CIVIL AVIATION SECURITY (12588/05)
Letter from Gillian Merron MP, Parliamentary
Under Secretary of State, Department for Transport to the Chairman
Thank you for your letter of 25 July 2006[22]
regarding the proposed EC Regulation on civil aviation security.
This issue has been given increased priority by the Presidency
following the recent aviation security alert at mid August, with
a number of discussions at Working Group, most recently on 2 October.
I am writing to update you on progress ahead of the 12 October
Transport Council, where it is hoped a Political Agreement can
be reached on the text.
I will deal first with the most contentious
issue, the funding of transport security measures. You will be
aware from my Explanatory Memorandum (EM) 12168/06 of 5 September
that the Commission published a paper on this subject on 1 August.
As I pointed out in the EM, this paper makes no recommendations
for state funding of security, but does draw three broad conclusions:
— financing mechanisms for transport
security are lacking in transparency;
— as funding mechanisms vary, there
may be distortion of competition both within the Community (particularly
where more stringent measures are concerned) and internationally
(particularly in respect of the US); and
— State monies used to fund transport
security do not constitute state aid.
The European Parliament has not, as far as I
am aware, commented on the paper, but MEPS have continued discussions
with the Commission and the Finnish Presidency on the funding
amendments they themselves proposed to the draft Regulation at
First Reading. At one point it was hoped that a compromise between
the Council and the European Parliament might be found by removing
provisions on funding from the operative part of the text and
adding a reference to the possibility of state payments
and/or further Commission study in the non-binding preambles.
This arrangement remains an option, but MEPs appear not yet ready
to agree to it and are thought unlikely to do so at Second Reading.
This means that funding provisions will almost certainly be a
subject for negotiation during Conciliation under the forthcoming
German Presidency.
Three issues are of particular concern to MEPs:
— shared funding (involving a state
contribution) of baseline measures; and
— Member State funding of more stringent
measures (that is, any requirements in addition to those set out
in EC legislation).
The UK remains opposed to any requirement for
state funding. We believe that a significant number of other Member
States will support this approach.
Having reached an impasse on funding, the Finnish
Presidency has elected to defer discussions with the Parliament
on any of the other outstanding points. I am therefore unable
to provide a further update at this stage on any progress with
the UK's concerns over the Parliament's other amendments. These,
too, are likely to be considered as part of the Conciliation dialogue.
The UK is, however, content with proposed Presidency text, with
one probably minor concern—the implications of the new comitology
rules as detailed below. The Presidency has removed from the latest
version of the proposal all references to the European Air Safety
Agency; all other safety/security confusions; the objectionable
Commission proposal for an approval process for more stringent
measures; and the over-generous exemptions for mail transported
by air. The Commission has raised no objections to any elements
of the Presidency text.
As regards the new comitology rules, we have
only recently become aware of their implications for the aviation
security proposal—indeed, the proposal is one of the first
to be affected by Council Decision 512/06, which introduced the
new Regulatory Procedure with Scrutiny (RPWS) provisions. The
Council's common position is likely to be that the new procedure,
which gives MEPs the right to block certain implementing legislation,
should be applied to Articles 4(3) (derogations) and 9a (quality
control programmes) of the draft proposal. We are content with
the application of the new procedure to Article 9a, which is not
likely to prove controversial and should not require urgent amendment.
We are less sure that its application to Article 4(3) is acceptable,
although the urgency procedure which allows legislation to be
introduced subject to later Parliamentary comment within a limited
timeframe, has been included. This is because of a concern that
detailed and security sensitive rules on derogations might subsequently
became public knowledge, through the publication of an amending
Annex. We are likely to be discussing this further, and exploring
possible alternatives, with our European partners in the period
before the Council.
You will also wish to be aware of recent developments
in relation to the application of the Regulation to Gibraltar.
