COUNCIL DECISION (EU) 2023/746

of 28 March 2023

establishing the criteria and the procedure for establishing the position to be taken on the European Union’s behalf within the International Civil Aviation Organization as regards the adoption of, or amendments to, international standards and recommended practices, and the notification of differences with respect to adopted international standards

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1) The Convention on International Civil Aviation, which was signed in Chicago on 7 December 1944 (the ‘Chicago Convention’), entered into force on 4 April 1947. It established the International Civil Aviation Organization (‘ICAO’) and regulates international air transport.

(2) The Member States are Contracting Parties to the Chicago Convention and ICAO Contracting States, while the Union has observer status in certain ICAO bodies.

(3) Pursuant to Article 54(l) of the Chicago Convention, the Council of the ICAO (‘ICAO Council’) can adopt international standards and recommended practices (‘SARPs’) for civil aviation and designate them as Annexes to the Chicago Convention (‘ICAO Annexes’).

(4) Pursuant to Article 90 of the Chicago Convention, any ICAO Annex or any amendment to an ICAO Annex becomes effective within three months after its submission to the ICAO Contracting States, or at the end of such longer period of time as the ICAO Council prescribes, unless in the meantime a majority of ICAO Contracting States register their disapproval. Once they have been adopted by the ICAO Council and have become effective, international standards are binding on all ICAO Contracting States, including all Member States of the Union, in accordance with and within the limits set out in the Chicago Convention, in particular in Articles 37 and 38 thereof.

(5) Pursuant to Article 38 of the Chicago Convention, any ICAO Contracting State which finds it impracticable to comply in all respects with any international standard or to bring its own regulations or practices into full accord with any international standard after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, is to give immediate notification to ICAO of the differences between its own regulations or practices and those established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices is to give notice to ICAO within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take.

(6) The internal rules of the ICAO, in particular those which cause the latest versions of documents for decisions regarding new SARPs or amendments to SARPs to be available to the ICAO Council only late, the deadlines set by the ICAO for ICAO Contracting States to notify differences with respect to international standards, as well as the sheer number of differences in the areas of civil aviation safety, air navigation and air traffic management to be notified each year, make it difficult to establish the position to be taken on the Union’s behalf in a Council Decision based on Article 218(9) Treaty on the Functioning of the European Union in a timely manner for new SARPs or amendments to SARPs to be adopted, or for each difference to be notified.

(7) It is therefore appropriate to establish the criteria and procedure to be followed for establishing the position to be taken on the Union’s behalf regarding the adoption of SARPs or amendments to SARPs, insofar as those SARPs are capable of decisively influencing the content of Union law in the area of civil aviation, as well as regarding decisions to disapprove or not to disapprove SARPs pursuant to Article 90 of the Chicago Convention and regarding the notification of differences with respect to international standards pursuant to Article 38 of the Chicago Convention.

(8) Given the specificity of civil aviation safety, air navigation and air traffic management compared to other areas dealt with by the ICAO, in particular the high number of SARPs adopted in those areas by the ICAO Council every year and the number of differences to be notified every year, this Decision should relate solely to the civil aviation safety, air navigation and air traffic management in order to streamline processes to swiftly establish the position to be taken on the Union’s behalf for the adoption of new SARPs and amendments to SARPs, the decisions to disapprove or not to disapprove SARPs or amendments to SARPs adopted by the ICAO Council and deal with the numerous notifications in an efficient way.

(9) The SARPs adopted by the ICAO Council in the field of civil aviation safety, air navigation and air traffic management can concern matters of Union exclusive competence and might be capable of decisively influencing the content of Union law. It is therefore efficient and appropriate, by means of a decision, to establish the criteria and procedure to be followed for establishing the position to be taken on the Union’s behalf with respect to SARPs in those fields, without prejudice to the rights and obligations of Member States as ICAO Contracting States under the Chicago Convention. At ICAO level, civil aviation safety, air navigation and air traffic management SARPs are mainly contained in ICAO Annexes 1, 2, 3, 4, 6, 8, 10, 11, 14, 15, 18 and 19.

