October 26, 2017
By Florin Coman-Kund
Since the establishment of the European Aviation Safety Agency (EASA), the fine-tuning of the functioning of the EU aviation safety sector and the expansion of the Agency’s mandate ranked high on the EU legislative agenda. This resulted in the replacement of the initial EASA Founding Act with Regulation 216/2008 (the current EASA Regulation), which has been subject to further amendments over time. In December 2015, the Commission launched yet another overhaul of the EU aviation safety sector as part of its Aviation Strategy for Europe, aimed at replacing the legal framework based on the current EASA Regulation with a better one. The future EASA Regulation is intended to build on the current legal framework and to prepare the EU aviation safety sector for the challenges ahead in the coming years. Such challenges entail addressing safety concerns related to the development of new technologies (think, for instance, of unmanned aircraft and cyber security threats), as well as enhancing and optimizing the certification and oversight capacity in the EU aviation safety sector.
The EU aviation safety system
Air transport is safer than ever. Within the European Union air transport safety is ensured at the highest standards by the so-called ‘EU aviation safety system’ bringing together the European Commission, EASA, and the competent national aviation authorities (NAAs) of the Member States. This system encompasses all important areas of civil aviation, and features a complex sharing of regulatory, implementing and enforcing powers and tasks between the actors involved. The overall design and functioning of the EU civil aviation system, including the division of work and the interplay between the actors involved are laid down in the current EASA Regulation.
The role of EASA
EASA is paramount to the EU civil aviation system. At present, the Agency’s core role consists of: (1) providing technical assistance to the Commission and the Member States regarding the elaboration and application of aviation safety standards; (2) monitoring the implementation of EU aviation safety rules by the Member States through standardization inspections and continuous oversight; and (3) acting as the competent authority for the certification and oversight of certain aeronautical products, organizations and operators (e.g. aircraft types or third-country design, production and maintenance organizations).
In particular as certifying authority of certain aircraft and relevant organizations, EASA is vested with significant formal powers which differentiate this agency from most other EU agencies. For instance, EASA is empowered to issue certificates for aircraft and organizations within its competence, which are binding for all the NAAs in the Member States and for the aviation sector, as well as to amend, suspend or revoke such certificates. EASA may also issue airworthiness directives (ADs) in order to address design deficiencies with regard to aircraft for which it issued a type certificate. Such ADs may lead, in worst case scenarios, to the grounding of all aircraft of the respective type on the registries of the Member States.
Whilst EASA holds a pivotal position in the EU aviation safety sector, a better understanding of this Agency requires looking at the broader picture. Thus, it is ultimately the Commission (not EASA) which adopts legally binding aviation safety standards, may start infringement proceedings against Member States breaching the EU aviation safety rules, or may impose fines on EASA certificate holders or restrictions on air operators. It is true though that in these cases the Commission’s measures may be or must be based on EASA’s advice, inspections or requests. What is more, in line with the principle of subsidiarity, the application of EU aviation safety rules follows largely the indirect administration model, whereby the bulk of implementing and enforcement responsibilities still lie with the NAAs. Additionally, Regulation 216/2008 allows EASA and the NAAs to delegate various tasks to each other. Hence, the shared and complementary nature of the powers and tasks of the actors involved, requiring close cooperation between them, is in fact the salient feature of the EU aviation safety system.
The future EASA Regulation
Overall, the proposed Regulation, which is still subject to negotiations between the European Parliament (EP) and the Council in the legislative procedure, does not reinvent EASA. Yet it includes certain novelties which would further bolster the Agency’s role and address some of the gaps in the functioning of the EU aviation safety system.
Thus, the future EASA Regulation grants explicitly new responsibilities to the Agency, namely to assist the NAAs in carrying out their tasks, to support the Commission in the implementation of performance schemes related to civil aviation, and to cooperate with other EU institutions and bodies in areas related to technical aspects of civil aviation. These new functions signal that enhanced cooperation between EASA and the actors within the EU aviation safety system as well as other relevant actors outside the system is key to ensuring effective safety.
Next, the proposed EASA Regulation would significantly extend the possibilities of the Member States to transfer to EASA responsibilities for certification, oversight and enforcement tasks. This entails that EASA could in theory become the competent authority for any organizations, operators, aircraft or aerodromes within the responsibility of the Member States under the EU aviation safety rules. What is more, the proposed EASA Regulation offers the possibility for a ‘one-stop-shop’ as regards certification and oversight of aviation organizations operating multi-nationally (e.g., Airbus) by enabling the Agency to become the competent authority for such organizations. Yet another upgrading of the Agency would entail the possibility to issue ‘safety directives’ (currently enacted by NAAs) to address urgent safety problems which are not properly covered under EU legislation. If adopted, these novelties evince more advances towards a genuine EU level certification and oversight process, with EASA in the driver’s seat.
The proposed EASA Regulation also seeks to correct some of the weaknesses of the existing EU aviation safety system, in particular as regards the synergies between the actors and the resources needed to ensure effective safety oversight. With its emphasis on the idea of ‘Joint certification, oversight and enforcement’ the future Regulation attempts to further enhance cooperation, complementarity and sharing of resources between EASA and the NAAs. Similarly to developments featured by other EU agencies such as Frontex, the future EASA Regulation includes provisions on pooling resources and mutual assistance between the Agency and the NAAs. It would improve the exchanges of information between the Agency and the NAAs, by setting up a repository of information (managed by EASA) covering for instance information on the certificates issued by competent aviation authorities. It also foresees a mechanism for establishing a pool of European aviation inspectors to ensure effective cooperation between the authorities in the exercise of certification, oversight and enforcement tasks. Quite significantly, in order to address the capacity problems of some NAAs, an ‘Emergency assistance mechanism’ is envisaged under which the Commission could temporarily assign EASA as a competent authority of a Member State which experiences serious difficulties in ensuring effective safety oversight.
Though the Estonian Presidency and the EP are striving to finalise the discussions, it is still difficult to predict with precision what the outcome of the negotiations will be, and when the new EASA Regulation will enter into force. Yet it seems reasonable to assume that the main tenets of the Commission’s proposal will be reflected somehow in the final version of the future EASA Regulation. Bearing this in mind, the future EASA Regulation will mark yet another stage of evolution of the EU aviation safety system and confirm the trend towards increased ‘agencification’ in this area.
Florin Coman-Kund is assistant professor in EU law at Erasmus School of Law, Erasmus University Rotterdam.
Author : TARN