The EU's engagement in air safety regulation
The EU’s standards are thus based on those of the ICAO and interpreted in a manner consistent with those of its member states. Regarding the enforcement of air safety standards, the bluntest instrument at the disposal of the European Commission is the Community List of Air Carriers subject to an operating ban barring entry into EU airspace—more commonly referred to as the ‘blacklist’.3 In December 2005 the Commission was authorized to compile the blacklist and the implementing regulations and accompanying rules were published in March 2006.4 The blacklist can be applied to an individual air carrier, part of an individual carrier’s fleet or to an entire state’s registry. In other cases, the carrier may be issued with a warning that may precede being entered in the blacklist at a later date. Carriers and civil aviation authorities may make representations prior to a ban being imposed. There is also an appeal process following a ban’s imposition although, contrary to some media reports, no air carrier has overturned a ban.5
The blacklist is compiled by the Directorate-General for Transport and Energy of the European Commission (DG Tren) in consultation with the Air Safety Committee (ASC) comprised of experts from EU member states.6 In compiling the blacklist, DG Tren and the ASC rely on several different sources of information. One is the ICAO’s Universal Safety Oversight Audit Program (USOAP) which carries out mandatory safety audits of all its member states.7 The USOAP assesses the oversight capabilities of its member states, providing a strong indication of whether a particular CAA is able to effectively monitor and oversee air carriers operating from their state or registry.8 Another source of information is the so-called ‘Antonov blacklist’, which contains information on 436 aircraft no longer considered airworthy on the grounds that no manufacturer inspection had been carried out within the stipulated time limit.9
However, the main source of information in the compiling of the blacklist comes from EU member states via the ASC.10 The sources of this information are the ramp inspections carried out by the relevant authorities within each member state, reports of which are forwarded to the European Aviation Safety Agency (EASA).11 The EASA is the EU agency charged with issues such as air safety analysis and research, monitoring and implementation, inspections, the authorization of third party operators, and technological standardization.12 Its membership consists of EU member states while it has also signed Working Arrangements with an additional 16 non-EU member states.13
In addition to an inspection coordination and standardization role, EASA is responsible for the ramp inspection Safety Assessment of Foreign Aircraft (SAFA) programme database. The SAFA programme was set up under the auspices of the Joint Aviation Authorities (JAA) in 1996 in association with the European Conference on Civil Aviation (ECAC).14 The JAA’s membership was based around that of the ECAC, which eventually consisted of all major European states with the exception of Belarus and Russia. SAFA inspections were carried out on foreign aircraft. In some countries the inspections were carried out by dedicated SAFA inspectors while in others they were carried out by safety inspectors conducting checks in the course of their normal duties.15
SAFA inspections are dependent on the aircraft’s arrival and departure slots and in many cases not all items can be checked due to a lack of time.16 In addition, the number of flights by foreign operators is often greater than the inspection capability, meaning that only spot checks are possible. SAFA inspections may be performed randomly or they can be targeted on particular air carriers or CAA registries.17
During a SAFA inspection, safety deficiencies are graded in the form of ‘findings’.18 ‘Category 1’ findings are minor, ‘Category 2’ findings are significant, and ‘Category 3’ findings are major. The terms reflect the level of deviation from the ICAO standard. If ‘significant irregularities’ are revealed, these are brought to the attention of the airline and the national CAA under whose authority the air carrier operates. Where irregularities have an immediate impact on safety, inspectors can demand corrective action before they allow the aircraft to leave.19 The results were entered in the JAA, now EASA database.20
The inspections revolve around a checklist comprising 54 different items including a document check, equipment assessment, and compliance with fire extinguisher regulations and access to emergency exits.21 They may involve the inspection of a cargo manifest and other documents relating to the cargo, such as a dangerous goods licence or specific flight authorization in the case of munitions.22 The ECAC annual report on the SAFA programme for 2005 noted that a number of SAFA inspections revealed the improper transportation of dangerous goods, a category which often covers small arms munitions. Findings included the ‘unavailability of required documents and manuals...missing authorization for the transportation of dangerous goods and no proper notification to the Captain (NOTOC) of Dangerous Good carried on board.’23 SAFA inspectors may also check the cargo hold to ensure that pallets or crates are securely attached, that the weighting is balanced and that all equipment is stowed away. However, SAFA inspectors are not a customs service and do not check the contents of containers.24
There is no uniform approach to the SAFA programme among the participating states. Some countries, such as France, assign specific personnel to conduct SAFA inspections while other EU members do not.25 SAFA ramp inspections have increased over the years, with 75 in 1996, 2394 in 2000, 5457 in 2005 and 7458 in 2006.26 However, the number of SAFA inspections between states varies considerably between EU and non-EU members. For example, France performed close to 1900 inspections in 2006, while Albania conducted 0. The number of inspections also varies within the EU. For example, Spain performed more than 1500 inspections in 2006, but the United Kingdom less than 300.27 In 2004 and 2005, the ECAC noted an increase in the ratio of findings against the number of checklist items inspected.28 The ECAC attributed this increase to a number of factors, including an increased focus on operators that had findings in the past.29 The ECAC believe that developing experiences and training on the part of inspectors has led to more in depth inspections resulting in more findings.
