In the early twentieth century civil aviation underwent an unprecedented development. Technological evolution of the time was driven by the incredible enterprising spirit of flight pioneers such as the Wright brothers, Charles Lindbergh, Amelia Earhart, Louis Bleriot, Umberto Nobile and many others and the events of two world wars which, despite being tragic, led to discoveries that then became part of aviation know-how. All this made the twentieth century a completely different landscape for air transport . The use of new technologies allowed transport of both goods and passengers to be swifter, safer and to cover increasingly longer distances. Civil aviation went from a mostly individual to a collective dimension. This collective dimension was reinforced by the massive diffusion of routes and carriers due to the period of deregulation and liberalisation of the sector in the USA in the 70s and in Europe between the 80s and 90s.

One has to wonder, however, if this globalisation of the sector may not have been somewhat at the cost of passenger safety.

All in all, air transport is generally perceived as being safe and reliable, despite dramatic events such as the terrorist attacks of September 2001 or the Italian Linate Airport accident,¹ which caused 118 victims and, furthermore, the accidents such as those of August 2005, when in the space of a mere 10 days, in three different aeroplane accidents, 297 people lost their lives, or of June 2009, when an Air France flight fell into the Atlantic Ocean, killing 228 people or, again, the accidents such as those of March and July 2014, when two different jet airliners of Malaysia Airlines were involved in two shocking accidents.² This perception of safety is particularly deeply entrenched in Europe, since many of the most serious accidents of the last years have occurred in non-European countries.³

This perception of safe civil aviation is, furthermore, supported by the statistical data. According to the latest ICAO safety report,⁴ 2012 was the safest year in the history of scheduled international aviation, with an accident rate of 3.2 per million departures. Out of a total of approximately 2.9 billion passengers carried by air transport , only 99 accidents (as defined in ICAO Annex 13) were recorded worldwide. Victims totalled 372, a decrease of 10 % compared to the 414 fatalities of the previous year.⁵

The continuous improvement of the aviation safety level , year by year, is showed and confirmed by the fact that last year, 2013, according to the ICAO safety report, has been the second consecutive safest year, after 2012, ever recorded in terms of fatalities for scheduled air transport operations. Fatalities themselves were down a significant 53.5 % from 2012, dropping to only 173. 2013 represents the third consecutive year in which fatalities have continued to decrease.⁶

Achieving these remarkable results was possible thanks to the international community’s increased awareness of and attention to the matter of safeguarding the safety of air transport .

It is undeniable that in air transport the life of crews, passengers or, generally speaking, users may be endangered by the risks and dangers present in a complex system such as that required for aircraft traffic.

Consequently, it befalls the States to arrange all and any means, both from a technical and a statutory standpoint, to reduce as much as possible the probability of risks resulting in accidents , bearing in mind that achieving a total absence of risks or danger in aircraft navigation is practically impossible and that seeking such a result would fundamentally make the very existence of air transport impossible; this is because expecting zero risks would render a flight safe only on the condition that it did not actually take off.

A fundamental role must be played by the legislature’s regulatory activity, both at national and international levels. In fact, the very first law on the matter was on flight safety, to safeguard the people and property on the ground. On 28 April 1784, a lieutenant in the Parisian police force suggested that hot air balloons, using as they did extremely flammable gases and being practically at the mercy of winds, since they were barely steerable, could be extremely dangerous when flying over or landing in densely populated areas with wooden buildings, which were also extremely flammable. Therefore, a directive expressively prohibiting these balloons operating above such urban locations without previous authorisation from public authorities was issued.⁷ From the very beginning, then, the central role of safety was immediately recognised, to be achieved by adequate and dynamic interlinked regulations which, evolving at the same rate as the development of the air transport sector, would help achieve the highest possible level of flight safety at any stage.

Before undertaking a detailed analysis of this system of laws, a point in its terminology must be clarified.

In approaching the subject of safety, it is necessary to distinguish between two separate concepts: Aviation Safety and Aviation Security . These two branches find their main differentiation in the types of danger that may threaten flights.

In 2006 ICAO, the world organisation for the setting of standards and regulations for the civil aviation sector, published a modern definition of safety, identifying it as ‘the state in which the possibility of harm to person or of property damage is reduced to, and maintained at or below, an acceptable level through a continuing process of hazard identification and safety risk management’.⁸ Such risks (hazards) are of a technical nature, consequently mainly accidental and not the outcome of malicious (intentional) behaviour. The ICAO rules, in particular Annex 17 to the Chicago Convention of 7 December 1944,⁹ define Security (AVSEC), however, as ‘a combination of measures and human and material resources intended to safeguard civil aviation against acts of unlawful interference’.¹⁰ These measures consist in activities for the safeguarding and protecting of the community from ‘unlawful acts’ intentionally carried out by individuals, or groups of individuals, against or by means of civil aviation.

