REPORT FROM THE COMMISSION

Safety of third-country aircraft using Community airports (Report on the application of Directive 2004/36/EC of the European Parliament and of the Council)

(Text with EEA relevance)

(2008/C 244/03)

1.   INTRODUCTION

Ever since its inception under the auspices of the European Civil Aviation Conference (ECAC) in association with the Joint Aviation Authorities (JAA) back in 1996, the SAFA (safety assessment of foreign aircraft) Programme has increasingly proven to be a vanguard in enhancing European, and indeed international, aviation safety. This, albeit the obvious limitations inherent in the Programme such as human and technical resources as well as the restricted nature of the very ‘ramp inspection’ itself — the cornerstone of the Programme.

The European Community (EC) has from the outset fully endorsed and supported the SAFA Programme, participating actively through membership in the SAFA Steering Committee and also through the provision of funding made available to the JAA by the European Commission.

Within the framework of the Community's overall strategy to establish and maintain a high uniform level of civil aviation safety in Europe, on 21 April 2004 the Community adopted Directive 2004/36/EC of the European Parliament and of the Council on the safety of third-country aircraft using Community airports (1) — the so-called ‘SAFA Directive’.

Whilst the Community obligations of the Member States deriving from this Directive could be to a large extent discharged through their participation in the ECAC SAFA Programme — the management of which had been delegated to the JAA — the Programme was not based upon a European legal binding basis but upon a commitment of the Directors General of the participating ECAC Member States. The scope of the inspections relating to ‘foreign’ aircraft implied those aircraft which are not used or operated under the control of the competent authority of the State where the inspection takes place.

Compared to the ‘voluntary’ nature of their participation in the ECAC SAFA Programme so far, Directive 2004/36/EC introduced a clear legal obligation upon European Union (EU) Member States to inspect third-country aircraft landing at their airports and to participate to the collection and exchange of information on the ramp inspections carried out. In this case, ‘third-country aircraft’ implied an aircraft which is not used or operated under control of a competent authority of an EU Member State; although the Directive does in no way prohibit EU Member States from inspecting aircraft from other EU Member States.

Article 13 of the SAFA Directive requires the Commission to report to the European Parliament and to the Council by 30 April 2008 on its application of this Directive. It specifies further that the Commission's report should be accompanied, if necessary, by proposals for revision of the Directive. The essential aim of this report is to indicate how well the objective of the Directive have been achieved and how far the application of the Directive has contributed towards enhancing aviation safety in Europe.

In order to place this discussion in context, this report also describes and assesses changes in the management and development of the SAFA Programme since 2004 and aims to discern to what extent the Directive's regulatory framework has contributed to those changes. This quantitative and qualitative work called for a comprehensive inventory of measures, already taken or planned in the Commission's legislative Programme.

2.   IMPLEMENTATION

Legal aspects

Directive 2004/36/EC gave EU Member States a window of two years for the enactment of national measures aimed at transposing its provisions. Whilst the deadline stipulated in Article 11 of the Directive was 30 April 2006 for the then EU-15, transitional periods were established for the implementation of the Directive by the ten new Member States which joined the Union on 1 May 2004.

As shown in table 1 below, although a significant number of Member States did not enact appropriate transposition measures on time, there were no major problems for Member States in implementing the provisions of the Directive — with two minor exceptions. This was largely due to the fact that the main obligations contained in the Directive were already, to a large extent, discharged through the participation in the ECAC SAFA Programme.

Table 1

Transposition by Member States

Operational aspects

In nearly all Member States, the number of operating flights is far greater than the inspection capacities. This means that only spot checks are possible with regard to SAFA ramp inspections. Hitherto therefore, these have been organised either on a random basis, or based upon relevant information whereby it might be decided to focus the inspection (see 5.2 below) according to certain criteria — e.g. regular analysis of the database by the European Aviation Safety Agency (EASA) or recommendations issued by the European Commission or national policies and priorities.

3.   EFFECTS OF THE DIRECTIVE

First and foremost, Directive 2004/36/EC established the inspection of third-country aircraft using Community airports as a legal obligation on Member States.

