Documents considered by the Committee on 1 March 2017 Contents

8Aviation Security

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Transport Committee and the Home Affairs Committee

Document details

Proposed Regulation establishing a Union certification system for aviation security screening equipment

Legal base

Article 114 TFEU; ordinary legislative procedure; QMV

Department

Transport

Document Number

(38123), 12090/16 + ADDs 1–2, COM(16) 491

Summary and Committee’s conclusions

8.1EU requirements for the methods of aviation security screening are contained in Regulation (EC) No. 300/2008 which also addresses many other aspects of aviation security.45 However, the technical standards for the equipment used are controlled by Member States, normally based on technical requirements established at pan-European level by the 44-state European Civil Aviation Conference (ECAC). This provides a high degree of harmonisation across Member States. The Commission believes that approach is insufficient and has led to diverging standards and practices being applied by Member States.

8.2The proposed Regulation, presented as an internal market measure, would introduce an EU-wide system of certification for airport security equipment (such as, for example, baggage X-ray machines, walk-through metal detectors and security scanners). It is based loosely on the existing certification system for road vehicle type-approval and on the ECAC standards. The Commission asserts that a fully binding, harmonised approach to standard-setting is necessary to boost the competitiveness of EU companies in this manufacturing sector. The proposal is accompanied by annexes setting out the proposed standards and certifications.

8.3Central to the proposal is Article 4 which provides on the “sale and entry into service of equipment”:

“Member States shall not impede the making available and/or putting into service of any equipment which is accompanied by a valid certificate of conformity issued in accordance with Article 5. They shall not impose additional requirements in respect of such equipment (our underlining).”

8.4The Government told us last time in its Explanatory Memorandum that it did not accept the Commission’s contention that the proposal complies with the Treaty’s subsidiarity principle. It had concerns about:

8.5In our last Report, we thought it possible that the proposal might apply to the UK before Brexit, but noted that the transitional provisions included made it unlikely that it would do so to its fullest extent. However, in view of the uncertainty, we still considered the proposal’s compliance with subsidiarity and recommended a Reasoned Opinion,46 which was approved by the House on 31 October 2016.47 This was based on the following reasoning, summarised in the conclusions to that Report as follows:

“It is not sufficiently clear that Article 4 of the proposal strikes the right balance between action necessary at EU level and action best left to Member States as it does not explicitly refer to the ability of Member States to continue to apply higher security standards for aviation equipment (the “More Stringent Measures” permitted by Regulation 300/2008);

“The Commission does not provide adequate substantiation in its Impact Assessment of the necessity of action at EU level, by making too great an inference from evidence based on a survey of 18 Member States that Member States are unlikely to make improvements to their current cooperation on testing of aviation security equipment; and

“The supposed benefit of EU level action in improving the internal market in aviation security equipment will be undermined by increased bureaucracy and costs in complying with the requirements associated with a common certification scheme in each Member State and ensuring that confidentiality concerning specifications for such equipment is maintained as a matter of utmost national security.”

8.6We recognise that the Commission makes a focused attempt in its response to the Reasoned Opinion of the House of Commons to answer the specific concerns raised.

8.7In particular the Commission seeks to reassure the House that Article 4 of the proposal would not limit Member States’ ability to impose “More Stringent Measures” in relation to airport screening equipment as currently permitted under Regulation 300/2008 because “since the proposal fully encompasses the provisions” of that Regulation “it is deemed that all provisions of Regulation 300/2008 automatically apply if not specified otherwise”. This echoes what the Commission said in a factsheet accompanying the proposal.48

8.8However we have several problems with this assertion:

a)We cannot find any “deeming” language in the text of the proposal. In fact, the only reference to Regulation 300/2008 in the operative text of the proposal appears in Article 3(1) definition of “aviation security screening equipment”.

b)We might accept more readily that all the provisions of Regulation 300/2008 are automatically applicable to this proposal if it were the parent legislation on which this proposal was based. But it is not. The legal basis for this proposal is the single market Treaty provision, Article 114 TFEU. The legal basis for Regulation 300/2008 is completely different, based on the old Treaty article for Transport policy, Article 80 of the Treaty Establishing the Economic Community. It covers matters relating to aviation security of a much broader scope that the current proposal.49 Just because the proposal refers to the Regulation 300/2008 does not automatically mean that all the provisions in that Regulation apply to the current proposal, particularly in view of the proposal’s narrower scope and purpose.