In 2004 and 2005, the ECAC noted an increase in the ratio of findings (f) set against the number of checklist items (CI) inspected. On average, for every 100 checklist items inspected, three findings were established in the years up to 2003 (F/CI is 0.03). In 2004 this increased to 4.6 findings per 100 items inspected (F/CI is 0.046). In 2005 this further increased to 4.7 findings per 100 items inspected (F/CI is 0.047). The ECAC attributed this increase to a number of factors, including the concentration by states of inspections on those operators that had findings in the past. The ECAC also note that in recent years, some states have established relatively more findings than in past years. For example, there were 278 major findings in 2000, compared with 1182 in 2005.30 In 2005 and 2006, operators from states in the Asian and Pacific (APAC) ICAO region, the Eastern and Southern African (ESAF) ICAO region, the Middle East (MID) ICAO region the Western and Central African ICAO region and the South American (SAM) ICAO region had more findings per inspection than average.31
The EU officially assumed responsibility for SAFA from the ECAC on 1 January 2007. The programme subsequently became known as the EC SAFA Programme. Under EU law, the European Commission is charged with overall responsibility, and the EC’s Directorate General for Transport and Energy (DG Tren) has delegated responsibility for SAFA coordination and database management to the EASA.32 There are a number of significant differences between the earlier ECAC SAFA programme and the EC SAFA programme. The EC SAFA programme is based on an EC Directive, known as the SAFA Directive (Directive 2004/36/EC) which was adopted by the European Parliament and the Council in April 2004 and became applicable in April 2006. This means that, unlike the ECAC SAFA programme, the EC SAFA programme is legally binding on all EU member states.33 In effect, EU member states are obliged to perform ramp checks on non-EU aircraft, and to ensure that the necessary resources are allocated for this task. Non-EU states also conduct EC SAFA inspections through a process formalized through Working Arrangements with the EASA. The list of Non EU members which have signed the Working Arrangement with EASA under which SAFA inspections are conducted outside the EU is identical to the registry of JAA and ECAC members. Belarus and Russia are the only significant states that have not signed a SAFA Working Arrangement with EASA. Non-EU signatories to the Working Arrangement include Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, Iceland, Macedonia, the Former Yugoslav Republic of Macedonia, Monaco, Norway, Serbia, Switzerland, Turkey and Ukraine.
Currently, decisions on where to focus SAFA inspections, which could generate much of the information for compiling the EU blacklist, are based on national policies.34 However, in the next 12 months, the EASA will introduce a points system under which national inspection authorities will have an incentive to focus their inspections on certain priority carriers or CAA registries. There are currently five areas on which inspections may be focused or prioritized: (1) specific State of Operator (checking operators from a particular state), (2) specific aircraft type, (3) specific nature of operations (scheduled, non-scheduled, cargo etc.), (4) specific foreign operator, (5) specific aircraft identified by its individual registration mark.35
This priority list could serve as a de facto profiling system across the SAFA programme area for targeting inspections on particular air carriers or CAA registries. However, such an initiative would be dependent on member state cooperation, something that is on the increase following the adaptation of SAFA into EC SAFA. Such a profiling mechanism could be set so as to ensure inspections on the most problematic aircraft types belonging to the most problematic air carriers operating from the most problematic air registries not yet subject to a ban. If such a profile were set to focus on air cargo carriers operating specific charter flights, the correlation frequency between those carriers, registries and aircraft to those named in UN and other arms trafficking related reports would be extremely high, providing those aircraft still fly to destinations within the EC SAFA area.