Secondly, the Directive introduced a harmonised approach to the effective enforcement of international safety standards within the Community by harmonising the rules and procedures for ramp inspections of third-country aircraft landing at Community airports. Within this context, it also laid the groundwork for the facilitation of harmonised training of inspectors and personnel participating in the Programme, the development of procedures and proposals for improving the Programme and its tools, and the reporting on the information gathered.

Aditionally, the Directive has:

Moreover, the sound implementation of the Directive has proven to be a key element underpinning the establishment — through Regulation (EC) No 2111/2005 of the European Parliament and of the Council (3) — of a list of air carriers subject to an operating ban within the Community — commonly referred to as the ‘blacklist’.

Indeed, following the entry into force of the abovementioned Regulation, SAFA ramp inspection reports and the record of subsequent follow-up actions by Member States have acquired paramount importance as a primary criterion in investigations leading to the proposal for, and the eventual inclusion of several operators in the Community ‘blacklist’.

Table 2

Number of SAFA Inspections per country per year

EU Member States 2002-2007

4.   EXERCISE OF COMMUNITY COMPETENCE AND TRANSFER TO EASA

At the 125th meeting of ECAC Directors General, ECAC Member States discussed the future of the SAFA Programme and agreed on the principle of its transfer to Community institutions (i.e. the European Commission and EASA), underlining the need to retain the pan-European dimension of the Programme through the establishment of a mechanism that would allow for the continued participation in the Programme of the non-EU ECAC Member States.

A first concrete step in this direction was made with the enactment (through a comitology procedure as enabled by Article 8 of Directive 2004/36/EC) of Commission Regulation (EC) No 768/2006 (4). This Regulation provided for the transfer to EASA of the tasks related to the SAFA Programme (hitherto conducted by the JAA) primarily including responsibility for the SAFA database — the backbone of the Programme — together with other complementary activities aimed at ensuring common standards for the performance of ramp inspections and related training activities.

This transfer was carried out gradually throughout 2006 and completed fully by the end of that year. The Commission notes with satisfaction the coordination of the smooth transition process between the two entities and which takes an added significance when one considers the practical, technical and logistical obstacles involved in making such a move possible with the least possible disruption to the overall continuity of the SAFA system.

4.1.   1 January 2007 — The European Community (EC) SAFA Programme

As of 1 January 2007 therefore, full responsibility for the management and further development of the European Community (EC) SAFA Programme has been passed onto the European Commission assisted by EASA.

The continued participation of the non-EU ECAC Member States, and thus the pan-European dimension of the Programme, has been assured through the signature of a Working Arrangement between each individual non-EU ECAC Member and EASA on collection and exchange of information on the safety of aircraft using Community airports and airports on the territory of the individual State.

Including the EU-27 therefore, the EC-SAFA Programme can today boast a total of 42 Participating States: Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom.

Like its ECAC/JAA predecessor, the essential principle of the EC SAFA Programme is that in each SAFA Participating State, aircraft (‘third-country’ for EU States or ‘foreign’ for non-EU ECAC States) can be subject to a ramp inspection. These inspections are chiefly concerned with the aircraft documents and manuals, flight crew licenses, the apparent condition of the aircraft and the presence and condition of mandatory cabin safety equipment. The references for these inspections are contained in the Standards of the International Civil Aviation Organisation (ICAO) Annexes 1 (Personnel Licensing), 6 (Operations of Aircraft) and 8 (Airworthiness of Aircraft). These checks are carried out in accordance with a procedure which is common to all participating States. Their outcome is then the subject of reports which also follow a common format. In the case of significant irregularities, the operator and the appropriate Aviation Authority (State of Operator or Registry) are contacted in order to arrive at corrective measures to be taken not only with regard to the aircraft inspected but also with regard to other aircraft which could be concerned in the case of an irregularity which is of a generic nature. All data from the reports as well as supplementary information (for example a list of actions undertaken and finalised following an inspection) are centralised in a computerised database set up and managed by EASA in Cologne, Germany.

