Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 226th session of the Council of the International Civil Aviation Organization as regards the envisaged adoption of Amendment 48 to Annex 6 Part I to the Convention on International Civil Aviation
Date: 2022-06-20
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Civil Aviation Organisation, air safety, civil aviation, crew, international convention, international standard, professional qualifications, revision of an agreement, technical specification

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 20.6.2022  COM(2022) 312 final 2022/0203 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 226th session of the Council of the International Civil Aviation Organization as regards the envisaged adoption of Amendment 48 to Annex 6 Part I to the Convention on International Civil Aviation  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the position to be taken on the Union's behalf at the International Civil 
Aviation  Organization  (ICAO)  on  the  differences  to  be  notified  to  ICAO  regarding 
Amendment  48  to  Annex  6  Part  I  to  the  Convention  on  International  Civil  Aviation  to  be 
adopted by the ICAO Council in its 226th session. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on International Civil Aviation 

The Convention on International Civil Aviation (‘the Chicago Convention’) aims to regulate 
international  air  transport.  The  Chicago  Convention  entered  into  force  on  4  April  1947  and 
established the International Civil Aviation Organization. 

All EU Member States are Parties to the Chicago Convention. 

2.2. 

The International Civil Aviation Organization 

The International Civil Aviation Organization is a specialised agency of the United Nations. 
The aims and objectives of the Organization are to develop the principles and techniques of 
international  air  navigation  and  to  foster  the  planning  and  development  of  international  air 
transport. 

The ICAO Council is a permanent body of ICAO with a membership of 36 contracting States 
elected by the ICAO Assembly for a period of three years. For the period of 2019-2022, there 
are seven EU Member States represented in the ICAO Council.  

Mandatory  functions  of  the  ICAO  Council,  listed  in  Article  54  of  the  Chicago  Convention, 
include  the  adoption  of  international  standards  and  recommended  practices  (SARPs), 
designated as Annexes to the Chicago Convention.  

Pursuant to Article 90 of the Chicago Convention, any such Annex or any amendment of an 
Annex  shall  become  effective  within  three  months  after  its  submission  to  the  ICAO 
contracting  States,  or  at  the  end  of  such  longer  period  of  time  as  the  ICAO  Council  may 
prescribe,  unless  in  the  meantime  a  majority  of  contracting  ICAO  States  register  their 
disapproval.  

Following  the  adoption  of  such  measures,  ICAO  States  are  required  to  notify  either  their 
disapproval, any differences or their compliance with the measure before they enter into force 
and become legally binding.  

Pursuant to Article 38 of the Chicago Convention, any State which finds it impracticable to 
comply in all respects with any such international standard or procedure, or to bring its own 
regulations  or  practices  into  full  accord  with  respect  to  any  such  international  standard  or 
procedures  or  which  deems  it  necessary  to  adopt  regulations  or  practices  differing  in  any 
particular  respect  from  those  established  by  an  international  standard,  shall  give  immediate 
notification  to  the  International  Civil  Aviation  Organization  of  the  differences  between  its 
own practice and that established by the international standard. 

2.3. 

The  envisaged  acts  of  the  International  Civil  Aviation  Organization  and  their 
relationship with the existing Union rules 

During its 226th session, the ICAO Council is expected to adopt Amendment 48 to Part I of 
Annex 6 to the Chicago Convention related to means for locating an aeroplane in distress. 

EN 

1 

  EN 

2.3.1. 

Standards in the scope of Amendment 48 to ICAO Annex 6 Part I 

Standard  6.18.1  of  ICAO  Annex  6  Part  I  requires  that  all  aeroplanes  of  a  maximum 
certificated  take-off  mass  of  over  27  000  kg  for  which  the  individual  certificate  of 
airworthiness  is  first  issued  on  or  after  1  January  2023,  shall  autonomously  transmit 
information  from  which  a  position  can  be  determined  by  the  operator  at  least  once  every 
minute, when in distress.  

The purpose of standard 6.18.1, as stated in ICAO Annex 6 Part I, Appendix 9, is to establish 
the location of an accident site within a 6 NM radius. 

Standard 6.18.1 of ICAO Annex 6 Part I has been transposed1 into point CAT.GEN.MPA.210 
of  Annex  IV  (Part-CAT)  to  Commission  Regulation  (EU)  965/20122  (‘EU  air  operation 
rules’), which requires the following: 

‘The following aeroplanes shall be equipped with robust and automatic means to accurately 
determine,  following  an  accident  during  which  the  aeroplane  is  severely  damaged,  the 
location of the point of end of flight:  

(1) 

(2) 

all  aeroplanes  with  an  MCTOM  of  more  than  27  000  kg,  with  a  MOPSC  of  more 
than 19 and first issued with an individual CofA3 on or after 1 January 2023; and  

all  aeroplanes  with  an  MCTOM  of  more  than  45  500  kg  and  first  issued  with  an 
individual CofA on or after 1 January 2023.’ 

