Australia: The EU (European Union) airline blacklist

Deemed to be unsafe, certain airlines are currently banned from landing in the EU due to being blacklisted by the European Aviation Safety Agency. This was done in response to a number of fatal airline crashes in Greece, Italy and Egypt, earning certain airlines the title of 'flying coffins.' The EU airline blacklist now contains more than 278 airlines.

The 278 airlines on the EU airline blacklist are located in 22 countries, of which 14 are from the African continent, with the Democratic Republic of Congo, Philippines, Indonesia and Kazakhstan having the highest number of banned airline carriers. The other countries affected by the EU Airline Blacklist include Surinam, Ghana, Rwanda, Afghanistan, Angola, Benin, Republic of Congo, Djibouti, Guinea, Kyrgyz Republic, Gabon, Mauritania, Mozambique, Sao Tome and Principe, Sierra Leone, Sudan, Swaziland and Zambia.

The African Airlines Association has reacted strongly against the blacklisting by the EU, making controversial accusations suggesting that the EU had ulterior motives.

The reasoning behind blacklisting certain airlines is to promote airline safety in Europe. Civil aviation authorities are regulated by the International Civil Aviation Organisation and are responsible for monitoring airlines registered in their territories and ensuring that the requisite safety levels are maintained. The EU airline blacklist is currently administered by the EU Regulation Safety Committee and is implemented by the individual aviation authorities. However, this function is due to be migrated to the European Aviation Safety Agency.

An airline will be blacklisted for one of two reasons. The first reason is when an airline does not comply with the common criteria set out in Article 4 of Regulation (EC) No 2111/2005. The second instance is when the airline holds an Air Operator Certificate from a jurisdiction in which the technical and regulatory processes have been deemed deficient in ensuring a satisfactory level of protection for passengers from safety risks.

The procedure for blacklisting airlines is also set out in the regulation of the European Parliament and Council. Airlines have ample opportunity to address problematic areas prior to being added to the EU airline blacklist.

Before being blacklisted the regulatory agencies of member states, the institutions of the European Community, the authorities with responsibility for regulatory oversight of the air carrier concerned, and the air carrier itself are consulted. The airline also has the right to appeal should it be blacklisted.

Furthermore, the EU airline blacklist is reviewed every three or four months, thus giving the airlines the chance to rectify any deficiencies that may have contributed to their blacklisting. The EU airline blacklist is not fixed and airlines can be removed from it should they meet the necessary criteria at a later stage.

If an airline is blacklisted because it holds an AOC from a jurisdiction in which the technical and regulatory processes have been deemed deficient in ensuring a satisfactory level of protection for passengers from safety risks, the airline may need to apply to obtain an AOC from a country that is not blacklisted. The airline may also be able to negotiate an exemption from being included on the EU airline blacklist. Alternatively, the airline may consider entering into an ACMI agreement (Aircraft, Complete-crew, Maintenance, and Insurance Agreement), otherwise known as a wet-lease. The ACMI agreement would allow the airline from the blacklisted jurisdiction to continue operating by wet-leasing an aircraft from a jurisdiction which is not on the EU airline blacklist.

An example of an airline that continued operating, despite being based in a blacklisted jurisdiction, is that of TAAG Angola Airlines. In 2007 TAAG was added to the EU airline blacklist. In order to continue operating its flights to the EU, TAAG entered into a wet lease with South African Airways in terms of which an aircraft was flown with a crew that combined members of TAAG and South African Airways. In 2009 TAAG received an exemption to fly certain specified aircraft to the EU on the basis that these aircraft met the requisite safety standards. In 2010, the EU lifted further restrictions on TAAG effectively allowing the Angolan airline to fly certain of its aircraft to all EU countries. Because these restrictions were lifted, TAAG was able to terminate the wet lease agreement with South African Airways.

The common criteria on which airlines are included in the EU airline blacklist are set out in the Annex to Article 4 of Regulation (EC) No 2111/2005 and include serious deficiencies on the part of an air carrier, such as systemic safety deficiencies, accident-related information, and a lack of ability or willingness of an air carrier to address these deficiencies by not implementing appropriate or insufficient corrective action plans.

The common criteria in the Annex to Article 4 of Regulation (EC) No 2111/2005 also mention the lack of ability or willingness of the authorities responsible to ensure that an air carrier addresses safety deficiencies. This would normally be evidenced by the fact that the competent authorities do not exercise the necessary regulatory oversight to enforce the relevant safety standards.

Although the situation may appear dire for many of the airlines on the EU blacklist, there are many avenues, a few of which are discussed in this article, by which an airline can work to have itself speedily removed from the EU blacklist and to continue operating profitably.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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