Proposal for a Council Decision on the signature of an Agreement between the European Union and the Government of the Federative Republic of Brazil on civil aviation safety
Date: 2010-05-21
Institutions: European Commission
Subjects: Brazil, agreement (EU), air safety, air transport, civil aviation, harmonisation of standards, signature of an agreement, technical regulations

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EUROPEAN COMMISSION 

Brussels, 21.5.2010 
COM(2010)268 final 

2010/0144 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature of an Agreement between the European Union and the Government of 
the Federative Republic of Brazil on civil aviation safety 

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EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

1.1. 

1.2. 

1.3. 

The Commission requested on 4 August 2009 the authorisation from the Council to 
conduct  negotiations  with  the  Federative  republic  of  Brazil  on  the  reciprocal 
acceptance  of  certification  findings  in  the  field  of  civil  aviation  safety  and 
environmental compatibility1. 

The  Council  granted  that  authorisation  on  9  October  2009  and  instructed  the 
Commission to carry out these negotiations in  accordance  with  a set  of  negotiating 
directives and appointed a special committee to assist it in this task. 

The  authorisation  granted  to  the  Commission  envisaged  an  agreement  on  the 
reciprocal  acceptance  of  findings  focusing  in  a  first  instance  on  the  certification  of 
aeronautical  products,  parts  and  appliances.  Also,  the  authorisation  confirmed  that 
following a confidence building process, the agreement may also cover the approval 
and  oversight  of  organisations  and  personnel  involved  in  the  maintenance  of  such 
aeronautical  products,  parts  and  appliances.  Hence,  an  agreement  between  the  EU 
and the Federative Republic of Brazil should ensure that: 

(a) 

(b) 

products  designed,  manufactured,  modified,  or  repaired  under  the  regulatory 
control of one party to be easily issued the necessary approvals to be registered 
or operated under the regulatory control of the other party; 

aircraft  registered  or  operated  under  the  regulatory  control  of  one  party  to  be 
maintained by organisations under the regulatory control of the other party. 

1.4. 

The  primary  objectives  of  such  an  agreement  would  be  to  facilitate  trade  in  goods 
and services covered by the agreement, to limit as much as possible the duplication 
of assessments, tests and controls to significant regulatory differences and to rely on 
the certification system of either party to check conformity with the requirements of 
the other party.  

1.5. 

In order to achieve these objectives the negotiating directives identified the following 
means: 

–  to  approximate  progressively  the  requirements  and  regulatory  processes  of  both 

parties; 

–  to  maintain  confidence  in  the  certification  systems  of  both  parties  building  on 
experience  gained  from  the  cooperation  between  the  Civil  Aviation  Authority 
(ANAC)  of  the  federative  Republic  of  Brazil  and  the  European  Aviation  Safety 
Agency,  so  as  to  permit  all  Member  States’  competent  authorities  to  execute  on 

1 

Recommendation  for  A  Council  Decision  authorising  the  Commission  to  negotiate  a  bilateral 
agreement  between  the  European  European  Union  and  the  Brazil  on  the  reciprocal  acceptance  of 
certification  findings  in  the  field  of  civil  aviation  safety  and  environmental  compatibility,  SEC(2009) 
1097 final of 3.8.2009 

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behalf  of  ANAC,  the  tasks  they  have  to  execute  for  the  implementation  of  the 
Regulation (EC) N° 216/2008.; 

–  to allow any party to be satisfied that bodies involved in the regulatory process of 
the other party, are able to conduct in a satisfactory way conformity assessments 
and regulatory oversight as necessary to issue its own approvals; 

–  to enhance cooperation by providing for regular consultations between the parties 
to ensure that the agreement operates satisfactorily in particular by introducing the 
appropriate co-operation mechanisms to verify on a reciprocal basis the continued 
fitness and ability of the regulatory bodies involved in the implementation of the 
agreement; 

–  to set up a system of continual monitoring of the functioning of the agreement and 
in  particular  of  its  annexes,  which  are  integral  part  thereof,  and  to  allow  for  the 
agreement  to  be  efficiently  managed  by  a  joint  committee  composed  of 
representatives  of  both  parties,  entrusted  to  find  and  propose  solutions  timely  to 
any problem raising from the implementation of the agreement. 

