CIVIL AVIATION SAFETY
(19752)
5127/99
COM(98) 759
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Draft Council Regulation (EC) amending Council Regulation No. 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation.
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| Legal base: |
Article 80(2); co-decision; qualified majority voting
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| Department: |
Environment, Transport and the Regions
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| Basis of consideration:
| SEM of 18 November 1999
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| Previous Committee Report:
| HC 34-xi (1998-99), paragraph 3 (24 February 1999)
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| To be discussed in Council:
| No date set |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Not cleared; request to be kept informed of progress
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Background
3.1 In February 1999, we reported on a proposal
to provide for Community recognition of aviation maintenance services
and products in third countries, based on approvals granted by
aviation authorities in those countries. The proposal had been
put forward as a way of solving a complex dispute involving Community
competence in an important area of aviation safety, which also
has commercial considerations. That dispute was holding up significant
and operationally desirable arrangements with third countries,
principally the United States.
3.2 In our Report, we said:
"It is common ground
between the Commission and Member States that it is desirable
for there to be EU arrangements for approval of products, organisations
or services in third countries, based on authorisations granted
by aviation authorities in those countries. It is also agreed
that these arrangements should not prejudice the safety standards
which the harmonised EU requirements exist to protect.
"It is unsatisfactory that such arrangements
for the recognition of approvals granted by third countries should
be held up because of a dispute about legal powers and competence.
We note that, although there are issues relating to the Commission's
proposal which the Government wishes to explore further, the Minister
says that she considers that it provides the basis for a constructive
and acceptable way forward."
3.3 We raised a number of questions on the
document and left it uncleared. The Parliamentary Under-Secretary
of State, at the Department of the Environment, Transport and
the Regions (Mr Mullin) has now provided us with a Supplementary
Explanatory Memorandum, dated 18 November 1999, responding to
our questions.
The Minister's responses
3.4 In paragraph 3.19 of our Report, we
said:
"It seems to us, however,
that the proposal would give the Commission a new competence to
decide on behalf of the Community whether or not approvals made
or proposed by Member States were acceptable. We ask the Minister
to explain why the Government regards this proposal as acceptable
but does not wish to concede that the Commission has competence
to negotiate on these matters with third countries under Article
113[21] (common commercial
policy). In doing so, we also invite her to explain:
"— the arguments, as she understands
them, on which the Commission relies in claiming that air safety
agreements should be made under Article 113 (as mutual recognition
agreements) with particular reference to the Commission's reasons
for advocating that Treaty base;
"— the Government's concerns about
those arguments."
3.5 In his reply, the Minister says:
"As the Committee states,
the proposal would give the Commission a new competence to decide
on behalf of the Community whether or not approvals made or proposed
by Member States of third country aeronautical products, organisations
or services were acceptable. The proposal also envisages that
the Community may conclude agreements with third countries. The
Government does not wish to concede that the Commission has competence
under Article 113 (common commercial policy) to negotiate on these
matters with third countries, but it regards this proposal as
an acceptable basis for negotiation because it is based on Article
84(2)[22] of the EC Treaty,
which empowers the Community to adopt measures relating to aviation
safety. The difference lies in the emphasis likely to be given
to safety considerations as opposed to trade issues: the present
proposal should allow priority to be given to aviation safety
(see below). Moreover, the proposal does not prejudge the legal
base of any future Community air safety agreement, which can only
be determined at the time such an agreement is concluded.
"A Council Decision of 21 September 1992 granted
the Commission a mandate to conclude mutual recognition agreements
relating to conformity assessment with third countries with a
view to facilitating international trade. The Decision was adopted
as a commercial policy measure (under Article 113 of the EC Treaty
though not expressly stated). As far as the Government is aware,
the main argument on which the Commission relies in claiming that
air safety agreements should be made under Article 113 as mutual
recognition agreements is that air safety agreements facilitate
trade in aeronautical products through mutual recognition of conformity
assessment procedures relating to airworthiness. The Commission
appears to consider that insofar as air safety agreements cover
services (such as maintenance, leasing or training), those services
are ancillary to trade in aeronautical products.
"The Government acknowledges that air safety
agreements may contain trade-related aspects, but it considers
that their primary purpose is to ensure aviation safety, which
falls within the scope of the common transport policy under Article
84(2) of the Treaty. The Community's internal legislation on the
harmonisation of aviation safety standards and administrative
procedures (Regulation 3922/91), which this proposal would amend,
is itself based on Article 84(2). Unlike Article 113 of the Treaty,
Article 84(2) does not confer exclusive competence on the Community
to negotiate and conclude external agreements. The Government
does not accept that air safety agreements are merely mutual recognition
agreements whose primary purpose is to facilitate trade, not is
it willing to concede that the Community has exclusive competence
to conclude air safety agreements under the common commercial
policy.
