The Role of Bilateral Oversight Boards in Institutional Changes

1. Institutional changesThe role of Bilateral Oversight Boards Claude Probst European Aviation Safety Agency

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

3. 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. The principles

4. The EC Treaty provides for thedelegation of executive powersto theCommission, which can adopt secondary law. There isno precedent of agreements concluded by the Community delegating powers to the Commissionfor concludingimplementationprocedures. The Commission can however be given the power to adapt/update such procedures. The principles

5. 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. The principles

6. Bilateral aviation safety agreements have for objective to facilitatecertification 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 reciprocalacceptance of certification findings or certificates, depending on the level of trust between the parties. Bilateral Aviation Safety Agreements

7. The Commission negotiates on the basis of anauthorisation granted by the Councilwhich 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. Bilateral Aviation Safety Agreements

8. As the Commissionmay not concludeitself agreements thatcommit the Community, the current format of the Bilateral Aviation Safety Agreements is not appropriate. All implementationprocedures shall be part of the agreement itself and be concluded by the Community. Bilateral Aviation Safety Agreements

9. The agreement shall containtwo main parts: the core agreementitself including general provisions and a set ofannexescovering the implementation procedures. Entry into force of the provisions of the agreement is linked to appropriate reciprocalconfidence building Bilateral Aviation Safety Agreements

10. thecore agreement : describes thescope, defines theobligationsof the parties, appoints the executiveagents, establishessafeguardmeasures, clarifies variousadministrativeissues (applicable fees, territorial applicability, third parties involvement, protection of data….), setsentry into force, disputemanagement andterminationprovisions and creates a jointoversight board. Bilateral Aviation Safety Agreements

11. The joint committee or bilateraloversight 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 thegoodfunctioningof the agreement, regulatory co-operation, including participation in each other rule making processes, broadpolicyissues, possiblecommon positionsin international organisations. Bilateral Aviation Safety Agreements

12. The bilateral oversight board may in particular: oversee smoothimplementation, address anyissuerelated to such implementation, discuss and solve possibledispute, handlesafeguardsprovisions, amendannexes(implementation procedures) and proposeamendmentsto the agreement (including new annexes) Bilateral Aviation Safety Agreements

13. 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. Bilateral Aviation Safety Agreements

14. For each domain the implementation procedures: describe thescopeof findings or certificates subject to reciprocal acceptance, nominate the acceptedcompetent authorities, set, as appropriate, aconfidence buildingprocess, specify theapplicable requirements, in particular howthe importing party will notify its certification requirements to the exporting one, clarify how thefindingsshall bemadeand how they will beaccepted, including possiblesafeguards, creates a jointsectoral oversight board. Implementation procedures

15. The sectoraloversight 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 : discussindividual projects, try to solvedifferencesat the most appropriate level and identifycandidaterequirements or procedures forharmonisation. Implementation procedures

16. The sectoraloversight board may in particular: overseeday-to-dayimplementation, keep list ofapplicable requirementsupdate, address anyissueand possibledispute, developimplementation measures, such as the TVP or standard management plans, adopt individualmanagement plansfor individual project, manageconfidence buildingand keep list of acceptedcompetent authoritiesupdate, proposeamendmentsto the procedure Implementation procedures

17. 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 Implementation procedures

18. Direct industryinvolvement 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 partyto know its industry views and both partiesto jointly interact with those affected by the functioning of the agreement. Industry involvement

19. 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. Industry involvement

20. 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. Industry involvement

21. 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. Industry involvement

22. 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! Industry involvement