Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the Council of the International Civil Aviation Organization, in respect of proposals for the amendment of Annex 16, Volumes I-III to the Chicago Convention, concerning Standards and Recommended Practices relating to environmental protection
Date: 2023-02-10
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Civil Aviation Organisation, air safety, civil aviation, environmental protection, environmental standard, international convention, international standard, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 10.2.2023  COM(2023) 67 final 2023/0030 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the Council of the International Civil Aviation Organization, in respect of proposals for the amendment of Annex 16, Volumes I-III to the Chicago Convention, concerning Standards and Recommended Practices relating to environmental protection  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  a  Council  Decision  on  the  position  to  be  taken  on  behalf  of  the 
European  Union  at  the  Council  of  the  International  Civil  Aviation  Organization  (ICAO),  in 
respect  of  proposals  for  the  amendment  of  Annex  16,  Volumes  I-III  of  the  Chicago 
Convention,  concerning  Standards  and  Recommended  Practices  relating  to  environmental 
protection.  

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. It entered into force on 4 April 1947 and established the ICAO. 

All EU Member States are parties to the Chicago Convention. 

2.2. 

The International Civil Aviation Organization 

ICAO  is  a  specialized  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.  

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. 

The  ICAO Council is  a  permanent  body  of the  ICAO with  a membership of 36 contracting 
States elected by the ICAO Assembly for a period of three years. A number of Member States 
are represented in the ICAO Council. 

The EU is an ad-hoc observer in many ICAO bodies (Assembly and other technical bodies). 

2.3. 

The  envisaged  acts  of  the  Council  of  the  International  Civil  Aviation 
Organization  

The  International  Standards  and  Recommended  Practices  (SARPs)  on  Environmental 
Protection have been adopted as Annex 16 to the Chicago Convention by the ICAO Council. 
Annex 16 has four volumes, with the following scope: 

– 

– 

– 

– 

Volume  I  concerning  Standards  and  Recommended  Practices  relating  to  aircraft 
noise; 

Volume  II  concerning  Standards  and  Recommended  Practices  relating  to  aircraft 
engine emissions; 

Volume III, concerning Standards and Recommended Practices relating to aeroplane 
CO2 emissions; 

Volume  IV,  concerning  Standards  and  Recommended  Practices  relating  to  the 
Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). 

The  ICAO  Council  should,  at  its  228th  Session  on  13  ‒  31  March  2023,  consider  possible 
changes  to  these  Volumes.  State  Letters1  were  sent  to  ICAO  States  in  July  2022  with  the 
expected changes for their comments.  

1 

SL 22/58, SL 22/59, SL 22/60 and SL 22/61. 

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3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3.1. Background 
In  accordance  with  Article  19(3)  of  Regulation  (EU)  2018/11392,  the  Commission  is 
empowered to adopt delegated acts to amend the references to the provisions of the Chicago 
Convention referred to in the first subparagraph of Article 9(2) of that Regulation, in order to 
update  them  in  light  of  subsequent  amendments  to  those  provisions  which  enter  into  force 
after  4  July  2018  and  which  become  applicable  in  all  Member  States,  in  so  far  as  such 
adaptations do not broaden the scope of that Regulation. 
Council  Decision  (EU)  2016/915  of  30  May  20163,  as  amended  by  Council  Decision  (EU) 
2020/768  of  9  June  20204,  established  the  Union  position  with  regard  to  the  international 
instrument to be drawn up within the ICAO bodies and intended to lead to the implementation 
from 2020 of a single global market-based measure for international aviation emissions, i.e. 
the  Carbon  Offsetting  and  Reduction  Scheme  for  International  Aviation  (‘CORSIA’).  That 
Decision remains in force. Therefore, it is used as a basis for establishing the Union position 
as regards changes to Annex 16, Volume IV. 

3.2. Position to be taken on behalf of the Union 
It is necessary to adopt, ahead of the 228th Session of the ICAO Council, on 13 ‒ 31 March 
2023,  the  position  on  the  Union’s  behalf  to  allow  the  Member  States  to  participate  in  the 
decisions on the proposed changes to Annex 16, Volumes I-III to the Chicago Convention.  

On  amendments  to  Volume  I,  the  expected  proposed  amendments,  as  set  out  in  the  above-
mentioned State Letter, include: 

a) amendments regarding the proper use of modal verbs to align Annex 16, Volume I with the 
Directives  to  Divisional-type  Air  Navigation  Meetings  and  Rules  of  Procedure  for  their 
Conduct  (Doc  8143),  Part  II,  Formulation  of  Proposals  for  International  Standards, 
Recommended Practices and Procedures; 

b)  recommended  guidance  for  helicopter  hover  noise  measurement  as  part  of  Annex  16, 
Volume I, Attachment H; 

c) amendments to address limitations of specifications with respect to the adjustments of test-
day SPL (sound pressure level) to reference conditions; and 

d) minor typographical errors for correction. 

