COMMON POSITION (EC) No 42/97 adopted by the Council on 9 October 1997 with a view to adopting Council Directive 97/. . ./EC amending Directive 92/14/EEC on the limitation of the operation of aeroplanes covered by Part II, Chapter 2, Volume 1 of Annex 16 to the Convention on International Civil Aviation, Second Edition (1988) (97/C 375/02)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 84 (2) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the Opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (3),

(1) Whereas the main purpose of the provisions pursuat to Directive 92/14/EEC (4) is to restrict the operation of certain types of civil subsonic jet aeroplanes;

(2) Whereas a definition of the key elements of the Directive should prevent any ambiguity as to the objective and the scope of the Directive;

(3) Whereas this Directive does not deprive an individual Member State of the possibility of having recourse to the relevant provisions of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (5) in accordance with their terms;

(4) Whereas, due to the exceptional historical situation of the airports serving the Berlin conurbation and the location of the airports of Berlin Tegel and Berlin Tempelhof close to the city centre, it is justified to exempt temporarily these two airports from the application of certain provisions of Directive 92/14/EEC;

(5) Whereas it is necessary to respect the initial intention of the exemption for aeroplanes on the registers of developing nations; whereas the relevant provisions of the said Directive should therefore be clarified to that effect;

(6) Whereas an exemption granted for an aeroplane from a developing nation should benefit only that nation;

(7) Whereas it is necessary to clarify the scope for exemptions granted on economic grounds;

(8) Whereas it should be made clear that a Member State can only establish a timetable for the gradual withdrawal of non-compliant aeroplanes in respect of aeroplanes which are on the register of that Member State;

(9) Whereas some Member States have agreements with third country carriers allowing them an exemption for phasing out Chapter 2 aeroplanes similar to that granted to Community air carriers; whereas it is appropriate that these agreements should not be revoked;

(10) Whereas it is essential that the Annex to Directive 92/14/EEC be kept up to date and amended in a timely manner; whereas, therefore, amendments should be drawn up by the Commission assisted by a committee of a regulatory nature;

(11) Whereas Article 3 of Directive 92/14/EEC provides for exemptions for aeroplanes on the registers of developing nations and whereas the aeroplanes so exempted were listed in the Annex to that Directive;

(12) Whereas it is necessary to amend the Annex to Directive 92/14/EEC so as to add certain aeroplanes which qualify for an exemption and were not included when that Directive was adopted; whereas it is also necessary to delete all mention of certain aeroplanes that have been withdrawn from service, destroyed or otherwise no longer qualify for the exemption;

(13) Whereas it is essential to prevent wrong usage of registrations; whereas the Annex to this Directive contains, for each aeroplane, reference to the manufacturers' serial number for the individual aeroplane;

(14) Whereas it is important to ensure that infringements of Community law are penalized under conditions which make the penalty effective, proportionate and dissuasive;

(15) Whereas under the 1994 Act of Accession Austria has to comply with the provisions of Directive 92/14/EEC as from 1 April 2002,

HAS ADOPTED THIS DIRECTIVE:

Article 1 Amendments

Directive 92/14/EEC is hereby amended as follows:

1. The following paragraph shall be added to Article 1:

'3. For the purposes of this Directive:

"Air carrier" means an air transport undertaking with a valid operating licence.

"Operating licence" means an authorization granted to an undertaking permitting it to carry out carriage by air of passengers, mail and/or cargo for remuneration and/or hire.

"Community air carrier" means an air carrier with a valid operating licence granted by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (*).

"Total civil subsonic jet fleet" means the total aircraft fleet of civil subsonic jet aeroplanes at the disposal of the air carrier, through ownership or any form of lease agreement of not less than one year.

(*) OJ L 240, 24. 8. 1992, p. 1.`

2. The following paragraph shall be added to Article 2:

'4. Before the date referred to in paragraph 2, the operation of civil subsonic jet aeroplanes which do not comply with the provision of paragraph 1 (a) may be restricted or excluded at the airports of Berlin Tegel and Berlin Tempelhof.`

3. Article 3 (b) shall be replaced by the following:

'(b) these aeroplanes were on the register of the developing nation shown for that aeroplane in the Annex in the reference year and continue to be used either directly or under any form of lease agreement by natural or legal persons established in that nation.`

4. The following subparagraph shall be added to Article 3:

'The exemption referred to in the preceding subparagraph shall not apply where the aeroplane is leased to a natural or legal person established in a country other than the one mentioned for that aeroplane in the Annex.`

5. In Articles 4, 5 (c) and (d) and 6 'airline` shall be replaced by 'air carrier`.

6. Article 7 shall be replaced by the following:

'Article 7

1. Member States may limit deletion from their registers of all mention of aeroplanes which do not comply with the standards of Chapter 3 of Annex 16 to an equivalent annual rate of up to 10 % of the total civil subsonic jet fleet of a Community air carrier.

