Proposal for a Directive of the European Parliament and of the Council on aviation security charges {SEC(2009) 615 final} {SEC(2009) 616 final}
Date: 2009-05-11
Institutions: European Commission
Subjects: European Aviation Safety Agency, air transport, airline, quasi-fiscal charge, transport price

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 11.5.2009 
COM(2009) 217 final 

 2009/0063 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on aviation security charges  

(presented by the Commission) 

{SEC(2009) 615 final} 
{SEC(2009) 616 final} 

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EXPLANATORY MEMORANDUM 

1) CONTEXT OF THE PROPOSAL 

•  General context 

At present, systems for the recovery of aviation security costs are regulated at national level 
are  not  always  transparent  to  the  users.  Users  are  not  systematically  consulted  at  all  EU 
airports before charges are determined or before a charging system is modified.  

•  Existing provisions in the area of the proposal 

There are no existing provisions in the area of the proposal.  

•  Consistency with the civil aviation policy and other objectives of the Union 

The  third  package  adopted  by  the  Council  in  1992  represented  the  final  stage  in  the 
liberalisation  of  access  to  the  air  transport  market.  Subsequent  initiatives  were  aimed  at 
regulating  and  liberalising  ancillary  activities  such  as  the  provision  of  groundhandling 
services, slot allocation and the use of computerized reservation systems. The Community has 
also adopted legislation in the field of aviation safety and security and has addressed the issue 
of  air  traffic  management  by  means  of  legislative  measures  creating  the  Single  Sky.  The 
Directive on airport charges covers charges other than security charges. 

2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

During a hearing that was held on 17 July 2008, the Commission consulted with stakeholders 
in the air transport industry on the various possibilities of devising Community legislation on 
security charges. The Commission also asked for information and the views of Member States 
and industry through questionnaires. 

Bilateral  contacts  have  also  been  made  with  some  stakeholders  in  order  to  hold  further 
exchanges of views. 

Summary of responses and how they have been taken into account 

All  industry  organisations  emphasised  that  aviation  security  is  a  state  responsibility  and  the 
costs should therefore be borne by the states. However, no Member State was in favour of an 
obligation for it to cover security costs. 

•  Collection and use of expertise 

Scientific/expertise domains concerned 

An impact assessment has been carried out to provide a quantitative and qualitative analysis 
of the impact of this initiative, so as to evaluate the chosen approach. No external expertise 
was used for that impact assessment. However, DG JRC did quantify the impact of some of 
the measures. The note of DG JRC is attached in Annex XII of the impact assessment. The 
impact assessment made use of statistics that are publicly available, mainly from Eurostat, and 
also relied on statistics provided by stakeholders and by Member States. 

Main organisations/experts consulted 

All major stakeholder organisations have been consulted. Transport users and consumers have 
also been consulted via their associations. 

Summary of advice received and used 

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No  mention  has  been  made  of  the  existence  of  potentially  serious  risks  with  irreversible 
consequences. 

The  main  conclusions  were  that,  of  the  four  contemplated  policy  options  which  were 
identified  as  the  basis  for  the  study,  the  implementation  of  a  general  framework  containing 
general principles (i.e. option 3) offers the best potential to be successful and to bring about a 
positive  change  in  the  way  security  charges  are  being  set  and  in  the  relationship  between 
airports and air carriers on this issue. 

•  Impact assessment 

The impact assessment considered the following policy options. 

The  first  'no  EU  action'  option  was  used  as  a  benchmark  against  which  the  other  policy 
scenarios have been compared. 

Option  2  involved  a  scenario  in  which  the  aviation  industry  actors  develop  and  adopt 
voluntary  EU-wide  self-regulation  measures  to  address  the  issues  identified  by  either  party, 
i.e.  the  air  carriers  and  airports,  as  being  due  to  the  lack  of  agreement  and  common 
understanding  between  the  parties  on  how  the  main  points  of  contention  could  be  best 
addressed. 

