Explanatory Memorandum to COM(2018)894 - Aspects of aviation safety with regard to the withdrawal of the United Kingdom from the Union

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dossier COM(2018)894 - Aspects of aviation safety with regard to the withdrawal of the United Kingdom from the Union.
source COM(2018)894 EN
date 19-12-2018


1. CONTEXTOFTHE PROPOSAL

• Reasons for and objectives of the proposal

The United Kingdom submitted on 29 March 2017 the notification of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on European Union. This means that, if the Withdrawal Agreement1 is not ratified, the Unions’ primary and secondary law will cease to apply to the United Kingdom from 30 March 2019 (‘the withdrawal date’). The United Kingdom will then become a third country.

The withdrawal of the United Kingdom from the Union without an agreement affects in particular the validity of certificates and licenses originating from the United Kingdom issued under Regulation (EU) 2018/11392 and the implementing and delegated acts adopted by

2.

virtue


of that Regulation or of Regulation (EC) No 216/20083.

The Commission Communication on ‘Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: a Contingency Action Plan’4 has set out the contingency measures it plans to take for the case that no withdrawal agreement will enter into force on the withdrawal date. In this Communication, the Commission has underlined that will not remedy the lack of preparedness measures by stakeholders, or delays in their implementation.

In the area of aviation safety, in most cases the effect of the withdrawal of the United Kingdom from the European Union on certificates and approvals can be remedied by stakeholders through various measures, including a 'switch' to a civil aviation authority of the EU27, or the application, already now, for a third-country certificate issued by the European Aviation Safety Agency ("the Agency") with effect of the withdrawal date ("early application").

However, unlike in other areas of Union law, there are some instances where it is not possible for natural and legal persons to mitigate disruptions in the EU-27. Therefore the abovementioned Commission Communication announced that the Commission would propose measures ensuring continued validity of certificates for certain aeronautical products, parts, appliances and companies.

Regarding certain aeronautical products ("type certificates") and companies ("organisation approvals"), the United Kingdom resumes, for its jurisdiction as of the withdrawal date, the role of 'State of design' under the Convention on International Civil Aviation. The United Kingdom, can only issue certificates in this new role if it complies with requirements set

https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf. Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91, OJ L 212, 22.8.2018, p. 1.

Regulation (EU) 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC. OJ L 79, 19.3.2008, p. 1. COM(2018)880 final, 13.11.2018.

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under the Convention. Those responsibilities are currently fulfilled by the European Aviation Safety Authority to which the United Kingdom participates by virtue of EU membership.

It is therefore necessary to ensure a controlled change mechanism, allowing the operators concerned and the Agency sufficient time so that the necessary certificates can be issued under Article 68 of Regulation (EU) 2018/1139, having regard to the status of the United Kingdom as a third country.

3.

extended validity should be limited in time to what is strictly necessary to cater for the


Such

United Kingdom’s departure from the EU Aviation safety system.

Moreover, unlike in most other areas of Union law on goods, the invalidity of certificates impacts not the placing on the market but the actual use of aviation products, parts and appliances in the EU, when for example installing parts and appliances on an EU27 aircraft. Indeed, as regards products, parts and appliances, the aviation framework is regulated differently from many other areas of the Union acquis where the concept of placing on market is central. In the aviation safety framework the regulation determines directly whether a part, product or appliance can be used, regardless of whether it has been placed on the market. The EU aviation safety system allows oversight of such products, parts and appliances to be carried out reliably and unequivocally. Thus, it is considered beneficial to use the existing framework also as a basis for the proposed regulation to ensure compliance with aviation safety principles.

4.

This concerns only


a very limited number of certificates, i.e.

• Certificates issued by manufacturers (“production organisations”) before the

withdrawal date certifying compliance of newly manufactured products (other than aircraft), parts and appliances thus allowing the continued use in and on aircraft (Point 21 A163(c) of Annex I to Regulation 748/2012)

• Certificates issued by maintenance companies (“maintenance organisations”)

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before the withdrawal date certifying compliance of products (incl. aircraft), parts and appliances which have undergone maintenance by them (Point 145.A.75(e) of Annex II to Regulation 1321/2014)


• Idem for aircraft other than complex motor powered aircraft (Point M.A.615(d) of Annex I to Regulation 1321/2014)

• Idem for parts and appliances installed aircraft other than complex motor powered a ircraft (Point M.A.615( d) of Annex I to Regulation 1321/2014)

• Certificates issued by maintenance companies (“maintenance organisations”)

before the withdrawal date certifying the completion of airworthiness review for light aircraft in the so-called European Li g ht Aircraft 1 category (" E LA 1" , for example certain sailplanes or light powered aircraft) (Point 145.A.75(f) of Annex II to Regulation 1321/2014)

• Certificates issued by companies overseeing the compliance of an aircraft ( continuing airworthiness management organisations ) before the withdrawal date certifying the 'airworthiness' of an aircraft (Points M.A.711(a).4 and M.A.711(b).1 of Annex I to Regulation 1321/2014

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Finally, the content and exams of certain trainings addressed under the proposal are regulated in a detailed manner under Union law and consist of standardised modules, which should


normally be completed in one Member State, before a transfer to another Member State jurisdiction is possible.