(10) At Union level, the requirements contained in SARPs for civil aviation safety are mainly reflected and referred to in Regulation (EU) 2018/1139 (1), Regulation (EC) No 2111/2005 (2) of the European Parliament and of the Council and in the implementing and delegated acts adopted on the basis thereof in particular Commission Regulations (EU) No 1178/2011 (3), (EU) No 748/2012 (4), (EU) No 965/2012 (5), (EU) No 139/2014 (6), (EU) No 452/2014 (7), (EU) No 1321/2014 (8), (EU) 2015/640 (9), Commission Implementing Regulation (EU) 2019/947 (10), Commission Delegated Regulation (EU) 2019/945 (11), and Commission Implementing Regulation (EU) 2021/664 (12).

(11) At Union level, the requirements contained in SARPs for air navigation and air traffic management are mainly reflected and referred to in Regulations (EC) No 549/2004 (13), (EC) No 550/2004 (14), (EC) No 551/2004 (15) of the European Parliament and of the Council and in the implementing and delegated acts adopted on the basis thereof in particular Commission Implementing Regulation (EU) No 923/2012 (16), Commission Regulation (EU) No 1332/2011 (17), Commission Implementing Regulation (EU) 2018/1048 (18), and Commission Regulation (EU) 2015/340 (19).

(12) This Decision should concern only the positions to be taken on Union’s behalf within the ICAO in areas of Union exclusive competence. This Decision is without prejudice to the possibility for the Council to adopt, upon a Commission proposal, decisions based on Article 218(9) TFUE establishing the position to be taken on the Union’s behalf within the ICAO in particular in areas falling outside the scope of this Decision, including where the shared competence of the Union has not yet been exercised.

(13) Except in particular cases regarding the notification of certain differences stemming from the adoption of national measures pursuant to Article 71 of Regulation (EU) 2018/1139, the position to be taken on the Union’s behalf should be based on a document submitted by the Commission to the Council in due time to allow for discussion and approval. The Commission should endeavour to start preparing such document as soon as possible in order to allow sufficient time for it to be prepared, including for any appropriate consultation to be conducted at expert level. The Commission’s document should, where appropriate and on a case-by-case basis, indicate whether flexibility should be granted to Member States as regards the adoption of new SARPs or amendments to SARPs by the ICAO Council, and, in such cases, the extent of such flexibility and the conditions for agreement thereto, or as regards the form of the notification of the differences in question. Where required by the ICAO, notification of differences should follow the format defined by the ICAO in the Electronic Filing of Differences system.

Where, pursuant to this Decision, the position to be taken on behalf of the Union is established in a document submitted by the Commission to the Council for discussion and approval, that document should, where appropriate and on a case-by-case basis, indicate whether flexibility should be granted to Member States as regards the form of the notification of the differences in question. Moreover, the Commission should endeavour to start preparing such document as soon as possible in order to allow sufficient time for it to be prepared, including for any appropriate consultation to be conducted at expert level.

(14) As regards the adoption of new SARPs or amendments to SARPs and decisions to disapprove or not to disapprove SARPs or amendments to SARPs adopted by the ICAO Council, the document submitted by the Commission should be based on the objectives and guidelines set out in the Annex and should take into account the materials provided by the ICAO ahead of any deliberations on new SARPs or amendments to SARPs at the ICAO Council as well as the information provided by the European Union Aviation Safety Agency (EASA) in accordance with Article 90(1) and (3) of Regulation (EU) 2018/1139, where applicable.

(15) The position as regards the adoption of new SARPs or amendments to SARPs by the ICAO Council should be expressed by the Member States of the Union that are members of the ICAO Council, acting jointly in the interest of the Union.

(16) The position as regards decisions whether to disapprove or not to disapprove new SARPs or amendments to SARPs adopted by the ICAO Council should be expressed by the Member States of the Union that are members of the ICAO, acting jointly in the interest of the Union.

(17) Differences with respect to adopted international standards, that are to be notified to ICAO, should be based in particular on the information provided by EASA in accordance with Article 90(4) of Regulation (EU) 2018/1139, where applicable.

(18) Differences with respect to international standards adopted by the ICAO Council can stem from Union law due to the adoption of a new or amended international standard by the ICAO Council or due to a change in Union law. The position to be taken on the Union’s behalf as regards such differences should be based on a document submitted by the Commission to the Council in due time to allow for discussion and approval.

(19) Differences with respect to international standards adopted by the ICAO Council can also stem from national measures adopted pursuant to Article 71 of Regulation (EU) 2018/1139 in the event of urgent unforeseeable circumstances, where those measures differ from international standards and therefore require the notification of differences to the ICAO pursuant to Article 38 of the Chicago Convention. It is therefore also appropriate in this Decision to establish the criteria and the procedure to be followed for the identification of such differences. That procedure should depend on the scope and duration of the national measures adopted and should enable Member States to comply with their international obligations under Article 38 of the Chicago Convention without delay. That procedure should be without prejudice to the conditions and procedure laid down in Article 71 of Regulation (EU) 2018/1139.