2.3.2.  Changes introduced by draft Amendment 48 to ICAO Annex 6 Part I 

The draft Amendment 48 to ICAO Annex 6 Part I postpones the applicability date of standard 
6.18.1  to  1  January  2025  (instead  of  1  January  2023)  and  restricts  its  applicability  to 
aeroplanes  first  issued  with  an  individual  CofA  on  or  after  1  January  2024  (instead  of 
aeroplanes first issued with an individual CofA on or after 1 January 2023). The main reasons 
for proposing these changes are: 

 

 

 

significant  delays faced  by  all concerned  aircraft manufacturers worldwide to 
equip aeroplanes with the necessary equipment,  

significant delays in setting up the communication infrastructure for complying 
with standard 2.4 of Appendix 94, and achieving its full operational capability, 
and  

insufficient time left for rescue coordination centers and air traffic service units 
to prepare and adapt their procedures. 

Note: the acceptable means of compliance for point CAT.GEN.MPA.210 contains conditions 
that  are  more  stringent  regarding  robustness  and  accuracy  than  those  specified  in  ICAO 

1 

2 

3 
4 

It was recommended to Member States to notify a difference with ICAO standard 6.18.1, as aeroplanes 
with a MOPSC of 19 or less and with a MCTOM in the range between 27 000 kg and 45 500 kg are not 
in the scope of point CAT.GEN.MPA.210. 
Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and 
administrative  procedures  related  to  air  operations  pursuant  to  Regulation  (EC)  No 216/2008  of  the 
European Parliament and of the Council. 
CofA: certificate of airworthiness. 
Standard  2.4  of  Appendix  9  to  ICAO  Annex  6  Part  I  requires  that  the  organisations  that  must  have 
access to the transmitted information shall include, as a minimum, air traffic service unit(s) and search 
and rescue coordination center(s) and sub-centers. 

EN 

2 

  EN 

 
 
 
 
                                                 
Annex 6, Part I, 6.18 and Appendix 9. Aircraft manufacturers aim at fitting their aeroplanes 
with equipment that will meet both ICAO standard 6.18.1 and point CAT.GEN.MPA.210, so 
that  these  aeroplanes  can  be  operated  in  the  EU  and  worldwide  without  modification  or 
restriction. This in turn has significantly increased the amount of work needed to design and 
certify that equipment.   

3. 

POSITION TO BE TAKEN ON THE UNION’S BEHALF 

3.1.  Main changes and their relationship with the existing Union rules 

Draft Amendment 48 to ICAO Annex 6 postpones the applicability date of standard 6.18.1 of 
ICAO Annex 6, Part I by two years:  

‘6.18.1 As of 1 January 2025, all aeroplanes of a maximum certificated take-off mass of over 
27  000  kg  for  which  the  individual  certificate  of  airworthiness  is  first  issued  on  or 
after  1  January  2024,  shall  autonomously  transmit  information  from  which  a 
position  can  be  determined  by  the  operator  at  least  once  every  minute,  when  in 
distress, in accordance with Appendix 9.’ 

3.2. 

Position to be taken on Union’s behalf 

All  aircraft manufacturers  are encountering significant  delays in  the process  to  comply with 
standard  6.18.1  of  ICAO  Annex  6  Part  I  and  point  CAT.GEN.MPA.210  of  the  EU  air 
operation  rules.  Maintaining  the  current  applicability  date  will  probably  lead  to  a  situation 
whereby  many  EU-based  aircraft  operators  will  have  to  request  temporary  exemptions  for 
aeroplanes  delivered  in  2023  and  to  perform  very  expensive  equipment  retrofit.  Such 
temporary  exemptions  might  have  to  be  extended  to  2024  to  grant  sufficient  time  for  all 
concerned  aeroplanes  to  be  retrofitted.  In  addition,  the  full  operational  capability  of  the 
communication  infrastructure  and  full  readiness  of  air  traffic  service  units  and  rescue 
coordination  centers  might  not  be  achieved  before  2024.    EU-based  aircraft  operators  have 
little  leverage  to  accelerate  the  implementation  of  ICAO  standard  6.18.1  and  point 
CAT.GEN.MPA.210.  

The proposed change to the applicability date of standard 6.18.1 of ICAO Annex 6 Part I has 
limited impact on aviation safety, as this ICAO standard is just one of the measures taken by 
ICAO to facilitate the locating of aircraft in distress. Most aeroplanes in the scope of standard 
6.18.1  shall  also  be  tracked  by  the  operator  when  flying  over  oceanic  areas  according  to 
standard 3.5.3 of ICAO Annex 6 Part I (transposed into point CAT.GEN.MPA.205 of the EU 
air  operation  rules)  and  equipped  with  two  emergency  locator  transmitters  according  to 
standard 6.17.3 of ICAO Annex 6 Part I (transposed into point CAT.IDE.A.280 of the EU air 
operation rules). 

