2 CIVIL AVIATION SECURITY
(26861)
12588/05
COM(05) 429
| Draft Regulation on common rules in the field of civil aviation security
|
| Legal base | Article 80(2) EC; co-decision; QMV
|
| Department | Transport
|
| Basis of consideration |
Minister's letter of 20 December 2005 |
| Previous Committee Report |
HC 34-viii (2005-06), para 4 (2 November 2005) |
| To be discussed in Council
| Not known |
| Committee's assessment | Politically important
|
| Committee's decision | For debate in European Standing Committee
|
Background
2.1 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.
2.2 This draft Regulation 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 extent of sensitive information available to the ill-intentioned
and the degree of inflexibility of amending provisions in response
to sudden changes in terrorist threat or technological advances
through co-decision. Amongst other things much of the detail in
the present Regulation would be transferred to the implementing
Commission Regulation which both carries a security classification
and is subject to comitology.[3]
2.3 When we considered the draft Regulation in November
2005 we said that before considering the matter further we should
like to have from the Government:
- confirmation that it generally
supports the measure; and
- a report on progress in addressing six issues,
some significant, on which the Government wishes amendment or
clarification.
2.4 We also asked the Government to comment on how
serious are the practical effects of the continued Spanish attitude
in relation to negotiation and implementation of Community legislation
on aviation matters as it affects Gibraltar.
The Minister's letter
2.5 In her letter the Parliamentary Under-Secretary
of State, Department of Transport (Ms Karen Buck) tells us the
Government supports the proposal for a replacement Regulation,
agreeing that a shorter and clearer text is highly desirable and
generally endorsing, subject to the reservations already drawn
to our attention, the proposed content of the new Regulation.
2.6 The Minister then reports progress on the six
reservations. She says that each has now been the subject of discussion
at Council working group and the Government is now more aware
of other Member States' views and has had some opportunity to
consider Presidency and other proposals for amendments to the
text. She reports that:
- the provision constraining
Member States' freedom to implement more stringent measures than
those in the Regulation has won no support at all from Member
States. The Government would prefer the existing provision, but
along with many other Member States could accept the Presidency
compromise proposal to retain the first element of the new text,
requiring any additional measures be "relevant, objective,
non-discriminatory and proportional to the risk that is being
addressed" coupled with an exemption for specific flights.
The Commission has said the aim is only to target measures which
are both on-going and have implications beyond national borders
and has not withdrawn the original text;
- Member States have generally expressed support
for the broad intention of the provision on more stringent measures
imposed extra-territorially by third-countries, but also significant
reservations about whether it could work in practice. The Presidency
has put forward an alternative proposal — that Member States
be required to inform the Commission about such third-country
requests and that it, supported by an advisory committee, should
then consider an appropriate response to the third-country. The
Commission appears receptive to this alternative;
- on Commission negotiations with third-countries
the Commission has explained that the intention was to identify
third-countries where there was an equivalency with Community
aviation security standards, such that exemptions from transfer
screening for traffic from such countries would become possible.
It made clear that there would be no difficulty with Member States
continuing with technical assistance and similar programmes, but
any bilateral exemption agreements would cease to be valid. Member
States would retain the right to request more stringent measures.
The Presidency and Member States welcomed this clarification and
agreed that there was no need to elaborate the text. But the Commission
may consider further whether the provision is strictly necessary,
being essentially declaratory;
- in discussion of in-flight measures a number
of Member States have expressed significant reservations about
expansion of the scope of the present Regulation. Especial difficulties
are seen with the text on in-flight security officers, where the
Government and some other Member States are concerned that their
national decision-making should not be constrained and with the
related text on the carriage of weapons. Alternative drafting
from the Commission has not fully allayed Member States' concerns.
The Presidency has concluded that further thought is needed, including
on the scope for closer alignment with existing and imminent International
Civil Aviation Organisation provisions;
- on the issue of the application of the Regulation
to "other entities" there was general concern that the
term was open to a wider interpretation than could be supported
by Member States. Alternative language tabled to address this
attracted support, including from the Government, and seems likely
to prove acceptable to the Commission; and
- in explaining why for re-screening transfer cargo
is not to be treated in the same way as transfer passengers and
transfer hold bags the Commission said that it intended to allow
the same possible exemptions from re-screening as for passengers
and hold baggage, but that the relevant text would be included
in the implementing rather than (as with passengers and hold bags)
in the framework legislation. Neither Member States nor the Presidency
are yet convinced of the logic of this approach.
2.7 The Minister tells us in relation to Gibraltar
that Spain has now formally requested that Gibraltar be excluded
from the scope of the proposed legislation. This would be achieved
by adding text along the lines of the existing Regulation. The
Minister says that the Government has agreed to this, but adds
that in practical terms the exclusion of Gibraltar from Community
legislation has no effect on aviation security or safety matters
in Gibraltar. She continues that the Government is currently in
discussion with both the Spanish and the Gibraltarians within
the Trilateral Forum on a number of topics, including the airport.
Although some issues are still to be resolved, the participants
are confident that a solution acceptable and beneficial to all
is possible. For the airport that would include the Spanish lifting
their block on Community aviation legislation relating to Gibraltar.
Conclusion
2.8 We are grateful to the Minister for her report
on negotiations so far on this draft Regulation. We note that
there is not yet an acceptable text on some issues, especially
on constraint of Member States' freedom to implement more stringent
measures than those in the Regulation and on in-flight measures.
2.9 We note also the Minister's
response in relation to aviation security and safety in Gibraltar.
However, we are not entirely reassured. It seems to us that, even
though Gibraltar is subject to the UK's stringent requirements,
a Spanish refusal to allow application of legislation to Gibraltar
might risk a failure by the Spanish authorities to alert the Gibraltarian
authorities directly of any relevant security risk of which they
become aware.
2.10 Given the importance
of the issue of aviation security and safety we recommend that
this draft Regulation now be debated in European Standing Committee.
This would allow Members to explore further especially, but not
exclusively, the issue in relation to Gibraltar.
2.11 We add that our original
question on Gibraltar was directed at aviation matters generally.
We should like to know whether the Spanish attitude has practical
effect for the comfort or convenience of those working at or using
Gibraltar airport. It would be helpful to have a response on this
in time for it to be taken into account in the debate, but not
at the expense of a delay in scheduling the debate.
2.12 Finally we remind the
Government that we should like to see the Regulatory Impact Assessment,
should one become necessary, even if this after the new framework
Regulation is adopted.
3 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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