(20) The position as regards differences with respect to adopted international standards, that are to be notified to the ICAO, should be expressed by the Member States of the Union that are members of the ICAO, acting jointly in the interest of the Union.

(21) The implementation of this Decision should not entail a breach of Member States’ obligations under Union law or of their international obligations under the Chicago Convention.

(22) For the purposes of the implementation of this Decision, Member States and the Commission, in line with the Union’s observer status, should act in close cooperation in accordance with their duty of sincere cooperation.

(23) This Decision should apply for a limited period of time, namely only until after the ICAO Council session following the 42nd Assembly of the ICAO. The Commission should submit to the Council a written evaluation of the application of this Decision to serve as the basis for any potential extension or amendment to this Decision.

(24) It is appropriate to establish the criteria and the procedure for establishing the position to be taken on behalf of the Union within the ICAO as regards the adoption of, or amendments to, international standards and recommended practices, and the notification of differences with respect to adopted international standards,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on behalf of the Union within the Council of the International Civil Aviation Organization (ICAO Council), when that body is called upon to adopt new international standards and recommended practices (‘SARPs’) or amendments to SARPs in the areas of civil aviation safety, air navigation and traffic management relating to Annexes 1, 2, 3, 4, 6, 8, 10, 11, 14, 15, 18 and 19 to the Convention on International Civil Aviation (the ‘Chicago Convention’), insofar as such SARPs fall within Union exclusive competence and have legal effects within the meaning of Article 218(9) TFEU, shall be established in accordance with the criteria and procedure set out in Article 2 of this Decision.

Article 2

1. Where the ICAO Council is to adopt new SARPs or amendments to SARPs as referred to in Article 1, the Commission shall:

(a) in due time and at least one month before the date of the ICAO Council meeting where new SARPs or amendments to SARPs are to be adopted, submit to the Council, for discussion and approval, a document setting out the particulars of the draft position to be taken on the Union’s behalf; in exceptional circumstances, in the case of the urgent adoption of new SARPs or of an amendment, or of the temporary suspension of entry into force of SARPs or of an amendment, where the text of the relevant draft SARPs or amendments is available less than a month before the date of the ICAO Council meeting where those SARPs or amendments are to be adopted, the Commission shall endeavour to submit the document to the Council without undue delay and in any event at the latest five days after having received the draft new SARPs or draft amendments from the International Civil Aviation Organization (‘ICAO’);

(b) in due time and at least one month before the deadline set by the ICAO for the registration of disapproval by contracting States pursuant to Article 90 of the Chicago Convention, submit to the Council, for discussion and approval, a document setting out the draft position to be taken on behalf of the Union.

Where appropriate, the position referred to in point (b) of the first subparagraph may be included in the document submitted to the Council pursuant to point (a) of the first subparagraph.

2. The documents submitted by the Commission pursuant to paragraph 1, points (a) and (b), shall be based on the objectives and guidelines laid out in the Annex and take into account of all relevant information and materials provided by the ICAO ahead of any deliberations and, as appropriate, of the information provided by the European Union Aviation Safety Agency (EASA) in accordance with Article 90(1) and (3) of Regulation (EU) 2018/1139, where applicable.

3. Minor non-substantive changes to the position approved by the Council pursuant to paragraph 1, point (a), may be agreed to on-the-spot, in the light of the developments at the session of the ICAO Council, by the Member States in concertation with the representative of the Union in accordance with the duty of sincere cooperation established in Article 4(3) of the Treaty on European Union.

The documents establishing the position to be taken on behalf of the Union pursuant to paragraph 1, point (a), shall indicate whether further adjustments to that position may be agreed to on-the-spot, in the light of the developments at the meeting of the ICAO Council. Those adjustments shall not affect the essence and purpose of the position.

4. The position referred to in paragraph 1, point (a) shall be expressed within the ICAO Council by the Member States of the Union that are members of the ICAO Council acting jointly in the interest of the Union.

The position referred to in paragraph 1, point (b) shall be expressed by all Member States acting jointly in the interest of the Union.