This twofold aspect of the concept of safety is also acknowledged in European Union law.

In October 2011, the Commission, presenting measures for the establishment of common rules for civil aviation ‘Security’, remarked on the difference between the two concepts, defining ‘Safety’ as relating to the prevention of accidental accidents capable of ‘affect[ing] material or people’ and ‘Security’¹¹ as the prevention of unlawful acts aiming ‘to affect planes or people’.¹²

At international level , concern with aviation safety is the role required of ICAO—the International Civil Aviation Organisation. In 1944, with the aim of implementing safety in air transport , the United States Government organized a conference in Chicago, which saw the participation of the allied powers who had won the Second World War. On December 7, 1944, at its conclusion, the ‘Convention on International Civil Aviation’, better known as the ‘Chicago Convention’ , was adopted.

The Convention highlighted the central role played by air safety in the development of air traffic. Already in its preamble, great emphasis was laid on ‘[h]aving agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner’.¹³ Moreover, Article 44 of the Convention provides that ‘[t]he aim and the objectives of the Organisation are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport’. The Article then mentions safety three times: in paragraph (a) ‘Insure the safe and orderly growth of international civil aviation throughout the world’; in paragraph (d) ‘Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport’ and, finally, in paragraph (h) ‘Promote safety of flight in international air navigation’. In pursuing these goals, ICAO acted both on a judicial and a technical level. Indeed, the Organisation issued many documents containing rules on the disciplining of air transport and its safety.

They are primarily the Chicago Convention and its 19 Annexes ¹⁴ (the latter are binding on the signatory States, if ratified in their domestic legal systems, ­covering the various aspects of air navigation and assistance, safety, efficiency in the provision of services, the regularity of operations and so on). The Annexes contain SARPS (Standard and Recommended Practices), the former being actual binding rules for the users of International Civil Aviation, while the latter are no more than rules of behaviour to which it is desirable every States should conform. In addiction PANS (Procedures for Air Navigation Services) contain procedures that flesh out the Annexes, clarifying their interpretation and application. Finally technical handbooks illustrate the application of SARPS and PANS.

The production of rules, however, is not the only activity of ICAO. In recent years there have been many actions aiming, for example, at ‘Global Safety Monitoring’, including the launching of ‘ICAO’s Universal Safety Oversight Audit Programme—USOAP’ in 1998, which lays the foundations for interfacing between the various national safety programs, in order to assess the State of implementation of ICAO rules within the various States.

The USOAP, considered a milestone in the creation of a new ‘safety’ regime, is being constantly developed and is oriented towards a new concept/methodology of investigation known as the ‘Continuous Monitoring Approach’. By gathering and analysing the ‘safety information ’ issuing from signatory States and the system operators, USOAP—CMA makes it possible continuously to assess the efficiency of their internal aviation safety system, as well as monitor any corrective actions undertaken and their progress towards ICAO’s own ‘Global Aviation Safety Plan’.

Moreover, ICAO is involved in additional projects, such as the ‘Integrated Safety Trend Analysis and Reporting System (ISTARS)’ and the ‘Online Aircraft Safety Information System—OASIS’, which are IT systems designed to gather and access data, analyses and risk evaluation.

ICAO has also undertaken effective initiatives to tackle significant safety problems. For example, in Europe, in 2010,¹⁵ during the volcanic ash crisis, it acted via the creation of a specific task force; another task force is still active today in identifying effective measures to prevent what is one of the most dangerous phenomena in aviation: ‘Runway Incursions’ (the presence on the active runway of an aircraft or other vehicle without ATC clearance). The next ICAO High Level Safety Conference is going to be held In February 2015 in Montreal at ICAO Headquarters. At this event several safety issues of great importance, such as aircraft tracking methods, will be addressed.

The astonishing development of air transport in the early twentieth century naturally also involved Europe. This means that European States must also consider whether it was worth creating, at a supranational European level, bodies capable of making it possible for the various countries of the continent to cooperate among themselves as a condition for ensuring an orderly and safe development of air traffic.