Option  3  was  a  Community  act  establishing  a  general  framework  requiring  that  the  way  in 
which  security  charges  are  determined  at  national  level  reflect  a  number  of  common 
principles to which airport operators would have to adhere. 

Option 4 suggests that Member States should fully finance airport security. This will do away 
with any security charges and their discriminatory aspects. 

3) LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The proposal defines a number of basic principles to be respected by airport operators when 
they determine their security charges. These are: 

Non-discrimination: 

Aviation security charging systems should not discriminate between carriers or passengers.  

Consultation and remedy: 

The  airport  managing  body  and  the  air  carriers  serving  the  airport,  or  their  representative 
organisations,  must  engage  in  a  dialogue  on  the  security  charging  system  applicable  at  an 
airport not only when such system is modified but also when the levels of the security charges 
are being established. The aim of this requirement is that the two parties exchange views on a 
regular basis on the levels of the charges, as well as on all factors and regulatory requirements 
that have an influence on the determination of those charges. 

Transparency: 

The  proposed  Directive  contains  no  provisions  on  the  methods  for  calculating  security 
charges that should be applied in each Member State. While the Commission acknowledges 
the wide diversity of airport regulation in the various Member States, a reasonable amount of 
information must nevertheless be provided by the operator to the air carriers so as to make the 
consultation process between airports and air carriers meaningful. To this end, the Directive 
establishes which information should be provided on a regular basis by the airport managing 
body. 

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Air carriers should, in turn, give information as to their traffic forecasts, their intended fleet 
use and their present and future specific requirements at the airport, so as to allow the airport 
managing body to employ their capital and dedicate their capacity in an optimal manner. 

Air carriers should also have the right to be informed about security measures that are more 
stringent than required by Community law. 

Cost-relatedness: 

Revenues from security charges shall only be used to meet security costs. 

Supervisory authority: 

A draft Directive that contains the principles to be respected by the main partners in the air 
transport industry i.e. the airports and air carriers, which have diverging interests, needs to be 
properly  applied  and  adhered  to  at  the  level  of  the  Member  States.  An  authority  to  be 
established in each Member State, that is in charge of ensuring the correct application of the 
Directive, would be an appropriate guarantee that its provisions are respected. 

•  Legal basis 

The proposal is based on Article 80(2) of the Treaty establishing the European Community. 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the Community. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reason(s). 

The  objectives  of  the  proposal  cannot  be  sufficiently  achieved  by  each  Member  State 
individually  as  security  charges  systems  and  the  determination  of  security  charges  at 
individual airports  are  not regulated  in a uniform  manner  across  the  EU.  Different  charging 
systems  continue  to  exist  in  the  Member  States.  This  situation  hinders  the  creation  of  a 
genuine level playing field for airports and air carriers alike. 

Community action will better achieve the objectives of the proposal for the following reasons: 

The  application  throughout  the  EU  of  a  common  set  of  basic  rules  with  regard  to  security 
charges will ensure fair play between the aviation partners when defining the parameters for 
allocating the cost of airport security. 

Different charging systems exist in the Member States. Not all systems include fundamental 
principles  that  are  uniformly  applied  when  security  charges  are  being  determined  and  when 
the underlying method for their calculation is devised. The proposed Directive will make such 
uniform application possible. 

The  proposal  is  limited  to  the  definition  of  a  minimum  set  of  rules  to  be  observed  when 
Member States and/or airport operators determine the levels of security charges. The proposed 
Directive does not impose a particular charging system. The definition of such a system is left 
to the Member States. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

The proposed Directive leaves unchanged the scope for a basic framework on security charges 
to  be  set  at  national  level  and  preserves  the  flexibility  for  airports  to  determine  their  own 

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security charges. The Directive ensures that airport users will receive more explanation of the 
security  charges.  The  administrative  burden  for  Member  States  and  regional  authorities  that 
are engaged in the process of defining the regulatory framework will be limited to the extent 
that they will have to adapt their existing legislation to the Directive where such legislation is 
not in conformity with the basic principles set out in the Directive. 