The main features of the EC SAFA Programme can be summarised as follows:

Operational structure

As provided for under Directive 2004/36/EC together with its implementing Regulation (EC) No 768/2006, the operational structure of the Programme comprises two main organs:

Aditionally, the Commission has set up — under the auspices of the Air Safety Committee — a European SAFA Steering Group (ESSG) composed of representatives from all of the 42 Participating States. Apart from bringing together national experts acting in a consultative role upon request from the Commission and/or the (Air Safety) Committee itself, this group serves as an invaluable communications channel between the Community and the non-EU Participating States, further underscoring the Commission's declared commitment towards retaining and indeed enhancing the pan-European dimension of the Programme.

5.   STRENGTHENING THE EC SAFA PROGRAMME

Going by the experience garnered following the entry into force of Directive 2004/36/EC, its inextricable link with the ‘blacklist’ Regulation (EC) No 2111/2005 as well as the transfer of the entire SAFA Programme under Community competence — unforeseen at the time of adoption of the Directive — it immediately became apparent to the Commission that the existing provisions of the aforementioned Directive demanded an urgent review in order to ensure the smooth functioning and further development of the Programme.

During 2007 therefore, the Commission put forward two proposals for new legislative instruments dealing respectively with the procedures for conducting ramp inspections and with the prioritization of the inspections performed by the Member States (see points 5.1 and 5.2 below). Following extensive discussion in the Air Safety Committee and scrutiny of the final texts by the European Parliament, these new legislative instruments were both adopted by the Commission on 16 April 2008 (5).

Other possible improvements and future developments of the Programme are explained under points 5.3 and 5.4 below.

5.1.   Commission Directive amending Annex II of Directive 2004/36/EC

As originally adopted, Annex II to Directive 2004/36/EC contained only very general criteria illustrating the broad framework for a more comprehensive set of procedures for the conduct and subsequent reporting of ramp inspections by the Member States.

From another related perspective, in light of the increased profile being ascribed to the results of ramp inspections conducted under the SAFA Programme as an important criterion considered by the Commission in taking its decisions on the inclusion of carriers in the Community ‘blacklist’, it has also been felt necessary to amend the said Annex in order to give legal standing (and enforceability) to the core elements underpinning the procedures for the harmonised conduct and reporting of ramp inspections by Member States. In this sense, the amended Annex to the Directive addresses several needs which were identified over the previous months, namely:

In the amended Annex, EASA undertakes to supplement these core elements by developing guidance material to be applied by Member States. For this purpose, EASA shall establish a transparent procedure for consulting the Member States drawing on available expertise in the aviation regulatory authorities of Member States and by involving, whenever necessary, appropriate experts from relevant interested parties. To this effect, it may create a working group.

5.2.   Commission Regulation implementing Directive 2004/36/EC as regards the prioritisation of ramp inspections on aircraft using Community airports

The Commission has repeatedly reiterated its commitment towards making the best possible use of all the tools at its disposal for the gathering of intelligence on aviation safety in order to maximise the efficiency of the limited resources available under the EC SAFA Programme. To this end, this measure empowers the Commission to formally request ‘qualitative targeting’ through the prioritisation of a number of the ramp inspections conducted by Member States on particular subjects identified according to a set of criteria (established by the Regulation) as being potentially susceptible to safety deficiencies.

The Commission believes that this measure should reasonably harness the random nature of the SAFA ramp inspection Programme by helping to identify better potentially hazardous subjects as well as enabling the collection of further data on such subjects; possibly also leading to the presentation of even better-defined cases for decision under the ‘blacklist’ Regulation (EC) No 2111/2005.

5.3.   ‘Quantitative targeting’

Referring back to table 2 above (see page 7), whilst one can note that since 2001 the overall amount of SAFA ramp inspections conducted in the Community has more than doubled, one can equally note the gross disparity in the different amounts of ramp inspections conducted by the individual Member States.

