The European Union

 The European Union is not a federal state like the United States of America.  It is in full and continuous evolution, and it is not clear at this moment in time where it is going to.  Whereas we were all preparing for further deepening and the institutional changes required for it, the fall of the Berlin wall and the iron curtain suddenly changed the situation radically, so that now a compromise between further deepening and enlargement needs to be found.

 The European Union is based upon three Treaties:

-   the Treaty on a European Coal and Steel Community, signed in Paris on 18/4/1951;

-   the Treaty on a European Atomic Energy Community, signed in Rome on 25/3/1957;

-   the Treaty on a European Economic Community, equally signed in Rome on 25/3/1957.

The signatories/Member States remain independent, sovereign states, each with its own legislation.

Over the years, the Treaties have been amended several times.  Of the amending Treaties, the most important and best known are:

-   the Treaty on European Union, signed in Maastricht (NL) on 7/2/1992;  this renamed the amended EEC Treaty in EC Treaty (Treaty establishing the European Community);

-   the Treaty of Amsterdam, signed in Amsterdam on 2/10/1997, which inter alia extended the powers of the European Parliament and added two institutional pillars to the Community powers.

To date, further amendments are planned, in particular to deal with the institutional changes that are required to keep the EU manageable after accession of the candidate Member States, when the number of Member States will increase to more than the current 15.  The intention is that these further amendments will be laid down in an amending treaty, to be signed in Nice (F) by the end of the year.

The European Commission

The tasks entrusted to the Community are carried out by the following institutions:

-   the Parliament (the only directly elected body);

-   the Council (the Member States, represented by their ministers);

-   the Commission (the executive body);

-   the Court of Justice;

-   the Court of Auditors.

The Council and the Commission are assisted by the Economic and Social Committee and the Committee of the Regions, both acting in an advisory capacity only.

Important to realize is that the European Commission itself does not make (adopt) legislation.  The Commission proposes legislation, and it is the only institution that can do so.  This ‘right of initiative’ is a truly powerful instrument of the Commission.

Legislation proposed by the Commission is adopted by the Council or the Council and Parliament jointly, as the case may be, normally with amendments that these institutions have agreed according to procedures laid down in the EC Treaty.  The Commission too plays its role in this process.  This can go as far as withdrawing its original proposal altogether, if Council and Parliament wish to amend the legislation in a manner unacceptable for the Commission.

Another main responsibility of the Commission is to exercise its role of ‘Guardian of the Treaty’ :  it is the Commission’s duty to ensure that the provisions of the Treaty and Community legislation are respected by the Member States and other parties concerned.

Legislative instruments

Three legislative instruments exist.

A regulation is a legal act having general application.  It is binding in its entirety and is directly applicable in all Member States.

A directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods.

A decision is binding in its authority upon those to whom it is addressed.

Legislative principles

When the Commission proposes legislation it has to respect the principles of subsidiary and proportionality.

The subsidiary principle obliges the Commission to restrict itself to legislation whose objectives cannot be (better) achieved by the Member States themselves.  Only when the objectives can be achieved better, or exclusively, by Community legislation shall the Commission propose such legislation.

The proportionality principle applies for the Member States and the Commission alike, and obliges the legislator, whether national or community, not to be excessive.  When the objective pursued can be achieved equally well by non-legislative means, these are to be used. If legislation is justified, it shall go no further than is necessary to achieve its objectives.

The respect of these two principles has to be kept in mind when looking at the Commission’s legislative role.

Community legislation and safety regulations

One of the important principles enshrined in the EC Treaty is free movement, realized by means of the Internal Market which is an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty.

To illustrate what this means, let us take industrial goods as an example:

In the case of industrial goods, free movement forbids quantitative restrictions by the Member States on import of such goods coming from other Member States, or any measures of the same effect (such as for example regulations that result indirectly in quantitative restrictions).  Excluded are quantitative restrictions or measures of the same effect that are justified for reasons of public interest, such as public health, public safety, ……….

Therefore, in the case of national product safety regulations that create barriers to the free movement (also called technical barriers to trade or TBTs) and that are regarded justified for any of the reasons mentioned above, harmonization plus mutual recognition is the only means for elimination of these barriers to trade and creation of the Internal Market.  This explains why there are Directives in force today for the harmonization of safety requirements for products such as machinery, medical devices, gas appliances, pressure systems, and many others.

On the other hand, national safety regulations that create no barriers to the free movement even though unharmonised, and that are otherwise acceptable (level of safety provided, …….), are acceptable and will not lead to harmonization proposals by the Commission.  In other words: Harmonization of technical prescriptions is a means, not an objective per sé.  Harmonization is only proposed when necessary.

Civil aviation safety legislation

In 1990, the Joint Aviation Authorities were established, as an associated body of the European Civil Aviation Conference, by the ‘Arrangements concerning the development, the acceptance and the implementation of joint aviation requirements’, signed in Cyprus on 11 September.  Since that date, the national civil aviation authorities cooperate in the JAA with the objective of eliminating national regulatory differences by developing, adopting and implementing Joint Aviation Requirements (JARs), making the technical findings only once, and requiring only one single administrative act by the applicant.