•  Choice of instruments 

Proposed instruments: Directive. 

Other means would not be adequate for the following reason(s). 

A directive is the most proper means to regulate security charges, as it will set clear but basic 
principles with regard to security charges that have to be respected by airport operators when 
applying  and  levying  their  security  charges.  The  transposition  of  the  Directive  into  the 
national  law  of  each  Member  State  will  allow  the  latter  to  take  into  account,  in  its  national 
legislation,  the  specific  situation  with  regard  to  airports  in  that  Member  State,  always 
provided that the provisions of the Directive are fully applied. 

4) BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5) ADDITIONAL INFORMATION 

•  Correlation table 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of  national 
provisions  transposing  the  Directive  as  well  as  a  correlation  table  between  those  provisions 
and this Directive. 

•  European Economic Area 

The  proposed  act  concerns  an  EEA  matter  and  should  therefore  extend  to  the  European 
Economic Area. 

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2009/0063 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on aviation security charges  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
80(2) thereof, 
Having regard to the proposal from the Commission1, 
Having regard to the opinion of the European Economic and Social Committee2, 
Having regard to the opinion of the Committee of the Regions3, 
Acting in accordance with the procedure laid down in Article 251 of the Treaty4, 

Whereas: 

(1) 

(2) 

(3) 

Aviation  security  at  European  airports  is  essentially  a  state  responsibility.  Each 
Member State decides on the methods for financing aviation security. It is, however, 
necessary  to  establish  a  common  framework  regulating  the  essential  features  of 
security charges and the way they are set, as in the absence of such framework basic 
requirements  in  the  relationship  between  airport  managing  bodies  and  airport  users 
may not be respected. 

The collection of charges with respect to the provision of air navigation services and 
groundhandling services has already been addressed by Commission Regulation (EC) 
No  1794/2006  of 6 December 2006 laying  down a common charging scheme for air 
navigation services5 and Council Directive 96/67/EC of 15 October 1996 on access to 
the groundhandling market at Community airports6, respectively. 

It is vital for airport users to obtain from the airport managing body, on a regular basis, 
information  on  how  and  on  what  basis  aviation  security  charges  are  calculated.  This 
information  will  provide  air  carriers  with  an  insight  into  the  costs  incurred  by 
providing  security  services  and  the  productivity  of  related  investments.  To  allow  an 
airport  managing  body  to  properly  assess  the  requirements  with  regard  to  its  future 
investments,  the  airport  users  should  be  required  to  share  all  their  operational 
forecasts,  developments  projects  and  specific  demands  and  wishes  with  the  airport 
managing body on a timely basis. 

(4) 

As  the  methods  for  establishing  and  levying  the  amounts  due  for  the  coverage  of 
security costs differ across the Community, the harmonisation of the basis for charging 

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OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 341, 7.12.2006, p. 3. 
OJ L 272, 25.10.1996, p. 36. 

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(5) 

(6) 

(7) 

security  costs  at  Community  airports  where  the  costs  of  security  are  reflected  in  the 
security charges is necessary. At these airports the charge should be related to the cost 
for providing security, taking into account any public financing of security costs. 

It is important to establish transparency in relation to the economic impact of national 
security  measures  more  stringent  than  the  common  basic  standards  established  in 
accordance with 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 2320/20027. 

An independent supervisory authority in every Member State should ensure the proper 
and effective application of this Directive. The authority should be in possession of all 
the necessary resources in terms of staffing, expertise and the financial resources for 
the performance of its tasks. 

Since the objectives of the action taken cannot be sufficiently achieved by the Member 
States,  as  security  charges  systems  cannot  be put in place at their level in a uniform 
manner  throughout  the  Community  and  can  therefore,  by  reason  of  the  scale  and 
effects  of  the  action,  be  better  achieved  at  Community  level,  the  Community  may 
adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 
of  the  Treaty.  In  accordance  with  the  principle  of  proportionality  as  set  out  in  that 
Article, this Directive does not go beyond what is necessary in order to achieve those 
objectives. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Subject matter 

1. 

