Commission staff working document on the Report from the Commission to the Council and the European Parliament regarding the application of Regulation (EC) N° 2111/2005 regarding the establishment of a Community list of air carriers subject to an operating ban within the Community and informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC {COM(2009) 710 final}
Date: 2010-01-11
Institutions: European Commission
Subjects: air law, air safety, air transport, carrier, consumer information, exchange of information, impact study, technical cooperation, transport company, transport licence, transport user

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EUROPEAN COMMISSION 

Brussels, 11.1.2010 
SEC(2009) 1735 final 

COMMISSION STAFF WORKING DOCUMENT 

On the report from the Commission to the Council and the European Parliament 
regarding the application of Regulation (EC) N° 2111/2005 regarding the establishment 
of a Community list of air carriers subject to an operating ban within the Community 
and informing air transport passengers of the identity of the operating air carrier, and 
repealing Article 9 of Directive 2004/36/EC 

{COM(2009) 710 final} 

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COMMISSION STAFF WORKING DOCUMENT 

On the report from the Commission to the Council and the European Parliament 
regarding the application of Regulation (EC) N° 2111/2005 regarding the establishment 
of a Community list of air carriers subject to an operating ban within the Community 
and informing air transport passengers of the identity of the operating air carrier, and 
repealing Article 9 of Directive 2004/36/EC 

1. 

THE NEED FOR COMMON RULES 

The  need  to  adopt  these  rules  resulted  from  weaknesses  in  the  enforcement  of  the 
internationally  agreed  safety  standards  –  those  of  the  1944  Chicago  Convention  (creating 
ICAO  -  the  International  Civil  Aviation  Organisation)  and  its  annexes.  For  this  reason,  the 
Regulation provided for the imposition of a total or a partial ban where substantiated evidence 
from objective, transparent and quantifiable criteria showed that ICAO safety standards were 
not being followed by air carriers. 

Over  the  three  years  since  it  came  into  existence,  its  application  has  served  as  a  clear 
demonstration of the value-added by the Community system in the field of air safety. Rather 
than  being  employed  as  a  punitive  instrument,  the  EC  list  has  proved  to  be  an  efficient 
dissuasive measure, which, above all, seeks to identify ex ante, serious air safety deficiencies 
with  potentially  disastrous  repercussions.  It  has  also  functioned  as  a  strong  incentive  to  air 
carriers and civil aviation authorities to continuously improve safety. 

Where a ban was agreed it was always a temporary measure which would last only until the 
air  carriers  and  where  appropriate,  their  regulatory  authorities  could  prove  that  they  had 
addressed the identified shortcomings and were meeting the relevant safety standards. 

2. 

ANALYSIS  OF  THE  COMMON  CRITERIA  FOR  DECIDING  THE  IMPOSITION  OF  AN 
OPERATING BAN 

The common criteria are grouped in three areas: a) objective evidence showing deficiencies 
on the part of the air carrier; b) lack of ability or willingness by an air carrier to address safety 
deficiencies  and  c)  lack  of  ability  or  willingness  of  the  civil  aviation  authority  with 
responsibility of oversight of the air carrier(s) in question to address safety deficiencies. 

A. Verified evidence of serious safety deficiencies on the part of an air carrier 

Four main verifiable sources of information are used to substantiate evidence: 

1.  Reports  showing  serious  safety  deficiencies  or  persistent  failure  by  the  carrier  to 
address  deficiencies  identified  by  ramp  inspections  performed  under  the  EC  SAFA 
programme 

Reports  of  ramp  inspections  on  aircraft  of  air  carriers  conducted  under  the  EC  SAFA 
programme  (Safety  Assessment  of  Foreign  Aircraft)  are  a  primary  source  of  information 
when  investigating  cases  related  to  the  list.  As  an  indication  of  the  scale  of  the  SAFA 
programme  in  2008  alone  10,337  ramp  checks  of  aircraft  were  conducted  on  1,067  carriers 
from  131  different  states;  a  continuous  increase  compared  to  the  ramp  checks  conducted  in 
previous years. 

