Documents considered by the Committee on 23 March - European Scrutiny Committee Contents

3   Civil aviation




COM(11) 106




COM(11) 107

Draft Council Decision on the signature and provisional application of a Memorandum of Cooperation between the European Union and the International Civil Aviation Organisation

Draft Council Decision on the conclusion of a Memorandum of Cooperation between the European Union and the International Civil Aviation Organisation

Legal base(a) Articles 100(2) and 218 (5) TFEU; —; QMV

(b) Articles 100(2) and 218 (6) TFEU; consent; QMV

Documents originated10 March 2011
Deposited in Parliament16 March 2011
Basis of considerationEM of 21 March 2011
Previous Committee ReportNone
To be discussed in Council(a) 31 March 2011

(b) Not known

Committee's assessmentPolitically important
Committee's decisionNot cleared; further information requested


3.1  The International Civil Aviation Organization (ICAO), a UN Specialised Agency, is tasked with achieving the safe, secure and sustainable development of civil aviation through cooperation amongst its 190 member states. The ICAO's chief means of pursuing its goals is through the development of standards in such areas as safety, security, environment and air traffic management. These ICAO standards form the basis for EU aviation legislation and some standards, such as environmental standards for aircraft, are taken into EU law without amendment. The Commission therefore regards it as essential to engage closely in the work of ICAO in order to contribute to sound global aviation policies and to protect EU interests.

3.2  In December 2009 the Council gave the Commission a mandate to negotiate a Memorandum of Cooperation between the EU and the ICAO. The negotiations were carried through during the course of 2010 and the Memorandum of Cooperation was initialled on 27 September 2010 during the opening of the 37th ICAO Assembly.

The documents

3.3  These documents are a Council Decision to formally approve signature of the Memorandum of Cooperation and make it provisionally applicable, triggering the creation of a joint committee, document (a), and one to conclude it, document (b).

3.4  The Memorandum of Cooperation is intended to be a framework for an enhanced cooperation between the EU and ICAO in the key areas of aviation safety, aviation security, air traffic management and environmental protection. Each of these areas will form a specific annex to the Memorandum. So far only the safety annex has been agreed. The others will be adopted progressively by the joint committee.

The Government's view

3.5  The Minister of State, Department for Transport (Mrs Theresa Villiers), first commenting on subsidiarity, says that:

  • the Commission's explanatory memorandum states that the Memorandum of Cooperation covers issues where the EU has competence and where relations with ICAO need to be maintained at the EU level;
  • the Government accepts that aviation safety, security, environmental protection and air traffic management contain elements where EU competence has been established;
  • nonetheless it is clear that the Memorandum would expand the role of the Commission at the ICAO to a considerable degree and could therefore be viewed as a step towards the Commission supplanting the role of Member States in what is an international body constitutionally made up of sovereign states; and
  • this is an important point of principle which is a concern to the Government.

3.6  The Minister comments further that:

  • the Government accepts that there are areas of aviation policy where enhanced cooperation between the EU and ICAO could bring benefits;
  • it believes, however, that the important principle, preservation of the position of Member States at the ICAO, is at stake;
  • it considers that an effect of this agreement could be to undermine that position, which could eventually lead to the Commission securing overall competence in ICAO matters through full membership of the organisation;
  • the Government considers that this aim would be detrimental to EU interests at the ICAO and to the interests of individual Member States;
  • it does not consider that the statements made by the Commission during the negotiations on the mandate, that the proposal was not intended to affect relations between individual Member States and ICAO nor to affect the arrangements for preparing EU positions for meetings of the ICAO Council (repeated in paragraph 2 of the Memorandum), give complete reassurance that the agreement implies no significant transfer of influence between Member States and the Commission at the ICAO; and
  • on the basis of this assessment of the potential impact of the Memorandum of Cooperation on the position of Member States at the ICAO the Government proposes to abstain from supporting the draft Decisions when they are discussed at Transport Council.

3.7  Turning to the financial implications of the proposals the Minister says that:

  • support for this cooperation, of €500,000 (£426,000) per year for an initial period of three years is envisaged within the framework of the Financial and Administrative Framework Agreement between the EU and the United Nations;
  • the Commission's explanatory memorandum leaves open the possibility that this budget could be complemented by financial support from Member States or the European Aviation Safety Agency; but
  • there are no financial commitments imposed on the UK.

3.8  Finally, the Minister, noting that the Hungarian Presidency intends to seek adoption of the draft Decision on the signature and provisional application of the Memorandum of Cooperation, document (a), at the Transport Council on 31 March 2011, says that it will then, in April 2011, continue work on the Council Decision on the Memorandum's conclusion, document (b). She comments that this will allow time for in-depth discussion of the inclusion of more detailed rules as regards the procedure to follow concerning the EU position to be taken in the joint committee.


3.9  Although we can see the utility of the Memorandum of Cooperation, we note the important subsidiarity issue raised by the Minister and the Government's intention to abstain from support for the draft Decisions. However, given the subsidiarity point, we do not understand why the Government does not intend to vote against the proposals — we should be grateful for an explanation of this intention. Meanwhile the documents remain under scrutiny.

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