Article 3

The position to be taken on the Union’s behalf within the ICAO as regards the notification of differences with respect to international standards contained in Annexes 1, 2, 3, 4, 6, 8, 10, 11, 14, 15, 18 and 19 to the Chicago Convention, insofar as such international standards fall within the Union’ exclusive competence, shall be established according to the criteria and procedure set out in Articles 4 and 5 of this Decision.

Article 4

Where Union law differs from the international standards referred to in Article 3 of this decision and notification to the ICAO of those differences is therefore required in accordance with Article 38 of the Chicago Convention, the Commission shall, in due time and at least two months before any deadline set by the ICAO for the notification of differences, submit to the Council, for discussion and approval, a document, based in particular on the information provided by the EASA in accordance with Article 90(4) of Regulation (EU) 2018/1139, where applicable, setting out details of the differences to be notified to the ICAO, and where appropriate, indicating what flexibility is available to Member States as regards the form of the notification.

The position to be taken pursuant to this Article shall be expressed by all Member States acting jointly in the interests of the Union.

Article 5

1. Where a Member State adopts, in accordance with Article 71 of Regulation (EU) 2018/1139, national measures granting exemptions concerning individual natural or legal persons or with a total duration not exceeding eight months, and where those national measures differ from the international standards referred to in Article 3 of this Decision and require the notification of differences to those standards in accordance with Article 38 of the Chicago Convention, that Member State shall immediately inform the Commission of any difference to be notified.

2. Where the exemptions granted in accordance with Article 71 of Regulation (EU) 2018/1139 are of general application and their total duration exceeds eight months, the Commission shall, no later than two weeks after the Member State concerned notified it of those exemptions in accordance with Article 71(1) of Regulation (EU) 2018/1139 and, where applicable, after receiving the EASA recommendation in accordance with Article 71(2) of that Regulation, submit to the Council, for discussion and approval, a document, taking into account the information provided by the Member State concerned and, when applicable, information provided by EASA in accordance with Article 90(4) of that Regulation, setting out details of the differences to be notified to the ICAO.

The position to be taken pursuant to this paragraph shall be expressed by the Member States having adopted national measures under Article 71 of Regulation (EU) 2018/1139 that require the notification of differences acting in the interest of the Union.

Article 6

The implementation of this Decision shall not entail a breach of Member States’ obligations under Union law or their obligations under the Chicago Convention.

Article 7

1. This Decision shall apply until 31 December 2025.

2. The Commission shall submit to the Council a report analysing the application of this Decision, and in particular its effectiveness and the frequency of its use, at least four months before its expiry date.

3. On a proposal from the Commission, the Council may extend the application of or otherwise amend this Decision.

Article 8

This Decision shall enter into force on the date of its adoption.

Done at Brussels, 28 March 2023.

For the Council

The President

E. BUSCH

(1) Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (

OJ L 212, 22.8.2018, p. 1

(2) 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 (

OJ L 344, 27.12.2005, p. 15

(3) Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (

OJ L 311, 25.11.2011, p. 1

(4) Commission Regulation (EU) No 748/2012 of 3 August 2012 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations (

OJ L 224, 21.8.2012, p. 1

(5) Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (

OJ L 296, 25.10.2012, p. 1

(6) Commission Regulation (EU) No 139/2014 of 12 February 2014 laying down requirements and administrative procedures related to aerodromes pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (

OJ L 44, 14.2.2014, p. 1

(7) Commission Regulation (EU) No 452/2014 of 29 April 2014 laying down technical requirements and administrative procedures related to air operations of third country operators pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (

OJ L 133, 6.5.2014, p. 12

(8) Commission Regulation (EU) No 1321/2014 of 26 November 2014 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks (

OJ L 362, 17.12.2014, p. 1

(9) Commission Regulation (EU) 2015/640 of 23 April 2015 on additional airworthiness specifications for a given type of operations and amending Regulation (EU) No 965/2012 (

OJ L 106, 24.4.2015, p. 18

(10) Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft (

OJ L 152, 11.6.2019, p. 45

(11) Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems (

OJ L 152, 11.6.2019, p. 1

(12) Commission Implementing Regulation (EU) 2021/664 of 22 April 2021 on a regulatory framework for the U-space (

OJ L 139, 23.4.2021, p. 161

(13) Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) (

OJ L 96, 31.3.2004, p. 1

(14) Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky (the service provision Regulation) (

