Select Committee on European Scrutiny Ninth Report


COM(01) 575

Draft Regulation on establishing common rules in the field of civil aviation security.
Legal base: Article 80(2) EC; co-decision; qualified majority voting
Document originated: 10 October 2001
Forwarded to the Council: 12 October 2001
Deposited in Parliament: 13 October 2001
Department: Transport, Local Government and the Regions
Basis of consideration: EM of 27 November 2001
Previous Committee Report: None
To be discussed in Council: 6-7 December 2001
Committee's assessment: Politically and legally important
Committee's decision: Cleared, but further information requested


  13.1  On 14 September 2001, Transport Ministers launched an urgent review of aviation security measures following the events of 11 September. Ministers concluded that the range of security measures contained in Document 30 of the European Civil Aviation Conference (ECAC), which are designed to prevent unlawful acts against civil aviation, should be fully implemented throughout the EU.[37]

The document

  13.2  The draft Regulation seeks to make ECAC measures legally enforceable in EU Member States and to establish a system of inspections and peer review to ensure compliance with the standards. The Draft Regulation covers:

  • airport planning requirements;

  • control of access to airside, other restricted areas of airports and aircraft;

  • screening and searching of passengers and cabin baggage;

  • identification, screening and handling of hold baggage;

  • controls to be applied to cargo, courier material, express parcels and mail;

  • screening of diplomats and other privileged persons;

  • aircraft catering, stores and supplies;

  • vetting and training of security staff; and

  • technical specifications for equipment.

  13.3  More specifically, the document refers to a number of obvious security measures, such as restricted areas, identity cards for all staff, vehicle inspections, frequent patrols, adequate lighting, fencing, guards, various security checks, control systems, closed doors, security screening, and provisions for separating security-screened passengers from other passengers. To varying standards, many of the security measures are likely to be in place already in most of the EU's airports. However, in setting appropriate baseline security standards, European aviation security standards should be uniform and to some extent guaranteed.

The Government's view

  13.4  The Government's position is set out in the Explanatory Memorandum of 27 November 2001 from the Parliamentary Under-Secretary of State at the Department of Transport, Local Government and the Regions (Mr David Jamieson). The Minister says:

"The Government is committed to the harmonisation of aviation security standards to an agreed and appropriate (not 'high' (art. 1 as presently drafted) as this has no real meaning) level throughout Europe. It supports the introduction of EU legislation to facilitate Member States compliance with their aviation security obligations. However, the UK does not support the use of the term 'uniform implementation' in article 2 — although the agreed common standards must be met, the exact measures must be related to local circumstances. The UK is also concerned, along with other Member States, about the current wide potential application of the regulation, including to Military Aerodromes and smaller, general aviation aerodromes. Whilst there is no problem in principle, military sensitivities must be recognised for the former and measures commensurate with the risks posed must be permissible for the latter. Discussions are continuing with the Commission on both issues.

"Domestically, the UK has a mature National Aviation Security Programme. This comprises a hierarchy of measures commensurate with the differing threat levels, which may apply at UK airports and to UK operations overseas according to the UK Security Services' assessment. Aerodrome managers, aircraft operators, approved caterers and regulated air cargo agents are legally directed to implement these security measures and dedicated DTLR inspectors monitor compliance in the UK.

"In Europe, the UK is in compliance with, and in some areas exceeds, the ECAC Document 30 recommendations, but implementation across the rest of Europe remains uneven. The UK Minister prompted the concerns voiced at the Transport Ministers Council on 14 September about this. Aviation is an international industry and threats to its security cannot be managed by Member States acting alone. The UK is particularly aware of imported threats via international arrivals at UK airports and continues to play a leading role in the development and implementation of ECAC Document 30.

"Internationally, ICAO (International Civil Aviation Organisation), a specialist agency of the United Nations constituted under the Chicago Convention of 1944, guides and regulates international civil aviation. Standards and recommended practices developed by ICAO in respect of aviation security are published in Annex 17 to the Convention and all signatories are expected to follow these. The UK's National Aviation Security Programme exceeds the recommended measures laid down in Annex 17.