As far back as 1951, after a series of proposals for the creation of a European authority for air navigation,¹⁶ the Consultative Assembly of the Council of Europe recommended that the Committee of Ministers call a conference whose aim should be to create an association for European airlines. Such an association would also be charged with communication between European Union Member States and elaborating new technologies to facilitate a closer collaboration, aimed at reaching the target of better efficiency and economy of European air transport.

During the ‘The European Civil Aviation Conference’ held in Strasburg in 1954, prompted by the Committee of Ministers¹⁷ and with the essential support of ICAO, the ‘European Civil Aviation Conference—ECAC’ was established as a permanent European organisation that, in collaboration with the various Governmental and non-Governmental civil aviation agencies, has the task of developing the recommendations adopted during the conference, in close collaboration to ICAO.¹⁸

Article 1 of the Statute of the Conference expressly provided that: ‘[t]he objectives of the European Civil Aviation Conference shall be to promote the continued development of a safe, efficient, and sustainable European air transport system’. The emphasis was thus on the predominant role of air safety and on how it could not be legislated for or restricted to individual Member States’ legal systems.

Thus, in 1978, the Council of Ministers (now the Council of the European Union) declared safety to be one of the various priorities to be pursued in civil aviation, at programming level. This was followed by the Commission’s ‘Memorandum’, calling for the implementation of safety in air transport to be effected also at a European level.¹⁹

It must also be noted that in the 70s some of the most important of European aeronautical authorities entered into a sort of mutual cooperation aiming at developing common technical industrial standards: the ‘Airbus Industrie consortium’.²⁰

The first concrete piece of legislation in the sector was Council Directive 80/1266/EEC²¹ of 16 December 1980 on air accident investigation.

Subsequently, in 1987, the ‘Air Safety Symposium’ made clear the need to raise air accident prevention to the level of the Community. In particular, guidelines were laid down for actions to be undertaken for the reinforcement of collaboration between Member States and for the harmonisation of their institutions and Regulations.

If air transport safety is to be ensured, it is necessary that States, where they enjoy a certain degree of discretion, align their national laws as much as possible to the standards benchmarked by the main international organisations while at the same time ensuring that such rules are correctly implemented within their own borders.

However, for both economic and political reasons, even today there are still some States in certain geographical areas which find enormous difficulty in complying with such duties.

Statistics on air accidents occurring worldwide every year show a high percentage take place in countries which face severe financial difficulties or are subject to crippling economic measures , such as embargos.⁶⁰

Such conditions undoubtedly constitute significant barriers to the development of adequate safety systems for air transport within these States. It is easy to ascertain that air carriers operating in emerging or less-developed economies have a greater rate of accident, compared to those operating in more industrialised countries.

Furthermore, the reluctance of some countries to comply quickly with ICAO rules and their failure to adopt essential rules such as the Chicago Convention Annexes in their legal systems affects the already strained harmonisation of rules and procedures for air traffic so that, together with the obstacles previously mentioned, they constitute a serious threat to passenger safety.

The USA, well aware of these problems and responding to a series of foreign air carrier accidents on American territory decided, in 1991, to establish the ‘IASA—International Aviation Safety Assessment Program’. This programme provides for teams of FAA experts to be able to meet foreign State Air Authorities and their carriers to verify that the rules and procedures followed by the latter respect the standards set by ICAO, thus checking their level of implementation and enforcement. In particular, the focus was on the degree of development of air navigation laws and possible lack of technical requirements in certification, maintenance, and aircraft control and in the professional and training levels of aeronautical instructors and technicians, and flight inspectors.

These investigations allowed FAA, in little less than 3 years, to gather relevant data on the state of world air safety.⁶¹ The initial IASA audits indeed showed that two-thirds of audited States did not fully comply with ICAO rules. The observed deficiencies were many and ranged from total absence of adequate Regulations to a lack of both technical and legal documentation, deficiency of specific procedures for the issuing of operation certificates and pilot licences, lack of qualified staff in all sectors of the air carrier system and completely inadequate radio assistance instrumentation. FAA consequently decided to catalogue the data from these audits in three different categories, differentiating them according to the level of conformity of the national rules with ICAO standards⁶² which, where totally absent, entails a restriction on the operations of the air carriers concerned.

The Federal Aviation Administration itself, in 1994, made these data public.⁶³

Later, the categories were reduced to just two by the FAA, grouping together categories 2 and 3. The current categories are: Category 1, in conformity with the ICAO SARPs; and Category 2, not in conformity to ICAO SARPs, due to lack of expert or qualified technicians, resources, documentation, and an adequate oversight system on the licensing, certifying and operations of air carriers.