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The conduct, reporting and follow-up of SAFA ramp inspections are carried out according to 
common  procedures  established  at  Community  level  by  Directive  2004/36/EC1  (the  'SAFA 
Directive').  

As provided under Regulation (EC) 768/2006, the European Aviation Safety Agency (EASA) 
conducts regular (every four months) in-depth analyses of all reports entered into the SAFA 
database  in  order  to  identify  as  early  as  possible  any  potential  negative  safety  trends  and 
advises the Commission accordingly. Additionally, since 2007, EASA has been carrying out 
ad-hoc analyses on the performance of air carriers, which have been subject to investigations 
to  ensure  close  monitoring  and  timely  evaluation  of  their  performance.  The  results  of  these 
analyses  have,  since  2007,  been  presented  by  EASA  and  the  Commission  to  the  Air  Safety 
Committee  and  have  contributed  to  steering  the  investigations  and  the  decisions  of  the 
Committee. 

The  continuous  cooperation  with  EASA  and  the  Member  States  in  the  evaluation  of  the 
information available in the database has helped the Commission construct a system which is 
reliable and successful. Given the increasing importance of the programme as a key source of 
information  for  investigations  related  to  the  EC  list,  as  well  as  a  stand-alone  preventive 
instrument,  supplementary 
(Commission  Directive 
2008/49/EC)2  further  harmonised  these  procedures  together  with  training  and  qualification 
requirements for SAFA inspectors. 
Implementing legislation (Commission Regulation 351/2008)3 was also enacted to permit the 
prioritisation  of  ramp  inspections  ("targeting")  on  aircraft  of  air  carriers  suspected  to  pose 
potential safety hazards in order that a closer snapshot may be obtained of such cases prior to 
proceeding further, possibly leading to inclusion in the list.  

legislation  enacted  during  2008 

As provided in the "SAFA Directive", apart from ramp inspections, substantiated information 
related to serious safety deficiencies identified in relation to particular carriers may reach the 
Commission  from  various  other  sources,  such  as  collaboration  with  other  non-EU  national 
aviation authorities (e.g. the United States Federal Aviation Authority), or other third parties. 

Finally,  cooperation  with  Eurocontrol  has  enabled  Member  States  and  the  Commission  in 
many  instances  to  ensure  that  aircraft  and  operators  banned  from  European  Airspace  would 
not reach Community airports or fly over the territory of Member States in breach of the ban. 

2.  Serious  safety  deficiencies  identified  within  the  framework  of  the  provisions  for  the 
gathering of information under Article 3 of Directive 2004/36/EC on the safety of third-
country aircraft 

In the course of the application of the common criteria the information (provided for in article 
3  of  Directive  2004/36)  listed  below  is  correlated  with  the  results  and  follow-up  of  ramp 
checks 

(a) 

(b) 

important  safety  information  accessible,  in  particular,  through:  pilot  reports, 
incident  reports,  other  organisations 
maintenance  organisation  reports, 
independent from the competent authorities of the Member States, complaints; 

information on action taken subsequent to a ramp inspection, such as: aircraft 
grounded,  corrective  action  required,  contacts  with  the  operator's  competent 
authority; 

1 
2 
3 

OJ L 143, 30.4.2004, p.76 
OJ L 109, 19.4.2008, p. 17 
OJ L 109, 19.4.2008, p. 7 

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(c) 

follow-up  information  concerning  the  operator,  such  as:  corrective  action 
implemented, recurrence of discrepancies. 

The  analysis  of  the  results  of  ramp  inspections  and  the  above  mentioned  collected 
information, leads to the decision to monitor the performance of air carriers through targeted 
ramp  checks  on  their  aircraft  to  verify  whether  safety  deficiencies  are  isolated  cases  or 
whether  they  are  systemic  deficiencies  requiring  wide-reaching  remedial  and  corrective 
actions.  

Targeted ramp checks are also carried out after  the (total or partial) operating ban has been 
removed. This ensures continuous monitoring of an air carrier's performance with a view to 
confirm  that  previous  safety  deficiencies  do  not  re-occur,  that  the  air  carriers  concerned 
maintain a high level of safety of their operations into the Community, and that they continue 
to comply with the relevant safety standards. 

