Under the Treaty the European Commission is responsible for the required implementation of Community legislation in many areas. When exercising these delegated powers it is often obliged to work with national civil servants appointed by Member States in different committees. These committees, which are a forum for discussions and the voicing of opinions, are chaired by the European Commission.
For the implementation of Regulation (EC) No 216/2008 (the Basic Regulation, BR) the European Commission is assisted by the EASA committee and the Single European Sky committee. Another committee of importance as regards aviation safety is the Air Safety committee, which is best known for being the guardian of the so called ‘Safety list’ as provided by Directive 2004/36/CE of the European Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports.
The procedures which govern the work of these committees follow the standard procedures established in Regulation (EU) 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. It replaces Decision 1999/468/EC. This Regulation introduces a new ‘comitology’ procedure, which gives somewhat amended rights to Member States to control the way the Commission uses its delegated powers. The powers conferred to the European Parliament have been reduced slightly by the new Regulation and an Appeals Committee has been introduced in case no agreement can be reached in the committee. The latest comitology regulation can be consulted using the following link.
In principle the new comitology works as follows:
For the adoption of detailed implementing rules, the basic act may provide for the application of the examination procedure or the advisory procedure, taking into account the nature or the impact of the implementing act required.
The examination procedure applies, in particular, for the adoption of:
- Implementing acts of general scope;
- Other implementing acts relating to:
- programmes with substantial implications;
- the common agricultural and common fisheries policies;
- the environment, security and safety, or protection of the health or safety, of humans, animals or plants;
- the common commercial policy;
The advisory procedure applies, as a general rule, for the adoption of implementing acts not falling within the ambit of the aforementioned areas. However, the advisory procedure may apply for the adoption of the implementing acts referred to there in duly justified cases.
For the adoption of EASA implementing measures in the field of ATM/ANS and aerodromes only one procedure is relevant: the examination procedure.
However, to understand comitology in conjunction with the ATM and aerodromes regulatory processes it should be taken into account that the BR still refers to the old comitology process. In particular Articles 8a (Aerodromes) and 8c (Air Traffic Controllers) refer to Article 65(4) of the BR, which reads as follows:
Where reference is made to this paragraph, Article 5a (1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
Under the old regime this was dealt with by Single Sky and EASA committees using the Regulatory Procedure with Scrutiny.
Article 8b of the BR, however, refers to Article 5(3) of Regulation (EC) No 549/2004, which reads as follows:
Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
This was dealt with by the Single Sky Committee under the Regulatory Procedure (without scrutiny).
As said before, the new Regulation 182/2011 repeals the old comitology Decision, however, its Article 12 indicates that:
- The effects of Article 5a of Decision 1999/468/EC shall be maintained for the purposes of existing basic acts making reference thereto.
So the regulatory procedure with scrutiny stays.
Article 13 indicates:
c. where the basic act makes reference to Article 5 of Decision 1999/468/EC, the examination procedure referred to in Article 5 of this Regulation shall apply ….
This means that the examination procedure replaces the old regulatory procedure. However, the examination procedure does not differ very much from the regulatory procedure. The whole procedure stays with the Single Sky committee and the EASA committee, even if no agreement is reached. It may in that case go to an appeal committee. In exceptional cases there may even be a consultation round by the Commission amongst the Member States. The Council is no longer involved. Parliament is involved only at a distance.
Procedures applicable to aerodromes rules and ATCO licensing will hardly change.
Procedures applicable to ATM/ANS rulemaking will stay within the SSC, with possibility of appeals committee; there is no Council involvement; Parliament’s involvement only on distance.