4 Civil aviation security
| (a)
(26859)
11263/05
COM(05) 428
(b)
(26861)
12588/05
COM(05) 429
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Commission Report: First Report on the implementation of Regulation (EC) 2320/2002 on civil aviation security
Draft Regulation on common rules in the field of civil aviation security
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| Legal base | (a) —
(b) Article 80(2) EC; co-decision; QMV
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| Document originated | (a) 22 September 2005
(b) 22 September 2005
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| Deposited in Parliament | (a) 27 September 2005
(b) 27 September 2005
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| Department | Transport |
| Basis of consideration | (a) EM of 13 October 2005
(b) EM of 13 October 2005
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| Previous Committee Report | None
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| To be discussed in Council | (a) 6 October 2005
(b) Not known
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| Committee's assessment | Politically important
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| Committee's decision | (a) Cleared
(b) Not cleared, further information awaited
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Background
4.1 In the immediate aftermath of the 9/11 terrorist attack the
framework Civil Aviation Security Regulation, (EC) 2320/2002,
was adopted in order to set common standards in the matter of
civil aviation security and to create a system of inspections.
The documents
4.2 Document (a) is the first annual report, based on inspections
which began in February 2004, which the Commission is required
to make under the Civil Aviation Security Regulation about its
implementation. The report, which covers the period until the
end of June 2005, concludes that, while there have been considerable
improvements across the 25 Member States, there remains a clear
need for improvement in both the legislative framework and standards
of application.
4.3 The report shows:
- that by the end of the period
all Member States had complied with the obligation to produce
a National Aviation Security Programme and all but two had completed
a quality control (compliance monitoring) programme. Most of these
were considered as fully meeting requirements;
- the Commission has produced seven supplementary
Regulations, mainly adding more detail to the framework Regulation,
but also addressing specific issues such as national compliance
monitoring programmes and the procedures for Commission inspections;
- the Commission published a study it had funded
on the financing of aviation security during the period. This
issue will now be considered as part of a wider study of security
funding for all transport modes;
- details of the 43 inspections carried out by
the Commission in the period. 14 of these were audits of Member
States' Appropriate Authorities (the national body responsible
for the implementation of the legislation) and 29 were at airports.
The airports chosen were a random but representative sample covering
all fifteen pre-enlargement Member States as well as some new
Member States;
- that standards were generally regarded as satisfactory,
although a number of serious deficiencies which could be considered
as comprising a risk to other Member States were identified. Areas
of weakness identified related to insufficient numbers of national
inspectors, delays in rectification of deficiencies, staff screening,
aircraft protection and freight handling. Some of these difficulties
are being addressed through legislative amendments; and
- that the Commission thinks the Civil Aviation
Security Regulation itself needs considerable simplification and
clarification.
4.4 The draft Regulation in document (b) is intended
to be a simplified and updated replacement for the Civil Aviation
Security Regulation. The Commission says the existing Regulation
was adopted as an urgent response to the 9/11 terrorist attacks.
It proved subsequently to lack clarity and to be open to divergent
interpretations, leading to marked differences in implementation
amongst Member States. The level of detail in the Regulation,
significantly more than is usual in framework legislation, also
raised two particular concerns:
- the Regulation, having no security
classification, was published in full on the internet, so putting
potentially sensitive security information in the public domain;
and
- amendment to the Regulation is subject to the
co-decision procedure, making it a very inflexible instrument
for responding to sudden changes in terrorist threat or technological
advances.
4.5 The Commission says the draft Regulation reflects
consultation with Member States and the industry. It is clearer
and shorter than the present Regulation and is in step with the
Commission's Better Regulation initiative, especially in providing
a basis for cross reference to legislation in other areas, such
as customs matters. Detail contained in the current Regulation
will be transferred to an amended implementing Commission Regulation,
currently No 622/03, which both carries a security classification
and is subject to comitology.[12]
Thus the finer points of implementation could be properly protected
and more easily and quickly amended to strengthen the regime as
necessary and to meet new threats.
4.6 The scope of the framework legislation would
be almost unchanged. The draft Regulation requires security measures
in respect of key matters such as:
- access control;
- screening passengers and baggage;
- searching and checking aircraft;
- testing equipment;
- recruiting and training staff; and
- air cargo.
Additionally there is a short chapter on in-flight
security, which includes some elements already covered in the
current legislation (unruly and disruptive passengers and control
of firearms) and some which are new in Community legislation (protection
of the flight deck and aircraft protection officers). Finally
applicability to off-airport facilities, such as airline caterers
and air cargo agents and other, is made more explicit.
4.7 A few provisions have been modified significantly:
- under the current provision
concerning the imposition by a Member State of measures more stringent
than those laid down in the Regulation Member States are free
to introduce such requirements where they judge this necessary
in the interests of national security. The draft Regulation provides
that such requirements should in the future be imposed only on
the basis of a risk assessment and should be subject to the agreement
of the Commission, with the possibility of appeal to the Council.
