Considerations on 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

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dossier COM(2022)545 - EU position for the adoption of international standards, amendments or the notification of differences to the Annexes to the ...
document COM(2022)545 EN
date March 28, 2023
 
table>(1)The Convention on International Civil Aviation, which was signed in Chicago on 7 December 1944 (the ‘Chicago Convention’), entered into force on 4 April 1947. It established the International Civil Aviation Organization (‘ICAO’) and regulates international air transport.
(2)The Member States are Contracting Parties to the Chicago Convention and ICAO Contracting States, while the Union has observer status in certain ICAO bodies.

(3)Pursuant to Article 54(l) of the Chicago Convention, the Council of the ICAO (‘ICAO Council’) can adopt international standards and recommended practices (‘SARPs’) for civil aviation and designate them as Annexes to the Chicago Convention (‘ICAO Annexes’).

(4)Pursuant to Article 90 of the Chicago Convention, any ICAO Annex or any amendment to an ICAO Annex becomes effective within three months after its submission to the ICAO Contracting States, or at the end of such longer period of time as the ICAO Council prescribes, unless in the meantime a majority of ICAO Contracting States register their disapproval. Once they have been adopted by the ICAO Council and have become effective, international standards are binding on all ICAO Contracting States, including all Member States of the Union, in accordance with and within the limits set out in the Chicago Convention, in particular in Articles 37 and 38 thereof.

(5)Pursuant to Article 38 of the Chicago Convention, any ICAO Contracting State which finds it impracticable to comply in all respects with any international standard or to bring its own regulations or practices into full accord with any international standard after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, is to give immediate notification to ICAO of the differences between its own regulations or practices and those established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices is to give notice to ICAO within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take.

(6)The internal rules of the ICAO, in particular those which cause the latest versions of documents for decisions regarding new SARPs or amendments to SARPs to be available to the ICAO Council only late, the deadlines set by the ICAO for ICAO Contracting States to notify differences with respect to international standards, as well as the sheer number of differences in the areas of civil aviation safety, air navigation and air traffic management to be notified each year, make it difficult to establish the position to be taken on the Union’s behalf in a Council Decision based on Article 218(9) Treaty on the Functioning of the European Union in a timely manner for new SARPs or amendments to SARPs to be adopted, or for each difference to be notified.

(7)It is therefore appropriate to establish the criteria and procedure to be followed for establishing the position to be taken on the Union’s behalf regarding the adoption of SARPs or amendments to SARPs, insofar as those SARPs are capable of decisively influencing the content of Union law in the area of civil aviation, as well as regarding decisions to disapprove or not to disapprove SARPs pursuant to Article 90 of the Chicago Convention and regarding the notification of differences with respect to international standards pursuant to Article 38 of the Chicago Convention.

(8)Given the specificity of civil aviation safety, air navigation and air traffic management compared to other areas dealt with by the ICAO, in particular the high number of SARPs adopted in those areas by the ICAO Council every year and the number of differences to be notified every year, this Decision should relate solely to the civil aviation safety, air navigation and air traffic management in order to streamline processes to swiftly establish the position to be taken on the Union’s behalf for the adoption of new SARPs and amendments to SARPs, the decisions to disapprove or not to disapprove SARPs or amendments to SARPs adopted by the ICAO Council and deal with the numerous notifications in an efficient way.

(9)The SARPs adopted by the ICAO Council in the field of civil aviation safety, air navigation and air traffic management can concern matters of Union exclusive competence and might be capable of decisively influencing the content of Union law. It is therefore efficient and appropriate, by means of a decision, to establish the criteria and procedure to be followed for establishing the position to be taken on the Union’s behalf with respect to SARPs in those fields, without prejudice to the rights and obligations of Member States as ICAO Contracting States under the Chicago Convention. At ICAO level, civil aviation safety, air navigation and air traffic management SARPs are mainly contained in ICAO Annexes 1, 2, 3, 4, 6, 8, 10, 11, 14, 15, 18 and 19.

(10)At Union level, the requirements contained in SARPs for civil aviation safety are mainly reflected and referred to in Regulation (EU) 2018/1139 (1), Regulation (EC) No 2111/2005 (2) of the European Parliament and of the Council and in the implementing and delegated acts adopted on the basis thereof in particular Commission Regulations (EU) No 1178/2011 (3), (EU) No 748/2012 (4), (EU) No 965/2012 (5), (EU) No 139/2014 (6), (EU) No 452/2014 (7), (EU) No 1321/2014 (8), (EU) 2015/640 (9), Commission Implementing Regulation (EU) 2019/947 (10), Commission Delegated Regulation (EU) 2019/945 (11), and Commission Implementing Regulation (EU) 2021/664 (12).

(11)At Union level, the requirements contained in SARPs for air navigation and air traffic management are mainly reflected and referred to in Regulations (EC) No 549/2004 (13), (EC) No 550/2004 (14), (EC) No 551/2004 (15) of the European Parliament and of the Council and in the implementing and delegated acts adopted on the basis thereof in particular Commission Implementing Regulation (EU) No 923/2012 (16), Commission Regulation (EU) No 1332/2011 (17), Commission Implementing Regulation (EU) 2018/1048 (18), and Commission Regulation (EU) 2015/340 (19).

