European Scrutiny Committee Contents

9 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

Basis of considerationMinister's letter of 28 March 2011
Previous Committee ReportHC 428-xxi (2010-11), chapter 3 (23 March 2011)
To be discussed in Council(a) 31 March 2011 Transport Council

(b) Not known

Committee's assessmentPolitically important
Committee's decisionCleared


9.1 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.

9.2 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. 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).

9.3 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.

9.4 When we considered this matter, earlier this month, we heard that:

  • the Commission's explanatory memorandum stated that the Memorandum of Cooperation covered issues where the EU has competence and where relations with ICAO need to be maintained at the EU level;
  • the Government accepted that aviation safety, security, environmental protection and air traffic management contain elements where EU competence had been established;
  • nonetheless it was 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 an international body constitutionally made up of sovereign states; and
  • this was an important point of principle of concern to the Government.

We heard further that:

  • the Government accepted that there were areas of aviation policy where enhanced cooperation between the EU and ICAO could bring benefits;
  • it believed, however, that the important principle, preservation of the position of Member States at the ICAO, was at stake;
  • it considered 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 considered that this aim would be detrimental to EU interests at the ICAO and to the interests of individual Member States;
  • it did 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), gave complete reassurance that the agreement implied 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 proposed to abstain from supporting the draft Decisions when they were discussed at the Transport Council, on 31 March 2011.

9.5 We said that:

  • although we could see the utility of the Memorandum of Cooperation, we noted the important subsidiarity issue raised by the Minister and the Government's intention to abstain from support for the draft Decisions;
  • given, however, the subsidiarity point, we did not understand why the Government did not intend to vote against the proposals;
  • we wanted an explanation of this intention; and
  • meanwhile the documents would remain under scrutiny.[40]

The Minister's letter

9.6 The Minister of State, Department for Transport (Mrs Theresa Villiers), writes now to say that:

  • the main reason for proposing to abstain, rather than voting against the proposals, is that the Government recognises that not all of the content of the Memorandum of Cooperation is problematic;
  • there are elements in the proposals, for example in the sphere of international air safety, which will benefit the aviation community worldwide;
  • the Government also recognises that the Commission was given a mandate to seek this agreement in 2009 and accepts that there is general support for the proposals amongst other Member States;
  • its reservations are with regard to the end result which the proposals might lead to;
  • it remains of the view that it is necessary to put down a marker that the UK is concerned about the principle of Member State sovereignty in international organisations and cautious about any proposals which appear to enhance the role of the EU at the expense of Member States;
  • its feeling is that, in the long term, such proposals could eventually change the distribution of competences between the EU and the Member States; and
  • it considers that an abstention by the UK will be a stronger way of conveying this message than, for example, a vote in favour accompanied by a statement of its concerns.


9.7 We are grateful to the Minister for her prompt response to our question about the Government's voting intentions. We note the case for abstention, rather than a vote against the proposals, and, whilst we are not wholly convinced by it, accept that the argument is finely balanced. So we now clear the documents.

40   See headnote. Back

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Prepared 7 April 2011