2. 

THE PROCESS OF NEGOTIATIONS 

2.1. 

2.2. 

Negotiations  with  Brazil  have  focused  on  how  to  enable  the  mutual  acceptance  of 
approvals  certifying  the  airworthiness  of  aircraft,  components  and  appliances  fitted 
thereon  as  well  as  approvals  to  certify  organisations  involved  in  their  design, 
production  and  maintenance.  These  approvals  would  be  issued  by  either  party  in 
application  of  certain  procedures  on  airworthiness  and  maintenance.  During  the 
negotiations  the  two  sides  decided  to  set  out  the  details  of  these  procedures  in 
separate Annexes to the Agreement. 

In the framework of the negotiations which were launched in Brussels on 14 and 15 
December 2009, and as part of a confidence building process, EASA carried out an 
assessment visit to ANAC and to the Brazilian aeronautical industry from 22 to 26 
February  2010.  The  main  safety  areas  covered  by  the  visit  were  design  approvals, 
certification  and  production  approvals.  Moreover,  the  visit  included  a  general 
assessment of the maintenance approval system applied in the Federative Republic of 
Brazil.  A  visit  to  the  Brazilian  industry  to  assess  the  way  ANAC  undertakes  the 
oversight of it was also part of the assessment visit. The visit achieved its objective 
as  it  gave  a  better  understanding  of  the  organisation  and  functioning  of  ANAC  as 
well  as  of  the  Brazilian  regulatory  framework  regarding  civil  aviation  safety, 
including of the certification activities of product design, manufacture, maintenance 
and organisation approvals. The visit indicates that the Brazilian system affords the 
same  independent  level  of  verification  of  compliance  as  provided  by  European 
legislation (Regulations 216/2008 and 1702/2003) through the direct involvement of 
ANAC  and  the  use  of  the  "designee"  system  (similar  to  the  US  system)  for  design 
and  production.  In  the  area  of  maintenance,  the  visit  showed  that  the  certification 
practices  and  procedures  provide  evidence  of  compliance  with  regulatory 
requirements  equivalent  to  those  contained  in  European  legislation  (Regulations 
2042/2003). Nevertheless, the visit also showed that further confidence building will 
provide  for  clearer  understanding  of  the  surveillance  of  maintenance  organisations 
approved by ANAC. 

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2.3. 

The text of the draft agreement and two annexes on certification of airworthiness and 
on  maintenance  respectively  were  agreed  ad  referendum  in  Rio  de  Janeiro  on  2 
March 2010.  

3. 

THE LEGAL BASIS OF THE AGREEMENT 

3.1. 

3.2. 

According to the case law of the Court of Justice, the removal of technical barriers to 
trade in goods falls within the scope of the common commercial policy as defined in 
Article  207(1)  TFEU  and  thus  under  the  exclusive  competence  of  the  European 
Union2.. 

Moreover,  with  the  entry  into  force  in  September  2002  of  Regulation  (EC)  N° 
1592/2002 on common rules in the field of civil aviation and the establishment of a 
European  Aviation  Safety  Agency  (EASA)  the  European  Union  has  achieved 
internal  harmonisation  in  the  fields  covered  by  that  regulation,  i.e.:  initial  and 
continued airworthiness (including maintenance) and environmental compatibility of 
aeronautical  products.  These 
(EC)  N° 
216/20083..This  Regulation  has  been  supplemented  by  a  set  of  Implementing 
measures (Commission Regulation N° 1702/2003 and N° 2042/2003) setting out the 
requirements and the procedures to be followed by applicants, certificate holders and 
authorities  to  ensure  that  the  essential  requirements  and  objectives  of  the  Basic 
Regulation are respected at all times. The proposed Agreement affects this European 
Union legislation within the meaning of the ERTA case law. 

replaced  by  Regulation 

rules  as 

3.3. 