In mid September, the UK, Spain and Government of Gibraltar concluded
an agreement, which inter alia, covers the development
of Gibraltar airport as the regional airport for that area. This
agreement replaces the 1987 agreement, which never came into force,
and will result in all the EC legislative provisions on aviation,
including security, to be applicable to Gibraltar. At present,
the UK and Spain are agreeing a form of words to replace the relevant
articles in this Regulation; it is hoped that this will be finalised
before the next Transport Council meeting.
Finally, I would like to give you some further
information about a related issue; the recent agreement on an
urgent amendment to implementing Regulation 622/03. This proposal,
considered under the comitology Regulatory Procedure, was the
subject of an unnumbered EM laid before Parliament on 25 September
and put to the vote in the comitology Committee on 27 September.
The proposal was designed to address the threat to aviation from
liquid explosives, which came to the fore during the recent security
alert at UK airports. The amending Regulation was agreed by a
QMV vote, winning support from a large majority of Member States,
and, with the exception of new requirements on hand luggage dimensions,
is expected to come into force in November. The hand luggage specifications
will apply as from early next year.
I hope that you find this helpful. I will write
again in due course to inform you about progress made at the October
Transport Council and at the European Parliament's Second Reading.
4 October 2006
Letter from the Chairman to Gillian Merron
MP
Thank you for your letter of 4 October 2006,
replying to my letter of 25 July. Sub-Committee B considered your
letter at its meeting on 9 October.
We note that the issue provoking most controversy,
the funding of transport security, has been largely removed from
the text of the proposed Regulation and that discussions on the
issue will be deferred until a later point. We would of course
be grateful to you for an update as these discussions progress.
At the time of writing, we have not yet had
the opportunity to consider the further Explanatory Memorandum,
which your letter mentions. This letter will now be considered
at our next meeting on 16 October, and we will respond to it as
quickly as possible.
We recognise the urgency of this Regulation
in the current security climate, and are content to lift scrutiny
ahead of the Transport Council on 12 October. We look forward
to receiving a report from you following the Council meeting.
We note your concern over the application of
the new comitology rules to this proposal; are there any other
current transport proposals which to your knowledge may be similarly
affected?
10 October 2006
Letter from the Chairman to Gillian Merron
MP
Sub-Committee B considered your Explanatory
Memorandum at its Meeting on 16 October 2006.
We much appreciate your drawing this to the
Committee's attention and although it was unfortunate that we
could not consider the draft Regulation before its agreement on
27 September, we quite understand the reasons for this. We recognise
the need for urgent action following the alleged terror plot in
August, and the requirement for the detail of these measures to
remain secret.
We understand from your letter of 4 October
that negotiations on funding provisions, which had been a source
of great disagreement thus far, will continue under the German
Presidency in the first half of 2007, and would be grateful if
you kept us informed of any further developments.
We are content to lift scrutiny on this document.
17 October 2006
Letter from Gillian Merron MP to the Chairman
Thank you for your letters of 10 and 17 October.
I am writing to provide you with an update on progress on the
two aviation security legislative proposals concerned; the proposed
implementing Regulation, which was the subject of my unnumbered
EM, laid before the House on 26 September, and the proposed framework
Regulation, the subject, most recently, of my letter of 4 October.
The new implementing Regulation, containing
provisions to address the threat from liquid explosives, was agreed
by the comitology procedure on 27 September and entered into force
in the European Community on 6 November as Regulation 1546/06.
The Regulation introduces measures which, in the wake of the August
security alert here in the UK, limit quantitites of liquids which
can be carried by passengers through the central search point
and require passengers to remove laptops from bags and take off
their coats before screening. It also limits the size of bag allowed
to be used for hand luggage, although this will not become a legal
requirement in other Member States until May 2007. The Government
has adjusted most requirements at UK airports to mirror those
set out in the Regulation, although passengers here are still
limited to a single piece of hand luggage and hand search ratios
remain higher than elsewhere in the Community. The Regulation
will be subject to a review six months after the date of adoption,
in particular to take into account research currently being carried
out in relation to the detection of liquid explosives.
As regards the proposed new aviation security
framework Regulation, the subject of my Explanatory Memorandum
12588/05, progress has been much slower. The most significant
development is that the October Transport Council reached a political
agreement on a text which we would have no difficulty in accepting.