2. 

This  Directive  sets  common  principles  for  the  levying  of  security  charges  at 
Community airports. 

This Directive applies to any airport located in a territory subject to the provisions of 
the Treaty. 

This  Directive  does  not  apply  to  the  charges  collected  for  the  remuneration  of  en-
route  and  terminal  air  navigation  services  in  accordance  with  Commission 
Regulation (EC) No 1794/2006, or to the charges collected for the remuneration of 
groundhandling services referred to in the Annex to Council Directive 96/67/EC. 

Article 2 

Definitions 

For the purposes of this Directive, the following definitions apply: 

(a) 

(b) 

‘airport’  means  any  land  area  especially  adapted  for  the  landing,  taking-off  and 
manoeuvring of aircraft, including the ancillary installations which these operations 
may  involve  for  the  requirements  of  aircraft  traffic  and  services  including  the 
installations needed to assist commercial air services; 

‘airport  managing  body’  means  a  body  which,  whether  or  not  in  conjunction  with 
other  activities,  has  as  its  objective  under  national  laws  or  regulations  the 

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OJ L 97, 9.4.2008, p. 72. 

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administration  and  management  of  the  airport  infrastructures  and  the  coordination 
and  control  of  the  activities  of  the  different  operators  present  in  the  airports 
concerned; 

(c) 

(d) 

‘airport  user’  means  any  natural  or  legal  person  responsible  for  the  carriage  of 
passengers, mail and/or freight by air from or to the airport concerned; 

‘security charge’ means a levy which is specifically designed to recover all or part of 
the  cost  of  security  measures  intended  to  protect  civil  aviation  against  acts  of 
unlawful interference. 

Article 3 

Non-discrimination 

Member States shall ensure that security charges do not discriminate between airport 
users or air passengers. 

Article 4 

Consultation 

1. 

2. 

3. 

4. 

1. 

Member  States  shall  ensure  that  the  airport  managing  body  has  access  to  all 
necessary  information  on  the  costs  of  providing  aviation  security  services  at  the 
airport. 

Member States shall ensure that at each airport a compulsory and regular procedure 
for consultation between the airport managing body and airport users is established 
with respect to the operation of the system of security charges and the level of such 
charges. That consultation shall take place at least once a year. 

The  airport  managing  body  shall  submit  any  proposal  to  modify  the  system  or  the 
level of security charges to the airport users no later than four months before it enters 
into force, together with the reasons for the proposed changes. The airport managing 
body shall hold consultations on the proposed changes with the airport users and take 
their views into account before a decision is taken.  

The airport managing body shall publish its decision no later than two months before 
it enters into force. When no agreement on the proposed changes is reached between 
the  airport  managing  body  and  the  airport  users,  the  airport  managing  body  shall 
justify its decision with regard to the airport users. 

Article 5 

Transparency 

Member States shall ensure that the airport managing body provides each airport user 
and the representatives or associations of airport users, once a year, with information 
on the components serving as a basis for determining the level of all security charges 
levied at the airport. This information shall at least include: 

a  list  of  the  various  services  and  infrastructure  provided  in  return  for  the 

(a) 
security charge levied; 

(b) 

the method of calculation of security charges; 

(c) 

the revenue and cost of each category of security charges levied at the airport; 

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the total number of staff deployed to services which give rise to the collection 

(d) 
of security charges; 

(e) 

forecasts of the level of security charges; 

any  intended  investments  that  may  affect  significantly  the  level  of  security 

(f) 
charges; 

2. 

Member  States  shall  ensure  that  airport  users  submit  information  to  the  managing 
body before every consultation, as provided for in Article 4, concerning in particular: 

(a) 

forecasts as regards traffic; 

(b) 

forecasts as to the composition and envisaged use of their fleet; 

(c) 

their development projects at the airport concerned; 

(d) 

their requirements at the airport concerned. 

