Explanatory Memorandum to COM(2022)545 - EU position for the adoption of international standards, amendments or the notification of differences to the Annexes to the Convention on International Civil Aviation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)545 - EU position for the adoption of international standards, amendments or the notification of differences to the Annexes to the ... |
|---|---|
| source | COM(2022)545  |
| date | 20-10-2022 |
1. Subject-matter of the proposal
The present proposal concerns the position to be taken on behalf of the European Union, as regards:
–the adoption in the International Civil Aviation Organization (ICAO) Council of acts in civil aviation safety, air navigation and air traffic management, namely in Annexes 1, 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15, 18 and 19 of the Convention on International Civil Aviation (‘the Chicago Convention’).
–the notification of differences with the adopted acts having legal effects in the areas of the above-mentioned Annexes of the Chicago Convention in response to the State Letters sent by ICAO, inviting its contracting States to either notify their disapproval, to notify any differences with the adopted measures.
–the notification of differences with existing Standards and Recommended Practices to ICAO pursuant to Article 38 of the Chicago Convention stemming from changes of the Union acquis in relation to the above-mentioned Annexes of the Chicago Convention.
2. Context of the proposal
2.1. The Chicago Convention
ICAO was established by the Chicago Convention, signed in 1944 in Chicago and which entered into force on 4 April 1947. All Member States of the European Union are contracting parties to that Convention and therefore members of ICAO. The Union has an observer status in ICAO and concluded a Memorandum of Cooperation with ICAO that provides a framework for enhanced cooperation in the fields of aviation safety, aviation security, air traffic management and environmental protection. 1
The Chicago Convention contains 96 articles laying the ground rules and principles governing ICAO. It is supported by 19 Annexes containing Standards and Recommended Practices, which are amended regularly.
2.2. The International Civil Aviation Organization
ICAO adopts international standards for civil aviation, in particular on aviation safety, air navigation and air traffic management, environment, aviation security, economic development in air transport, passenger rights and facilitation. These subjects are covered by the provisions of the Treaty on the Functioning of the European Union (TFEU) and fall to a large extent under the competence of the European Union. To the extent possible, the Union aims to ensure consistency with international standards in the area of civil aviation.
2.3. The envisaged acts by the ICAO Council having legal effects in the Union
As one of the two governing bodies of ICAO, the ICAO Council gives continuing direction to the work of ICAO. It convenes several times per year.
According to Article 54(l) of the Chicago Convention, the ICAO Council adopts international Standards and Recommended Practices, designates these as Annexes to the Chicago Convention, and notifies all contracting States of the action taken. The ICAO Council shall also consider recommendations of the Air Navigation Commission for amendment of the Annexes according to Article 54(m). According to Article 90 of the Chicago Convention, the adoption by the Council of Annexes or any amendment of an Annex shall require the vote of two-thirds of the ICAO Council.
3. Position to be adopted on behalf of the Union
It is proposed that the position to be adopted on behalf of the Union at the ICAO Council sessions be established according to a two-tier approach. First, by this Council Decision, the guiding principles and orientations of the Union’s position are set out in Annex 1 on a multiannual basis. In a second step, the detailed position for each session of the ICAO Council will be transmitted by the Commission to the Council, in the form of a written document, for discussion and approval. The Commission will propose the detailed position in the written document based on the guiding principles and orientations laid out in Annex 1 and on the procedure laid out in Annex 2.
This approach is currently implemented for other international organisations, and notably within the transport sector within the Port State Control Committee of the Paris Memorandum of Understanding on Port State Control 2 .
In the aviation sector, a similar Council Decision establishing the position on the Union’s behalf relating to the notification of differences to ICAO already exists (Council Decision (EU) 2021/1092 3 ) but expires on 30 November 2022. Therefore the objective of the current proposal is also to provide continuity to that Council Decision and revise the terms of its scope to ensure that the relevant issues under the Chicago Convention are treated coherently at Union level.
The Commission proposes the above-described procedure due to the characteristics of the process in ICAO:
(a)regarding the adoption of new or amended acts;
(b)following the announcement of the adoption of new acts in the form of a State Letter inviting its Contracting States to either notify their disapproval, or notify any differences and the date of compliance with the adopted measures; and
(c)for the requirement to notify differences with existing Standards and Recommended Practices.
In particular, the internal rules of ICAO allow between ten days and 24 hours before the ICAO Council session (depending on the nature of the documents) for the submission of documents. It is only at that point that all submissions are available and that the Commission can analyse the documents with a view to preparing the Union position on the topics of EU competence for discussion and decision at the ICAO Council. The timeframe between the availability of documents and the beginning of the ICAO Council session can put at risk the timely preparation and adoption of the legally required Council Decision under Article 218(9) TFEU.
To ensure coherence of the Union position throughout the ICAO adoption process, the proposed two-tier process should apply equally to the notification of disapproval according to Article 90 and of differences according to Article 38 of the Chicago Convention.
It is therefore proposed to adopt a Council Decision on the basis of Article 218(9) TFEU, establishing the position to be taken on behalf of the European Union for the adoption of international standards, amendments or the notification of differences, for:
(a)each ICAO Council session;
(b)when a registration of disapproval or a notification of difference with the adopted measures is required as a response to the ICAO State Letter process;
(c)when a notification of difference stemming from changes of the Union acquis is required.
4. Legal basis
4.1. Procedural legal basis
Contents
Article 218(9) TFEU provides for Decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a party to the agreement at issue. 4
The notion of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’. 5
ICAO is a body set up by an agreement, namely the Chicago Convention.
The acts which ICAO is called upon to adopt constitute acts having legal effects. This is because the Standards and Recommended Practices adopted by ICAO are applicable under the Chicago Convention unless a Contracting State files a difference to ICAO (Article 38 of the Chicago Convention) and, once adopted and effective, are binding on all ICAO Contracting States, in accordance with and within the limits set out in the Chicago Convention. Indeed, in accordance with Article 37 of the Chicago Convention, each Contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in such Standards and Recommended Practices. Further, to the extent possible, they are reflected in Union law and therefore these Standards and Recommended Practices are capable of decisively influencing the content of Union legislation in the area of civil aviation.
The envisaged acts do not supplement or amend the institutional framework of the agreement.
The procedural legal basis for the proposed Decision, therefore, is Article 218(9) TFEU.
4.2.Substantive legal basis
The substantive legal basis for a Decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is adopted on behalf of the Union. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the Decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
The envisaged acts pursue objectives and have components in the area of common transport policy.
The substantive legal basis of the proposed Decision, therefore, is Article 100(2) TFEU.
4.3.Conclusion
The legal basis of the proposed Council Decision is Article 100(2) TFEU in conjunction with Article 218(9) TFEU.