Explanatory Memorandum to COM(2003)454 - Insurance requirements for air carriers and aircraft operators (presented by the Commission pursuant to Article 250 (2) of the EC Treaty) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2003)454 - Insurance requirements for air carriers and aircraft operators (presented by the Commission pursuant to Article 250 (2) of ... |
|---|---|
| source | COM(2003)454  |
| date | 23-07-2003 |
The European Parliament agrees with the main elements of the Commission's proposal. However, it has formulated a number of amendments, on the basis of which the Commission proposes to introduce some new elements to its original text.
The Commission appreciates the pragmatic and balanced approach followed by the European Parliament in the matter and recognises in particular the added value of the amendments proposing to strengthen certain elements of the Regulation and in that way the functioning of the proposed rules.
In the light of these considerations, the Commission is prepared to incorporate those suggestions and amendments aiming at improving and clarifying the current text of its proposal.
In particular:
A large part (13) of the proposed amendments are acceptable as adopted by the European Parliament. These amendments are the following: 1, 2, 3, 5, 6, 7, 8, 10, 11, 16, 17, 19 and 20. These amendments are accepted as they stand, since they would provide a useful addition to the text, clarify the text or constitute editorial improvements.
These amendments concern the following elements of the proposal:
Contents
This recital is amended in the same way as article 5 paragraph 3 is amended to state clearly that depositing evidence of insurance with one national authority shall suffice for all Member States. This will further reinforce the absence of any discriminatory treatment against air carriers and aircraft operators across the Community. EP amendments concerned: 1 and 10.
The article has been amended so as to render the text clearer with regard to passengers. The amendment of this article is closely linked to the new definition of passenger, which is provided in article 3 (l). EP amendment concerned: 2.
The article concerning the scope of the proposed Regulation has been amended in various ways: the wording of the article has been streamlined so as to reflect the objective of the proposed Regulation as stated in Article 1; the scope of the proposed regulation has been broadened, so as to apply also to local flights; at the same time state aircraft have been excluded from the scope of application. These changes constitute partly textual clarifications and to the extent they concern the scope, they do not unduly affect the scope of proposed rules. EP amendments concerned: 3, 5 and 6.
The definition concerning the basis for classifying aircraft to categories (Maximum Take-Off Weight - MTOW or Maximum Take-Off Mass - MTOM as it is also called in the industry) has been textually clarified without changing the meaning of the provision. EP amendment concerned: 7.
The text of the provision has been clarified without changing the meaning of the provision. EP amendment concerned: 8.
The text is modified so as to state clearly that when air carriers and aircraft operators deposit evidence of insurance with the competent authority of one Member State that shall suffice for all Member States. This will introduce clarity and will further foster the functioning of the internal market. EP amendment concerned: 10.
Also, in the same context, with regard to overflight, Member States have instead of the option the obligation to require that air carriers and aircraft operators produce evidence of insurance, which has been effected in accordance with the Regulation. This will ensure consistency of the measures regarding compliance. EP amendment concerned: 11.
The change introduced in this part of the proposal is considerable; with the new text it is clearly stated that in as much as third party cover for risks of war and terrorism is concerned, the insurance amounts will be applicable in the aggregate. This change echoes reactions from both the aviation industry and the insurers, which are still unable to provide insurance cover for such risks according to contractual practice prevailing before the events of 11 September 2001. Nevertheless, the change is integrated in such a way into the text of the proposal that allows air carriers to observe the minimum insurance requirements for both general risks as well as specifically for risks of war and terrorism. EP amendment concerned: 16.
The text of the proposal has been changed in an effort to render the sanctions more effective, by allowing Member States to proceed to additional inspections to verify the existence of appropriate insurance. EP amendment concerned: 17.
In the same context, where air carriers and aircraft operators from third countries do not observe the insurance requirements of the Regulation, Member States have the obligation to refuse them access to the Community. At the same time, it should be borne in mind, that when EU air carriers are not adequately insured Member States cannot maintain their operating licence as foreseen in article 3 of Council Regulation (EEC), N° 2407/92 on air carrier licensing. EP amendment concerned: 19.
Finally, the proposed sanctions are further strengthened, as Member States have the obligation not to allow the aircraft which has been found without appropriate insurance to take-off from airport before it has produced evidence of valid insurance. This measure should ensure that no air carrier or aircraft operator subject to the Regulation is allowed to start uninsured a flight from a Community airport. EP amendment concerned: 20.
One amendment (21) is acceptable only in principle: it concerns the definition of 'passenger'. Accordingly a new definition under Article 3 (l) has been introduced.
Some amendments i are acceptable only in part and with redrafting: these are: amendments 4, 14, 23 and 31:
Amendment 4 (concerning Article 2 - scope of the Regulation with regard to aircraft operators) can be accepted only in part because the second part thereof is confusing, as aircraft operators are never required to hold an operating licence.
Amendment 14 (concerning Article 7 2 - regarding the categories and amounts of insurance to cover third party liability), can be accepted only in part. The addition of 3 categories of small aircraft below 25 tons and the relevant insurance amounts are acceptable as they clarify the situation of such aircraft. The remaining categories and insurance amounts however, are not acceptable, because they are based on a resolution by the European Civil Aviation Conference (ECAC) of December 2000, which does not reflect any more the reality of the market after the events of 11/9/2001 as they are too low.
Amendment 23 (concerning the definition of a flight) can be accepted only in part because even though it follows largely the Montreal Convention it is unnecessary detailed and needs therefore to be shortened.
Amendment 31 (concerning Article 8 - Sanctions/Enforcement) is acceptable only as far as third country carriers are concerned, but not Community ones. As explained earlier, where insurance requirements are not observed the air carriers bear sanctions in application of existing rules, that is Regulation 2407/92 on air carrier licensing.
The Commission has to reject a number i of proposed changes to the Regulation, which affect the core issues of its proposal. These amendments are: 9, 12, 13, 15, 18 and 25.
Amendment 9 concerning state guarantees (Article 5 2 of the proposal) would not be in line with the Commission's state aid philosophy and would distort competition. Therefore, it cannot be accepted by the Commission.
Amendment 12 concerning the validity of insurance (article 5 5 of the proposal) is legally not practicable as insurance may be withdrawn during a flight as after the 11/09/2001 and compliance would be impossible to ensure. Therefore, it cannot be accepted by the Commission.
Amendments 13 and 15 concerning the definition of short-term leases (article 6 2 and article 7 4 of the proposal) fall under the scope of other rules (article 8 of Council Regulation (EEC) N° 2407/92). Also, as far as the responsibility to meet minimum insurance requirement in case of short-term lease is concerned, amendment 15 is legally confusing as the entity that purchases insurance does not always have to be the holder of an Aircraft Operator's Certificate (AOC). Therefore, these amendments cannot be accepted by the Commission.
Amendment 18 containing a detailed description of doubts about effective insurance (article 8 2 of the proposal); is over-prescriptive and cannot be accepted by the Commission.
Amendment 25 which broadens the definition of insurer (article 5 2 of the proposal) cannot be accepted as it would introduce undue discrimination against insurers from third countries and contravene international obligations of the Community in financial services (GATS). Therefore, it cannot be accepted by the Commission.
In the light of all the above and in compliance with Article 250, paragraph 2, the Commission modifies its proposal.