2. Member States shall not apply the provisions of Article 2 (1) in respect of aeroplanes retained on the register of a Member State in accordance with paragraph 1.

3. Where a Member State has applied an equivalent exemption to that described in paragraphs 1 and 2 to aeroplanes on the register of a third country and operating into that Member State before this Directive enters into force, the exemption may continue to be recognized subject to compliance by the air carrier with the conditions.`

7. The following Articles shall be inserted:

'Article 9a

Amendments to the Annex which may prove necessary in order to ensure full conformity with the criteria set out in Article 3 shall be effected according to the procedure defined in Article 9b (2).

Article 9b

1. The Commission shall be assisted by the committee provided for in Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonization of technical requirements and administrative procedures in the field of civil aviation (*), which shall act in accordance with the procedure outlined in paragraph 2.

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

3. a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.

b) If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.

If the Council has not acted within 3 months of the date of the referral to it, the Commission shall adopt the measures proposed.

(*) OJ L 373, 31. 12. 1991, p. 4. Regulation as amended by Regulation (EC) No 2176/96 (OJ L 291, 14. 11. 1996, p. 15).`

8. The Annex shall be replaced by the Annex hereto.

Article 2 System of penalties

Member States shall lay down the system of penalties for breaching the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided for shall be effective, proportionate and dissuasive. Member States shall notify the relevant provisions to the Commission not later than 1 March 1999 and shall notify any subsequent changes as soon as possible.

Article 3 Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 March 1999. They shall immediately inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

2. In accordance with Article 168 of the 1994 Act of Accession and Annex XIX (III) thereto, Austria shall put into effect the measures necessary to comply with this Directive by 1 April 2002.

Article 4 Entry into force

This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.

Article 5 Addressees

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ C 309, 18. 10. 1996, p. 9.

(2) OJ C 66, 3. 3. 1997, p. 4.

(3) Opinion of the European Parliament of 11 March 1997 (OJ C 115, 14. 4. 1997, p. 2), Council Common Position of 9 October 1997 and Decision of the European Parliament of . . . (not y et published in the Official Journal).

(4) OJ L 76, 23. 3. 1992, p. 21.

(5) OJ L 240, 24. 8. 1992, p. 8. Regulation as amended by the 1994 Act of Accession.

ANNEX

'ANNEX

LIST OF AEROPLANES EXEMPTED IN ACCORDANCE WITH ARTICLE 3

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 4 September 1996, the Commission submitted to the Council a proposal for a Council Directive amending Directive 92/14/EEC on the limitation of the operation of aeroplanes covered by Part II, Chapter 2, Volume I of Annex 16 to the Convention on International Civil Aviation, second edition (1988) (1).

The Economic and Social Committee issued its opinion on 27 November 1996 (2). The European Parliament issued its opinion in the first reading on 11 March 1997 (3).

The Commission amended its proposal in the light of these opinions and transmitted it to the Council on 5 June 1997 (4).

The Council adopted its common position in accordance with Article 189c of the Treaty on 9 October 1997.

II. PURPOSE OF THE PROPOSAL

This proposal amends Directive 92/14/EEC, the main purpose of which was to restrict the operation of certain civil subsonic jet aeroplanes. In its Annex, that Directive contained a list of aircraft from developing nations which were to be exempted from the non-operation rule until 1 April 2002. However, a number of aircraft from these nations qualifying for an exemption were not notified to the Commission at the time of the adoption of the Directive and, thus, not included in the Annex.

The main purpose of this amending Directive is therefore to update the list of aircraft contained in the Annex to the Directive. Most of the other amendments to Directive 92/14/EEC are aimed at ensuring its uniform interpretation throughout the Community.

III. ANALYSIS OF THE COMMON POSITION

The common position adopted by the Council corresponds largely to the Commission proposal.

The most important part of the Directive is its updated Annex, listing aeroplanes on the registers of developing nations which are exempted from the provisions of Article 2 (1).