The programme, initially adopted with substantially economic aims (the American authorities actually wanted to protect their national airlines from unfair competition from foreign air carriers , by relying on reduced expenditure on safety aspects, enabled by the lack of effective control on the latter’s operations) has helped increase air safety at a national level, prompting States to align with ICAO rules to allow their air carriers to operate within the USA, once SARP requirements are met. Such a programme is in fact extremely dynamic and every year, according to the actions undertaken, each State may be promoted or demoted in and out of the categories.⁶⁴

The United States of America is not the only country to have adopted an evaluation programme on third-State safety levels.

At European level, in 1996 ECAC, in response to the accident in Puerto Plata in the Dominican Republic of 6 February 1996 and with the support of the JAA, introduced a programme of voluntary inspections to be carried out by participating countries on third-country aircraft stopping over at the latter’s airports , which was in addition to the USOAP programme launched by ICAO that same year. Furthermore, many European countries had already started banning from operating in their airspace foreign airlines which did not observe national and international safety rules.

A further and closer examination of the subject was then launched at Community level a few years later as a result of a series of air accidents and crashes which affected European air transport between 2004 and 2005.

On 3 January 2004, at Sharm-el-Sheikh, a Boeing 737 owned by Egyptian private charter airline Flash Airlines, bound for Paris, crashed in the Red sea shortly after take-off. None of the 148 people on board survived the crash. Following investigation it emerged that, at the moment of the accident, the carrier was not allowed to operate flights in Switzerland for safety reasons, although it was authorised to fly in a few Member States.

In August 2005, a Boeing MD-82 of the West Caribbean Airways crashed in Venezuela killing all 160 passengers, 152 of whom were French. In the same month a Boeing 737, flight 522 of Helios Airways, crashed into a mountain near Marathon and Varnavas in Greece. All 121 people on board died in the accident.

Again, another prime example is the event involving the Turkish private charter Onur Air. The Government of the Netherlands had banned flights operated by this carrier. Subsequent investigations brought to light further shortcomings which, however, only led two Member States, Germany and France, in addition to Switzerland, to withdraw their flight authorisations. These and other cases have raised two pressing questions: how to harmonise and extend the adoption of measures banning third-country operators to the whole of the European Union territory, and how to improve the information provided to passengers regarding the identity of airlines. Such questions arose from the realisation that, sometimes, third-country carriers enjoying access to EU airports operate in conditions below essential international safety levels and thus constitute a serious threat to European users . To address this problem, it is essential to have the means of ensuring effective prevention and control mechanisms that may be uniformly implemented throughout the European Union, not least in order to avoid the appalling sight of aircraft considered to be substandard in certain countries but landing in the country next door where safety inspections are not carried out or are less rigorous. Furthermore, only a uniform system of implementing controls would make it possible to avoid distortions in competition.

So far as concerns legislation, the foregoing has only yielded, rather modestly, Directive 2004/36/EC of 21 April 2004⁶⁵ on the safety of third-country aircraft using Community airports , which, from 1 May 2004 allows the Commission to recommend the extension to the whole Community of a ban of a third-country air carrier issued by one Member State.

Guided by the principle of subsidiarity, the Directive, taking the view that in this sector the European Union does not have exclusive competence, aims to spread the practice of some European States when carrying out inspections on aircraft from third countries to the rest of the Union, creating an ad hoc European supervisory programme called SAFA—‘Safety Assessment of Foreign Aircraft’ . At present, all the current 28 EU Member States (including, since 1 July 2013, Croatia) and a further 16 States, all members of the ECAC, participate in the programme.

When the Directive was being adopted, various matters had required bearing in mind the experience gained in the field by FAA, whose procedures require systematically assessing all foreign air carriers operating in the USA, including their national authorities’ ability to guarantee respect of ICAO safety obligations.

But in the case of the EU, a multi-stage procedure was chosen, the last one of which entails the requirement to ground an aircraft in the event that a substandard level of safety is established.

In this regard, it may be helpful to remember that the American approach to the verification of aircraft safety is profoundly different from that of the Community. While the former pays particular attention to the States, checking their level of compliance to ICAO rules and standards,⁶⁶ the latter focuses its intervention on directly controlling and inspecting the aircraft of foreign air carriers using Community airports.

