Documents considered by the Committee on 27 April 2011 - European Scrutiny Committee Contents

12   Civil aviation




COM(11) 43




COM(11) 44

Draft Council Decision on the signature and provisional application of a Memorandum of Cooperation between the European Union and the United States of America in civil aviation research and development

Draft Council Decision on the conclusion of a Memorandum of Cooperation between the European Union and the United States of America in civil aviation research and development

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

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

Documents originated4 February 2011
Deposited in Parliament10 February 2011
Basis of considerationEM of 17 February 2011 and Minister's letter of 4 April 2011
Previous Committee ReportNone
Discussion in Council(a) 28 February 2011

(b) Not known

Committee's assessmentPolitically important
Committee's decisionCleared; further information requested


12.1  The Single European Sky was established in 2004 in order to facilitate a single market in air transport. The legislative basis was established with four foundation Regulations.[44] The main Single European Sky objectives are to improve and reinforce aviation safety, to restructure European airspace so as to accommodate air traffic flow more efficiently and cost-effectively, without the constraints imposed by national borders, and to create a uniform and interoperable air traffic management system. The SESAR (Single European Sky air traffic management research) programme is seen as the originally industry-led implementation programme for the Single European Sky and is designed to complement the existing regulatory framework and to facilitate the implementation of new technology in the field of air traffic management (ATM).

12.2  SESAR is organised in three principal phases:

  • a two-year Definition Phase (2006-2007) drawing up an ATM Master Plan for the modernisation of air traffic management in Europe;
  • a six-year Development Phase (2008-2013) establishing the technological basis for the new system; and
  • the Deployment Phase of the new systems (2014-2020 in the first instance, but likely to be followed by a second phase up to 2030).

12.3  The ATM Master Plan, which was the result of the Definition Phase and which was endorsed in a Council Resolution of 20 March 2009, is designed to support, during the Development Phase, the SESAR Concept of Operations. In 2007 a Joint Undertaking (JU), which allows public and private financing, was established to manage the Development Phase of the SESAR programme.[45] In 2008 the JU was given the legal status of a Community (now EU) body.[46] Subsequently, private industry partners have joined the SESAR JU. Membership contracts were formally concluded with 15 private partners (including the UK's NATS (National Air Traffic Services) and an airports consortium involving BAA) and with Eurocontrol[47] in June 2009. This signalled the formal launch of the Development Phase The total estimated cost of that phase is €2.1 billion, shared equally between the EU (drawing on funds from the 7th Framework Programme for Research and Technology and the Trans-European Transport Network programme), Eurocontrol and the industry. We last reported on SESAR earlier this month.[48]

12.4  As part of the March 2009 Resolution endorsing the ATM Master Plan the Council asked the Commission to take steps to achieve the highest level of interoperability between the SESAR project and its US equivalent, NextGen, and to take into account the need for consistency of SESAR with ICAO global concept developments. It asked the Commission for a recommendation to authorise the latter to open negotiations on a Memorandum of Cooperation (MoC) with the US Federal Aviation Administration (FAA).

12.5  The Commission recommendation presented to the June 2009 Transport Council proposed to extend the scope of the MoC to go beyond SESAR-NextGen interoperability to the broader field of civil aviation research and development, in order to pursue common objectives, such as the reduction of the environmental impact of aviation and more efficient air transport systems. Member States endorsed this approach and the October 2009 Transport Council adopted a Decision mandating the Commission to open negotiations with the FAA to conclude a MoC for research and development in civil aviation research and also requesting the Commission to prepare concurrently an initial annex to the MoC covering SESAR-NextGen interoperability. The Commission was assisted in subsequent negotiations by a special committee of representatives from Member States. The two parties initialled a draft MoC and draft annex on SESAR-NextGen interoperability on 18 June 2010.

The documents

12.6  These draft Council Decisions are to authorise signature and provisional application, document (a), and conclusion, document (b), of the MoC and its annex. In presenting the proposals the Commission says that:

  • EU aviation stakeholders are keen to secure interoperability between SESAR and NextGen in order to ensure safe and seamless global ATM operations, boost market opportunities for EU industry and avoid costly duplication of on-board equipment;
  • given US industry already has access to EU research and development programmes, EU industry urgently needs to be given reciprocal opportunities;
  • it sees this as a key priority;
  • once concluded, the MoC will replace the existing Memorandum of Understanding between the Commission and the FAA, signed in July 2006 and updated in March 2009 to take account of the SESAR JU's key role in technological cooperation with the FAA on behalf of the Commission;
  • the MoC is intended to provide a robust and legally-binding basis for establishing cooperative research and development activities as well as addressing the issues of liability, intellectual property rights and reciprocity;
  • it is intended to contribute towards Single European Sky objectives by supporting the SESAR programme and being in line with EU research policy and to achieving the aims of the 7th Framework Programme;
  • the Commission considers that close technical and operational cooperation under the MoC will facilitate early development of common standards with the potential for SESAR-NextGen standards to be turned into global standards for ATM;
  • the MoC will enable early definition and implementation of reciprocity principles vital to ensure EU has equivalent access to US markets as the USA currently has to EU markets;
  • interoperability will mitigate the risk of duplication of airborne equipment and consequent cost to airlines;
  • to implement the MoC, the two parties will establish and co-chair a Joint Committee on which the USA will be represented by the FAA and the EU by the Commission with decisions taken by consensus between the two parties;
  • the Joint Committee will meet regularly to review the effectiveness of the implementation of the MoC; and
  • management arrangements under the annex on SESAR-NextGen interoperability will consist of a High Level Committee, co-chaired by one representative each of the Commission and the FAA, meeting at least once a year and a Coordinating, Committee composed of representatives of the SESAR JU and the FAA Air Traffic Organisation and meeting at least twice a year.