On amendments  to  Volume  II, the expected proposed amendments,  as  set out  in  the above-
mentioned State Letter,  include: 

a) restructuring and relevant reference updates, introduced in accordance with the Directives 
to  Divisional-type  Air  Navigation  Meetings  and  Rules  of  Procedure  for  their  Conduct  (Doc 
8143), Part II, Formulation of Proposals for International Standards, Recommended Practices 
and Procedures; 

2 
Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common 
rules  in  the  field  of  civil  aviation  and  establishing  a  European  Union  Aviation  Safety  Agency  (OJ  L  212, 
22.8.2018, p. 1). 
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Council Decision (EU) 2016/915 of 30 May 2016 on the position to be taken on behalf of the European 
Union with regard to the international instrument to be drawn up within the ICAO bodies and intended to lead to 
the implementation from 2020 of a single global market-based measure for international aviation emissions (OJ 
L 153, 10.6.2016, p. 32). 
4 
Council  Decision  (EU)  2020/768  of  9  June  2020  amending  Decision  (EU)  2016/915  as  regards  the 
reference  period  intended  to  be  used  for  measuring  the  growth  of  CO2  emissions,  to  take  account  of  the 
consequences of the COVID-19 pandemic in the context of CORSIA (OJ L 187, 12.6.2021, p. 10). 

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b) language consistency updates, which, inter alia, introduce proper use of modal verbs, and 
consistent application of Notes  and Recommendations, in  accordance with  the Directives to 
Divisional-type  Air  Navigation  Meetings  and  Rules  of  Procedure  for  their  Conduct  (Doc 
8143), Part II, Formulation of Proposals for International Standards, Recommended Practices 
and Procedures; 

c) applicability language improvements, in order to reflect, inter alia, the Smoke Number and 
non-volatile  particulate  matter  (nvPM)  mass  concentration  standards  applicability  to  the 
engines; 

d)  introduction  of  a  new  definition  for  the  “equivalent  procedure”  with  the  subsequent 
changes for consistency across Annex 16, Volume II; 

e)  definitions,  descriptions,  references  and  language  improvements,  including,  inter  alia, 
extended  clarifications,  methodological  descriptions,  intermediate  procedural  steps,  and 
additional Notes and Recommendations; 

f)  improvements  related  to  nvPM  measurement  procedure  in  accordance  with  the  latest 
updates  in  SAE  ARP  6320A  and  AIR  6241A  on  continuous  sampling  and  measurement  of 
nvPM emissions from aircraft turbine engines; and 

g)  corrections  to  general  technical,  nomenclature  and  typographical  issues,  aimed  at 
increasing clarity and consistency across the document. 

On amendments to Volume III, the expected proposed amendments, as set out in the above-
mentioned State Letter, include: 

a) definition, description, references and language improvements that aim, inter alia, to avoid 
potential  misinterpretation  and  introduce  additional  clarifications  related  to  Reference 
Geometric Factor (RGF); 

b) changes for consistency following the introduction of a new definition for the “equivalent 
procedure” across Annex 16, Volume III. 

All proposed amendments are envisaged to become applicable on 1 January 2024.  

The subject matter of the envisaged act concerns an area for which the Union has exclusive 
external competence by virtue of the last limb of Article 3(2) TFEU as the envisaged acts are 
liable to affect common rules or alter their scope, namely:  

— Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 
on  common  rules  in  the  field  of  civil  aviation  and  establishing  a  European  Union  Aviation 
Safety Agency5; 

— Commission Regulation (EU) No 748/2012 of 3 August 2012 laying down implementing 
rules  for  the  airworthiness  and  environmental  certification  of  aircraft  and  related  products, 
parts and appliances, as well as for the certification of design and production organisations6. 

Having  regard  to  the  relevant  Union  legislation,  the  position  to  be  taken  on  behalf  of  the 
Union in the ICAO Council should be to support the proposed amendments to Volumes I, II 
and III. 

5 
6 

OJ L 212, 22.8.2018, p. 1.   
OJ L 224, 21.8.2012, p. 1. 

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4. 

CONSISTENCY WITH OTHER UNION POLICIES 

The  proposed  Decision  is  consistent  with  and  complements  other  policies  of  the  Union, 
notably energy, environmental and transport policies.  

5. 

LEGAL BASIS 

5.1. 

Procedural legal basis 

5.1.1. 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.’ 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement7. 

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’8. 

5.1.2 Application to the present case  

The ICAO Council is a body set up by an agreement, namely the Chicago Convention.  

The envisaged acts have legal effects for the purposes of article 218(9) TFEU.  