Under EC control and EASA management, the EC SAFA programme is becoming increasingly standardized and for all intents and purposes, less voluntary and more centrally regulated than was the case under the ECAC. EU states are legally bound by SAFA and many neighbouring states in the process of accession, through the EASA training programme, will see the number and quality of their inspections rise. It is envisaged that larger EU members which currently conduct relatively few SAFA inspections will increase their inspection rate under a new points system.
Most importantly, it is envisaged that EC SAFA will increasingly target third-country air carriers outside the European Common Aviation Area, as another regulation system is applied more systematically both in EASA member states and those with which it has Working Arrangements. Under these Working Arrangements SAFA ramp inspections can be conducted on aircraft that have not landed at airports in the EU. At least in theory, aircraft landing or transiting any airport in the Caucasus or Eastern Europe are now liable for a SAFA ramp inspection by state inspectors.
In addition to the European Commission, EASA and EU member states, the other major organization involved in the EC banning process and EC SAFA programme is the European Organisation for the Safety of Air Navigation (Eurocontrol). Eurocontrol is a civil and military organization of 38 member states and plays a central role in air traffic management between member states and over European airspace.36 Eurocontrol’s Central Flow Management Unit (CFMU) is responsible for collecting and re-dispatching all flight plans for flights entering, overflying or departing from Europe. The CFMU has established an alerting system that allows for the immediate detection of flight plans registered by companies covered by the EU blacklist. Currently such an alert system is dependent on the level of data filed in flight plans. Certain registries, such as Russia, have sometimes failed to supply the information necessary to detect violations of self-imposed restrictions or germane to a future ban.37 Data also shows that carriers subject to an EU ban are operating freely in certain ECAC member states and that certain ECAC member state carriers subject to a ban are conducting transatlantic flights.38 The CFMU has the capacity to monitor, alert or warn effectively, but additional considerations and resources will be required to enable the organization to exploit its full potential in terms of an oversight role.39
2 These annexes are regularly updated to take account of new developments and technological advances. See <www.icao.int>.
3 The Community List of Air Carriers subject to an operating ban was established under Commission Regulation (EC) No. 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC (Text with EEA relevance), Official Journal of the European Union, L344, 27 Dec. 2005.
4 Commission Regulation (EC) No. 474/2006 of 22 March 2006 laying down implementing rules for the Community list of air carriers which are subject to an operating ban within the Community referred to in Chapter II of Regulation (EC) No. 2111/2005 of the European Parliament and of the Council (Text with EEA relevance), Official Journal of the European Union, L84, 23 Mar. 2006.
5 European Commission Directorate General for Transportation and Energy (DG Tren) official, Interview with the author, Brussels, 2 Sep. 2008.
6 European Commission Directorate General for Transportation and Energy (DG Tren) official (note 5).
7 The Universal Safety Oversight Program (USOP) is the responsibility of the ICAO Safety and Security Audits (SAA) branch. See <http://www.icao.int/cgi/goto_anb.pl?soa>.
8 ICAO official, Interview with the author, Paris, 29 Aug. 2008.
9 Lacagnina, M., ‘Antonov blacklist’, Aviation Safety World (Flight Safety Foundation: Alexandria, VA, Dec. 2006), p. 18–23.
10 EASA official, Interview with the author, Cologne, 1 Sep. 2008.
11 A ramp inspection is the inspection of an aircraft in the course of its normal operations and is undertaken between time of arrival at a particular airport and time of departure. Irish Aviation Authority. See SAFA ramp inspection selection criteria, <http://www.iaa.ie/index.jsp?p=147&n=225>.
12 See <http://www.easa.eu.int>.
13 These states are Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, Iceland, the Former Yugoslav Republic of Macedonia, Moldova, Monaco, Montenegro, Norway, Serbia, Switzerland, Turkey and Ukraine.
