Documents considered by the Committee on 12 September 2018 Contents

11Aviation security

Committee’s assessment

Politically important

Committee’s decision

(a) Not cleared from scrutiny; further information requested (b) Cleared from scrutiny

Document details

(a) Proposed Regulation about EU certification of aviation security screening equipment; (b) 2016 Annual Report on the Implementation of Regulation (EC) 300/2008 on Common Rules in the field of Civil Aviation Security

Legal base

(a) Article 114 TFEU, ordinary legislative procedure, QMV (b)—

Department

Transport

Document Numbers

(a) (38123), 12090/16 + ADDs 1–2, COM(16) 491; (b) (39406), 15947/17 + ADD 1, COM(17) 768

Summary and Committee’s conclusions

11.1On 7 September 2018 the European Commission proposed a regulation93 which would create 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).

11.2In its first report on the proposal, on 26 October 2016,94 the Committee expressed concerns that the proposal did not comply with the principle of subsidiarity, and recommended that the House issue a Reasoned Opinion in relation to it, which it duly did on 31 October 2016.95 The Reasoned Opinion, contained in an annex to the Committee’s report, stated that the proposal potentially removed the ability of Member States to continue to apply higher security standards for aviation equipment (the “More Stringent Measures” permitted by Regulation 300/2008), would result in increased bureaucracy, and would increase the difficulty of ensuring that confidentiality concerning specifications for such equipment was maintained.

11.3On 11 July 2018 the Parliamentary Under Secretary of State at the Department for Transport (Baroness Sugg) provided the Committee with a written update on subsequent developments in relation to this proposal.96 The Minister stated that it that it was clear from Council working parties that other Member States shared UK concerns about this proposal, particularly on restrictions on the ability to apply More Stringent Measures (MSMs), and there was a concern that “internal market issues appeared to be taking a priority over security”. The working group was subsequently suspended, with the Commission considering how it could meet Member States’ concerns.

11.4The Minister also informed the Committee that the Commission had written to the Member States to propose that it would withdraw the proposal. She stated that the Commission has proposed the following way forward:

11.5The Minister stated that this approach would address UK concerns, as Member States would retain the ability to apply More Stringent Measures if they wanted to employ equipment offering better detection standards than the EU baseline and would also be permitted to retain national certification processes. By relying on existing mechanisms, the proposal would also avoid the need to set up a complex and bureaucratic certification process. Substantive discussions on the detail of these new provisions are not expected before the end of the year, and are expected to take place within the forum of the Commission’s Aviation Security Regulatory Committee (on which the Member States are represented).

11.6The European Commission has also published its report on the implementation of the EU aviation security framework regulation (300/2008) in 2016,97 which concluded that a high level of security continues to be maintained throughout the EU.

11.7The background section of this report provides an overview of the current EU aviation security framework and the implications of EU exit for this policy area.

11.8The European Commission has agreed at working group level, in response to Member State concerns, to withdraw draft regulation (EU) 12090/16. We welcome this development, in line with the concerns expressed in the Reasoned Opinion recommended by our predecessor committee on 27 October 2016 and subsequently issued by the House. The Commission has suggested a possible alternative approach to the Member States, whereby it would amend existing implementing legislation to establish a lighter touch “certification process” which would result in the issuing of an “EU stamp” for approved equipment that would allow access to all EU markets, subject to it complying with existing European Civil Aviation Conference (ECAC) standards. We accept the Minister’s view that this approach would address the Committee’s concerns, on the basis that it would permit Member States to continue to apply MSMs, to retain their own certification processes, and avoid the introduction of significant additional bureaucratic requirements.

EU exit implications

11.9When the UK leaves the EU and any transitional arrangements come to an end, the UK will automatically cease to participate in EU aviation security rules and monitoring procedures.98 The effects that this would have, in the absence of replacement UK-EU arrangements, are set out in a European Commission notice to stakeholders.99

11.10With respect to passenger transport, the principal implications identified are that:

11.11These effects would increase turnaround times for UK carriers and passengers travelling through EU airports, but would also have very serious operational impacts in EU airports, given the increased levels of screening required. These effects would not arise if the EU recognised UK aviation security standards as equivalent to its own.

11.12With respect to the carriage of cargo and mail, the principal impacts are that:

11.13We also note that securing continued reciprocal access to Passenger Name Records (PNR), including PNR data of third countries with which the EU currently has agreements in place, is also of critical importance to maintaining current standards of aviation security.

11.14Despite these possible implications, our initial assessment is that, in the event of a negotiated exit, these impacts are unlikely to materialise. This is on the basis that:

11.15We consider that an abrupt, non-negotiated exit is significantly more likely to lead to aviation security-related disruption as the UK would have had much less time to make the necessary preparations, and an acrimonious end to the negotiations would be a much less propitious environment in which to seek equivalence for the UK’s aviation security regime. The likelihood of the negative impacts identified above occurring for airports, carriers, their suppliers, and industrial supply chains which rely on cargo transport increase in such a scenario.