In  accordance  with  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  adopts 
international Standards and Recommended Practices (SARPs), designated as Annexes to the 
Chicago  Convention.  Such  SARPs  are  binding  under  international  law  in  accordance  with 
article  90  of  the  Chicago  Convention  in  so  far  as  they  become  binding  for  all  ICAO 
contracting  parties  unless  a  majority  of  the  latter  register  their  disapproval  with  the  ICAO 
Council.  

Further,  by  potentially  leading  to  amendments,  the  envisaged  acts  are  capable  of  decisely 
influencing  the  content  of  EU  legislation,  namely  Regulation  (EU)  2018/1139  and  
Commission  Regulation  (EU)  No  748/2012  in  so  far  as  they  explicitly  refer  to  Annex  16, 
Volumes I-III to the Chicago Convention. 

The envisaged acts do not supplement or amend the institutional framework of the agreement. 

Therefore, the adoption of the Union position in respect of such notifications falls within the 
scope of Article 218(9) of the TFEU. 

5.2. 

Substantive legal basis 

5.2.1 Principle 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraph 64.  
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64. 

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

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

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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  envisaged  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. 

5.2.2 Application to the present case 

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

The  substantive  legal  basis  of  the  proposed  decision  is  Article  100(2)  of  the  TFEU.  In 
accordance with  this article, the  European Parliament and the Council, acting in  accordance 
with the ordinary legislative procedure, may lay down appropriate provisions for air transport. 

5.3. 

Conclusion 

The legal basis of the proposed decision should be Article 100(2) TFEU, in conjunction with 
Article 218(9) TFEU. 

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2023/0030 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the Council of the 
International Civil Aviation Organization, in respect of proposals for the amendment of 
Annex 16, Volumes I-III to the Chicago Convention, concerning Standards and 
Recommended Practices relating to environmental protection 

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) 

(9) 

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). 

All Member States are Contracting States of the  Chicago Convention and members 
of the ICAO, whereas the Union has observer status in certain ICAO bodies. 

Pursuant  to  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  may  adopt 
International Standards and Recommended Practices. 

The International Standards and Recommended Practices (SARPs) on Environmental 
Protection have been adopted as Annex 16 to the Chicago Convention by the ICAO 
Council, in Volumes I-IV. 
The ICAO Council, during its 228th Session to be held on 13 ‒ 31 March, is to adopt 
a number of amendments to Annex 16, Volumes I to III of the Chicago Convention. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
ICAO  Council  as  the  proposed  amendments  have  legal  effect,  given  that  they  are 
binding under international law and are capable of decisively influencing the content 
of Union law, namely Regulation (EU) 2018/1139 and Commission Regulation (EU) 
No 748/2012.   

The position to be taken on the Union’s behalf should be to support the amendments 
to Volumes I to III. 

The Union's position should be expressed by the Member States of the Union that are 
members of the ICAO Council, acting jointly on behalf of the Union. 

The Union’s position after the adoption of amendments to Annex 16, Volume I-III to 
the  Chicago  Convention  by  the  ICAO  Council,  to  be  announced  by  the  ICAO 
Secretary  General  via  an  ICAO  State  Letter  procedure,  should  be  not  to  register 
disapproval and to notify compliance with those measures. Where Union legislation 
would deviate from the newly adopted SARPs after an envisaged date of application 

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of  those  SARPs,  a  difference  with  those  particular  SARPs  should  be  notified  to 
ICAO. 

HAS ADOPTED THIS DECISION: 

(1) 

(2) 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the  228th  Session  of  the  ICAO 
Council, or in any subsequent session, in respect of Annex 16, Volumes I-III to the 
Convention  on  International  Civil  Aviation,  concerning  the  amendments  of  these 
Volumes shall be to support the proposed amendments in their entirety. 

The position to be taken on the Union’s behalf, provided the ICAO Council adopts 
without any substantial  change the proposed amendments to Annex 16, Volumes I-
III to the Convention on International Civil Aviation referred to in paragraph 1, shall 
be not to register disapproval and to notify compliance with the adopted measure in 
reply  to  the  respective  ICAO  State  Letter.  Where  Union  legislation  would  deviate 
from  the  newly  adopted  SARPs  after  the  envisaged  date  of  application  of  those 
SARPs, a difference with those particular SARPs shall be notified to ICAO. In such 
case, the Commission shall, in due time and at least two months before any deadline 
set  by  the  ICAO  for  the  notification  of  differences,  submit  to  the  Council,  for 
discussion and approval, a preparatory document setting out the detailed differences 
to be notified to the ICAO on the Union’s behalf by the Member States. 

Article 2 

The position referred to in Article 1(1) shall be expressed by the Member States of the Union 
that  are  members  of  the  Council  of  the  International  Civil  Aviation  Organization,  acting 
jointly on behalf of the Union. 

The  position  referred  to  in  Article  1(2)  shall  be  expressed  by  all  the  Member  States  of  the 
Union. 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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