3.  Operating  ban  imposed  on  a  carrier  by  a  non-EU  country  because  of  substantiated 
deficiencies related to international safety standards 

Outside the EU, several other States have in place mechanisms for imposing operating bans 
on air carriers based on safety grounds. Through closer growing ties of cooperation between 
the  Community  and  non-EU  countries,  important  safety  information  is  exchanged  with  the 
civil aviation authorities of these countries, such as the US and Canada. Exchanges of safety 
information are made possible through bilateral Community safety specific agreements, where 
the  respective  certification  systems  have  been  verified  and  a  high  level  of  mutual  trust  is 
maintained in each others’ system of safety oversight and enforcement. 

There  is  also  close  cooperation  with  those  civil  aviation  authorities  with  which  the 
Community is negotiating safety specific agreements or comprehensive aviation agreements, 
to ensure that safety information regarding the performance of air carriers operating to these 
countries and  the Community  exchanged in a timely  manner  in  order  to  allow  for  informed 
decisions on the continuation of their operations.  

In  the  event  that  an  operating  ban  is  imposed  by  a  non-EU  country  the  case  is  analysed 
closely, and where possible in collaboration with the relevant regulatory authorities, in order 
to  assess  whether  the  circumstances  warrant  consideration  of  a  similar  ban  in  Europe.  In 
addition  close  cooperation  with  the  relevant  regulatory  authorities  is  actively  pursued  to 
ensure  that  any  decisions  made  by  the  Community  relaxing  a  ban  can  be  coordinated  with 
decisions by the non-EU country.  

4. Substantiated information concerning accidents or serious incidents indicating latent 
systemic safety deficiencies. 

The Commission closely monitor the occurrence, investigation and reporting of air accidents 
and serious incidents. Where substantiated information is available and upon the conclusion 
of  any  formal  investigations  the  information  is  considered,  together  with  any  other  relevant 
safety information, in order to identify any negative safety trends or more immediate safety 
hazards requiring urgent action. Particular attention is given to the implementation of safety 
recommendations  made  by  the  relevant  accident  investigation  bodies  to  ensure  that  lessons 
from accidents are applied. To this end particular attention is paid to the performance of the 
safety  management  systems  and  accident  prevention  and  flight  safety  programme  of  the  air 
carriers. 

B. Lack of ability and/or willingness of an air carrier to address safety deficiencies 

Two verifiable sources of information are used to substantiate evidence: 

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(a) 

(b) 

Lack  of  transparency  or  adequate  and  timely  communication  on  the  part  of  a 
carrier  in  response  to  an  enquiry  by  the  civil  aviation  authority  of  a  Member 
State regarding the safety aspect of its operation. 

Inappropriate or insufficient corrective action plan presented in response to an 
identified serious safety deficiency. 

Whenever  serious  safety  deficiencies  on  the  part  of  an  air  carrier  are  identified  by  Member 
States  or  the  Commission,  the  carrier  concerned  -  together  with  the  regulatory  authority 
responsible  for  its  safety  oversight  -  is  informed  by  the  Commission  and  invited  to  present 
comments  as  well  as  any  other  relevant  information  (in  the  form  of  documented  evidence) 
regarding  its  safety  performance.  Many  cases  are  subsequently  resolved  at  this  stage  by 
Member States and the Commission being satisfied, on the basis of documented evidence, that 
the carrier has identified the root cause of the safety concerns and taken appropriate remedial 
and corrective actions to prevent recurrence.  

Accordingly, a proposal for banning may be considered in those cases where transparency and 
communication are lacking and/or where inappropriate or insufficient corrective actions have 
been  taken  by  the  air  carrier(s)  concerned.  In  particular,  absence  of  communication  or 
incomplete  and  untimely  communication  on  the  part  of  the  carrier(s)  and/or  the  aviation 
authority with regulatory oversight for the carrier(s), have led to the imposition of partial or 
total bans as precautionary measures to ensure that safety is guaranteed. 

