and 
audit activities; 

Taking into account the application of relevant Community law, in particular Regulation (EC) 
No  1049/2001  of  the  European  Parliament  and  of  the  Council  of  30  May  2001  regarding 
public access to Parliament, Council and Commission documents6; and Commission Decision 
2001/844/EC,  ECSC,  Euratom  of  29 November  2001  amending  its  internal  Rules  of 
Procedure,  hereafter  referred  to  as  ''Decision  2001/844/EC,  ECSC,  Euratom'',  in  particular 
sections 10 and 26 thereof, and its amendments7. 

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OJ L355 of 30.12.2002, p.1 
OJ L97 of 9.4.2008, p.72 
OJ L213 of 23.8.2003, p.3 
LJ L145 of 31.5.2001, p.43 
Commission Decision of 3 February 2005 (2005/94/EC, Euratom), Commission Decision of 31 January 
2006 (2006/70/EC, Euratom) and Commission Decision of 2 August 2006 (2006/548/EC, Euratom) 

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Bearing  in  mind  the  fact  that  most  standards  contained  in  Annex  17  are  also  covered  by 
Regulation  2320/2002  and  that  the  European  Commission  conducts  inspections  in  Member 
States of the European Union (hereinafter referred to as the ''EU'') to monitor the application 
of this Regulation; 

Considering  that  the  primary  objectives  of  the  ICAO  audit  programme  and  the  European 
Commission's  inspection  programme  are  to  enhance  aviation  security  by  evaluating  the 
implementation  of  respective  standards,  identifying  deficiencies,  if  any,  and  ensuring  the 
rectification of deficiencies, where necessary;  

Considering that it is desirable to establish mutual cooperation in the area of aviation security 
audits / inspections and related matters in a manner ensuring better use of limited resources 
and  avoiding  duplication  of  efforts,  while  preserving  the  universality  and  integrity  of  the 
ICAO USAP programme; 

Considering  that  the  European  Commission  has  enforcement  powers  to  ensure  the 
implementation of European Community aviation security legislation; 

Considering  that  the  Council  of  ICAO  during  its  176th  Session  directed  that,  wherever 
possible, ICAO aviation security audits should be focussed on a State’s capability to provide 
appropriate  national  oversight;  and  further  requested  the  Secretary  General  to  explore 
cooperative arrangements and the most effective use of resources in regions where mandatory 
regional governmental audit programmes exist; 

1. 

General provisions 

1.1. 

1.2. 

1.3. 

1.4. 

2. 

2.1. 

A. 

B. 

Those Standards contained in Annex 17 that are not covered by EC legislation shall 
fall outside the scope of this Memorandum of Cooperation. 

Regarding  Standards  contained  in  Annex  17  which  are  covered  by  EC  legislation,  ICAO 
shall assess the European Commission inspections of the national appropriate authorities of 
EU  Member  States  in  order  to  verify  compliance  with  these  Standards  in  accordance  with 
paragraph  3  of  this  Memorandum  of  Cooperation,  of  Contracting  States  bound  by 
Community legislation on civil aviation security. 

The implementation of ICAO assessments in the European Community shall be discussed 
at the request of one of the Parties, but at least once a year. 

ICAO auditors may occasionally join the European Commission inspections of EU airports 
as  observers,  after  an  explicit  agreement  of  the  EU  Member  State  concerned  has  been 
received by the European Commission. 

Information  to  be  provided  to  ICAO  on  European  Commission  inspections  in 
the European Community 

In  accordance  with  Decision  2001/844/EC,  ECSC,  Euratom,  the  following  EU  classified 
information at level of 'RESTREINT UE' shall be provided to ICAO authorized personnel: 

Common rules and standards in the field of aviation security, adopted in accordance with 
Article 4(2) of Regulation 2320/2002 or Article 4 of Regulation 300/2008; and 

As  regards  European  Commission  inspections  of  appropriate  authorities  of  the  EU 
Member States: 

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(a) 

(b) 

(c) 

(d) 

general  information  on  the  planning  of  European  Commission 
inspections  of  national 
inspections 
appropriate  authorities,  and  any  amendment  thereof  or  changes 
thereto, as soon as they become available; 

the  schedule  of 

including 

the  status  of  inspection  activities  of  both  national  appropriate  authorities 
and  airports,  dates  of  issuance  of  the  final  inspection  reports  and  dates  of 
reception of the action plans from the State concerned; 

the European Commission inspection methodology; 

the  report  of  the  inspection  of  the  national  appropriate  authorities  together 
with the action plan received from the State concerned on the inspection of 
the  national  appropriate  authority,  specifying  actions  and  deadlines  to 
remedy any identified deficiencies; and 

(e) 

follow-up actions taken by the European Commission on the inspection of 
the national appropriate authority. 

ICAO  shall  restrict  access  to  EU  classified  information  provided  by  the  European 
Commission  in  the  context  of  this  cooperation  to  authorized  personnel  on  a  need  to  know 
basis  only.  The  authorized  personnel  shall  not  disclose  this  information  to  any  third  party. 
ICAO  shall  implement  any  necessary  legal  and  internal  mechanisms  to  protect  the 
confidentiality of the information provided by the European Commission. 

The European Commission and ICAO shall agree on further procedures for the protection 
of  classified  information  provided  by  the  European  Commission  pursuant  to  this 
Memorandum of Cooperation. Such procedures shall include the possibility for the European 
Commission to verify which protection measures have been put in place by ICAO. 

ICAO  assessments  of  the  European  Commission  aviation  security  inspection 
system 

ICAO  assessments  of  the  European  Commission  aviation  security  inspection  system  shall 
consist  of  an  analysis  of  European  Commission  requirements  and  information  provided 
under  paragraph  2.  Where  necessary,  ICAO  shall  visit  the  European  Commission, 
Directorate-General for Energy and Transport, at its Headquarters in Brussels, Belgium. 

Specific  terms  of  reference  and  practical  arrangements  for  ICAO  assessments  of  the 
European Commission aviation security inspection system shall be agreed upon through an 
exchange of letters between ICAO and the European Commission. 

Dispute Resolution 

Any  difference  or  dispute  concerning  the  interpretation  or  the  application  of  this 
Memorandum of Cooperation shall be resolved by negotiation between the Parties. 

Nothing in or relating to this Memorandum of Cooperation shall be deemed a waiver of any 
of the privileges and immunities of the Parties. 

2.2. 

2.3. 

3. 

3.1. 

3.2. 

4. 

4.1 

4.2. 

5. 

Other agreements 

5.1. 

This  Memorandum  of  Cooperation  does  not  supersede  or  prejudge  other  forms  of 
cooperation between the Parties. 

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6. 

Revision – Entry into force 

6.1. 

6.2. 

6.3. 

The  parties  shall  review  the  implementation  of  this  Memorandum  of  Cooperation  at  the 
end of the current phase of the USAP programme, and earlier, if felt necessary by either of 
the Parties. 

Pending  its  entry  into  force,  this  Memorandum  of  Cooperation  shall  be  applied 
provisionally from the date of signature. 

This  Memorandum  of  Cooperation  shall  enter  into  force  on  the  first  day  of  the 
second  month  following  the  last  of  the  two  notifications  through  which  the  Parties 
inform each other of the termination of their respective internal procedures. 

Done in duplicate, in the English language. 

For the International Civil Aviation Organization 

Date: 

Place: 

For the European Community 

Date: 

Place: 

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