European Union: The European Commission's Aviation Package 2015

Last Updated: 3 March 2016
Article by Mark Bisset

Article by Mark Bisset and Lazar Vrbaski

INTRODUCTION

Whilst Europe's share in worldwide scheduled passenger traffic is currently estimated at 27%, this may change as rapid economic growth in Asia and the rise of strong competitors in Turkey, the Middle East and China shifts the centre of the air transport industry to the East.

In this context, the European Commission has therefore re-examined the competitiveness of the EU aviation market and carried out a public consultation between March and June 2015 on an "Aviation package for improving the competitiveness of the EU Aviation sector". Based on stakeholder inputs, the Commission has identified the need to focus on the following areas:

  1. Access to growth markets
  2. Capacity restrictions
  3. Safety and security
  4. Employment issues
  5. Passenger rights
  6. Innovation and digital technologies
  7. Environmental aspects

As a result, on 7 December 2015, the European Commission adopted a package of measures, consisting of the following:

  • The Aviation Strategy for Europe (Communication)
  • The European Aviation Safety Programme (EASP)
  • A proposal for a Regulation replacing Regulation 216/2008 (EASA Basic Regulation)
  • A series of requests to negotiate EU-level comprehensive aviation agreements with third countries

This article will provide a brief summary of the wide-ranging package and the reasons behind the Commission's proposals, and will conclude with the reaction from the main EU airline bodies.

THE COMMISSION'S PACKAGE

1. Access to growth markets

Whilst EU carriers enjoy unlimited traffic rights on intra-EU routes and there is no limit on investment by EU nationals in EU carriers, European airlines face market access restrictions when trying to enter third-country markets. EU carriers are also facing substantial competition from the rapidly growing Middle Eastern and Asian carriers. For the EU aviation industry to remain competitive, market access must be based on a regulatory framework that prevents distortion of competition.

To tackle these issues, the Commission has requested mandates from the Council to negotiate comprehensive air transport agreement with the following countries/regions: China, ASEAN, Turkey, Saudi Arabia, Bahrain, UAE, Kuwait, Qatar, Oman, Mexico and Armenia. These are expected to include fair competition provisions and measures to address unfair practices from third countries and third country carriers. The Commission is also considering legislative action in 2016 to address such practices. Additionally, it intends to launch new aviation dialogues with key aviation partners such as India.

The Commission has also recommended that the EU negotiates further bilateral aviation safety agreements with important aeronautical manufacturing nations such as China and Japan to ensure the mutual recognition of safety certification standards and thus reduce the cost of exporting aircraft to these countries.

The Commission is also concerned that current regulatory restrictions on ownership and control of carriers discourage investment in EU carriers by non-EU nationals. The Commission intends to examine the relevance of ownership and control requirements under Regulation 1008/2008 (whereby EU Member States or their nationals must own more than 50% of the undertaking and effectively control it) and pursue the relaxation of these rules. As a first step, the Commission intends to publish interpretative guidelines on the application of Regulation 1008/2008.

2. Capacity restrictions

It has been noted that capacity and efficiency constraints, both on the ground and in the air, are seriously impacting the growth of the aviation sector. Many European airports are severely congested, whereas others are under-used, indicating a need to enhance use of existing capacity and plan expansion to meet future needs. Inefficient use of airspace is a particular concern, which is why it is necessary to speed up the implementation of the Single European Sky (SES) framework, aimed at optimising the European air traffic management network. Whilst connectivity has not generally been identified as an issue, it is evident that Regulation 1008/2008 rules on Public Service Obligations are plugging the gap where the market is unable to deliver an acceptable level of air transport services.

As a result, the Commission has urged the European Parliament and the Council to swiftly adopt the Single European Sky (SES2+) proposals and focus on the full implementation of SES. To address the capacity restraints on the ground and connectivity issues, the Commission will monitor trends of intra-EU and extra-EU connectivity to identify any corrective action that may need to be taken, publish interpretative guidelines explaining the rules on Public Service Obligations contained in Regulation 1008/2008, and ascertain whether the Airport Charges Directive needs to be reviewed.