Therefore,  the  Union  should  support  the  proposal  to  postpone  the  applicability  date  of 
standard 6.18.1 of ICAO Annex 6 Part I. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’  

EN 

3 

  EN 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement5.  

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’6. 

4.1.2.  Application to the present case 

The ICAO Council is a body set up by an agreement, namely the Convention on International 
Civil Aviation (‘Chicago Convention’).  

In  accordance  with  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  adopts 
international  Standards  and  Recommended  Practices,  designated  as  Annexes  to  the  Chicago 
Convention.  These  are  acts  having  legal  effects.  Certain  legal  effects  of  these  acts  could 
depend  on  the  submission  of  notification  of  differences,  and  on  the  terms  of  those 
notifications.  Therefore,  the  adoption  of  the  Union  position  in  respect  of  such  notifications 
falls within the scope of Article 218(9) TFEU.  

The envisaged act is capable of decisively influencing the content of EU legislation, namely 
the point CAT.GEN.MPA.210 of Commission Regulation (EU) 965/2012. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the  objective  and  content  of  the  adopted  act  in  respect  of  which  a  position  is  taken  on  the 
Union's behalf. If the adopted act pursues two aims or has two components and if one of those 
aims or components is identifiable as the main one, whereas the other is merely incidental, the 
decision  under  Article  218(9)  TFEU  must  be  founded  on  a  single  substantive  legal  basis, 
namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the adopted act relate to the common transport policy.  

Therefore, the substantive legal basis of the proposed decision is Article 100(2) TFEU.  

4.3. 

Conclusion 

The legal basis of the proposed Council Decision is Article 100(2) TFEU, in conjunction with 
Article 218(9) TFEU. 

5 
ECLI:EU:C:2014:2258, paragraph 64. 
6 
ECLI:EU:C:2014:2258, paragraphes 61 to 64. 

Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12,  

Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12,  

EN 

4 

  EN 

                                                 
2022/0203 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the 226th session of the 
Council of the International Civil Aviation Organization as regards the envisaged 
adoption of Amendment 48 to Annex 6 Part I to the Convention on International Civil 
Aviation 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

The  Convention  on  International  Civil  Aviation  (‘the  Chicago  Convention’)  which 
regulates international air transport, entered into force on 4 April 1947. It established 
the International Civil Aviation Organization (ICAO). 

The Member States are Contracting States to the Chicago Convention and members of 
the  ICAO,  while  the  Union  has  observer  status  in  certain  ICAO  bodies.  There  are 
currently seven Member States represented in the ICAO Council. 

Pursuant  to  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  may  adopt 
international Standards and Recommended Practices (‘SARPs’) and designate them as 
Annexes to Chicago Convention. 

Pursuant to Article 90 of the Chicago Convention, any such Annex or any amendment 
of  an  Annex  shall  become  effective  within  three  months  after  its  submission  to  the 
ICAO  Contracting  States,  or  at  the  end  of  such  longer  period  of  time  as  the  ICAO 
Council may prescribe, unless in the meantime a majority of ICAO Contracting States 
register their disapproval.  

Pursuant  to  Article  38  of  the  Chicago  Convention,  any  State  which  finds  it 
impracticable  to  comply  in  all  respects  with  any  such  international  standard  or 
procedure, or to bring its own regulations or practices into full accord with any such 
international standard or procedures or which deems it necessary to adopt regulations 
or  practices  differing  in  any  particular  respect  from  those  established  by  an 
international  standard,  should  give  immediate  notification  to  the  ICAO  of  the 
differences between its own practice and that established by the international standard.  
The ICAO Council, at its 226th session, is to adopt Amendment 48 to Annex 6 Part I to 
the Chicago Convention.  

The  main  purpose  of  Amendment  48  to  Annex 6,  Part  I  is  expected  to  postpone  the 
applicability date of its standard 6.18.1 to 1st January 2025. 
It is appropriate to establish the position to be taken on the Union's behalf in the 226th 
session of ICAO Council with regard to the envisaged Amendment 48 to Annex 6 Part 
I. This position should be to support this amendment and be expressed by the Member 

EN 

5 

  EN 

States of the Union that are members of the ICAO Council, acting jointly on behalf of 
the Union.  

HAS ADOPTED THIS DECISION: 

Article 1 
The position to be taken on the Union’s behalf in the 226th session of the ICAO Council, or in 
any subsequent session, shall be to support the proposed Amendment 48 to Annex 6 Part I to 
the Convention on International Civil Aviation in its entirety.  

The  position  referred  to  in  Article  1  shall  be  expressed  by  the  Member  States  of  the  Union 
that are members of the ICAO Council, acting jointly on behalf of the Union.  

Article 2 

This Decision is addressed to the Member States. 

Article 3 

Done at Brussels, 

For the Council 
The President 

EN 

6 

  EN