The  Commission,  therefore,  considers  that  the  European  Union  has  exclusive 
competence  to  conclude  the  agreement  on  the  basis  of  Articles  207(4)  and  100(2) 
TFEU. 

4. 

STRUCTURE OF THE AGREEMENT 

4.1. 

The  negotiated  Agreement  reflects  by  and  large  the  structure  of  a  "classical" 
agreement in the area of aviation safety, a "BASA" as are called the existing Bilateral 
Aviation  Safety  Agreements  between  Member  States  and  third  countries.  As  in  the 
case  of  the  BASAs,  the  agreement  is  based  on  mutual  trust  of  each  other’s  system 
and  on  the  comparison  of  regulatory  differences.  Hence,  it  entails  obligations  and 
methods  to  cooperate  between  exporting  and  importing  authority  so  that  the  latter 
can  issue  its  own  certificate  on  the  aeronautical  product,  part  or  appliance  without 
duplicating  all  the  assessments  done  by  the  exporting  authority  as  well  as  dispute 
resolution procedures for amending the agreement.  

4.2. 

The  means  how  to  do  so,  i.e.  how  to  cooperate  and  mutually  accept  each  other's 
certification  findings  in  the  area  of  airworthiness  and  maintenance  (methods,  scope 

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Opinion  1/94,  WTO,  [1994]  ECR  I-5267,  paragraph  33  Consistent  with  this  case  law,  Mutual 
Recognition agreements for products are generally concluded on the basis of Article 133 EC. See e.g. 
Council  Decision  1999/78/EC,  of  22  June  1998  on  the  conclusion  of  an  Agreement  on  Mutual 
Recognition between the European Union and the United States of America, OJ L 31 of 4.2.1999. 
Regulation (EC) N° 216/2008 of 20 February 2008 on common rules in the field of civil aviation and 
the establishment of a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, 
Regulation (EC) N° 1592/2002 and Directive 2004/36/EC, OJ L79, 19.3.2008, p.1 

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4.3. 

4.4. 

in  terms  of  products  or  services,  regulatory  differences  called  also  in  their  jargon 
"special conditions") are set out in the Annexes to the Agreement. From the outset of 
negotiations the two sides agreed that the specific procedures enabling the two sides 
to mutually accept certification findings in the two areas – certification of design and 
production and maintenance organisation approvals – would be set out in the annexes 
which  would  be  equally  binding  on  both  sides  and  would  become  integral  parts  of 
the Agreement. 

The  draft  agreement  gives  the  possibility  to  the  Parties  to  consider  ways  to  further 
enhance  the  functioning  of  the  agreement  and  make  recommendations  for 
modifications  including  addition  of  new  annexes  to  the  agreement  via  the  Joint 
Committee.  It  leaves  to  the  Parties  the  freedom  of  choice  of  ways  to  modify  the 
agreement and its annexes according to the same amendment procedure that finishes 
with the latest notification by one Party to the other that its domestic procedures for 
entry into force of an agreed amendment have been completed. In particular where 
the subject of modification  are  amendments to  existing annexes  or addition  of  new 
ones,  the  Parties  can  agree  to  modify  the  agreement  by  simple  exchange  of 
Diplomatic Notes between the Parties. 