The Joint Aviation Requirements referred to above, although providing the high level of safety the EU pursues, are however no national regulations in themselves and therefore not legally binding.  They are what might be called recommendations or blueprints for regulation.  Furthermore, their implementation by the Member States has not been uniform.

On the proposal by the European Commission, Regulation (EEC)3922/91 was therefore adopted in 1991, making the JARs on aircraft and on persons/organizations involved in aircraft design, - manufacture, - maintenance, etc. legally binding as the technical requirements and administrative procedures that apply in the Community.

Furthermore, because the JARs do not provide mutual recognition of certificates (a necessity for free movement), Regulation 3922/91 imposes mutual recognition of certificates granted pursuant to it.

As the JARs were adapted to technical progress, so was Regulation 3922/91.  This happened twice, so far.

Currently, several further amendments of Regulation 3922/91 are planned.  Of these, the proposal for inclusion of the requirements contained in JAR OPS 1 on the operational safety of aero planes has been adopted by the Commission already and transmitted to Parliament and Council.  The text of the JAR OPS 1 requirements has been corrected, where necessary, to make them comply with the Treaty and the Community legislation (free movement, mutual recognition, …….).  No changes were made to the technical content of the requirements, however.

OPS 1 (Aero planes) and flight dispatching

OPS 1 speaks about operations (flight -, ground -) and operational support/control/supervision, not explicitly however about flight dispatching as such, or flight dispatcher professional qualifications.

Although nothing prevents an operator from creating specific posts of ‘flight dispatcher’, (the various tasks and duties of flight dispatching are carried out in every operator organization), the JAA consider that the creation of specific posts of ‘flight dispatcher’ shall not be obligatory.  However, the JAA intends to advise in a future Interpretative and Explanatory text (IEM) that, if operators create the post of flight dispatcher in their organization, the occupants of these posts should undergo education according to ICAO Document 7192 D3.

The Commission has no firm views yet on this matter, in particular the questions whether the creation of specific posts of ‘flight dispatcher’ should be obligatory, and whether the profession should be subject to licensing.  To get a better understanding of flight dispatching in Europe and its relation with aviation safety, a study is being carried out by a consultant.  It is hoped that the results of this study will contribute to the opinion building.

Issues to be addressed by the study are inter alia definitions and requirements as laid down nationally and internationally;  the nature and job content of the work;  how the work is organized by the air lines;  by whom and how it is carried out;  differences in the level of operational safety, if any, and relations with the above; need for mobility of personnel, and restrictions to mobility;  relevant statistical data and correlations.

Flight dispatching and licensing

If the flight dispatching activities are to be carried out by professional flight dispatchers, then still the question is whether the profession should be subject to licensing.  Even if it is demonstrated that there is a safety risk due to differences in the quality of education/training of these people, this does not necessarily mean that licensing is needed.  Laying down common requirements for education/training and obliging the operators to comply with these might be sufficient to deal with the issue.

Speaking about licensing, we have also to keep in mind that the term licensing does not necessarily mean the same to all people.

Licensing

In the view of the Commission, licensing is a form of control by the public authorities of the profession concerned.  It is an authorization to carry out the profession, where the need for authorization must be justified on the basis of public interest such as public safety, public health, etc.

The authorization is based upon requirements in addition to those for the diploma, certificate, or other attestation of study/training results.  Such additional requirements can be, but are not restricted to, requirements of medical fitness, minimum or maximum age, etc.  The authorization is given in the form of a license, normally of fixed duration.  Licensing leads therefore to a situation where the person concerned possesses a diploma plus a license.

In the particular case where the public authorities consider a certain specialist profession so important that they carry out the education for this profession themselves, or have it carried out on their behalf and under their control, the distinction between the diploma and the license disappears and the diploma is a license at the same time, and vice versa.

Before the Commission can propose anything to Council and Parliament for adoption, it must have very convincing arguments, keeping in mind that it are these two institutions that adopt legislation, not the Commission.

European Aviation Safety Authority (EASA)

On 16 July 1998, the Council authorized the Commission to start working on the conclusion of an agreement establishing an EASA in the form of an international organization and comprising all members of the JAA.  The institutional problems linked to this approach have since led Council and Commission to change their minds, and the option now being explored is the establishment of an EASA in the form of a purely Community organization, i.e. an agency.

Main objective is the creation of a body comparable to the FAA in the USA, i.e. with directly applicable powers, charged to ensure a uniform, very high level of safety in the Community and to integrate the national regulatory systems of the Member States.

In the new set up, legally binding common rules of general scope would be adopted by the Commission, assisted by EASA in the preparation of these.

Technicalities of verifying compliance with these common rules would be laid down autonomously by EASA.  EASA would also issue type certificates, carrying out its own judgment as to compliance of the types with the requirements.

Non EU Member States would be allowed full participation in EASA, except however for voting rights and holding of chairmanships.  Application by these non Member States of the acts adopted would be controlled by the bilateral agreements with these countries.

Structure and authority of the future EASA are subject to ongoing discussions in Council and Parliament, and the ideas outlined above may well change, therefore.

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Last Updated: 02/06/2003 23:45