Whilst fully appreciating the equally gross disparity which in many cases exists with regard to the human and material resources available to different Member States, the Commission believes that irrelevant of the resources at their disposal, the output registered by many Member States in terms of annual inspections conducted border on the unacceptable. On a State by State basis this applies to:

Within this context, the Commission has repeatedly reiterated that this situation needs to be improved. It continues to examine with EASA and the Member States a way to establish a minimum number of inspections that each Member State would conduct yearly on the basis, of course, of various parameters such as the number of flights, international airports, intensity of checks conducted previously in other Member States, etc.

5.4.   EASA extension of competences — Regulation (EC) No 216/2008 of the European Parliament and of the Council

On 20 February 2008, the Council and the European Parliament adopted Regulation (EC) No 216/2008 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 (6) (hereinafter referred to as the ‘EASA Regulation’). Its provisions foresee the replacement of Directive 2004/36/EC (and the related implementing rules) by a set of rules adopted under the EASA Regulation as follows:

Finally, the principles contained in Article 10 shall apply only as from the dates specified in its respective implementing rules, but in any case by not later than 8 April 2012.

6.   THE SAFA ‘AGGREGATE REPORT’ (7)

Article 6(2) of Directive 2004/36/EC provides that the Commission shall publish yearly an aggregated information report available to the public and the industry stakeholders containing an analysis of all information received through the reports of ramp inspections conducted on aircraft using Community airports. Such analysis should be simple and easy to understand, indicating whether there exists an increased safety risk to air passengers. The source of the information contained in such analysis should be dis-identified.

In this respect, a first Aggregated Report was adopted and published by the Commission in February 2008 which analysed the results of the ramp inspections performed in the time frame between 30 April 2006 until 31 December 2006. Over 2008, the same report will be phased-in on a full year basis (and annually thereafter), covering the period between 1 January and 31 December 2007 — the first full year following the transfer of responsibility for the management and development of the SAFA Programme from ECAC and the JAA to Community competence.

The Commission believes that, for the sake of increased transparency and accountability with regard to all the actors involved in the Programme and referred to in such a document as well as vis-à-vis the European Parliament and the public opinion in general, the constraints imposed by Article 6(2) of Directive 2004/36/EC should be softened to allow that the referred annual reports provide more accurate information as regards the safety performance of different actors involved.

7.   CONCLUSIONS

Based upon the SAFA inspections performed over the last few years, experience shows that these give a general indication of the safety of foreign operators. However, this indication is limited in the sense that no full picture is obtained about the safety of any particular aircraft or operator. This is due to the fact that certain aspects are difficult to assess during an inspection (e.g. Crew Resource Management, full airworthiness status, etc.) owing to the limited time available to perform an inspection and consequently the limited level of detail possible during such an inspection.

A full assessment of a particular aircraft or operator can only be obtained through the continuous oversight by the responsible Aviation Authority (State of Operator or State of Registry). In this manner, the information gained through the EC SAFA Programme is indeed very useful:

Information from all inspections performed is shared, thus contributing to a more complete picture about a certain aircraft, aircraft type, operator or all operators from a particular State. The SAFA centralised database is therefore particularly useful as it contributes to a rapid flow of such information to all the States participating in the EC SAFA Programme.

Additionally, since the coming into force of Regulation (EC) No 2111/2005 (‘EC blacklist’), SAFA inspections have acquired an increased importance as one of the criteria considered by the Commission in taking its decisions on the inclusion of carriers in the Community list. Indeed, this has been the case since the establishment of the first Community list in March 2006 and its subsequent regular updates.

Summing up the conclusions arrived at in this report, one may say that:

(1)  OJ L 143, 30.4.2004, p. 76.

(2)  Poland has communicated a set of revised implementing measures on 13 March 2008 which are currently under review by the Commission's legal services.

(3)  OJ L 344, 27.12.2005, p. 15.

(4)  OJ L 134, 20.5.2006, p. 16.

(5)  OJ L 109, 19.4.2008, p. 7 and p. 17.

(6)  OJ L 79, 19.3.2008, p. 1.

(7)  OJ C 42, 15.2.2008, p. 1.