On the other hand, unlike the provisions of the first Proposal, the current Directive expressly states, although only in its seventh Recital, that inspections may also be carried out in accordance with a spot-check procedure in the absence of any particular suspicion of shortcomings.

The Directive is restricted inasmuch as it only contemplates ‘ramp inspections’ of aircraft which are passing through, which consist in verifying the aircraft’s documents and external condition, without taking the chance to check the condition of internal structures and systems, or compliance of the maintenance routines comply with the programmes laid down by the manufacturer and the foreign supervisory authorities.

Although the Directive was implemented, the structural defects observed in some of the third-country aircraft (for example the ATR 72 owned by Tunisia airline Tuninter which in August 2005 ditched off the coast of Capo Gallo, Sicily, killing 16 people, 14 Italian and 2 Tunisian citizens)⁶⁷ would have been unlikely to be discovered. This type of controls continues to be carried out at the discretion of the oversight authorities of individual Member States.⁶⁸

To improve the system for collecting and exchanging information regulated by Directive 2004/36/EC , EU lawmakers have decided to designate EASA as the only body specialised and charged with the management of the SAFA system in the Union, granting the former further powers in the sector of air transport safety.

At the same time, the EU lawmakers had to acknowledge the need to encourage and make it easier for third countries to join the SAFA system, according to applicable international agreements. This need was met by Regulation (EC) No 768/2006⁶⁹ of 19 May 2006 implementing Directive 2004/36/EC .

In particular, according to Article 2, the European Aviation Safety Agency is to manage and operate the tools and procedures necessary for the collection and exchange not only of the information as required by Articles 3–5 of Directive 2004/36/EC, but also, and this is the innovation introduced by Regulation (EC) No 768/2006, of the information provided by third countries or international organisations with whom appropriate agreements have been concluded by the Community, or organisations with whom EASA has concluded appropriate arrangements in accordance with Article 18(2) of Regulation (EC) No 1592/2002 (now Article 27(2) of Regulation No 216/2008). The Regulation provides that the concept of management includes, amongst the most important tasks: (a) collecting data from the Member States relevant to the safety information on aircraft using Community airports ; (b) developing, maintaining and providing a continuous update of a centralised database containing all the information concerning the air safety of aircraft and of air operators; (c) providing necessary changes and enhancements to the database application; (d) analysing the centralised database information and other relevant information concerning the safety of aircraft and of air operators and, at the same time, advising the Commission and the competent authorities of the Member States on immediate action including co-ordinated action; (e) networking and exchanging information with other European institutions and bodies, international organisations and National Aviation Authorities; and (f) advising the Commission on the future development and strategy of the Community SAFA system . Pursuant to the Regulation, Member States must transmit there ports on the ramp inspections carried out within or out with the framework of Directive 2004/36/EC to the centralised data bank ‘immediately’, and communicate all useful information to implement the Directive in the EU to the EASA.

According to Article 5, EASA is bound to prepare a yearly report on the Community SAFA system containing, at least, the results achieved in collecting and exchanging information, the status of the inspections performed in the year with an analysis of their results and the actions taken during the year. This information will be then forwarded to the Commission, which, following the procedure referred to in Article 10(5) of Directive 2004/36/EC, will consult the Air Safety Committee.

Directive 2004/36/EC , with its entire cargo of questions and unresolved issues, is however destined soon to be substituted by the above-mentioned Regulation (EC) No 216/2008 which, because of its complexity, deserves a short account.

While Regulation (EC) No 216/2008 leaves untouched rules on the procedures recognising the validity of third-country certificates, it does, however, introduce a few innovations. First of all, compared to Regulation (EC) No 1592/2002 , the scope of Regulation (EC) No 216/2008 extends to aircraft registered in a third country or in a Member State ‘which has delegated their regulatory safety oversight to a third country, and used by a third-country operator into, within or out of the Community’.

For these aircraft the general rule holds fast that they comply with applicable ICAO Standards, while Regulation (EC) No 216/2008 clarifies that, in the absence of these rules, they are to comply with the requirements of Annex I (laying down the essential requirements for airworthiness referred to in Article 5), Annex III (which lays down the essential requirements for pilot licensing referred to in Article 7) and Annex IV (which lays down the essential requirements for air operations referred to in Article 8), provided these requirements are not in conflict with the rights of third countries under international conventions.

Operators engaged in commercial operations used by these aircraft must, according to Article 9(2), demonstrate their capability and means of complying with the above requirements.