11.16Given that there are now fewer than seven months until the date when a non-negotiated exit from the EU would take effect (March 29 2019), we ask the Government:

11.17We retain document (a) under scrutiny solely for the purpose of considering the implications of EU exit in this area, while clearing document (b). We do not consider it necessary for the anticipated implementing regulation to be deposited unless, contrary to expectations, it triggers Government concerns. We request a response to our queries by 8 November 2018.

Full details of the documents: (a) Proposed Regulation about EU certification of aviation security screening equipment: (38123), 12090/16 + ADDs 1–2, COM(16) 491; (b) 2016 Annual Report on the Implementation of Regulation (EC) N° 300/2008 on Common Rules in the field of Civil Aviation Security: (39406), 15947/17, COM(17) 768.

Background

11.18The aim of aviation security is to prevent acts of unlawful interference, above all by keeping threatening items such as arms and explosives away from aircraft. The International Civil Aviation Organisation (ICAO) has adopted Standards and Recommended Practices (SARPs) for international civil aviation in the area of aviation security in the form of Annex 17 to the Chicago Convention, which sets minimum standards for aviation security worldwide, which are implemented in greater detail by individual countries.

11.19A full overview of EU legislation in the area of civil aviation security is provided by the European Commission on its website. However, the two principle instruments are:

11.20The EU regulatory framework is based on the following basic principles:

11.21The regulatory framework covers all components of the air transport chain which can affect the security of the aircraft and/or infrastructure.

11.22Common basic standards cover:

11.23Member States must ensure that they:

11.24Operators must:

11.25The common rules in the field of civil aviation security apply also to the EFTA states Norway, Iceland, Liechtenstein and Switzerland.

11.26The Regulation also allows for the recognition of equivalence of security measures of third countries. This can permit the establishment of “one-stop” security arrangements between the EU and non-EU countries such as in the case of the United States, Canada and Montenegro. Consequently, air carriers transporting freight between the EU and the US do not need to apply any additional EU or US requirement.

11.27The implementation of the aviation security acquis is based upon a two-layer system of compliance monitoring, i.e. Commission inspections complemented by the assessment of Member States’ annual reports and national monitoring activities (security audits, inspections and tests) carried out by each Member State. Any shortcomings must be remedied by the national authority. National authorities are responsible for primary quality control and enforcement and therefore have to conduct audits and inspections covering all airports, air carriers and entities.

11.28In the UK, the Department for Transport (DfT) is the competent authority but the Civil Aviation Authority (CAA) has been responsible for day-to-day aviation security regulatory activity and compliance monitoring since 1 April 2014, when these functions were transferred from DfT. The respective present roles of the DfT and CAA in the aviation security field are documented in a Memorandum of Understanding and its annexed Statement of Responsibilities.103 The UK’s overall aviation security framework, which implements and adds to the EU regime, is set out in a ‘Single Consolidated Direction’.

11.29The EU also regulates aviation security with respect to cargo and mail transportation both within the EU and from third countries. Air carriers that intend to fly cargo into the EU from a non-EU airport must comply with the ACC3 (Air Cargo or Mail Carrier operating into the Union from a Third Country Airport) programme104 which ensures that all cargo and mail carried to the EU is physically screened or comes from a secure supply chain which is validated according to EU standards. Where necessary, on-site checks at third-country airports are carried out by the competent authorities of the Member States concerned. This system defines three entities in the supply chain—regulated agents, known consignors, and account consignors—which must apply for EU aviation certification validation. Any entity that is not one of the entities above is an unknown entity and may not be part of a secure supply chain. All cargo or mail coming from an unknown entity needs to be screened by or on behalf of an ACC3 or by a third country regulated agent before being loaded on board an aircraft bound for the EU. All ACC3 designations are listed in an EU database (the Union Database on Supply Chain Security (UDSCS).

EU exit implications

11.30On 5 July 2018, the European Commission published a Notice to Stakeholders105 which specifically addresses the implications of EU exit for aviation security, which stated that as of the withdrawal date, the EU aviation security rules and standards with regard to passengers, baggage, and freight arriving from a third country, particularly on transfer onto a connecting flight, will apply to passengers, baggage and freight arriving from the United Kingdom. The notice stated that this had a wide range of implications for stakeholders, unless the UK were found to provide security standards equivalent to the common basic standards.

11.31The implications identified were:

11.32This would have some impact on turnaround times for air carriers and passengers travelling through EU airports. It would also have operational and cost implications for EU airports, given the significant increase in numbers of the passengers who will require rescreening. These consequences would be averted if the UK’s aviation security regime were granted equivalence, as a significant number of third countries have been.

11.33The Commission identified the following additional implications with respect to cargo and mail air transport:

11.34For cargo between the UK and the EU, the EU has the mechanism to recognise the UK regime as equivalent by “green-listing” the UK, as it has done for a significant number of countries. Flights from Green list counties are exempt from ACC3. Those from “White list” countries are subject to ACC3. Those from red list countries are subject to ACC3 and additional screening processes.