14 European Civil Aviation Conference, ECAC/JAA Programme for the Safety Assessment of Foreign Aircraft, SAFA Report, 01 January 2006–31 December 2006, p. 10.
<http://www.easa.europa.eu/ws_prod/s/doc/SAFA/reports/safareport2006e.pdf> accessed 9 September 2008
15 Interview with ICAO, Paris, 29 August 2008
16 European Civil Aviation Conference, ECAC/JAA Programme for the Safety Assessment of Foreign Aircraft, SAFA Report, 01 January 2006–31 December 2006, p. 15.
17 ‘Approvals and Standardisation - Safety Assessment of Foreign Aircraft (EC SAFA Programme)
<http://www.easa.europa.eu/ws_prod/s/s_safa.php> accessed 9 September 2008.
18 European Civil Aviation Conference, ECAC/JAA Programme for the Safety Assessment of Foreign Aircraft, SAFA Report, 01 January 2006–31 December 2006, p, 16 <http://www.easa.europa.eu/ws_prod/s/doc/SAFA/reports/safareport2006e.pdf> accessed 9 September 2008
19 Interview with EASA official, Koln, 1 September 2008.
20 European Civil Aviation Conference, ECAC/JAA Programme for the Safety Assessment of Foreign Aircraft, SAFA Report, 01 January 2006 – 31 December 2006, p. 17.
21 European Civil Aviation Conference, ECAC/JAA Programme for the Safety Assessment of Foreign Aircraft, SAFA Report, 01 January 2006 – 31 December 2006, p. 15.
22 Interview with EASA official, Koln, 1 September, 2008
23 ECAC/JAA Programme for Safety Assessment of Foreign Aircraft, SAFA Report, (01 January 2005 to 31 December 2005), European Civil Aviation Conference, p. 22.
24 Interview with EASA official, Koln, 1 September, 2008
25 Interview with EASA official, Koln, 1 September, 2008
26 European Civil Aviation Conference, ECAC/JAA Programme for the Safety Assessment of Foreign Aircraft, SAFA Report, 01 January 2006 – 31 December 2006, p,10
27 Interview with ICAO official, Paris, 29 August 2008.
28 Up to 2003, for every 100 checklist items inspected an average of three findings were established. This increased to 4.6 in 2004 and 4.7 in 2005. ECAC/JAA Programme for Safety Assessment of Foreign Aircraft, SAFA Report, (01 January 2005 to 31 December 2005), European Civil Aviation Conference, p.15.
<http://www.easa.europa.eu/ws_prod/s/doc/SAFA/reports/2005%20SAFA%20report%20(English).pdf> accessed 9 September 2008.
29 ECAC/JAA Programme for Safety Assessment of Foreign Aircraft, SAFA Report, (01 January 2005 to 31 December 2005), European Civil Aviation Conference, p.15.
<http://www.easa.europa.eu/ws_prod/s/doc/SAFA/reports/2005%20SAFA%20report%20(English).pdf> accessed 9 September 2008.
30 ECAC/JAA Programme for Safety Assessment of Foreign Aircraft, SAFA Report, (01 January 2005 to 31 December 2005), European Civil Aviation Conference, p. 16.
31 European Civil Aviation Conference, ECAC/JAA Programme for the Safety Assessment of Foreign Aircraft, SAFA Report, (01 January 2006 – 31 December 2006) p. 19.
32 See <http://www.easa.eu.int>.
33 Interview with EASA official, Koln, 1 September 2008.
34 Interview with European Commission Directorate General for Transportation and Energy (DG Tren), Brussels, 2 September 2008.
35 These five areas appear verbatim in ECAC/JAA Programme for Safety Assessment of Foreign Aircraft, SAFA Report (01 January 2006 to 31 December 2006) European Conference on Civil Aviation, <http://www.easa.europa.eu/ws_prod/s/doc/SAFA/reports/safareport2006e.pdf>
36 Member states include: Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Turkey, Ukraine and United Kingdom of Great Britain and Northern Ireland.
37 Interviews with European officials, Brussels, 3 September 2008.
38 Interviews with European officials, Brussels, 3 September 2008.
39 Interviews with Eurocontrol officials, Brussels, 3 September 2008.