C. Lack of ability and/or willingness of the authorities responsible for the oversight of an 
air carrier to address safety deficiencies  

Three verifiable sources of information are used to substantiate evidence: 

1. Lack of cooperation 

Whenever serious safety deficiencies on the part of an air carrier are identified, the reaction of 
its  national  authority  responsible  for  its  safety  oversight  is  equally  considered.  The 
Commission has therefore requested that air carriers under investigation or subject to a partial 
or total ban present remedial and corrective measures only after these have been approved by 
the authority responsible for the safety oversight of the air carrier(s) concerned and after the 
authority has verified implementation of such measures. 

Also cooperation with the authority responsible for the safety oversight of a State's air carriers 
is even more  important in cases where such deficiencies are identified in more  than  one air 
carrier certified in the same state. In such cases lack of cooperation and transparency on the 
part  of  that  authority  may  lead  to  a  proposal  for  the  banning  of  several  or  all  air  carriers 
certified in that State.  

2. Insufficient ability of the authority 

A number of factors may lead to the conclusion that the competent authority of a State with 
responsibility  for  the  regulatory  oversight  of  its  air  carriers  is  not  able  to  exercise  its 
responsibilities to the relevant international standards: 

a.  ICAO  regularly  conducts  audits  designed  to  asses  its  Contracting  States'  civil  aviation 
authorities’  oversight  capabilities  as  part  of  its  comprehensive  Universal  Safety  Oversight 
Audit Programme (USOAP). The Commission as an observer to ICAO, constantly monitors 
the  results  of  these  audits  and  in  order  to  provide  a  method  of  prioritisation  of  cases 
warranting closer investigation created a dedicated working group composed of experts from 
the Member States to analyse the results of the USOAP audits. The result of this analysis is 
used for the following purposes: 

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–  Launching dedicated technical assistance projects to the countries concerned 

–  Launching investigations related to the list 

–  The prioritisation of SAFA ramp inspections 

b. Previous refusal of the operating authorisation or technical permission of any carrier under 
the oversight of one State by another State is taken into account as possible indications of a 
weak  or  flawed  safety  oversight  regime.  Such  information  is  obtained  through  close 
cooperation  with,  not  only  the  civil  aviation  authorities  of  non-EU  countries  which  have 
decided to apply the EC list (e.g. the Republic of Korea, Bahrain and the Kingdom of Saudi 
Arabia), but also those with whose States the Community has concluded a safety specific or a 
comprehensive aviation agreement.  

Annex 6 to the Chicago Convention requires that an operator must have its principle place of 
business in the State that issues its Air Operators Certificate (AOC). That State is responsible 
for the oversight, both operational and airworthiness, of the operator unless it has agreed to 
transfer  some  of  the  responsibilities  under  a  lease  agreement.  Where  it  is  found  that  the 
principle  place  of  business  of  an  operator  is  not  in  the  State  that  issued  the  AOC 
investigations  are  immediately  launched  to  verify  whether  the  safety  oversight  of  the  air 
carrier is being correctly discharged by the State that issued its certificate. This is of particular 
importance since, for obvious logistical and organisational reasons, it is generally difficult for 
a certifying State to exercise its oversight responsibilities remotely, particularly if that State is 
already proven to have a weak safety oversight regime. 

3. Insufficient ability of the competent authorities of the State of registry of aircraft to 
oversee those aircraft used by air carriers in accordance with its obligations under the 
Chicago Convention. 

Annex 8 to the Chicago Convention sets out the standards for the certification of aircraft and 
the  issuance  and  subsequent  oversight  of  the  Certificate  of  Airworthiness  by  the  State  of 
Registry. Where, through the results of ICAO USOAP audits, such States are reported to have 
significant  non-compliances  in  the  area  of  Annex  8  the  Commission,  with  the  unanimous 
support of the Air Safety Committee, has included on the EC list all carriers which have their 
fleet registered in such States. 

3. 

COOPERATION  WITH  THIRD  COUNTRIES  IN  THE  FRAMEWORK  OF  REGULATION 
2111/2005 

The EC list has fostered a closer cooperation between the Community and non-EU countries 
as  well  as  international  organisations,  in  order  to  verify  compliance  by  air  carriers  with  the 
relevant safety standards and therefore improve international air safety oversight in general.  

