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Explanatory Memorandum for a Protocol Consolidating and Revising the Eurocontrol International Convention relating to Co-Operation for the Safety of Air Navigation of 13 December 1960, as variously amended (01/08/02)

Title of the Protocol

Protocol consolidating the Eurocontrol 1 International Convention relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended.

Command Paper Number: CM 5587
Protocol consolidating the Eurocontrol International Convention relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended  (PDF, 337K)

Subject Matter

INTRODUCTION

The purpose of the Protocol is to replace the Eurocontrol International Convention relating to Co?operation for the Safety of Air Navigation of 13 December 1960, as variously amended (most recently in 1981), with a new consolidated version of the Convention (annexed to the Protocol) which incorporates the text of the Convention remaining in force together with amendments made by the Diplomatic Conference held on 27 June 1997.

During the 1980's air transport over Europe grew substantially, but this growth was not matched by equivalent developments in the air traffic control (ATC) systems of individual States nor in the European air traffic management (ATM) institutional structure. The result was severe flight delays across Europe in the late 1980s. To address the problem, the Transport Ministers of the European Civil Aviation Conference2 (ECAC) introduced a number of initiatives aimed at harmonising and co-ordinating ATC services of Member States on a pan-European basis. Eurocontrol was tasked with managing the most important and far reaching of these, such as the European Air Traffic Control Harmonisation and Integration Programme (EATCHIP) and the Central Flow Management Unit (CFMU). In 1994 the ECAC Transport Ministers launched a study of the institutional arrangements best suited to support the implementation of the ECAC initiatives. This resulted in the ECAC Institutional Strategy for ATM in Europe, adopted in February 1997, which was designed to ensure that air traffic capacity would match forecast demand in the future. The legal basis for the new structure was to be established by means of a Revised Eurocontrol Convention.

THE REVISED CONVENTION

The changes represent a major revision of the Convention and are designed to update the Convention to take into account progress made in the area of Air Navigation Services. In particular, the amendments are designed to strengthen the co-operation between Contracting Parties via joint activities in the field of air navigation.

These objectives do not prejudice the principle that every State has complete and exclusive sovereignty over the airspace above its territory, nor the capacity of every State to exercise its prerogatives with regard to security and defence in its national airspace.

KEY CHANGES

Expanded objectives and tasks (Articles 1.1 and 2)

Whilst Eurocontrol was previously almost exclusively concerned with ATM activities for the en-route segment, the Revised Convention has considerably extended the scope of its activities to include the entire spectrum of air traffic services. The changes enable:

More streamlined organisational arrangements (Article 1.2)

The revised structure is simpler and more business-orientated with only three levels of executive power:

More effective decision-making based on majority voting (Article 8)

With the growth in air traffic, and the expansion in membership (now 31) it was recognised that the previous unanimous decision-making structure within Eurocontrol was unwieldy. Under the Revised Convention most decisions can be taken by a majority vote (Article 8). Moreover, Article 9 gives a right of derogation where a Contracting Party cannot act on a decision adopted by a majority vote for overriding reasons of national defence or security.

Enabling power for Community membership of Eurocontrol (Article 40)

The new Article 40 of the Revised Convention allows for regional economic integration organisations, such as the European Community, to become members of the Eurocontrol Organisation.

Establishment of an Audit Board (Article 7.5)

The new arrangements provide for the setting up of an Audit Board. This is independent of the Agency and is tasked with reporting to the Council on the transparency of the Organisation with regard to its decisions, actions and procedures 3.

Ministerial Responsibility

The Secretary of State for Foreign and Commonwealth Affairs has overall responsibility for the conclusion and implementation of treaty obligations and responsibility for their application to the overseas territories. The Secretary of State for Transport has responsibility for the policy of the Protocol and for implementing its provisions in the United Kingdom.

Policy Considerations

(i) General

The UK is one of the six founding members of Eurocontrol and is keen to see it modernised, especially as regards its institutional and management structures. The Protocol is a major step in this process as it: enables Contracting Parties to take advantage of the technological and commercial advances made in the provision of Air Navigation Services throughout Europe; encourages a more commercially-minded approach to the provision of such services; should result in enhanced system efficiency; and significantly updates the Eurocontrol institutional structure.

