2 Single European Sky
| Committee's assessment
| Politically important |
| Committee's decision | (a) Cleared from scrutiny (decision reported on 19 November 2014)
(b) Not cleared, further information requested
|
| Document details | (a) Draft Regulation concerning aerodromes, air traffic management and air navigation services
(b) Draft Regulation consolidating and amending four Regulations concerning the Single European Sky
|
| Legal base | Article 100(2) TFEU; co-decision; QMV
|
| Department | Transport
|
| Document numbers | (a) (35072), 11496/13, COM(13) 409
(b) (35073), 11501/13 + ADDs 1-2, COM(13) 410
|
Summary and Committee's conclusions
2.1 The Single European Sky (SES) initiative was launched in response
to the growing problem in air traffic management (ATM) delays
in the late 1990s. The legislative basis for the SES was established
in April 2004 with the entry into force of four high-level Regulations,
now termed "SES I". In 2009 these Regulations were amended
as part of a SES second package (SES II).
2.2 In June 2013 the Commission presented, as SES
II+, two draft Regulations, document (a), to amend the Regulation
establishing the European Aviation Safety Agency (EASA), and
document (b), to recast (consolidate and amend) the four SES I
Regulations.
2.3 We have considered these proposals on a number
of occasions and last month we noted that the Government had made
good progress in securing improvements to these legislative proposals.
On that basis we cleared the EASA draft Regulation, document (a),
from scrutiny. But, given a difficulty with Spain over Gibraltar,
we did not clear the SES recasting draft Regulation, document
(b). However, we did grant the Government a waiver, in terms of
the Scrutiny Reserve Resolution, allowing it to support such a
General Approach, if a text was proposed which unambiguously secured
Gibraltar's position. Whether or not the waiver was used we wished
to have a report of the outcome of the forthcoming Transport Council.
2.4 We are now told that an acceptable General Approach
on the EASA draft Regulation was achieved at the 3 December Transport
Council. However, the Italian Presidency unhelpfully purported
to achieve a General Approach on the SES recasting draft Regulation,
which included unacceptable references to Gibraltar.
2.5 We note the Government's strong Minute Statement
on the disappointing development on the SES recasting draft Regulation
and presume that it will work with the Latvian Presidency to ensure
that the matter is not carried forward in trilogue negotiations
until the Gibraltar issue is satisfactorily resolved. We presume
also that, if necessary, the Government will seek confirmation
from the Court of Justice that Gibraltar's position is secured
by Article 355(3) TFEU.
2.6 We ask the Government to keep us informed
of its efforts to put this proposal back on track. Meanwhile the
document remains under scrutiny.
Full details of
the documents: (a) Draft
Regulation amending Regulation (EC) No. 216/2008 in field of aerodromes,
air traffic management and air navigation services: (35072), 11496/13,
COM(13) 409; (b) Draft Regulation on the implementation of the
Single European Sky (recast): (35073), 11501/13 + ADDs 1-2, COM(13)
410.
Background
2.7 The Single European Sky (SES) initiative was
launched in response to the growing problem in air traffic management
(ATM) delays in the late 1990s. The principal objective of the
SES is to deliver a seamless, safe, sustainable, efficient and
interoperable European ATM system capable of meeting future capacity
needs and not artificially constrained by national borders.
2.8 The legislative basis for the SES was established
in April 2004 with the entry into force of four high-level Regulations,
now termed "SES I". These Regulations were amended by
Regulation (EC) No. 1070/2009 to introduce a performance scheme
and network management function and to accelerate the formation
of cross-border "functional airspace blocks" (FABs)
involving two or more States. These amendments were part of the
SES second package (SES II) aimed at expediting the delivery of
SESAR (SES ATM Research), which is the technological/industrial
complement to the SES and crucial to its realisation.[1]
2.9 In June 2013 the Commission presented, as SES
II+, two draft Regulations, document (a), to amend the Regulation
establishing the European Aviation Safety Agency (EASA), and
document (b), to recast (consolidate and amend) the four SES I
Regulations.
2.10 We have considered these proposals on a number
of occasions, most recently in November. We heard then that texts
proposed for General Approaches to be proposed for adoption at
the 3 December Transport Council met, with one possible exception,
the UK's key interests. The exception was the possible inclusion
in the SES recasting draft Regulation of wording which would suspend
application to Gibraltar pending agreement between the UK and
Spain.