Article 6 

Impact assessments 

1. 

2. 

Before  adopting  more  stringent  measures  pursuant  to  Article  6  of  Regulation  (EC) 
No  300/2008,  Member  States  shall  undertake  an  impact  assessment  with  regard  to 
the effects on the level of security charges. 

With  regard  to  more  stringent  national  measures  already  existing  on  [the  date  of 
entry into force of this Directive], Member States shall undertake impact assessments 
during  a  transitional  period  of  three  years  from  the  date  of  entry  into  force  of  this 
Directive. 

Member States shall inform the Commission and consult airport users in accordance 
with  Article  4  about  the  outcome  of  the  impact  assessments  provided  for  in 
paragraph 1.  

Article 7 

Cost-relatedness of security charges 

Security charges shall be used exclusively to meet security costs. These costs shall be 
determined  using  the  principles  of  accounting  and  evaluation  generally  accepted  in 
each of the Member States.  

However, Member States shall ensure that particular account is taken of: 

– 

– 

– 

the  cost  of  financing  the  facilities  and  installations  dedicated  to  security 
operations,  including  fair  depreciation  in  the  value  of  these  facilities  and 
installations; 

the expenditure on security staff and security operations; 

the grants and subsidies allocated by the authorities for security purposes. 

Article 8 

Independent supervisory authority 

1. 

Member  States  shall  nominate  or  establish  an  independent  body  as  their  national 
independent  supervisory  authority  in  order  to  ensure  the  correct  application  of  the 

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measures  taken  to  comply  with  this  Directive.  That  body  may  be  the  same  as  the 
entity  entrusted  by  a  Member  State  with  the  application  of  Directive  (EC)  No 
12/2009 of the European Parliament and of the Council on airport charges8. 

Member  States  shall  guarantee  the  independence  of  the  independent  supervisory 
authority by ensuring that it is legally distinct from and functionally independent of 
any  airport  managing  body  and  air  carrier.  Member  States  that  retain  ownership  or 
control  of  airports,  airport  managing  bodies  or  air  carriers  shall  ensure  effective 
structural  separation  of  the  regulatory  function  from  activities  associated  with 
ownership  or  control.  Member  States  shall  ensure  that  the  independent  supervisory 
authority exercises its powers impartially and transparently. 

Member  States  shall  notify  to  the  Commission  the  name  and  address  of  the 
independent  supervisory  authority,  its  assigned  tasks  and  responsibilities,  and  the 
measures taken to ensure compliance with paragraph 2. 

Member  States  shall  ensure,  in  respect  of  disagreements  with  regard  to  security 
charges, that measures are taken to: 

establish  a  procedure  for  resolving  disagreements  between  the  airport 

(a) 
managing body and the airport users; 

(b)  determine the conditions under which a disagreement may be submitted to the 
independent supervisory authority and in particular provide for the dismissal by the 
authority  of  complaints  which  it  deems  are  not  properly  justified  or  adequately 
documented; and 

determine  the  criteria  against  which  disagreements  will  be  assessed  for 

(c) 
resolution. 

These  procedures,  conditions  and  criteria  shall  be  non-discriminatory,  transparent 
and objective. 

The independent supervisory authority shall publish an annual report concerning its 
activities. 

Article 9 

Report and revision 

The Commission  shall  submit a  report to the European Parliament  and  the  Council 
on  the  operation  of  this  Directive  no  later  than  4  years  after  its  entry  into  force  as 
well as, where appropriate, any suitable proposal. 

The  Member  States  and  the  Commission  shall  co-operate  in  the  application  of  this 
Directive,  particularly  as  regards  the  collection  of  information  for  the  report 
mentioned in paragraph 1. 

2. 

3. 

4. 

5. 

1. 

2. 

Article 10 

Transposition  

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by [….] at the latest. They shall 

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OJ L 70, 14.3.2009, p. 11. 

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forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 11 

Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 12 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President  

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