Institutional changes The role of Bilateral Oversight Boards

1
Institutional changes The role of Bilateral
Oversight Boards

• Claude Probst
• European Aviation Safety Agency

2
Presentation

• I. The principles
• II. The bilateral aviation safety agreement
• III. The implementation procedures
• VI. Industry involvement

3
The principles

• In a domain where Community competence has been
  established, Member States may no more act
  individually, particularly vis-à-vis third
  countries.
• Existing agreements are not affected and may
  continue to be implemented. Member States shall
  however modify/renounce them if they are contrary
  to their Community obligations.
• The Community has legal personality and may
  conclude international agreements to supersede
  existing agreements.

4
The principles

• The EC Treaty provides for the delegation of
  executive powers to the Commission, which can
  adopt secondary law.
• There is no precedent of agreements concluded by
  the Community delegating powers to the Commission
  for concluding implementation procedures.
• The Commission can however be given the power to
  adapt/update such procedures.

5
The principles

• An Agency may also be given the power to
  implement Community law as a technical executive
  agent.
• EASA can issue certification specifications and
  certification procedures to clarify how it will
  issue its certificates.
• The agency may also conclude working arrangements
  with its partners.

6
Bilateral Aviation Safety Agreements

• Bilateral aviation safety agreements have for
  objective to facilitate certification by making
  use of the certification capabilities of a
  partner recognised fit and able.
• Conclusion of such agreements suppose sufficient
  equivalence of rules and procedures, but not full
  harmonisation.
• They are based on the principle of reciprocal
  acceptance of certification findings or
  certificates, depending on the level of trust
  between the parties.

7
Bilateral Aviation Safety Agreements

• The Commission negotiates on the basis of an
  authorisation granted by the Council which
  specifies its negotiating directives.
• When negotiations are concluded, the finalisation
  of the agreement requires formal approval, on the
  basis of a European Parliament and Council act,
  whose legal basis depends on the content of the
  agreement and its impact on Community law.

8
Bilateral Aviation Safety Agreements

• As the Commission may not conclude itself
  agreements that commit the Community, the current
  format of the Bilateral Aviation Safety
  Agreements is not appropriate.
• All implementation procedures shall be part of
  the agreement itself and be concluded by the
  Community.

9
Bilateral Aviation Safety Agreements

• The agreement shall contain two main parts
• the core agreement itself including general
  provisions and
• a set of annexes covering the implementation
  procedures.
• Entry into force of the provisions of the
  agreement is linked to appropriate reciprocal
  confidence building

10
Bilateral Aviation Safety Agreements

• the core agreement
• describes the scope,
• defines the obligations of the parties,
• appoints the executive agents,
• establishes safeguard measures,
• clarifies various administrative issues
  (applicable fees, territorial applicability,
  third parties involvement, protection of data.),
• sets entry into force, dispute management and
  termination provisions and
• creates a joint oversight board.

11
Bilateral Aviation Safety Agreements

• The joint committee or bilateral oversight board
  is composed of representatives of the parties. It
  is given executive powers for the implementation
  of the agreement.
• It is the forum in which both parties may
  discuss
• subjects of common interest for the good
  functioning of the agreement,
• regulatory co-operation, including participation
  in each other rule making processes,
• broad policy issues,
• possible common positions in international
  organisations.

12
Bilateral Aviation Safety Agreements

• The bilateral oversight board may in particular
• oversee smooth implementation,
• address any issue related to such implementation,
• discuss and solve possible dispute,
• handle safeguards provisions,
• amend annexes (implementation procedures) and
• propose amendments to the agreement (including
  new annexes)

13
Bilateral Aviation Safety Agreements

• The Commission is the representative of the
  Community in the bilateral oversight board. It
  is assisted by the Agency.
• When the bilateral oversight board takes
  decisions affecting the Community, the Commission
  shall act in accordance with a mandate. Such
  mandate is agreed with a Committee of Member
  States assisting the Commission. This provides
  for their involvement in the functioning of the
  agreement.

14
Implementation procedures

• For each domain the implementation procedures
• describe the scope of findings or certificates
  subject to reciprocal acceptance,
• nominate the accepted competent authorities,
• set, as appropriate, a confidence building
  process,
• specify the applicable requirements, in
  particular how the importing party will notify
  its certification requirements to the exporting
  one,
• clarify how the findings shall be made and how
  they will be accepted, including possible
  safeguards,
• creates a joint sectoral oversight board.

15
Implementation procedures

• The sectoral oversight board is composed of the
  technical agents of the parties. It is given
  executive powers for the implementation of the
  procedure.
• It is the place where technical agents in charge
  with daily certification tasks
• discuss individual projects,
• try to solve differences at the most appropriate
  level and
• identify candidate requirements or procedures for
  harmonisation.

16
Implementation procedures

• The sectoral oversight board may in particular
• oversee day-to-day implementation,
• keep list of applicable requirements update,
• address any issue and possible dispute,
• develop implementation measures, such as the TVP
  or standard management plans,
• adopt individual management plans for individual
  project,
• manage confidence building and keep list of
  accepted competent authorities update,
• propose amendments to the procedure

17
Implementation procedures

• The Agency is the representative of the
  Community in the sectoral oversight board. The
  main player is the Certification directorate, but
  other operational directorates are also involved.
• Other persons may be invited as appropriate.
• This may include National Aviation Authorities,
  inasmuch as they are competent authorities for
  the execution of the related implementation
  procedure

18
Industry involvement

• Direct industry involvement is not possible in
  such a bilateral structure, which only includes
  executive agents exercising their delegated
  powers.
• New mechanisms to allow industry consultation and
  seek its comments have to be established. They
  should allow
• either party to know its industry views and
• both parties to jointly interact with those
  affected by the functioning of the agreement.

19
Industry involvement

• On its side the Agency intends to establish a
  co-ordination process with the industry.
  Preliminary contacts have already been
  established with the industry to seek their
  opinion on priorities for concluding agreements
  or arrangements with third countries, as well as
  their possible scope and content. Formalisation
  is envisaged.
• The annual industry meeting could also be a forum
  where the Agency receives feed back on
  international developments.

20
Industry involvement

• On a bilateral basis, nothing is envisaged yet.
  The establishment of several consultation forum
  for each agreement and their related
  implementation procedures, is a heavy undertaking
  that the executive agents or the industry can
  probably not bear.
• Making use of the annual International Conference
  would be an option to provide bilateral partners
  with a forum where they receive guidance and feed
  back on the functioning of their bilateral
  agreements or arrangements.

21
Industry involvement

• In both cases, efficiency suggest that industry
  organises itself to initiate and maintain a
  structured dialogue with the bilateral partners.
• To limit the frequency of meetings and their
  number, a process similar to that established
  within the framework of the Transatlantic
  Business Dialogue and the Transatlantic Economic
  Partnership between the EU and the US could be
  envisaged. Link with such processes could also
  provide for the politic support that is missing
  in previous arrangements.

22
Industry involvement

• With the current trend towards global economy and
  pending the time appropriate multilateral
  structures are put in place, bilateral and
  pluri-lateral approaches will develop.
• Industry involvement is wished and welcome. This
  however requires that new mechanisms are
  established and that industry organises itself to
  accompany such evolutions.
• Comments and ideas are welcome!