Compliance with the requirement specified in the Annexes to Regulation (EC) No 216/2008 may be guaranteed by the acceptance of certificates issued by or on behalf of a third country, while the capabilities and means to meet these requirements can be recognised through the issuance of an authorisation where the privileges granted to the operator and the scope of the operations are specified in that authorisation.

In this matter EASA is granted new competences. According to Article 23 of Regulation (EC) No 216/2008 (third-country operators) EASA is to: ‘(a) conduct, itself or through national aviation authorities or qualified entities, investigations and audits; (b) issue and renew the authorisations referred to in Article 9(2), unless a Member State carries out the functions and tasks of the State of operator in respect of these operators; (c) amend, limit, suspend or revoke the relevant authorisation when the conditions according to which it was issued by it are no longer fulfilled, or if the organisation concerned fails to fulfil the obligations imposed on it by this Regulation or its implementing rules’ .

A necessary corollary to these Regulations takes the form of those that grant EASA sanctioning power. According to Article 25 of Regulation (EC) No 216/2008, EASA may impose fines and even periodic penalty payments, on operators who have been issued a certificate and who, intentionally or negligently, have infringed the Regulation and its implementing rules.

The sanctions , which cannot be of a criminal law nature, are to be dissuasive and proportionate to both the gravity of the case and the economic capacity of the operator ‘taking into particular account the extent to which safety has been compromised’. The amount of the forfeit is not to exceed 4 % of the annual income or turnover of the operator, while the periodic penalty cannot exceed 2.5 % of the average daily income or turnover of the operator.

It is for the Commission to adopt the detailed criteria for establishing the amount of the fine or periodic penalty payment, the procedures for enquiries, and the rules of procedure for decision-making, including the provisions on rights of defence, access to files, legal representation, confidentiality and temporal provisions as well as the quantification and collection of fines and periodic penalty payments.

Furthermore, with the adoption of Annex II of Directive 2004/36/EC , as amended by Directive 2008/49/EC, EASA is charged with developing the detailed guidance material to assist the Member States in the implementation of ramp inspections. Directive 2008/49/EC thus contains the essential elements of SAFA procedures to supply certain and harmonised rules for the performance of ramp inspections.

With the adoption, on the same day, of Commission Regulation (EC) No 351/2008,⁷⁰ particular risk factors were for the first time identified, on which a part of future inspections will have to concentrate on, in order to achieve speedier detection. Such factors are listed under Article 2 (‘Prioritisation criteria’) of the Regulation and may be subject to ramp inspection should it be necessary. Also in 2008 the Commission, in a spirit of full cooperation with ICAO, granted the latter privileged access to all data available in the SAFA database.⁷¹

Directive 2004/36/EC, as previously mentioned, was repealed as soon as the measures under Article 10(5) of Regulation (EC) No 216/2008 came into force, subject to implementing rules under Article 8(2) of said Directive.

Article 10 of Regulation (EC) No 216/2008 does not automatically repeal Directive 2004/36/EC (and related acts, such as Directive 2008/49/EC, Regulation (EC) No 768/2006 and Regulation (EC) No 351/2008) since its implementation requires the adoption of appropriate implementing rules.⁷² These implementing rules have been adopted with Regulation (EU) No 965/2012⁷³ of 5 October 2012 and entered into force on 28 October 2012.⁷⁴ During the meeting of the ESSG-17 (European SAFA Steering Group—consisting of SAFA experts from all countries participating to the European SAFA programme), held a few days before the entry into force of Regulation (EU) No 965/2012, unanimous consent was reached to enable Member States, under Article 10 of the Regulation,⁷⁵ to postpone the actual application of the implementing rules of the Regulation in order to ensure greater uniformity of implementation amongst the Member States; until then, Directive 2004/36/EC and related acts, although officially repealed, will still govern SAFA activities at national level, as Recital 6⁷⁶ of Regulation (EU) No 965/2012 makes clear.

A theme that is closely connected to the one previously discussed concerns the delicate relationship between safety and information to users, between the need for transparency and the determination to avoid assisting behaviour that may be detrimental to fair competition.

The objective of guaranteeing a high level of protection against threats to passenger safety must always go hand in hand with the responsibility of competent authorities to enable consumers to make informed choices in a framework of utter transparency not least in order to allow airlines and passengers to enjoy the greatest possible benefit from the competitive framework of air transport.