"The proposed regulation does not exceed and in some instances falls below current UK requirements, which have been developed in consultation with industry and security services and implemented since the Lockerbie bombing of 21 December 1988. There is therefore no impact on business costs or employment and a Regulatory Impact Assessment has not been prepared.

"The Government is, however, concerned to ensure that nothing in the proposed regulation will require a dilution of our existing security regime particularly since the 11 September attacks. As we are now operating at a SIGNIFICANT threat level, UK baseline measures (for LOW and MODERATE threat levels — which comply with or exceed these proposals) have been enhanced by a package of heightened security measures.

"Whilst the proposed regulation (Article 6) permits Member States to apply more stringent measures than those laid down, the Commission wishes to have discretion to require those measures to be withdrawn if they consider them to be discriminatory, unnecessarily restrictive or unjustified by particular circumstances. Any more stringent measures will be assessed by an advisory committee, a body where the Member State's position is relatively weak in comparison to a regulatory committee, and where the UK will have much less control over decisions taken. The Government:

"—  is concerned that the Commission does not have access to the necessary intelligence information to evaluate security threats in individual member states. Indeed article 296.1(a) of the Treaty establishing the European Community states that 'no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security' although legal advice is that it may be risky to rely on this article alone to safeguard UK interests; and

"—  strongly advocates that Member States are best placed to evaluate the need for, and the nature of, more stringent measures.

"Most other Member States share the UK s concerns. Discussions with the Commission are ongoing and amendments to subsequent drafts of the regulation have been encouraging."

  13.5  As regards subsidiarity, the Minister says:

"Whilst this proposed regulation would extend Community competence into the field of civil aviation security for the first time, the UK supports the measures as facilitating legally enforceable baseline standards in Member States. The benefits of the agreement, i.e. providing greater security for airlines and their passengers throughout the Community, could only have been reached by Community-level negotiations."


  13.6  Harmonised security standards and the sharing of best practice by means of inspections and peer reviews are sensible ways of ensuring that security measures are set at an appropriately uniform level throughout the EU and to some extent guaranteed by inspections. The Commission is budgeting for some 70 to 80 airports, or about 20% of the EU total, to be audited per year by a team of specially trained inspectors. This means that, on average, European airports will be audited only once every five years. On the face of it, this seems too infrequent for confidence in the security measures to be maintained.

  13.7  Although the Government supports harmonised security standards, it is nevertheless concerned about some aspects of the draft Regulation. We share the Government's concern about the Commission's wish to be able to require Member States to remove security measures that are assessed to be more stringent than those laid down in the draft. We consider that since "intelligence-gathering" is clearly an important aspect of the fight against terrorism, it is foolhardy for the Commission and its advisory body to put themselves forward as the proper arbiter of any potential security risk facing an individual Member State.

  13.8  The Government is also concerned that the harmonised security standards will be applied uniformly across a variety of aerodromes, including smaller civilian aerodromes. To us, the proposal seems sensible since any weakness in security measures anywhere is likely to be exploited by terrorists. However, if there is a clear case that some of the security measures would be inappropriate and unnecessary in some local circumstances, then it could be reasonable to require less stringent security measures.

  13.9  The Commission recognises that problems exist in third-country airports for flights which land at Community airports or overfly Member States. The Commission calls for bilateral or multilateral arrangements to guarantee aviation security throughout the world. We welcome this and look forward to considering specific proposals.

  13.10  There are two points on which we request further information. First, we would like the Government's view on the frequency of inspections and whether the auditing of airports only once every five years is sufficiently rigorous to retain the public's confidence. Secondly, we would like an outline of the specific ways in which the Commission could improve airport security in third countries.

  13.11  Meanwhile, we clear the document.

37  ECAD is an independent inter­governmental organisation with a membership of 38 countries and is the responsible body for civil aviation in Europe. Back

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