In addition, the Revised Convention will enable Eurocontrol to pass binding decisions on Contracting Parties in the fields of air safety by virtue of Articles 8.4 and 19 of the Convention. This is seen as a significant step in the right direction towards a more harmonised and safer European ATM system, but this is tempered by the fact that the Convention will continue to lack any effective enforcement powers.

Even though the Revised Convention will not come into force until all Contracting Parties have individually ratified it, Contracting Parties agreed to implement certain provisions of the Revised Convention early. These have included the:

  1. expansion of the scope of the Organisation's activities;
  2. establishment of the provisional Council and advisory bodies to it (including the Performance Review Commission, the Safety Regulation Commission, the Civil/Military Interface Standing Committee, and the Audit Board); and
  3. delegation of broader executive powers to the Eurocontrol Agency and its Director General for the day-to-day running of the Organisation.

These important developments have enabled Eurocontrol to function more effectively, but its lack of enforcement powers to ensure compliance from Contracting States has impaired the speed with which decisions, objectives, or programmes are implemented.

It is now five years since the Revised Convention was signed. Ten States have so far completed, or are on the point of completing procedures for ratification (EU: Finland, Portugal; Non-EU: Bulgaria, Cyprus, Czech Republic, Romania, Slovak Republic, Switzerland, Moldova, and the Former Yugoslav Republic of Macedonia).

Community Accession to Eurocontrol

About the same time as the signature of the Revised Convention (June 1997), EU Member States agreed in principle to Community membership of Eurocontrol (facilitated by the new Article 40 of the Convention) as the most appropriate way for the Community to exercise its ATM competence. Negotiations between the European Commission and Eurocontrol therefore began and these resulted in the text of an agreed Accession Protocol. However, signature of the Protocol was delayed pending the resolution of a dispute between the UK and Spain over the sovereignty of the isthmus on which Gibraltar Airport lies. A settlement was finally reached in April 2002 and a Diplomatic Conference for the signature of the Accession Protocol will be convened later this year.

Single European Sky initiative

In the late 1990s the sharp rise in European air traffic led to substantial air traffic control-related delays. This prompted the European Commission to launch its own initiative with the issue in December 1999 of its Communication entitled 'the creation of the single European sky' 4 which established a High Level Group (HLG) to take forward the work. Single Sky seeks to regulate ATM safety, the provision of air traffic services, system performance and airspace design/management at a European level, and reach an accommodation with the military on airspace allocation and use. The Commission intends to use its legally enforceable powers to push forward significant system enhancements and to begin the development of the European ATM market. The UK believes that Single Sky is the best means of overcoming the current institutional and structural problems that exist in the European ATM system. As the proposed Single Sky Committee will have access to the Commission's robust legal mechanism, this offers an effective process for securing States' compliance with agreed system improvements.

Following the publication of the HLG report in November 2000 the Commission issued two follow-on Communications on 10 October 2001 5 detailing their legislative proposals. These include a package comprising a framework regulation designed to create the Single European Sky, together with implementing regulations on the provision of air navigation services, airspace organisation and use, and the interoperability of the European ATM system. These proposals are now being developed by the Council in a working group composed of Member State representatives.

The Single Sky proposals envisage Eurocontrol acting as the technical advisor to the Single Sky Committee and playing a significant role in defining and developing rules using its new Notice of Proposed Rule Making process (ENPRM). The Commission sees Eurocontrol reflecting the Single Sky rules across its membership and therefore achieving some of the Single Sky objectives in the wider European sphere. At the same time, the intention is that the Single Sky Committee would adopt Eurocontrol's own rules when these were considered appropriate. In this way the synergies between the two organisations can be developed, and the most appropriate way to implement this is within the framework of the accession of the European Community to the Eurocontrol Organisation.

Recent developments in the Eurocontrol Organisation

In the time that has elapsed since the signing of the Revised Eurocontrol Convention, Contracting Parties have reached the view that further changes need to be made to the Organisation. A first step towards further progress was agreed at the July 2001 Provisional Council of Eurocontrol meeting where the concept of separating service provision from regulation was endorsed and a programme of reform initiated. This included the creation of a Eurocontrol Regulatory Committee and Unit, but further progress has been slow. The Government believes that despite the changes proposed under the Revised Convention, Eurocontrol's governance arrangements remain a confusing mix of service provision and quasi regulation that increase the potential for conflicts of interest to occur. There is also a lack of clarity concerning the Agency's accountabilities for the service provision functions it performs. The UK believes that the Organisation needs to be more focussed with a clearer division between its service provision functions (e.g. the CFMU, Maastricht Upper Area Control Centre, Central Route Charges Office) and the regulation of those functions.