Furthermore,  the  draft  agreement  constitutes  a  net  benefit  for  the  European  Union 
given that it will establish mutual acceptance of certification findings in all areas of 
airworthiness  for  all  Member  States.  It  should  be  noted  that  currently,  only  6 
Member States have a bilateral agreement with Brazil covering product certification. 
To  date,  Transport  Brazil  has  also  accepted  findings  of  European  administrations, 
especially  when  done  under  the  auspices  of  the  JAA,  to  issue  their  own  approvals. 
Reciprocally, the JAA has audited the Brazilian system and agreed on “outsourcing 
contracts” with the Brazilian administration detailing the processes to be followed to 
allow  the  JAA  to  recommend  the  acceptance  of  its  findings  by  JAA  member 
authorities.  The  same  approach  prevails  for  the  approvals  of  maintenance 
organisations  where  only  6  formal  agreements  exist.  In  this  area  too,  an 
“outsourcing”  arrangement  has  been  concluded  between  transport  Brazil  and  the 
JAA  allowing  the  acceptance  by  its  member  authorities  of  Brazilian  repair  stations 
(maintenance  organisations)  under  the  oversight  of  the  Brazilian  administration. 
There  are  currently  no  arrangements  covering  the  environmental  certification  of 
aeronautical products. 

5. 

THE CONTENT OF THE AGREEMENT 

5.1. 

Clear rights and obligations for the Parties 

5.1.1.  The Agreement does not propose to go beyond what is permissible in the applicable 
law  of either  party. The applicable law  for  the  European  Union  is  Regulation  (EC) 
N° 216/2008 and its implementing measures including any modification thereof. The 
European  Union  system  is  fully  reflected  in  the  draft  text  setting  out  clearly  a 
separation  of  tasks  with  regard  to  certification  of  aeronautical  products  and 
components  and  organisations  involved  in  the  design  and  manufacture  of  such 
products and components. 

5.1.2.  With regard to maintenance, while ANAC staff qualification process has been found 
comprehensive, certain processes regarding training remain to be fully implemented. 

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By  the  same  token,  the  surveillance  of  maintenance  organisations  is  performed 
through an extensive yearly audit by  two ANAC auditors  using detailed  checklists. 
Since,  ANAC  and  EASA  have  only  recently  started  to  cooperate  in  the  area  of 
maintenance,  in  order  to  provide  for  a  full  reassurance  of  the  Brazilian  oversight 
system  and  to  maintain  confidence  in  that  system,  the  Agreement  proposes  to 
proceed  to  full  recognition  of  the  certification  and  oversight  carried  out  by  ANAC 
only  when  the  capability  to  ensure  the  oversight  of  maintenance  organisations  has 
been demonstrated. Once such capability has been demonstrated, it is proposed that 
as in the case of the bilateral agreement between the European Union and Canada on 
civil  aviation  safety,  ANAC  will  be  in  a  position  to  issue  approvals  on  behalf  of 
EASA  to  maintenance  organisations  located  in  Brazil  carrying  out  maintenance  on 
aircraft  and  parts  designed  in  the  EC,  without  the  need  for  the  Agency  to  issue  its 
own  certificates/approvals  on  the  basis  of  certificates/approvals  issued  by  ANAC. 
This  is  in  line  with  the  European  legal  requirements  set  out  in  article  12(1)  of 
Regulation  (EC)  N°  216/2008  which  foresees,  that  in  the  framework  of  an 
international  agreement  certificates  "may"  be  issued  by  EASA  or  Member  States' 
authorities on the basis of certificates issued by third country authorities. 

5.1.3.  The Commission considers that the provisions of article 12(1) of Regulation (EC) N° 
216/2008  is  not  an  obstacle  for  the  European  Union  to  conclude  an  international 
agreement whereby certificates issued by the competent authority of the third country 
are  automatically  valid  in  the  European  Union.  With  this  in  mind  the  agreement 
provides  in  the  area  of  maintenance  for  transitional  arrangements  to  build 
confidence: 

–  The parties agree that, for the purposes of the Maintenance Procedure, compliance 
with the applicable legislation relating to maintenance of one party and with the 
regulatory requirements specified in its Appendix B1 amounts to compliance with 
the applicable legislation of the other Party. 

–  The  parties  agree  that,  for  the  purposes  of  the  Maintenance  Procedure,  each 
Party’s  Competent  Authorities  certification  practices  and  procedures  provide  for 
an equivalent proof of compliance with the requirements referred to above. 