The Government's view

12.7  In her Explanatory Memorandum the Minister of State, Department for Transport (Mrs Theresa Villiers) says that the Government:

  • fully supports the conclusion of the MoC, as it paves the way for mutually beneficial cooperation in all fields of civil aviation, including interoperability, the introduction of new technologies and reducing the environmental impact of aviation on the environment, and will facilitate achieving common goals in these areas;
  • supports the Single European Sky and its associated technological programme, SESAR;
  • considers it extremely important to integrate the SESAR and NextGen ATM modernisation programmes, as technological cooperation with the US will contribute to the success and realisation of SESAR;
  • thinks it will also help towards achieving global interoperability in ATM, which will increase safety, efficiency and sustainability and avoid costly duplication of on-board equipment for airlines;
  • welcomes the opportunity the MoC affords for UK industry to have full access to and to compete effectively in the US market;
  • believes that, now the terms and conditions of the MoC have been defined, it is vital that they should be swiftly and effectively implemented in order to realise the benefits;
  • will therefore closely track progress, through its participation in the Single Sky Committee, the delegated authority for the Single European Sky, in the EU Transport Working Group and in the working arrangements set out in the MoC and its annex, to ensure UK industry is afforded the maximum opportunity through this cooperative arrangement; and
  • will use these fora to promote and protect UK interests in further spheres of cooperation in civil aviation research and development, to be developed under the MoC and defined in further annexes to the MoC.

12.8  The Minister also says that these draft Decisions were to have been adopted at the Transport Council of 31 March 2011.

12.9  In her letter the Minister says that:

  • in the event the Hungarian Presidency announced, at short notice, its intention that the draft Decision to authorise signature and provisional application of the MoC, document (a), be adopted at the Energy Council of 28 February 2011;
  • the Government's initial approach was to try to get the item deferred to a later Council as the timing meant that there had been no opportunity for scrutiny to be completed on the document;
  • it was advised, however, that the Presidency's reason for scheduling adoption at the Energy Council was that the US side was willing to go to Budapest for a signing ceremony on 3-4 March 2011, so the Presidency was reluctant to defer adoption;
  • the Government abstained from the vote as scrutiny had not been completed; and
  • it made the Presidency and the Council Secretariat aware that it was dissatisfied that it did not have more notice about this timetable, which might have allowed completion of parliamentary scrutiny beforehand.

The Minister adds that:

  • no particular timetable has been specified for adoption of the draft Decision to authorise conclusion of the MoC, document (b);
  • now that the framework of cooperation has been defined, it is crucial that the MoC is swiftly and effectively implemented to realise its benefits; and
  • accordingly, the Government will be closely tracking progress in all appropriate fora.

12.10  The Minister also takes the opportunity of her letter to draw our attention some corrections of errors in the Explanatory Memorandum.


12.11  We have no reason not to clear these draft Decisions to bring into operation this useful Memorandum of Cooperation and now do so.

12.12  However, it is regrettable that the Hungarian Presidency adopted such a flagrantly casual approach to national parliamentary scrutiny. We note the Government's consequent abstention from the vote on the draft Decision on signature and conclusion of the Memorandum and its representations to the Presidency and the Council Secretariat. Nevertheless now that we have been made aware of the Presidency's action we should like the Government to convey to the Presidency, and the Council Secretariat, our displeasure about this and our expectation that the spirit of Treaty requirements in relation to national parliamentary scrutiny be properly observed for the future. We look forward to hearing from the Government about the response to our message.

44   Regulation (EC) No 549/2004 laying down the framework for the creation of the Single European Sky, Regulation (EC) No 550/2004 on the provision of air navigation services, Regulation (EC) No 551/2004 on the organisation and use of the airspace and Regulation (EC) No 552/2004 on the interoperability of the European air traffic management network. Back

45   For the SESAR JU see  Back

46   That is giving it legal personality, applying the Financial Regulation, on budgetary management, and Commission staff regulations, and dealing with such matters as liability and privileges and immunities, with substantial tax advantages. Back

47   The European Organisation for the Safety of Air Navigation, founded in 1960, now with membership of 39 countries and the EU: see  Back

48   (32467) 5756/10 (32471) 17915/10: see HC 428-xviii (2010-11, chapter 10 (2 March 2011). Back

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