3. Safety and security

Specific action

The growth of the European aviation market demands a system better equipped to identify and resolve safety risks. The Commission intends to take both general measures to revise the EASA Basic Regulation (described in further detail below) and specific measures to review existing legislation on the imposition of operating bans (Regulation 2111/2005) and on aviation accident investigation (Regulation 996/2010). Conscious of the high threat of terrorism, the Commission seeks to ensure a risk and performance based approach that would alleviate the burden of security checks on passengers through use of new technology, the establishment of security controls at the point of origin and removal of further controls at transfer points, and the design of systems combatting cyber risks.

Revision of EASA basic regulation

Whilst the Commission has noted that the present European aviation safety system has been effective in ensuring a high level of safety, it also realised the need to adapt the system to the sustained growth of air transport. The current regulatory framework is regarded as burdensome, too costly and outdated. There are also significant differences in capabilities of Member States to effectively implement the aviation safety legislation. All of this causes inefficient use of resources, and gaps and inconsistencies in the regulatory system, affecting all market particpants and the travelling public.

The revision of the EASA Basic Regulation seeks to improve the performance of the European aviation system with regard to safety, security, competitiveness and environmental protection. The initiative aims to ensure regulation proportionate to the risks involved; integration and effective oversight of new market developments; a cooperative safety management process between the EU and Member States to jointly identify and mitigate risks; consistency; and the pooling and sharing of resources between Member States and EASA.

Focussing on these objectives, the revision addresses seven key areas:

  • Performance-based and integrated approach to safety
  • Modernisation of EASA's safety remit
  • Extension of EASA's remit beyond safety
  • Optimisation of the use of available resources
  • Establishment of adequate and stable funding
  • Further integration of aviation aspects
  • Regulation beyond EASA's current remit

The European aviation safety programme

The European Aviation Safety Programme (EASP) was first adopted in 2011 and functionally corresponds at EU level to the State Safety Programme as described in Annex 19 to the Chicago Convention. As EU Member States have transferred certain responsibilities under the Chicago Convention to the EU level, the EASP helps clarify where the various responsibilities for safety lie. It has thus been designed not to replace, but complement national equivalents.

The EASP is composed of four parts:

  • Part 1 contains an overview of the European aviation legislative framework and the distribution of competencies between Member States and the EU
  • Part 2 explains the safety management requirements and how the safety risks are collectively assessed and mitigated
  • Part 3 addresses the European dimension of safety assurance and how oversight is performed with the EU and its Member States
  • Part 4 details the European activities in the area of safety promotion including training and international cooperation

The EASP is composed of an integrated set of rules, activities and processes aimed at developing an integrated, evidence-based approach to the prevention of accidents and to the safety of aviation activities in the EU. Regulation 376/2014 on the analysis of occurrences in civil aviation provides the regulatory framework. The EASP is complemented by the European Plan for Aviation Safety that identifies specific risks currently affecting the EU aviation safety system and proposes mitigation measures.

To ensure it remains efficient in the prevention of accidents and the mitigation of risks, the EASP requires regular revision. This second edition includes new rules on Flight Time Limitations, on Third-Country Operators, on Flight Operations, rules in the area of Air Traffic Management, and the regulation of Aerodromes, as well as new rules on the reporting, analysis and follow-up of occurrences.

4. Employment issues

The Commission appreciates the importance of maintaining leadership in aviation through a highly educated and experienced workforce. New skills and competencies such as drone specialists and flight data analysts will have to be developed and this will require partnerships between research, universities and industry. The Commission has also noted the emergence of new business and employment models such as the multiplication of operational bases, the recruitment of air crews through agencies, and pay-to-fly schemes for flight crew.

To address these issues, the Commission aims to support social dialogue through the Sectoral Social Dialogue Committee on Civil Aviation and consider the need for further clarification of applicable law and competent courts vis-ŕ-vis employment contracts of mobile workers in aviation. It also intends to publish a practice guide on applicable labour law and the competent court, and ensure a high level of protection in the labour and social domain when negotiating comprehensive air transport agreements with third countries.