This approval mechanism would not apply to measures adopted to
cover individual flights;
- similarly a new provision would mean that Member
States, operators and other entities would not be able to accede
to demands for more stringent measures made by third countries
without the Commission's agreement. But again the provision would
not apply in respect of individual flights; and
- another new provision would allow the Commission
to seek a mandate from the Council to conduct negotiations with
a third country in order to establish whether its security regime
could be considered as equivalent to that in force in the Community
and whether it might, on that basis, be possible to exempt transfer
traffic coming from that country from certain screening requirements
within the Community.
The Government's view
4.8 The Parliamentary Under Secretary of State, Department
of Transport (Ms Karen Buck) says in relation to document (a)
that it has no policy implications. This is clearly not wholly
right since it foreshadows document (b).
4.9 On document (b) the Minister tells us that most
of the draft Regulation, which echoes the current Regulation does
not have any new policy implications. But this is not the case
for all the new provisions. In relation to the provision which
would constrain Member States in their ability to require the
implementation of provisions more stringent than those set out
in the Regulation. The Minister says that the imposition of such
provisions would typically be a consequence of the Member State's
assessment of sensitive security information. As this cannot,
by its nature be shared with other parties, the Commission would
not be in a position to make a properly informed decision. Moreover,
the Minister says, national security is a national competence.
Member States at higher threat levels, including the UK, have
already said they oppose the draft Regulation in so far as it
relates to a Commission and Council review process, arguing that
only their own agencies are in a position to evaluate the threat
and to determine the best response to it within their national
borders.
4.10 The Minister says similar issues arise in respect
of the proposal providing for Commission endorsement of acceptance
of a third country's requirement for more stringent measures,
where the intelligence available to it (but which it would not
share with other parties) indicate that this were necessary. She
adds that it is also unclear how this provision would sit with
licensing agreements into which airlines may have entered with
a third country, undertaking to comply with any extra measures
that it might set.
4.11 As for Commission negotiations with third countries
the Minister says there would need to be assurance that:
- there would be no adverse implications
for Member States' ability to enter into bilateral agreements
with such countries, for example in respect of more stringent
measures; and
- determinations of equivalence would properly
protect the integrity of aviation security in the Community.
4.12 The Minister mentions three further points of
concern:
- how the new text on in-flight
measures sits with Member States' obligations under existing regulation
by the International Civil Aviation Organisation and Member States
will need to be confident that subsequent implementing legislation
will not disrupt established programmes in these areas;
- the draft Regulation's use in describing the
scope of the concept of "other entities" needs clarification,
in order to avoid uncertainty as to which kinds of organisation
are embraced by it; and
- clarification is needed as to why transfer cargo
is treated differently to transfer passengers and transfer bags,
so far as re-screening is concerned.
4.13 On the financial implications the Minister says
that may be some costs both for the industry and for Government.
But this will not become evident until the detail of the new implementing
legislation is agreed. She continues that if it seems likely that
there would be a significant impact on costs a Regulatory Impact
assessment would be produced.
4.14 Finally, the Minister tells us that the draft
Regulation would apply to Gibraltar. But she adds that in the
present Civil Aviation Security Regulation Gibraltar has specifically
been excluded until the arrangements set out in the 1987 Joint
Declaration made by the UK and Spain have come into operation.
The proposed revised text has no equivalent provision but she
says it is quite likely that the omission of a clause excluding
Gibraltar is simply an oversight and that Spain will insist on
its reinstatement. She comments that if Gibraltar were to be included
the only practical effect would be that it would be likely to
become subject to Commission inspections. The airport is already
required to meet UK security standards, which are higher than
those in the Community legislation.
Conclusion
4.15 We clear document (a).
4.16 As for document (b) it seems implicit in
the Minister's comments that the Government is open to the idea
of a simplified and clearer framework Regulation, with the detail,
much of which is better not publicised, included in subordinate
legislation. We endorse the need for a better Regulation in this
instance and should like confirmation that the Government does
indeed generally support the measure. However we note that there
are six issues, some significant, on which the Government wishes
amendment or clarification. Before we consider the document further
we should like to hear of progress on these issues. Meanwhile
we do not clear the document.
4.17 We should also like to see the Regulatory
Impact Assessment, should one become necessary, even if this after
the new framework Regulation is adopted.
4.18 Finally we note the Minister's remarks about
Gibraltar. Although the practical effect on security at Gibraltar
Airport would seem minimal, whether or not the new measure is
to apply to Gibraltar raises an issue that increasingly concerns
us. That is the continued attempts at legislative interference
by Spain in the running of Gibraltar Airport, so as to prejudice
the security, comfort or convenience of those working at or using
the facility. We should like the Government to comment on how
serious the practical effects of the continued Spanish attitude
are in relation to negotiation and implementation of Community
legislation on aviation matters as it affects Gibraltar.
12 Comitology is the system of committees which oversee
the exercise by the Commission of legislative powers delegated
to it by the Council and the European Parliament. Comitology committees
are made up of representatives of the Member States and chaired
by the Commission. There are three types of procedure (advisory,
management and regulatory), an important difference between which
is the degree of involvement and power of Member States' representatives. Back
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