"In practical terms, the proposal allows that
decisions should be made primarily on the basis of aviation safety
considerations: how this can be assured, and the balance with
any commercial or trade implications, is one of the main issues
the Government intends to explore during discussion of the proposal.
The Government notes that the proposal provides for the Commission
to be assisted in making their decision by an advisory committee
of Member States' representatives. Whether the Committee should
be of an advisory or regulatory nature is also likely to be discussed
in some detail during consideration of the proposal. Whatever
the status, it will be composed of aviation safety representatives.
On the other hand, decisions made in accordance with agreements
concluded under Article 113 would be based primarily on commercial
considerations and the membership of any supporting Committees
may not necessarily include aviation safety experts."
3.6 In paragraph 3.20 of our Report we said:
"We also invite the
Minister to tell us whether she considers that the Community has
acquired competence to negotiate and conclude agreements in the
area covered by this proposal as a result of the application of
the AETR principle.[23]
We also draw attention to the fact that, according to a leading
authority on this topic, the ECJ concluded in Opinion 1/94[24]
that:
'all international agreements in the field of transport
are excluded from Article 113'[25].
"We invite the Minister to say whether, and
if so in what circumstances, she considers that the commercial
and trade implications of an agreement made primarily for aviation
safety purposes, could bring it within the scope of Article 113."
3.7 In his reply, the Minister says:
"The Government takes
the view that the Community has not acquired exclusive competence
under the AETR principle to negotiate and conclude air safety
agreements with third countries by virtue of the internal measures
which it has adopted, in particular the JARs listed as common
technical requirements and administrative procedures in Annex
II to Regulation 3922/91. The AETR principle is primarily intended
to ensure that Member States are not bound by inconsistent rules
at the Community and international levels. However, air safety
agreements such as the UK/US Bilateral Aviation Safety Agreement
(BASA) do not contain substantive rules. They do not affect the
JARs in Annex II which set technical safety standards, nor do
they directly affect JAR-145, which harmonises maintenance approval
procedures, since they are umbrella safety agreements, which essentially
provide a framework for the conclusion of further bilateral agreements
covering maintenance and other approvals.
"However, as indicated in the Explanatory Memorandum
dated 1 February, the Government recognises that the legal position
in respect of maintenance agreements concluded pursuant to bilateral
air safety agreements is uncertain. It is arguable that the application
of the AETR principle in respect of JAR-145 precludes Member States
from entering into bilateral maintenance agreements, which would
enable them to accept (rather than approve) third country organisations
on the basis that they ensure equivalent safety standards to JAR-145.
However, it is also possible to argue that Regulation 3922/91
itself limits the scope of application of the AETR principle in
this area by expressly relying on the continued exercise of national
competence by the Member States. The stated aim of Regulation
3922/91 is to harmonise EU technical requirements and administrative
procedures on the basis of the JAR codes. Article 5 requires Member
States to ensure that their civil aviation authorities are members
of the JAA, and Article 4(2) provides that, pending Community
adoption of JARs in Annex II, Member States are permitted to apply
their national regulations.
"The Government considers that the Commission's
proposal for the amendment of Regulation 3922/91 would dispel
the legal uncertainty concerning the scope of application of the
AETR principle in this area. It would so do by introducing express
provisions in the internal rules contained in Regulation 3922/91
concerning Member States' conduct in respect of bilateral agreements
covering maintenance and other approvals falling within the scope
of Regulation 3922/91. The ECJ held in Opinion 1/94 that the Community
derives exclusive competence from the inclusion of such express
provisions in its internal rules. The Court observed, when considering
the scope of application of the AETR principle in the transport
sector, that 'not all transport matters are already covered by
common rules'; it added that 'there is nothing in the Treaty which
prevents the institutions from arranging, in the common rules
laid down by them, concerted action in relation to non-member
countries or from prescribing the approach to be taken by the
Member States in their external dealings' ([1994] ECR I-5267,
at para. 79). It further stated that 'Wherever the Community has
included in its internal legislative acts provisions relating
to the treatment of nationals of non-member countries or expressly
conferred on its institutions powers to negotiate with non-member
countries, it acquires exclusive external competence in the spheres
covered by those acts' (para. 95). In the Government's view, the
present proposal is an example of such an approach, which would
have the effect of conferring exclusive external competence upon
the Community in respect of the area covered.