5. Passenger rights

The Commission has already proposed the revision of Regulation 261/2004 on air passenger rights in case of denied boarding, long delays and cancellations, and now urges the Council to swiftly adopt the legislative proposal. In the meantime, the Commission wishes to ensure a strict application by the National Enforcement Bodies of the EU air passenger rights established by Regulation 261/2004 as interpreted by the Court of Justice of the EU. In this context, the Commission will adopt interpretative guidelines in order to provide guidance to citizens and airlines on the current state of the law, relevant until amendments become applicable.

6. Innovation and digital technologies

The Commission realises that innovation is at the core of aviation and appreciates the need to maintain the competitiveness of the aeronautical industry, one of the top five advanced technology sectors in Europe. Aircraft manufacturers undertake huge efforts to improve the environmental footprint of aviation, develop advanced manufacturing processes and use new materials in aircraft construction. For this reason, EASA must be in a position to prepare and conduct certification in a timely and efficient manner.

Drones are a technology that is already bringing about radical changes, by creating opportunities for new services and applications, as well as new challenges. Given the broad variety of types of drones being used under very differing operation conditions, a risk-based framework needs to be put in place rapidly. This framework will ensure their safe use in civil airspace and create legal certainty for the industry.

To address these issues, the Commission proposes to include rules on drone operations in the revision of Regulation 216/2008, and will task EASA with preparing more detailed rules which will allow the drone operations and the development of industry standards.

7. Environmental aspects

The Commission notes that high environmental standards have to be preserved and enhanced over time in order to ensure that aviation develops in a sustainable manner. The EU has, through Directive 2003/87, put in place an emissions trading scheme addressing greenhouse gas emissions. The EU is now determined to develop, within ICAO, a global Market Based Mechanism (MBM) to achieve carbon neutral growth from 2020 and intends to reach out to other regions of the world at the 2016 ICAO Assembly. Support of current research on biofuels and other 'green' technologies should help further reduce the environmental impact of EU aviation. The SES ATM Research project will contribute to fuel savings and thereby the reduction of carbon dioxide emissions; measures to reduce nitrogen oxide emissions will be further pursued.

Noise emissions are also a very topical issue, as aircraft noise directly affects some 4 million citizens in Europe. In view thereof, a Regulation on managing noise-related operating restrictions will be applied throughout Europe from June 2016 and a new international noise standard is expected to be applied to new types of large aircraft from 2017.

Paris UN climate change conference December 2015

In light of the above, it is worth adding that the final Paris Agreement at UNFCCC COP21 (12 December 2015) does not mention emissions from international transport (aviation and shipping) at all. The deletion of the draft provisions relating to international transport came during the middle of week two of the talks. In respect of aviation, all eyes will therefore turn to the ICAO Assembly in Montreal from 27 September – 7 October 2016 and the proposals with regards to a global MBM agreement. Aviation was addressed in Paris at the Subsidiary Body on Scientific and Technological Advice, where ICAO gave its annual report of work undertaken and parties provided feedback. The G7+CHINA bloc made a strong statement reiterating support for the 1997 Kyoto Protocol position that reduction of greenhouse gas emissions from international aviation should be achieved by "working through the ICAO": "the Group reiterates the importance of supporting multilateral solutions when addressing the issue of emissions from the international maritime and civil aviation sectors working through the International Maritime Organization (IMO) and International Civil Aviation Organization (ICAO), respectively, while taking into account the principles and provisions of the Convention and not on the basis of unilateral measures..."

INDUSTRY RECEPTION OF THE COMMISSION PACKAGE

Following the official announcement of the Commission's package on 7 December 2015, the European airspace user associations (AEA, EBAA, EEA, ELFAA, ERA and IACA) issued a joint statement welcoming the Commission's initiative to optimise regulation but at the same time stressing that there is an urgent need for the Commission to now propose more specific and far-reaching remedies. The associations note that whilst the strategy review correctly identifies some of the significant challenges that Europe's aviation sector is currently facing in terms of the cost and provision of infrastructure (both on the ground and in the air), the integrity of the market, inefficiencies in the value chain and a burdensome regulatory framework (e.g. national and local aviation taxes, the intra-EU ETS), it stops short of proposing concrete measures to address these. The associations thus aim to further engage with the Commission and the European decision makers to request immediate actions given the importance of ensuring that aviation becomes a priority sector in Europe.

The European Commission's Aviation Package 2015

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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