(12)This Decision should concern only the positions to be taken on Union’s behalf within the ICAO in areas of Union exclusive competence. This Decision is without prejudice to the possibility for the Council to adopt, upon a Commission proposal, decisions based on Article 218(9) TFUE establishing the position to be taken on the Union’s behalf within the ICAO in particular in areas falling outside the scope of this Decision, including where the shared competence of the Union has not yet been exercised.

(13)Except in particular cases regarding the notification of certain differences stemming from the adoption of national measures pursuant to Article 71 of Regulation (EU) 2018/1139, the position to be taken on the Union’s behalf should be based on a document submitted by the Commission to the Council in due time to allow for discussion and approval. The Commission should endeavour to start preparing such document as soon as possible in order to allow sufficient time for it to be prepared, including for any appropriate consultation to be conducted at expert level. The Commission’s document should, where appropriate and on a case-by-case basis, indicate whether flexibility should be granted to Member States as regards the adoption of new SARPs or amendments to SARPs by the ICAO Council, and, in such cases, the extent of such flexibility and the conditions for agreement thereto, or as regards the form of the notification of the differences in question. Where required by the ICAO, notification of differences should follow the format defined by the ICAO in the Electronic Filing of Differences system.

Where, pursuant to this Decision, the position to be taken on behalf of the Union is established in a document submitted by the Commission to the Council for discussion and approval, that document should, where appropriate and on a case-by-case basis, indicate whether flexibility should be granted to Member States as regards the form of the notification of the differences in question. Moreover, the Commission should endeavour to start preparing such document as soon as possible in order to allow sufficient time for it to be prepared, including for any appropriate consultation to be conducted at expert level.

(14)As regards the adoption of new SARPs or amendments to SARPs and decisions to disapprove or not to disapprove SARPs or amendments to SARPs adopted by the ICAO Council, the document submitted by the Commission should be based on the objectives and guidelines set out in the Annex and should take into account the materials provided by the ICAO ahead of any deliberations on new SARPs or amendments to SARPs at the ICAO Council as well as the information provided by the European Union Aviation Safety Agency (EASA) in accordance with Article 90(1) and (3) of Regulation (EU) 2018/1139, where applicable.

(15)The position as regards the adoption of new SARPs or amendments to SARPs by the ICAO Council should be expressed by the Member States of the Union that are members of the ICAO Council, acting jointly in the interest of the Union.

(16)The position as regards decisions whether to disapprove or not to disapprove new SARPs or amendments to SARPs adopted by the ICAO Council should be expressed by the Member States of the Union that are members of the ICAO, acting jointly in the interest of the Union.

(17)Differences with respect to adopted international standards, that are to be notified to ICAO, should be based in particular on the information provided by EASA in accordance with Article 90(4) of Regulation (EU) 2018/1139, where applicable.

(18)Differences with respect to international standards adopted by the ICAO Council can stem from Union law due to the adoption of a new or amended international standard by the ICAO Council or due to a change in Union law. The position to be taken on the Union’s behalf as regards such differences should be based on a document submitted by the Commission to the Council in due time to allow for discussion and approval.

(19)Differences with respect to international standards adopted by the ICAO Council can also stem from national measures adopted pursuant to Article 71 of Regulation (EU) 2018/1139 in the event of urgent unforeseeable circumstances, where those measures differ from international standards and therefore require the notification of differences to the ICAO pursuant to Article 38 of the Chicago Convention. It is therefore also appropriate in this Decision to establish the criteria and the procedure to be followed for the identification of such differences. That procedure should depend on the scope and duration of the national measures adopted and should enable Member States to comply with their international obligations under Article 38 of the Chicago Convention without delay. That procedure should be without prejudice to the conditions and procedure laid down in Article 71 of Regulation (EU) 2018/1139.

(20)The position as regards differences with respect to adopted international standards, that are to be notified to the ICAO, should be expressed by the Member States of the Union that are members of the ICAO, acting jointly in the interest of the Union.

(21)The implementation of this Decision should not entail a breach of Member States’ obligations under Union law or of their international obligations under the Chicago Convention.

(22)For the purposes of the implementation of this Decision, Member States and the Commission, in line with the Union’s observer status, should act in close cooperation in accordance with their duty of sincere cooperation.

(23)This Decision should apply for a limited period of time, namely only until after the ICAO Council session following the 42nd Assembly of the ICAO. The Commission should submit to the Council a written evaluation of the application of this Decision to serve as the basis for any potential extension or amendment to this Decision.

(24)It is appropriate to establish the criteria and the procedure for establishing the position to be taken on behalf of the Union within the ICAO as regards the adoption of, or amendments to, international standards and recommended practices, and the notification of differences with respect to adopted international standards,