2.11 We noted that the Government had made good progress
in securing improvements to these legislative proposals. On that
basis we cleared the EASA draft Regulation, document (a), from
scrutiny. But, given the difficulty with Spain over Gibraltar,
we did not clear the SES recasting draft Regulation, document
(b). However, we did grant the Government a waiver, in terms of
the Scrutiny Reserve Resolution, allowing it to support such a
General Approach, if a text was proposed which unambiguously secured
Gibraltar's position Whether or not the waiver was used we wished
to have a report of the outcome of the forthcoming Transport Council.
The Minister's letter of 8 December 2014
2.12 The Parliamentary Under-Secretary of State,
Department for Transport (Mr Robert Goodwill) reports first that:
· at
the final discussion by officials ahead of the Transport Council
the Italian Presidency put forward a proposed version of the text
of the SES recasting draft Regulation, which gave no specific
mention of Gibraltar in the article on scope;
· by default,
EU aviation legislation applies to Gibraltar as it is included
under the TFEU;
· Gibraltar
can only be excluded from legislation by means of an explicit
suspension; and
· that
text would, therefore, have been favourable to the UK and the
Government would have supported it.
2.13 The Minister adds that:
· it
was clear that Spain would resist this text and that the issue
would result in a dispute at Transport Council;
· indeed,
on 3 December the Council's proceedings were dominated by discussions
on the proposed General Approaches on the two legislative proposals;
and
· the
General Approach on the EASA draft Regulation was agreed without
comment and the related Commission Declaration on the applicability
of the EASA Regulation to Gibraltar Airport was accepted.
2.14 Turning to the SES recasting draft Regulation,
the Minister says that:
· he
supported the Presidency's ambition of reaching a General Approach
on the condition that it respected in full the EU Treaties and
included Gibraltar Airport within the scope;
· Spain
sought the exclusion of Gibraltar Airport;
· in an
astonishing move, the Presidency proposed to put in square brackets
the current text in Article 1 (concerning scope), paragraph 5
which notes that the application of the Regulation is without
prejudice to the respective legal positions of the UK and Spain
with regard to the dispute over sovereignty over the territory
in which the airport is situated and to add a footnote stating
that "the question on how to reflect the Gibraltar issue
in the text is awaiting the outcome of discussions between Spain
and UK";
· he objected
in the strongest possible terms, emphasising that Gibraltar was
included in the current SES framework, that any exclusion of Gibraltar
was unjustifiable under the Treaties and that the UK could not
accept any proposal that did not make clear that Gibraltar was
within scope;
· at his
request, the Council Legal Service opined that the Council's agreement
on the aviation content amounted to a General Approach, but the
consequence of the part not agreed by all Member States, that
is the part concerning Gibraltar, resulted in the General Approach
being partial;
· overriding
his protest and the opinion of the Council Legal Service, the
Commission welcomed the Presidency's proposal and the Presidency
concluded that a General Approach had been reached; and
· he left
the Council in protest at what was a completely unacceptable situation.
2.15 The Minister comments that:
· the
Government is clear that EU aviation legislation applies to Gibraltar
as is clearly set out in the EU Treaties;
· it will
continue to defend the inclusion of Gibraltar in EU aviation legislation;
· it reserves
its position on the lawfulness of any other outcome, and on its
response, including the possibility of pursuing legal proceedings;
· the
Foreign Secretary has spoken to his Italian counterpart since
the Council to express the Government's view that the dossier
could not proceed to the next stage, discussions with the European
Parliament, until the question of application to Gibraltar had
been resolved;
· the
Italian Foreign Minister gave his assurance that the Italian Presidency
would not seek to do this; and
· the
Government looks forward to cooperating with the Latvian Presidency
in resolving this issue.[2]
Previous Committee Reports
Ninth Report HC 83-ix (2013-14), chapter 5 (10 July
2013), Fifth Report HC 219-v (2014-15), chapter 5 (2 July 2014),
Twentieth Report HC 219-xix (2014-15), chapter 4 (19 November
2014).
1 See SESAR. Back
2
The Government's view of the status of Gibraltar airport and of
the purported General Approach is recorded in a Council Minute Statement. Back
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