11.35An article on the MLex regulatory newswire published shortly after the European Commission’s Article 50 Task Force’s presentation on aviation106 cited anonymous officials who were present at the session, who said that the UK would be offered an agreement which contained “provisions for aviation safety and security”. The report also stated that:

The agreement would also contain a “one-stop security” agreement—a deal where the EU recognizes a foreign state’s security standards as equivalent to its own, meaning passengers and cargo don’t need extra checks when transferring at EU airports. Such agreements have previously been made with the US, Canada and Montenegro.107

11.36The European Council adopted new negotiating guidelines with regard to the framework for the future relationship on 23 March 2018, in which they accepted that, regarding transport services, the aim should be to ensure continued connectivity between the UK and the EU after the UK withdrawal, and that: “This could be achieved, inter alia, through an air transport agreement, combined with aviation safety and security agreements, as well as agreements on other modes of transport, while ensuring a strong level playing field in highly competitive sectors”.108

11.37The UK’s White Paper, “The Future Relationship Between the United Kingdom and the European Union”, published on 12 July 2018, stated that “the UK will continue close collaboration on aviation security, so that the UK and the EU can continue to address evolving shared threats in the most effective way.”109

11.38At a press conference on 26 July 2018 the European Commission Chief Negotiator Michel Barnier stated that “based on the protection of personal data, and based on reciprocity, the EU and the UK can explore the modalities for close cooperation on … the exchange of Passenger Name Records to better track and identify individuals involved in terrorism and crime.”110

11.39In terms of specific aviation security challenges that will have to be addressed either in the context of a negotiated exit (i.e. as part of the future relationship, following the end of the proposed transition period) or a non-negotiated exit (i.e. by 29 March 2019), the following are particularly important:

11.40We note that a recent National Audit Office report states that one of the Department for Transport’s sixteen Brexit workstreams is “agreeing protocols for security procedures over flights, including cargo flights”.112

Previous Committee Reports

Sixteenth Report HC 71–xiv (2016–17) chapter 1 (26 October 2017); Thirty-third Report HC 71–xxxi (2016–17) chapter 8 (1 March 2017). For the implications of EU exit for UK access to EU Passenger Name Records data see: Thirteenth Report HC 301–xiii (2017–19) chapter 2 (7 February 2018).


93 Draft Regulation establishing a Union certification system for aviation security screening equipment COM(16) 491.

94 Sixteenth Report HC 71–xiv (2016–17) chapter 5 (26 October 2016).

95 Hansard, European Committee A, Reasoned Opinion, Aviation Security (31 October 2016).

96 Letter from the Minister, Department for Transport, to the Chair of the European Scrutiny Committee (11 July 2018).

97 2016 Annual Report on the Implementation of Regulation (EC) 300/2008 on Common Rules in the field of Civil Aviation Security COM(17) 768.

98 European Commission, Aviation Security Legislation https://ec.europa.eu/transport/modes/air/security/legislation_en.

99 European Commission, Notice to Stakeholders, Withdrawal of the United Kingdom and EU rules in the field of Aviation Security and Maritime Security (5 July 2018).

100 The critical parts of security-restricted areas are any part of an airport to which departing passengers or baggage have access.

101 The European Council (Art. 50) guidelines on the framework for the future EU-UK relationship (23 March 2018) expresses support for the possibility of agreeing “an air transport agreement, combined with aviation safety and security agreements”. The UK Government’s post-Chequers White Paper on the future relationship (12 July 2018) states that “the UK will continue close collaboration on aviation security, so that the UK and the EU can continue to address evolving shared threats in the most effective way.”

102 At a press conference on 26 July 2018 Michel Barnier stated that “based on the protection of personal data, and based on reciprocity, the EU and the UK can explore the modalities for close cooperation on … the exchange of Passenger Name Records to better track and identify individuals involved in terrorism and crime.” We note that the Committee is scrutinising this issue in much greater detail through the EU-Canada Agreement on Passenger Name Record Data, including reports on 13 November 2017, 6 December 2017, and 7 February 2018.

103 Memorandum of Understanding in respect of aviation security between the Secretary of State for Transport and the Civil Aviation Authority (December 2016).

104 European Commission, Information for cargo handling entities in non-EU countries https://ec.europa.eu/transport/modes/air/security/cargo-mail/entities_en.

105 European Commission, Notice to Stakeholders, Withdrawal of the United Kingdom and EU rules in the field of Aviation Security and Maritime Security (5 July 2018).

106 European Commission, Slides on Aviation (17 January 2017).

107 MLex, EU plans tight limit on UK aviation freedoms and ejection from air-safety agency (17 January 2017).

108 The European Council (Art. 50) guidelines on the framework for the future EU-UK relationship (23 March 2018).

109 HM Government, The future relationship between the United Kingdom and the European Union (12 July 2018).

110 European Commission, Statement by Michel Barnier at the press conference following his meeting with Dominic Raab, UK Secretary of State for Exiting the EU (26 July 2018).

111 Letter from the Minister, Home Office, to the Chair of the European Scrutiny Committee (22 January 2018), quoted in Thirteenth Report HC 301–xiii (2017–19) chapter 2 (7 February 2018).

112 National Audit Office report: Implementing the UK’s Exit from the European Union: Department for Transport (19 July 2018).




Published: 18 September 2018