Europe is beginning to question the Joint Aviation Authorities' competence to regulate.

David Learmount/LONDON

AVIATION REGULATORS in Europe, having built what they thought was a structure with firm foundations when they set up the Joint Aviation Authorities (JAAs), are now discovering that the house may have been built on sand. Worse than that, there are parties who would like to undermine it - or at least selected parts of it. Demolishing part of a house set on soft ground, however, runs the risk of bringing down the whole edifice.

The JAAs (often referred to conveniently in the singular because they happen to have a single co-ordinating office at Hoofddorp in the Netherlands) consist of the 24 European national aviation authorities (NAAs) which have agreed to draw up common regulations known as the joint aviation regulations (JARs). They were first intended, 25 years ago, to cover manufacturing standards, certification and maintenance (airworthiness issues), but a European Commission (EC) decision in 1983 also tasked the JAA with looking at regulations affecting commercial air-transport modes of operation (JAR Ops).

Progress has been slow and, with several complex and emotive issues such as aircrew flight-time limitations (JARs FTLs) still unresolved, the EC has dropped a bombshell which has brought the legal status of all existing and proposed JARs into question. Lawyers from the EC and the transport departments in the European Union (EU) member nations are examining the issues relating to the JAA's status as a EU-wide rulemaker. The authorities and the EC administrators are trying to underpin the structure while a new foundation is built for it.


Positive role

The head of air safety at the EC, Claude Probst, explains that, while the EC has decided to leave the JAA to draw up the JAR Ops to "...avoid re-inventing the wheel", the EC's decision to play a secondary role does not mean that it accepts playing no role at all by "...just being a rubber-stamping organisation". Probst says that this would be contrary to the institutional mechanisms of the EU, whereby the EC is the only institution with the right to initiate legislative proposals, and the Council of the European Union is the only one with the right to adopt rules.

The basis for the JARs' effectiveness is that, having unanimously (if sometimes reluctantly) agreed a set of regulations, the constituent NAAs are then bound informally to see that the agreed rules are incorporated into their own regulations.

In this co-operative strength lies the JAA's weakness. The mythical single JAA has never existed, and it was never a formal EU organisation, even if the EC has seen its objectives as desirable and declared it an adjunct body. That informal status leaves the JAA's constituent NAAs the option of interpreting the agreed JARs liberally (or even not adopting them), although such an action would be a breach of faith.

It is over the latter issues that the lawyers are swarming. Brussels-based law company S J Berwin has drawn up a 19-page provisional opinion on the situation which concludes: "In adopting a de facto Community [EU] standard and one which applies to third countries [those non-EU voluntary member states of the JAA], member states are in danger of compromising the Community legislation adopted to date on the liberalised air-transport sector. Given the European Parliament's evident concern in this area, this is an important point of principle that it may wish to establish for the transport sector and generally." If Berwin is right, not only is the EU status of all JARs questionable because they have been declared de facto regulations rather than proposals processed properly into law, but the whole edifice of the EU's single-market philosophy in the commercial air-transport sector could, theoretically, be toppled by anyone who wished to challenge or ignore it.

Fear of such a collapse has promoted a flurry of recent activity, culminating in the December 1995 publication by the EC's transport directorate of a "...working paper concerning the establishment of a single European organisation responsible for air safety".

This is not the first attempt to define a unified authority. In 1992, the JAA's central office had started drawing up a proposal for a convention to create a single European aviation authority. While the EC paper was a reaction to the perceived legal need to integrate the JAA' regulatory and technical expertise into the EU lawmaking machinery, the JAA's proposal was seen more as a natural step forward from co-operation to unification. The JAA's secretary general, Klaus Koplin, says that the details for the proposed convention, finalised in March 1995, " not radically change the JAA as we know it today".

The EC's working-paper proposal would, however, if it were adopted, bypass the need for Koplin's proposed intermediate stage. It proposes creating, through an international convention of all the EU and non-EU states in the JAA, a statutory body which could propose regulation using largely existing constitutional frameworks, and making use of the accumulated experience of the JAA.

European agencies and industry, meanwhile, seem either not to be interested or not to have been ready for the EC's proposal. Only one body, the International Federation of Airline Pilots Associations (IFALPA), submitted its finalised comments by the EC's 31 January deadline. Some organisations filed, saying that they intended to comment, but had not finalised their proposals. Among them was the UK Department of Transport (DTp), which says that it will have filed by 16 February.

Airbus Industrie has already let it be widely known that it favours a system such as the one proposed by the EC. In fact, the consortium favours anything which would give the JARs, particularly the airworthiness/certification rules, cast-iron status in EU law, and which would create a single European authority with political clout and objectives equivalent to those of the US Federal Aviation Administration. Airbus acknowledges that the ease with which US manufacturers work with a single federal authority (as opposed to numerous national ones) gives them a significant advantage in keeping manufacturing and certification costs down.

One of the EC working paper's stated objectives for a European authority would be that it should be delegated an international role, being able " develop co-operation with a view to promoting European safety policy".


UK interests

The British Air Transport Association (BATA), which says that it has filed its comments on the EC working paper with the DTp for incorporation in a joint UK reaction, says that the principal concern for UK industry, since the UK Civil Aviation Authority is an unusually pro-active JAA member, has often been that NAAs are free to supplement JARs with additional regulation, sometimes to the disadvantage of operators. The fact that other NAAs may sidestep joint agreements altogether has not been seen as a serious possibility, says BATA.

Confusion over the status of the JAA is evident everywhere. The UK CAA's group director, safety regulation, Mike Willett, differs with the JAA's Koplin over one of the major legal issues. Koplin says that, in the opinion of European lawyers, perhaps the main legal weakness of JARs, now, and in the future, is their need to be translated into the 11 different languages of the member states before they can become EU law. Willett contends that it is enough for JARs, as for International Civil Aviation Organisation published standards, to be framed in one of the accepted aviation languages - English or French - for them to be effective in all EU nations. Translation is a formality. Koplin says that Willet's interpretation is wrong in EU law. The EC contends that both have missed the point, and that translation is only one of the issues.

IFALPA, taking advantage of the confusion, has responded that it agrees almost entirely with the EC working paper, and suggests that all non-implemented JARs (which effectively means the whole of JARs Ops) should be suspended until the process for making JARs into law is made democratic and accountable.

The pilots emphasise the fact that the EU is required, by its constitutional treaty, to take account of "social" issues in lawmaking, and many of the JARs Ops sections involve some social issues. Koplin responds firmly that the multi-stage industry-consultative process used in drawing up all JARs ensures accountability, and that the NAAs have never been bound to consider social issues as such.

The EC working paper is only an admission that a problem exists and must be addressed. In the meantime, the JAA's system must continue to operate, as it has done, on co-operation, trust and goodwill, especially now its lack of legal foundation has been exposed.

Source: Flight International