General

Where can I find definitions for ‘shall’, ‘must’, ‘should’ and ‘may’, as used in the Agency’s rulemaking publications?

This question relates to the English writing standards used in Community legislation. The following link gives access to the English Style Guide prepared by the European Commission’s Directorate-General for Translation. Guidance concerning the use of verbs in legislation can be found in paragraphs 10.19-10.27, as well as an explanation of the distinction between the verbs used in enacting or non-enacting terms. For more information click here . The Joint Practical Guide of the European Parliament, the Council and the Commission also gives guidance on the principles of drafting Community legislation.

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What is the difference between European Community (EC) and European Union (EU) in the regulation reference?

The Lisbon Treaty, the latest primary treaty at EU level, was signed on 13 December 2007 and entered into force on 1 December 2009.

The European Union has been given a single legal personality under this Treaty.

Previously, the European Community and the European Union had different statutes and did not operate the same decision-making rules. The Lisbon Treaty ended this dual system.

On practical terms, all EU legislation has the reference to the EU since 1 December 2009. Up till then, the reference was made to the European Community (EC) as only this body had legal personality.

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What is the definition of an IR, AMC and CS and GM and what differences can be proposed?

Implementing Rules (IR) are binding in their entirety and used to specify a high and uniform level of safety and uniform conformity and compliance. The IRs are adopted by the European Commission in the form of Regulations.

Acceptable Means of Compliance (AMC) are non-binding. The AMC serves as a means by which the requirements contained in the Basic Regulation, and the IR, can be met. However, applicants may decide to show compliance with the requirements using other means. Both NAAs and organisations may propose alternative means of compliance. ‘Alternative Means of Compliance’ are those that propose an alternative to an existing AMC. Those Alternative Means of Compliance proposals must be accompanied by evidence of their ability to meet the intent of the IR. Use of an existing AMC gives the user the benefit of compliance with the IR.

Certification Specifications (CS) are non-binding technical standards adopted by the EASA to meet the essential requirements of the Basic Regulation. CSs are used to establish the certification basis (CB) as described below. Should an aerodrome operator not meet the recommendation of the CS, they may propose an Equivalent Level of Safety (ELOS) that demonstrates how they meet the intent of the CS. As part of an agreed CB, the CS become binding on an individual basis to the applicant.

Special Conditions (SC) are non-binding special detailed technical specifications determined by the NAA for an aerodrome if the certification specifications established by the EASA are not adequate or are inappropriate to ensure conformity of the aerodrome with the essential requirements of Annex Va to the Basic Regulation. Such inadequacy or inappropriateness may be due to:

  • the design features of the aerodrome; or
  • where experience in the operation of that or other aerodromes, having similar design features, has shown that safety may be compromised.

SCs, like CSs, become binding on an individual basis to the applicant as part of an agreed CB.

Guidance Material (GM) is non-binding explanatory and interpretation material on how to achieve the requirements contained in the Basic Regulation, the IRs, the AMCs and the CSs. It contains information, including examples, to assist the user in the interpretation and application of the Basic Regulation, its IRs, AMCs and the CSs.

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Implementing Rules are available in all of the national languages of the EASA Member States. How is the quality of these translations assured? Who is responsible for the translations?

EASA is committed to facilitating the production of good quality translations. To ensure this and, where necessary, to improve, EASA has set up a Translation Working Group in 2008. This Working Group is made up of members of the National Aviation Authorities (NAAs), the Translation Centre of the EU Bodies (CdT), as well as EASA staff members. Also, EASA in cooperation with NAAs and CdT, is developing glossaries in the different aviation domains, such as Air Operations or Air Traffic Management, to enhance the quality of translations. The Member States also contribute to this project in order to capitalise on existing material and experience.

The final responsibility for translations lies with the EU Commission. The correction of translation mistakes of the Implementing Rules follows the same formal procedure as for their adoption: 1. preparation of the proposal, 2. interservice consultation, 3. committee, 4. scrutiny of European Parliament and of European Council, and 5. adoption. For minor mistakes, the procedure may be shorter. In any case, the linguistic changes will have to be agreed by the Commission’s translation services. These linguistic services will check that no substantial change is introduced, that the term used is acceptable according to an internal translation code or that the same change is included in all linguistic versions.

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What is the progress of a regulation towards publication?

The Agency drafts regulatory material as Implementing Rules, Acceptable Means of Compliance, Guidance Material and Certification Specifications. These are available for consultation (as Terms of Reference, Notices of Proposed Amendment and Comment Response Documents). After consultation, the Implementing Rules are sent to the European Commission as Opinions.

Following publication of the Opinions, responsibility for completing the decision-making process prior to the Regulation’s publication in the Official Journal of the European Union passes onto the European Commission. The Opinions’ progress can be followed via the European Commission’s comitology website. It is advisable to search by year and for the committee dealing with these Opinions: Committee for the application of common safety rules in the field of civil aviation. As several Opinions may be negotiated in one such committee meeting, it is difficult to search by rule or title.

Once the committee has adopted the draft regulation, it is passed on to the European Parliament and Council for scrutiny. Further information and links to the documents under scrutiny can be found via the European Parliament’s Register of Documents.

The Agency is responsible for finalising the associated Acceptable Means of Compliance (AMC), Guidance Material (GM) and Certification Specifications. As these need to take into account any changes made to the Cover Regulation and Implementing Rules by the EASA Committee, European Parliament and Council, the Decisions are published on the Agency website shortly after the date when their corresponding regulation has been published in the Official Journal.

The Agency also publishes a rulemaking programme, listing the tasks that are ongoing and advance planning. It is available here.

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What is the comitology procedure?

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:

  1. Implementing acts of general scope;
  2. Other implementing acts relating to:
    1. programmes with substantial implications;
    2. the common agricultural and common fisheries policies;
    3. the environment, security and safety, or protection of the health or safety, of humans, animals or plants;
    4. the common commercial policy;
    5. taxation.

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.

Conclusion:

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.

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What does cover regulation mean?

Implementing rules are Commission Regulations. They are usually composed of a short introductory regulation, colloquially known as ‘cover regulation’, and Annexes thereto, containing the technical requirements for implementation. In the EASA system, these Annexes are usually called Parts (e.g. Part-21 is an Annex to Regulation 1702/2003).

The ‘cover’ regulation is usually short (3-4 pages) and it includes:

  • Considering clauses (“whereas”), explaining the principles and considerations that lead the legislator when adopting the Regulation;
  • A description of the objective and scope of the regulation;
  • Definitions that are used throughout the Regulation and its Annexes;
  • the establishment of the applicability of its annex(es)
  • Conversion and transition measures
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