At the regulatory level, a significant step forwards was accomplished by the adoption of Regulation (EC) No 2111/2005 of 14 December 2005.⁷⁷

The Regulation is divided in two parts: the first provides for the establishment of a list of air carriers that are subject to refusal or restriction of their operating authorisation; the second establishes the obligation to inform passengers of the identity of the air carrier actually operating their flight.

Regarding the first part, it must be noted that in Article 4 of the Commission Proposal for a Regulation such ‘black listing’ was to be drafted and published by the Member States. This gave rise to a heated debate in which there were several claims that such a solution would inevitably result in giving rise to a state of legal ­confusion and uncertainty amongst users and operators, as well as leaving itself open to possible abuses in competition.

As the European Parliament also stated in the numerous amendments presented to the Commission’s Proposal,⁷⁸ the most balanced solution and the most mindful of all the bodies concerned would have been to provide for the publication of a single Community ‘blacklist’ , drawn upon the basis of harmonised common criteria valid throughout Union territory, without differentiation, on the basis of State of origin of the restrictive measures.

It is thus a matter of differentiating the stage when the list is drawn up from the publication stage.

Regulation (EC) No 2111/2005 thus laid down the rules for the definition and publication of an EU list of air carriers that for safety reasons are subject to an operating ban in the Community, based on the ‘common criteria’ listed in the Annex to the Regulation and founded on the preliminary work of a committee of national experts.

To this end, Regulation (EC) No 2111/2005 provided (Article 3) that by 16 February 2006 (a month after its entry into force) each Member State had to communicate to the Commission the identity of the air carriers subject to an operating ban in its territory, together with the reasons which led to the adoption of such bans and any other relevant information.

Within a month of receiving the information from Member States, the Commission, on the basis of the above-mentioned common criteria, had to ‘decide on the imposition of an operating ban on the air carriers concerned and […] establish the Community list of air carriers on which it [had] imposed an operating ban’ according to the procedure under Articles 5 and 7 of Decision 1999/468/EC⁷⁹ and with the assistance of the Committee under Article 12 of Regulation (EEC) No 3922/91 .

Subsequently, ‘at least’ every 3 months, the Commission, also in the light of all useful information from Member States, has to verify whether the list is to be updated.

For this purpose, these provisions were supplemented by Implementing Regulation (EC) No 473/2006 ⁸⁰ which provides that each State may request the updating of the black list, providing the Commission with certain information on the air carriers for which the imposition of operating ban is requested.

The Commission is consequently required to inform all Member States, as well as the EASA. Additionally, joint consultation with the competent authorities with regulatory oversight of the carrier concerned is provided for.

In cases of urgency, and to react to an unforeseen safety problem, every Member State, taking into account the common criteria established by the Community, may autonomously adopt an immediate operating ban within its own territory (Article 6(1) of Regulation (EC) No 2111/2005).

The adopted ‘exceptional’ measure must then be immediately notified to the Commission, in order to instantly update the Community list and render it operative on the whole EU territory.

Moreover, any decision by the Commission not to include an air carrier in the Community list does not preclude a Member State from imposing or maintaining an operating ban on it whenever a safety problem specifically affects it (Article 6(2), of Regulation (EC) No 2111/2005) .

Article 4 of Regulation (EC) No 473/2006 provides for the exercise of right of defence on the part of carriers for which the adoption of restrictive measures is requested.

According to that basic Regulation, the air carrier affected by the decision to blacklist it must be given the opportunity of being heard, and defend itself against the measure (Article 7 of Regulation (EC) No 2111/2005) .

The air carrier is given the opportunity to submit written observations to the Commission within ten working days from the notification of the measure, and, if requested, may also be heard orally to illustrate its position before a decision is reached at Community level.

In this phase the competent authorities with regulatory oversight of the carrier concerned may assist the carrier.

The first ‘black list’ containing the names of carriers subject to operating bans within the Community was published pursuant to Regulation (EC) No 2111/2005 on 22 March 2006.⁸¹ The Community list is divided into two parts: Annex A subjects all carriers listed to a ban on all operations within the Community to be understood as ‘refusal, suspension, revocation or restriction of an air carrier’s operating authorisation or technical permission for safety reasons’ (Article 2(g) of Regulation (EC) No 2111/2005); for its part, Annex B lists the air carriers merely subjected to operational restrictions.