The UK regards Eurocontrol as an important repository of technical expertise, skills and knowledge, and an Organisation that benefits from a wider non-EU membership. Properly reformed, Eurocontrol could play an important role in bridging the gap between EU States, under the new ATM-regulatory structure being devised under Single Sky, and the non-EU Contracting Parties who will not be directly covered by it. Moreover, it will continue to act as the main technical support body for Europe's ATM industry.

The Government believes that it is important to proceed with ratification of the Revised Convention as this will strengthen Eurocontrol and pave the way for the further reforms we consider are necessary within the Organisation.

(ii) Financial

There are no direct financial implications for Contracting Parties but it is possible that the requirement for more harmonised air traffic systems in Europe, as envisaged by the Revised Convention, will necessitate UK aviation industry to procure common equipment, for example, for the purpose of enhancing in-flight safety. However, Contracting Parties will continue to approve any such requirements and the UK will consult the UK aviation industry prior to reaching any decisions.

The simplified institutional arrangements and the more streamlined decision-making by majority voting should enable Eurocontrol to operate more efficiently and cost-effectively.

(iii) Reservations and Declarations

None.

Implementation

Both DfT and CAA lawyers consider that the existing 1982 Civil Aviation Act is sufficient to enable UK to fulfil its obligations under the Revised Convention.

Consultations

All Contracting Parties to the Eurocontrol Convention 1960, as variously amended, and airspace user organisations took part in drawing up the amendments to the Convention and the Consolidating Protocol. All consider it to be of benefit to the provision of Air Navigation Services in Europe. In addition, all relevant departments of State in the United Kingdom were consulted on the text of the amendments to the Convention and the Consolidating Protocol. All were of the view that the changes brought about by the Protocol would benefit the European ATM system.

The Government also consulted the Channel Islands and the Isle of Man regarding whether they wish the Protocol, and hence the provisions of the Revised Convention, to apply to them. All have now elected to be included in the UK's ratification. Gibraltar was consulted, as a UK Overseas Territory who may be affected by the Convention, but decided against inclusion.

Presented to Parliament :
August 2002



1. EUROCONTROL, the European Organisation for the Safety of Air Navigation, was founded in 1960 by UK and five other states. Membership has since grown to 31 Contracting States (the 15 that are also EC Member States are shown in emboldened text): Germany, Austria, Belgium, Bulgaria, Cyprus, Croatia, Denmark, Spain, Finland, France, Greece, Hungary, Ireland, Italy, The former Yugoslav Republic of Macedonia, Albania, Luxembourg, Malta, Moldova, Monaco, Norway, Netherlands, Portugal, Slovak Republic, Czech Republic, Romania, United Kingdom, Slovenia, Sweden, Switzerland, and Turkey).

2. ECAC (the European Civil Aviation Conference) is an inter-governmental organisation established in Strasbourg in 1954 pursuant to an objective by the International Civil Aviation Organisation (ICAO) and the Council of Europe. Its aim is to promote the continued development of a safe, efficient and sustainable European air transport system. There are currently 38 Member States: 31 are members of Eurocontrol and the seven non-Eurocontrol members have been urged to join it as soon as possible.

3. Joint Declaration II made by Member States at the time of signing the consolidating Protocol '...on the necessary steps to establish a transparency function for the Council Audit Board...' and Article 10 of the Statute of the Agency.

4. COM(99) 614 final dated 07/12/99 – related EM No. 13735/99, dated 18/01/2000

5. COM(2001) 123 final dated 10/10/01 – related EM No. 12692/0, dated 09/11/01
COM(2001) 123 final/2 dated 30/11/01 – related EM No. 12692/1/01 REV1, dated 11/02/02
COM(2001) 564 final dated 12/10/01 – related EM No. 12693/01, dated 09/11/01
COM(2001) 564 final/2 dated 11/12/01 – related EM No. 12693/1/01 REV1, dated 14/02/02

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