The provisions proposed will not lower the requirements regarding the safety or environmental performance of aviation in the Union. The proposal will allow EU-27 manufacturers to continue producing their products and operators to continue operating such products, in compliance with applicable Union legal requirements. To the contrary, an interruption in these activities would cause significant social and economic problems. In ensuring organisations' compliance with EU law, the proposal will also ensure the protection of consumers and citizens.

The European Council (Article 50) reiterated its call, on 13 December 2018, for work on preparedness at all levels for the consequences of the United Kingdom's withdrawal to be intensified, taking into account all possible outcomes. This act is part of a package of measures which the Commission is adopting in response to this call.

• Consistency with existing policy provisions in the policy area

This proposed Regulation is intended as a lex specialis that would address some of the consequences ensuing from the fact that Regulation (EU) No 2018/1139 and the implementing and delegated acts adopted thereunder as well as under Regulation (EU) No 216/2008 rules will no longer apply to the United Kingdom, applying only to the extent necessary to ensure the controlled shift to an EU-27 aviation market. The proposed terms are limited to what is necessary in this respect, so as to avoid disproportionate disruptions. They are also intended to apply only for a limited period of time. The general provisions of those acts will otherwise continue to apply. This proposal is thus fully consistent with the existing legislation and notably with Regulation (EU) No 2018/1139.

• Consistency with other Union policies

The proposal concerns aviation safety and complements Union Regulation (EC) 2018/1139 to deal specifically with the situation of the United Kingdom withdrawing from the Union without a withdrawal agreement.

2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY

• Legal basis

The legal basis is Article 100(2) of the Treaty on the Functioning of the European Union (TFEU).

• Subsidiarity (for non-exclusive competence)

As the proposal complements existing Union law, with provisions facilitating their orderly application following the withdrawal of the United Kingdom from the Union, its objective can only be achieved through an act at the level of the Union.

• Proportionality

The proposed Regulation is considered proportionate as it is capable of avoiding disproportionate disruptions through providing for a limited and necessary legal change, which covers the need for a controlled shift to an EU-27 aviation market. It does not go beyond what it necessary to achieve this objective and it refrains from any broader changes or any permanent measures.

Choice

of the instrument

This proposal contains a limited set of provisions to address a very specific and one-off situation. Therefore, it is considered preferable not to modify Regulation (EU) 2018/1139 and/or the implementing and delegated acts adopted thereunder as well as under Regulation (EC) No 216/2008, but to put in place a stand-alone act for a limited period of time. The normal provisions concerning the affected certificates and licenses are covered both by Regulation (EU) 2018/1139 and by its implementing rules. Taking both this and the urgency of the matter, into consideration a regulation of the European Parliament and Council appears to be the only adequate form of legal act.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

Contents

1.

CONSULTATIONS


ANDIMPACTASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Not applicable due to the exceptional and one-off nature of the event necessitating this proposal.

• Stakeholder consultations

The specific circumstances surrounding the negotiations for the withdrawal of the United Kingdom from the Union and the continuously evolving situation posed major limitations on the possibility to consult publicly on the proposal. However, the challenges arising from the United Kingdom's withdrawal from the EU and possible solutions have been raised by various aviation stakeholders and Member States representatives.

A common theme in the views presented by the various stakeholders was that there is a need for regulatory intervention in specific areas where stakeholders are not able to take their own contingency measures in order to mitigate the harmful impact of the possible absence of a withdrawal agreement. In particular, companies manufacturing, maintaining or operating aircraft stressed the fact that their operations in the EU-27 could be halted if the United Kingdom leaves the Union without any arrangement in place. The main problem appears to be indeed a likely time gap between a withdrawal taking place without any agreement and the normalisation of the situation under Union law by either granting third-country certificates to the UK companies or relocating production to EU-27 jurisdictions. During this time gap almost all certificates would become invalid. Many stakeholders highlighted the fact that there are globally only a limited number of manufacturers for many of the components used in aircraft (e.g. tyres or engines for large airline-type aircraft). The just-on-time nature of modern operations and manufacturing means that it will be impossible to continue operations if the safety certificates concerned become invalid.

• Collection and use of expertise

In addition to in-house legal and technical analysis, this information has been further analysed and verified with the technical experts of the European Union Aviation Safety Agency (EASA) to ensure the proposed measure achieves its intended purpose, but is at the same time limited to what is strictly necessary.

• Impact assessment

An impact assessment is not needed, due to the exceptional nature of the situation and limited needs of the period during which the change of status of the United Kingdom is implemented. There are no materially different policy options available except for the one proposed.


• Fundamental rights

The proposal has no impact on the application or protection of fundamental rights.

4. BUDGETARYIMPLICATIONS

Not applicable.

5. OTHERELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Not applicable due to the short-term nature of the proposed measure.