"As the Committee notes, the ECJ stated in Opinion
1/94 that 'all international agreements in the field of transport
are excluded from Article 113'. However, the question before the
Court was whether 'the particular services comprised in transport'
which were covered by the GATS fell within the scope of the common
commercial policy (para.37). It had earlier found that the Community
had exclusive competence under Article 113 of the Treaty to conclude
the WTO Multilateral Agreements on Trade in Goods (para.34).
"The Government accepts that a transport agreement
relating to trade in goods may fall within the scope of Article
113: an example is the Council Decision concerning Community accession
to the UN/ECE Revised 1958 Agreement on technical requirements
for motor vehicles, which cites Articles 100a[26]
and 113 of the Treaty. But the Government considers that an agreement
made primarily for the purpose of safety in the provision of aviation
services would not normally fall within the scope of Article 113.
Where, however, an air safety agreement contains provisions relating
to trade in goods (such as product certification) which are not
merely ancillary to the provisions on aviation safety, the Government
recognises that recourse to both legal bases of Articles 84(2)
and 113 may be justified. As stated above, the question of the
appropriate legal base can only be determined in the light of
the actual provisions of the agreement."
3.8 The Minister also tells us that the
European Parliament has made no amendments to the proposal at
the first reading and that the Finnish Presidency has not taken
the proposal forward.
Conclusion
3.9 We regret that the Minister has taken
nine months to reply to our questions. But we recognise that this
proposal has not progressed substantively in the interim and we
are grateful to him for the detailed responses he has provided.
3.10 On the first of our questions (paragraph
3.4 above) we note the Minister's confirmation that the proposal
would give the Commission a new competence to decide on behalf
of the Community whether or not approvals made or proposed by
Member States of third country aeronautical products, organisations,
or services were acceptable; and that it also envisages that the
Community may conclude agreements in the future which could supersede
Member States' bilateral air safety arrangements with third countries.
The Government is apparently content to see the Community acquire
this new competence on the basis that it is proposed under Article
80(2) (formerly Article 84(2)) (transport) and not Article 133
(formerly Article 113) (common commercial policy), so that priority
should be given to safety not trade considerations. We are grateful
for the Minister's comments on the Commission's argument that
air safety agreements should be made under Article 133. We note,
with approval, that "the Government does not accept that
air safety agreements are merely mutual recognition agreements
whose purpose is to facilitate trade, nor is it willing to concede
that the Community has exclusive competence to conclude air safety
agreements under the common commercial policy".
3.11 On our second question (paragraph
3.6 above), relating to the application of the AETR principle
and related matters, we note the Government's arguments that the
Community has not, at this stage, acquired competence to negotiate
and conclude air safety agreements with third countries by virtue
of the internal measures it has already adopted (and also the
Government's acknowledgement that the contrary position is arguable).
Be that as it may, the Minister considers that if the proposal
in this document were adopted, it "would dispel the legal
uncertainty concerning the application of the AETR principle in
this area" and "would have the effect of conferring
exclusive external competence upon the Community in respect
of the area covered".
3.12 Given the extent to which, in air
safety matters, the UK and other Member States already operate
in a framework of Community law, the extension of that competence
to air safety agreements with third countries may be seen as no
more than a logical step. But it is a step which we think it right
to flag up. It also underlines the importance of ensuring that,
in practice, the exercise of exclusive competence is based primarily
on safety, not commercial, considerations; and that Member States
continue to have an appropriate and undiminished input into the
determination of safety standards adopted by the Community. In
that context, as the Minister explains, there are important details
to be sorted out in discussions on this proposal — for example,
on whether the Commission is assisted by a regulatory or an advisory
committee and what the membership of that committee might be (as
the Minister points out, if this measure were adopted under Article
133, there would be no guarantee that the supporting committees
would include aviation safety experts). There is also a need to
clarify what the Commission has in mind when it says that one
of the criteria for approval of agreements should be whether they
would give "unfair advantage to third parties". Could
this include commercial advantage and, if so, what is the relevance
of such consideration to safety decisions?
3.13 We do not seek answers to these
questions at this stage as these will be revealed in the course
of discussions on the document, which so far appear to have made
little progress. But we continue to leave the document uncleared
and ask the Minister to keep us informed of progress.
21 Now Article 133. Back
22 Now
Article 80(2). Back
23 Which
states that the adoption of internal measures by the Community
can give rise by implication to a power to act externally in the
area covered by the measures. In this case the "internal
measures" would be the harmonised EU safety standards annexed
to Regulation 3922/91. Back
24 Opinion
1/94 [1995] 1 CMLR 205. Back
25 The
External Relations of the European Communities,
I Macleod, ID Hendry and Stephen Hyett; Oxford University Press
1996, p. 270. Back
26 Now
Article 95. Back
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