In particular, this text contained no references to the funding
issue which has proved so contentious and limited the application
of the new regulatory procedure to derogations and the adjustment
of quality control processes, as set out in my letter of 4 October.
The requirements covering derogations are perhaps not ideal, but
they do allow for the application of the urgency procedure, thus
ensuring that Parliamentary consideration will not preclude urgent
action. A reference to the Ministerial Statement on Gibraltar
Airport, agreed in Cordoba on 18 September, has also been incorporated
into the text. This means that the new Regulation would in due
course also apply to Gibraltar.
Since the Council meeting, the Finnish Presidency
has engaged very actively with Members of the European Parliament,
and especially with the leader of the Transport and Tourism Committee,
in an effort to pave the way for agreement at Second Reading.
The Council Working Group and the Commission have also been extensively
involved in this process. The Presidency suggested to MEPs that,
while Member States were firmly of the opinion that funding provisions
should not be specified in a technical Regulation, it would be
possible to gain their agreement to an Article—rather than
just a preamble as previously proposed—on transparency,
while the Commission accepted that it could agree to undertake
further research on the whole subject of transport security financing.
These offers were apparently insufficient to secure MEPs' support
in advance of the Second Reading and we remain reasonably convinced
that there will be no resolution before a Conciliation stage under
the German Presidency. The Second Reading is likely to take place
early in the New Year and will reveal whether MEPs also wish to
pursue possible amendments in other areas. They have made no specific
references as yet to the provisions covering the use of the regulatory
procedure with scrutiny.
In your letter of 10 October, you also asked
for details of other transport measures to which the new scrutiny
procedure will apply. In fact, it applies to all proposals for
legislation adopted after 23 July 2006, which already include
numerous examples in the transport field. None of these, however,
are of the extremely sensitive nature of the proposed new aviation
security measures. As regards extent legislation, the Council,
Parliament and Commission have agreed that 25 existing measures
will be adjusted (as appropriate) to the new procedures as a matter
of urgency. These do not include any transport proposals, but
the Commission has also informed the Parliament that it will examine
all other co-decision acts currently in force and, if necessary,
adopt measures adapting them to the new procedures by the end
of 2007. These are likely to include some legislative acts relating
to transport, but no details are yet available. We will pay close
attention, in particular, to any changes proposed for security
legislation.
Finally, as background information to all the
above, you may also wish to be aware of a current challenge to
the Community legislative system, the so-called "Heinrich
case". This concerns an action brought by an Austrian man
who was refused permission to take tennis rackets into an aircraft
cabin, as screeners considered that they fell into the category
of "prohibited article". The list of prohibited articles
is included in the Annex to Regulation 622/03, which is classified
and not publicly available, although there is a separate requirement
for airports to display the list at check in counters and elsewhere.
All other elements of the Annex are only available to security
professionals and others on a strict need-to-know basis. Mr Heinrich
is challenging the Commission's right to classify, and therefore
not publish, legislation, claiming that this is contrary to the
provisions of the Treaty. Legal advice is that the case is not
clear cut and Member States have been invited to submit comments.
The UK intends to do so.
I hope that this is helpful. I will continue
to keep you updated on progress with the important proposal for
a new framework Regulation and, if you so wish, on any developments
in respect of implementing Regulation 1546/06.
15 December 2006
Letter from the Chairman to Gillian Merron
MP
Thank you for your letter of 15 December. Sub-Committee
B considered your letter at its meeting on 8 January 2007.
We were grateful to you for updating the Committee
on the progress of both important Regulations. We continue to
support the need for urgent action in this sensitive area, and
are concerned at the slow progress on the framework Regulation.
We would of course be grateful to receive an update from you following
the European Parliament's second reading.
You write that, regarding the Heinrich case,
the legal argument over the Commission's right to classify its
legislative provisions is "not clear cut". We would
be grateful to you for a summary of the Government's comments
on the issue, should they be submitted as you expect.
9 January 2007
22 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, p 63. Back
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