–  The  parties  agree  that,  for  the  purposes  of  the  Maintenance  Procedure,  the 
respective  standards  of  the  Parties  pertaining  to  licensing  of  maintenance 
personnel are considered to be equivalent. 

5.2. 

Clear means to achieve the objectives of the mandate 

5.2.1.  The draft stipulates that each party shall accept findings of compliance as results of 
specified  procedures  of  the  other  party  when  these  are  made  according  to  the 
provisions of the annexes – Article 3(1). 

5.2.2.  The  draft  recognises  the  right  of  either  party’s  regulatory  authority  to  issue 
certificates attesting conformity with the system of the other party on behalf of that 
other party – Article 3(1). 

5.2.3.  The draft agreement ensures that confidence is maintained in each other through the 
appropriate  mechanism  –  it  provides  for  a  system  of  continual  cooperation  and 
consultation that is put in place by means of enhanced cooperation in the framework 

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of  audits,  inspections,  timely  notifications  and  consultations  on  all  matters  falling 
within its scope – Article 8 on mutual cooperation, assistance and transparency. 

5.3. 

Increased  cooperation  on  safety  policy  through  transparency  and  exchange  of 
safety information 

5.3.1.  The  draft  agreement  provides  the  Parties  the  possibility  of  cooperating  closely  on 
their  safety  policy  by  following  a  proactive  approach  towards  coordination  of  their 
safety policies and initiatives. To achieve that it is proposed to exchange information 
and data, and develop joint programs in order to increase capabilities to predict and 
prevent or mitigate potential risks for civil aviation with a view to implementing an 
oversight system for all aircraft operating in their territories.  

5.3.2.  While  safeguarding  confidentiality  and  protection  of  sensitive  (proprietary) 
information, the agreement (Article 8bis) gives the two sides the possibility  

(a) 

(b) 

to  provide  each  other,  on  request  and  in  a  timely  manner  information  and 
assistance  related  to  accidents,  incidents  or  occurrences  related  to  the  matters 
covered by the agreement, and  

to exchange other safety information relating to aircraft operations and results 
of  surveillance  activities  including  of  ramp  inspections  on  aircraft  using  the 
airports of each Party in accordance with procedures developed by ANAC and 
EASA. 

5.4. 

Regular consultations and rapid dispute resolution 

5.4.1.  The  draft  agreement  is  designed  to  work  smoothly  on  a  daily  basis  so  as  to  solve 
technical issues arising from its implementation as quickly as possible. To that end a 
Joint  Committee  of  the  Parties  is  created,  as  well  as  sub-committees  –  the  Joint 
Sectorial  Committee  on  Certification  and  the  Joint  Sectorial  Committee  on 
Maintenance  –  reporting  to  the  Joint  Committee  of  the  Parties  and  monitoring  the 
application of the Annexes. The Joint Committee as well as the sub-committees have 
both consultation and mediation functions, so as to ensure the smooth functioning of 
the agreement by providing a forum for resolving differences between the parties – 
Article  9  (Joint  Committee)  as  well  as  point  2.2  in  Annex  1  regarding certification 
and point 4.2 in Annex 2 regarding maintenance. 

5.4.2.  The  Joint  Committee  is  entrusted  with  discussing  and  recommending  to  the  Parties 
any  amendments  to  the  agreement  and  its  annexes  and  with  developing  working 
procedures on regulatory cooperation and transparency for all activities which are not 
developed by the sub-committees. In this way, discussions in the areas which are not 
covered  by  the  two  annexes  but  are  covered  by  European  Union  law  (e.g.  aircraft 
operations, licences or synthetic training devices) can be discussed in a constructive 
manner so as to pave the way for any future modification of the agreement. 

5.4.3.  Consultations  can  be  requested  at  any  time  -  Article  15.  Nevertheless,  the  parties 
should  take  all  efforts  to  try  to  solve  technical  issues  at  the  lowest  possible  level 
before they become “disputes”. 

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5.5.  Maintain a high degree of confidence in each other's system 

5.5.1. 