Several definitions of the key elements of the Directive were introduced in order to prevent any ambiguity as to the objective and the scope of the Directive (new paragraph 3 of Article 1).

Due to the exceptional historical situation of the airports serving the Berlin conurbation and the location of the airports of Berlin Tegel and Berlin Tempelhof close to the city centre, those two airports were exempted from Article 2 (2) of Directive 92/14/EC, which allows Chapter 2 aircraft to continue operating at Community airports until 1 April 2002 (new paragraph 4 of Article 2).

With regard to the aeroplanes listed in the Annex to the Directive and thus exempted from Article 2 (1), it was clarified that aeroplanes wishing to benefit from that exemption may not be transferred from the register of one developing nation to another (new Article 3b).

While the right of a Member State to establish a timetable for the gradual withdrawal of non-compliant aeroplanes is limited to aeroplanes on its own register, equivalent exemptions to third countries may continue to be recognised if they were granted before this Directive enters into force (new Article 7).

In order to ensure that the Annex can be kept up to date and amended in a timely manner, such amendments can be carried out by the Commission, assisted by a committee of a regulatory nature (new Articles 9a and 9b).

Finally, Member States are required to lay down a system of penalties for infringements of the national provisions adopted in accordance with this Directive (Article 2).

IV. AMENDMENTS BY THE EUROPEAN PARLIAMENT

The Council followed the Commission amended proposal on all points:

1. Amendments by Parliament, accepted by Council and Commission

Amendments 3 and 7 were accepted since they strengthen the conditions under which an exemption granted to an aeroplane registered in a developing nation continues to remain valid.

2. Amendments by Parliament, not accepted by Council and Commission

- Amendments 1, 2 and 6, which would have allowed Member States to restrict the operation of the noisiest aeroplanes at all Community airports, were not accepted since they would be contrary to the balanced approach adopted in Directive 92/14/EEC, which provided for a transitional period until 1 April 2002,

- Amendments 4 and 8 were not accepted since they would have prevented the use of the Committee procedure for amending the Annex to include a small number of aeroplanes which could still qualify for an exemption under Article 3,

- Amendments 5 and 9 were not accepted, because Saudi Arabia is included in the official international list of developing nations and its aeroplanes included in the Annex meet the criteria laid down in Article 3.

V. AMENDMENTS BY THE COUNCIL, NOT PROPOSED BY THE PARLIAMENT

Re the recitals

The Council redrafted the preamble in the light of the amendments carried out with regard to the Commission's proposal. The Council also added certain recitals in order to reflect new provisions introduced into the text.

Re new paragraph 3 of Article 1 (definitions)

In the definition of 'total civil subsonic jet fleet` , 'lease agreement` was replaced by 'any form of lease agreement` in order to avoid any uncertainty with regard to the type of lease agreement covered by this definition.

Re new paragraph 4 of Article 2 (airport systems)

The Council did not accept the possibility of airport systems limiting or excluding the operation of certain civil subsonic jet aeroplanes, since such provision would have threatened the balanced approach adopted in Directive 92/14/EEC, which provided for a transitional period until 1 April 2002 and a time table for the gradual withdrawal of non-compliant aeroplanes.

However, such a possibility was granted to the airports of Berlin Tegel and Berlin Tempelhof, taking into account their exceptional historical situation and the fact that they are centrally located.

Re new Article 3b (conditions for exemption)

The Council replaced 'operated` by 'used either directly or under any form of lease agreement`, in order to clearly specify the conditions under which an aeroplane registered in a developing nation can benefit from the exemption under Article 3.

Re new Article 7 (phasing-out scheme)

The Council carried out some editorial changes in order to avoid any ambiguity regarding the interpretation of this Article. Moreover, a provision was inserted with regard to existing agreements with third country carriers, because it was felt appropriate that such agreements should not be revoked.

Re new Article 9b (committee)

In view of the significant impact of any amendment to the Annex on the scope of the Directive, the Council replaced the procedure for an advisory committee by that of a regulatory committee, Type IIIa.

Re Annex (list of aeroplanes)

The Council carried out some editorial corrections (to Egypt, Serial No. 19916; and to Nigeria, Serial No. 19664) and deleted the only aeroplane on this list registered in Uruguay, since that aeroplane is no longer in service.

(1) OJ C 309, 18. 10. 1996, p. 9.

(2) OJ C 66, 3. 3. 1997, p. 4.

(3) OJ C 115, 14. 4. 1997, p. 24.

(4) OJ C 253, 19. 8. 1997, p. 3.