c)We do not understand why a clarifying amendment cannot be explicitly inserted in the text, even in a Recital, to reassure Member States that they can still adopt “More Stringent Measures”. Reassurances in letters and factsheets are not legally-binding alternatives on which Member States should be expected to rely. We therefore ask the Government to confirm whether this has been suggested in negotiations in Council and if so, what the response of the Commission and other Member States has been.

8.9We turn now to Brexit implications. During the debate in European Committee on the Reasoned Opinion, the Minister for State at the Department of Transport (Mr John Hayes) said “To be frank, I cannot see us implementing this proposal and we will do all we can not to do so. If we could not mitigate the proposals in the process that we will now endure and if we could not build a sufficient blocking minority among other nations—which I think we probably could—I suppose it would be theoretically possible that we might end up having it forced upon us for a very short period”.50 Can the Minister clarify whether it is Government policy to not comply with any future EU legislation, particularly where it will be directly applicable (as in the present case), which is:

a)not in the national interest; and

b)only likely to apply to the UK for short time before withdrawal.

If so, what does he consider might be the legal consequences, both in the EU and national courts of such a policy?

8.10Considering the UK’s position after Brexit, we invite the Minister to comment on the following in due course:

a)This measure is a single market measure, which focuses on the free movement of aviation security equipment which satisfies common technical standards. How important will it be to ensure that this trade in aviation security equipment with the EU can continue after Brexit, from economic, operational and security perspectives?

b)The question of post Brexit co-operation between the EU and the UK on aviation safety has been discussed in the House on several occasions:

Can the Government now give any better indications as to what its strategy might be?

8.11We retain the document under scrutiny and ask the Government to:

i)respond to our questions above;

ii)provide any observations on the Commission’s response to the Commons’ Reasoned Opinion; and

iii)update us on the negotiations of the proposal.

8.12We draw this chapter and document to the attention of the Transport Committee and the Home Affairs Committee.

Full details of the documents

Proposed Regulation establishing a Union certification system for aviation security screening equipment: (38123), 12090/16 + ADDs 1–2, COM(16) 491.

The Commission’s letter of 3 February 2017

8.13The Commission thanks the House of Commons for its helpful Reasoned Opinion. The response is signed not only by the Vice President of the Commission responsible for relations with national Parliaments, Fran Timmermans but also by Sir Julian King, the EU Commissioner for the Security Union. The Commission’s letter can be accessed in full here.53

8.14In summary, the Commission does not agree that proposal breaches the subsidiarity principle, arguing that:

Previous Committee Reports

Sixteenth Report HC 71-xiv (2016–17), chapter 1 (26 October 2016).


45 The Regulation lays down common rules and basic standards and procedures on aviation security. Common basic standards comprise: screening of passengers, cabin baggage and hold baggage; airport security (access control, surveillance); aircraft security checks and searches; screening of cargo and mail; screening of airport supplies and staff recruitment and training.

46 See the “Reasoned Opinion on the House of Commons on the proposed Regulation to establish Union certification for aviation security screening equipment” on the European Scrutiny Committee Subsidiarity” web page.

47 European Committee A, Aviation Security (Reasoned Opinion), 31 October 2016, cols 1–12.

48 In an accompanying factsheet, the European Commission tried to allay such concerns: “This proposal does not limit the possibility for any EU Member State to apply more stringent measures for performance requirements as envisaged in the currently applicable EU aviation security legislation.”

49 Aviation security screening equipment is included in the provisions of the Regulation (EC) No 300/2008, which establishes common rules in the whole field of civil aviation security.

50 European Committee A, Aviation Security (Reasoned Opinion), 31 October 2016, col 7.

51 HC Deb, 25 November 2016, col 1220.

52 European Committee A, Aviation Security (Reasoned Opinion), 31 October 2016, col 10.

53 See the “Commission Responses” on the European Scrutiny Committee “Subsidiarity” webpage




3 March 2017