In  order  to  maintain  a  high  degree  of  confidence  in  the  initial  and  continued 
airworthiness  certification  system  of  either  side,  the  European  Union  and  Brazil 
assume certain obligations: 

- 

- 

- 

- 

- 

to  notify  the  other  party  of  the  identity  of  "competent  authority";  for  the 
European Union this entails a notification to the Brazilian side that a national 
aviation authority has been successfully audited (by EASA) and that this audit 
shows  that  this  authority  fully  complies  with  the  European  Union  legislation, 
that  it  is  familiar  with  the  requirements  of  the  Brazilian  legislation  in  the 
relevant  areas  and  that  it  is  capable  of  carrying  out  the  obligations  affecting 
certification  and  maintenance  stemming  from  the  annexes  –  Article  5(2)  and 
(3); 

to  ensure  through  regular  audits  that  national  aviation  authorities  which  have 
been  notified  as  "competent  authorities"  to  the  other  side  remain  capable  of 
fulfilling  their  obligations  stemming  from  the  agreement  and  its  annexes  – 
Article 5(4) and (5); 

to cooperate in quality assurance and permit the participation of each other in 
standardisation 
inspections  and  conformity  assessments  of  each  other 
(authorities and undertakings) – Article 5(6) and Article 8(5); 

to  exchange  safety  data  –  available  information  on  accidents,  incidents  or 
occurrences  –  article  8(4)  and  to  ensure  appropriate  confidentiality  when 
exchanging information – article 11. 

to  notify  each  other  all  applicable  requirements  and  to  consult  each  other  on 
regulatory and organisational changes at an early stage – Article 8. 

5.6. 

Strong safeguard measures 

5.6.1.  The draft text of agreement is set up to afford the parties the necessary flexibility to 
react  immediately  to  safety  problems  or  to  set  up  a  higher  level  of  protection  they 
consider  appropriate for safety – Article 6. In order to enable the two sides to deal 
with  such  situations  without  putting  at  risk  the  validity  of  the  agreement,  specific 
procedures are foreseen. 

5.6.2.  However,  should  the  parties  be  unable  to  remedy  satisfactorily  a  specific  situation, 
the draft text of the agreement provides first for the possibility to suspend acceptance 
of the findings of the contested Competent Authority – Articles 6 and 10 and second 
for  means  and  procedures  to  be  followed  for  the  termination  of  a  part  of  the 
agreement or of its entirety – Article 16(3). 

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2010/0144 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature of an Agreement between the European Union and the Government of 
the Federative Republic of Brazil on civil aviation safety 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  functioning  of  the  European  Union,  and  in  particular 
Articles  100(2)  and  207(4)  in  conjunction  with  Article  218(5),(6)(a)  and  the  first 
subparagraph of Article 218(8), 

Having regard to the proposal from the Commission4, 

Whereas: 

(1) 

(2) 

(3) 

The  Commission  has  negotiated  on  behalf  of  the  European  Union  an  Agreement  on 
civil  aviation  safety  with  the  Federative  Republic  of  Brazil  in  accordance  with  the 
Council Decision N° 13850/09 of 9 October 2009 authorising the Commission to open 
negotiations; 

The Agreement negotiated by the Commission should be signed, subject to its possible 
conclusion at a later stage; 

The  Member  States  should  take  the  necessary  measures  in  order  to  ensure  that  their 
bilateral agreements with Brazil on the same subject are terminated as of the date of 
the entry into force of the Agreement. 

HAS DECIDED AS FOLLOWS: 

Sole Article 

The  signing  of  the  Agreement  between  the  European  Union  and  the  Federative  Republic  of 
Brazil on civil aviation safety (hereinafter "the Agreement") is hereby approved on behalf of 
the Union, subject to a Council Decision concerning the conclusion of the Agreement. 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s)  empowered  to 
sign the Agreement on behalf of the Union, subject to its conclusion. 

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The text of the Agreement is attached to this Decision. 

Done at Brussels,  

For the Council 
The President 

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