Whether an air carrier is listed in one annex rather than the other depends upon the seriousness of the safety shortcomings observed by national authorities under the above-mentioned SAFA programmes, which reference common and uniform standards laid down by the Chicago Convention of 1944 and relevant ‘ICAO Annexes’ , which were later included in the Annex to Regulation (EC) No 2111/2005. In this regard, it should be noted that Article 16 of the Regulation repealed Article 9 of Directive 2004/36/EC , whose provisions had by then become obsolete.

This list, as laid down by Article 4(2) of the Basic Regulation, was then first amended by Regulation (EC) No 910/2006.⁸²

The Community list was then further amended by Regulations (EC) No 1543/2006,⁸³ (EC) No 235/2007,⁸⁴ (EC) No 787/2007,⁸⁵ (EC) No 1043/2007,⁸⁶ (EC) No 1400/2007,⁸⁷ (EC) No 331/2008,⁸⁸ (EC) No 715/2008,⁸⁹ (EC) No 1131/2008,⁹⁰ (EC) No 298/2009,⁹¹ (EC) No 619/2009,⁹² (EC) No 1144/2009,⁹³ (EU) No 273/2010,⁹⁴ (EU) No 590/2010,⁹⁵ (EC) No 1071/2010,⁹⁶ (EU) No 390/2011,⁹⁷ (EU) No 1197/2011,⁹⁸ (EU) No 295/2011,⁹⁹ (EU) No 1146/2012,¹⁰⁰ (EU) No 659/2013,¹⁰¹ (EU) No 1264/2013.¹⁰²

To date, the latest ‘blacklist’ is that published in Implementing Regulation (EU) No 368/2014, adopted by the Commission on 10 April 2014. This last amendment is the 23rd since the creation of the list.¹⁰³

Consequently, the list is destined to be constantly updated in the light of the results of the inquiries of national authorities, and subsequently to be adopted by the Commission.

Cursory perusal of the various blacklists over the years easily shows that, with the exception of a few isolated cases, the number of carriers included in them is noticeably constantly increasing.

Suffice it to point out that the number of airlines listed by the Commission as not complying with minimum safety requirements have, to date, almost doubled compared to the first list, issued in spring 2008.

The significant changes registered in the third to last update (Regulation (EU) No 659/2013) concern Philippine Airlines, registered in the Philippines, and Conviasa, a Venezuela registered carrier. The Commission, noting the significant progress made by the two carriers in upgrading their safety standards, decided to lift the ban on them. However, the ban remains in place for all other Philippine carriers. Libya, following several consultations with the Commission (who recognised the effort put in by the Libya in improving the safety of its airspace) decided to keep only voluntary operating restrictions on air carriers which have obtained their certificate there until adequate safety standards in conformity with international provisions have been reached.¹⁰⁴ The list was then updated taking into account the cessation of activity of some air carriers or, otherwise, recently operating ones in several countries (Democratic Republic of Congo, Indonesia, Philippines, Kyrgyzstan, Sudan and Mozambique). Finally, Annex B was also updated, taking into account the renovation of the fleets of Air Madagascar and Kazakhstan’s Air Astana.

As a result of the significant progress made by the aeronautical authorities in Mauritania, all air carriers certified there were removed from the list by Implementing Regulation (EU) No 1146/2012 of 3 December 2012. The decision was also taken in consideration of the on-site inspection carried out by Commission officials and the further recognition by ICAO of the actual improvement of safety conditions in Mauritania and its carriers. Such a provision is an absolute first, since for the first time the lifting of an operating flight ban concerned all the carriers of one State. The Commission subsequently carried out a new inspection in April 2013 to once again check compliance with safety standards. Previously, on 3 December 2012, the Commission had, however, imposed a pre-emptive operating ban on all Eritrean-certified air carriers. Moreover, ICAO had also been highly critical of the Eritrean system of air safety. The aeronautical authorities of Eritrea have still not resolved the problem, since they have not as yet adopted adequate corrective measures .¹⁰⁵ The ban is still in effect to date under the latest black list.

On the 22nd update, the Commission banned all Nepalese carriers from flying into or within the Union. In addition, the Commission once again noted the effort put in by the Libyan Civil Aviation Authorities in improving Libya’s airspace safety, but agreed with the Libyan authorities, to maintain the self-imposed ban on flying to the EU until further and significant improvement. The list was then updated taking into account the cessation of activity of some air carriers or, otherwise, recently operating ones in several countries (Kyrgyzstan, Kazakhstan, Indonesia and Mozambique). Finally, the air carriers listed in the Annex B remained the same ones which were foreseen in the previous blacklist .¹⁰⁶