In  this  context,  besides  its  ever  growing  ties  with  ICAO  Secretariat,  the  Commission  has 
established  several  lines  of  communication  with  a  number  of  States  and  organisations  (e.g. 
Australia,  Brazil,  Canada,  Iran,  Japan,  Morocco,  Tunisia,  the  Russian  Federation,  Saudi 
Arabia,  and  the  United  States  of  America)  for  the  exchange  of  safety-related  information. 
Close liaisons are also maintained with the International Air Transport Association (IATA) in 
order to ensure a better mutual understanding regarding the EC list. 

Also, the Commission has been actively contributing to various ICAO led projects:  

The  Commission  has  been  participating  in  the  following  projects  –  in  North  Asia  (440,000 
Euro  for  China,  North  Korea,  Mongolia  and  Korea),  in  South  Asia  (350,000  Euro  for 
Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka) and in Central America 
(615,000 Euro for Belize, Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua). The 

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Commission is also leading certain projects with contribution from the aeronautical industry: 
for  instance  the  EU  Russia  Aviation  Cooperation  project  for  800,000  Euros,  the  Euromed 
Aviation project for 5 million Euro linked to the Commission's Neighbourhood Policy, as well 
as its strategy programme TRACECA towards beneficiary countries in the Caucasus, and in 
Central  Asia  for  5  million  Euros  (Armenia,  Azerbaijan,  Georgia,  Kazakhstan,  Kyrgyzstan, 
Moldova, Tajikistan, Ukraine and Uzbekistan). There are also individual projects, such as the 
one for the Democratic Republic of Congo, for 5 million Euros as well as those for Indonesia 
and Cambodia aiming at strengthening the administrative and technical capacity of the civil 
aviation  authorities  to  allow  them  to  discharge  correctly  their  obligations  as  regulatory  and 
oversight authorities.  

Until  2007  the  Commission  had  also  contributed  to  two  Africa  specific  COSCAP  project: 
COSCAP –UEMOA (Benin; Burkina Faso; Côte d'Ivoire; Guinea-Bissau; Mali; Mauritania; 
Niger; Senegal; Togo) and COSCAP –SADEC (Angola; Botswana; Democratic Republic of 
the  Congo;  Lesotho;  Malawi;  Mauritius;  Mozambique;  Namibia;  Seychelles;  South  Africa; 
Swaziland;  Tanzania;  Zambia;  Zimbabwe)  aiming  at  resolving  regional  safety  oversight 
issues and harmonization of regulations in these countries. 

Upholding the Commission's philosophy of enhancing the preventive and dissuasive potential 
of  the  Regulation  the  European  Commission  launched  a  framework  contract  on  prevention 
and technical assistance in the framework of Regulation 2111/2005 EC in 2008. The project 
was  awarded  to  EASA  in  2009.  This  initiative  is  intended  to  support  positive  ex  ante 
prevention actions as well as ex post technical cooperation to assist efforts made by States at 
implementing corrective action plans to address identified serious safety deficiencies. 

4. 

FUTURE PERSPECTIVES 

The application of the EC list has demonstrated, on the one hand, that it is a successful tool to 
contribute  to  ensuring  a  high  level  of  safety  in  the  Community.  On  the  other  hand  this  tool 
cannot  be  see  as  a  blanket  cover  for  the  safety  performance  of  airlines.  It  has  twofold 
limitations:  1)  inclusion  on  the  EC  list  depends  on  available  and  verifiable  information;  2) 
inclusion  on  the  EC  list  constitutes  an  operating  ban  only  to  Europe,  while  banned  airlines 
continue  to  fly  to  other  regions  of  the  world.  Therefore,  exchange  of  verifiable  and  reliable 
information needs to be promoted and further strengthened at the international level. 

Indeed the application of the EC list over the last three years has shown that the objective of 
establishing and maintaining a high level of safety world-wide can only be reached if ICAO 
safety standards are actually complied with. Therefore appropriate actions need to be taken to 
ensure  that  these  standards  are  effectively  respected  both  at  the  level  of  the  State  and  by 
individual air carriers. 

The various areas where the Commission intends to further develop its policy both in terms of 
internal and external measures are presented in the Commission's report on the application of 
Regulation (EC) No 2111/2005.  

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