OJ L 96, 31.3.2004, p. 10

(15) Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation) (

OJ L 96, 31.3.2004, p. 20

(16) Commission Implementing Regulation (EU) No 923/2012 of 26 September 2012 laying down the common rules of the air and operational provisions regarding services and procedures in air navigation and amending Implementing Regulation (EU) No 1035/2011 and Regulations (EC) No 1265/2007, (EC) No 1794/2006, (EC) No 730/2006, (EC) No 1033/2006 and (EU) No 255/2010 (

OJ L 281, 13.10.2012, p. 1

(17) Commission Regulation (EU) No 1332/2011 of 16 December 2011 laying down common airspace usage requirements and operating procedures for airborne collision avoidance (

OJ L 336, 20.12.2011, p. 20

(18) Commission Implementing Regulation (EU) 2018/1048 of 18 July 2018 laying down airspace usage requirements and operating procedures concerning performance-based navigation (

OJ L 189, 26.7.2018, p. 3

(19) Commission Regulation (EU) 2015/340 of 20 February 2015 laying down technical requirements and administrative procedures relating to air traffic controllers’ licences and certificates pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, amending Commission Implementing Regulation (EU) No 923/2012 and repealing Commission Regulation (EU) No 805/2011 (

OJ L 63, 6.3.2015, p. 1

ANNEX

OBJECTIVES AND GUIDELINES FOR THE ESTABLISHMENT OF THE POSITIONS TO BE TAKEN ON THE UNION’S BEHALF WITHIN THE INTERNATIONAL CIVIL AVIATION ORGANIZATION

Objectives

To promote a safe, efficient, performant, open, and environmentally sound air transport system in line with the communication of the Commission of 9 December 2020 on the Sustainable and Smart Mobility Strategy – putting European transport on track for the future.

To promote the development of regional cooperation and of regional aviation systems, and support their recognition by the ICAO and its Contracting States, as well as their integration into the ICAO framework.

To promote the development of rules and policies ensuring safe air transport operations and the conduct of proper oversight over safety rules, in line with the Union’s aviation safety regulatory framework, including Regulation (EU) 2018/1139 (1) and taking account of the report from the Commission of 17 October 2022 on the European Aviation Safety Programme.

To promote the development and deployment of efficient, performant and interoperable air navigation systems, in line with Regulations (EC) No 549/2004 (2), (EC) No 550/2004 (3) and (EC) No 551/2004 (4) and taking account of the Global Air Navigation Plan and aviation system block upgrades (ASBUs).

To continue to support, including where relevant through technical assistance and capacity building activities, the development in all ICAO Contracting States of a safe, efficient, and environmentally sound global air transport system, e.g. through the Union’s Foreign Policy Instruments (FPI) projects.

Guidelines

The Member States, acting jointly in the interest of the Union, shall endeavour to support the following actions by the ICAO:

in order to ensure the development of rules and policies ensuring safe air transport operations and the conduct of proper oversight over safety rules:

(a) support the development and implementation of the Global Aviation Safety Plan (GASP);

(b) support the development of international standards and recommended practices (‘SARPs’) for civil aviation adopted pursuant to Articles 37 and 54(l) of the Chicago Convention, in particular where they are necessary to protect passengers and the safety of flights;

(c) support the development and implementation of regional aviation safety systems and other frameworks for regional safety cooperation among States, and the need to better integrate them in the ICAO context;

in order to ensure the development and deployment of efficient, performant and interoperable air navigation systems:

(a) support the development and implementation of the Global Air Navigation Plan (GANP) and its monitoring procedures using suitable performance metrics;

(b) support the development and implementation of Air Traffic Management (ATM) standards, global interoperability of new technologies and systems and closer coordination or activities in ATM, such as contributing to works on the development of the trust framework initiative and other related activities;

(c) support the development and implementation of rules, policies and actions in the field of Air Traffic Management and Air Navigation Services (ATM/ANS) in particular in line with Resolution A41-6, Resolution A41-7 and Resolution A41-8 adopted at the 41st session of the Assembly;

in order to continue supporting the development of a safe, efficient, and environmentally sound global air transport system in all ICAO Contracting States:

(a) support the ‘No Country Left Behind’ initiative;

(b) support the aviation contribution to the United Nations 2030 Agenda for Sustainable Development;

OJ L 212, 22.8.2018, p. 1

(2) Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) (

OJ L 96, 31.3.2004, p. 1

(3) Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky (the service provision Regulation) (

OJ L 96, 31.3.2004, p. 10

(4) Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation) (

OJ L 96, 31.3.2004, p. 20