Commission staff working paper. Transitional periods stemming from the Regulation(s) on aircrew

Transcription

1 Brussels, Commission staff working paper Transitional periods stemming from the Regulation(s) on aircrew The Commission Regulation on civil aviation personnel (also known as Part-FCL) was agreed during the EASA Committee in December 2010 and further discussed in February and May 2011 to cover also the provisions related to medical fitness of flight and cabin crew, cabin crew qualification and authority and organisation requirements. The resulting Regulations (hereinafter referred to as "the Aircrew Regulation" - Parts FCL and MED combined as sent on and its "amending Regulation" Part CC and Part AOR as sent on ) provide for several transition periods that are to facilitate the implementation and adjustment process in the Member States. The objective of this paper is to: 1. propose tools to simplify the implementation of the overall system of new Aircrew Regulation, given the complexity stemming from the interrelations between provisions and recommendations to be adopted and/or implemented within different timeframes and subject to different transitional periods; 2. provide for an interpretation of the transitional provisions and to clarify what can be done during the transitional periods: Given the objective as described above, Member States are invited to use the present paper as guidance for the implementation and interpretation of the Aircrew Regulations. 1. Additional horizontal opt out In line with its Article 12(1) and following the mandate enshrined in Article 70 of Regulation (EC) No 216/2008, the Aircrew Regulation is applicable as of 8 April This date applies to all its Annexes (i.e. Part-FCL, Part-MED, Part-CC and Parts ARA/ORA), that will be adopted within two different timeframes. Indeed, the amending Regulation is expected to be published close to the date of applicability of this Regulation. Member States will face the challenge to prepare their systems (e.g. administrative procedures, IT systems, certification of training organisations, etc) within a very short timeframe and without the complete set of implementing rules and attached Acceptable Means of Compliance, Certificate Specifications and Guidance Material being finally approved and published by EASA. Bearing in mind this difficulty, as well as the legal constraints concerning the date of applicability set out in the EASA Basic Regulation, an additional horizontal opt out of one year is inserted in the amending Regulation. 1

2 This opt out will apply to the future Aircrew Regulation (encompassing all Parts: FCL, MED, CC and ARA/ORA). This will allow Member States, organisations and persons concerned to progress smoothly towards the new system. In particular, during this period: Member States and organisations should start adapting their procedures; Training organisations should start to be certified - in order to allow them to provide Part-FCL training and issue Part-FCL licences; Member States would be allowed to continue issuing and revalidating JARcompliant and national licences in line with the current (JAR or national) rules and procedures. This horizontal and general opt-out will automatically replace all opt outs foreseen until 2013 as included in the relevant Regulations (e.g. Article 2(2)(f) of the amending Regulation). This additional year given to Member States for finalising the certification processes that will still be pending on 8 April 2012 would require to extend as well by one year the transition given to Member States in Article 4(1) of the Aircrew Regulation for adopting the new format for pilot licences, which is directly related to the standard validity period of such licences (i.e. 5 years). Accordingly, the date of 2017 is changed to As explained during the EASA committee in May 2011, the deadline will be changed to 2018 only in the case of pilot licences (as only they are currently issued for 5 years). In other cases (e.g. pilots' medical certificates and aero-medical examiners certificates) this validity period does not apply and therefore it was agreed to maintain the deadline of In the case of Article 11c, the deadline of April 2012 was kept as it addresses the situation where the Agency becomes a competent authority (e.g. third country AeMC). As the horizontal opt out was given to facilitate the transition for MS and as such it does not apply to the Agency, EASA will start fulfilling its mandate already as of Grandfathering of JAR-compliant certificates 1 In case the JAR-compliant licences continue to be issued between 8 April April 2015 based on the different opt outs, the current wording of some articles need to be changed in order to allow grandfathering of these licences. Therefore, Articles 4(1),10a(2),10b(2) and 10c(2) of the relevant Regulations are amended with a view to allowing grandfathering the JAR-compliant certificates issued or recognised during the opt out. In particular, the reference to "before 8 April 2012" is replaced by "before this Regulation applies", in line with what is laid down in Articles 4(2), 5(1) and 6(1) of the Aircrew Regulation. This amendment, when combined with the interpretation of the expression "this Regulation applies" presented below (see section 4 below), would allow issuing or acting on JARcompliant certificates after April 2012 and such certificates would benefit from the grandfathering provisions included in the Aircrew Regulation. 1 Please note that the term "certificate" is used in the meaning laid down in Article 3(g) of Regulation (EC) No 216/

3 3. How to apply new rules during the transitional periods Given that the Aircrew Regulation starts applying as of 8 April 2012, any Member State may decide to apply its provisions at any time between 8 April 2012 and the date of conclusion of a transitional period. It is possible, under a general principle of EU law, that EU acquis applies during a transition period in parallel to national law, in order to avoid legal vacuums. This is particularly true for the case of pilot licensing, due to the huge number of individual certificates to be aligned with the new rules, which make impossible to shift to the new rules in one day and requires a gradual implementation licence by licence. For example, in a case where a MS uses an opt out in certain areas (e.g. in the case of LAPL), the national and EU legal orders may run in parallel during a limited transition framework; so the leisure pilot licences issued on the basis of national legislation remain governed by national rules until they are converted into LAPLs issued under the EU rules; once a national licence is converted into an EU one, it becomes governed by the new EU rules. In addition, once the opt out period elapses (e.g. MS chooses for LAPL) the national law stops applying and only the EU law applies. Under this double legal regime, it is also possible that the training done during the transitional period based on national legislation is credited for the purposes of the EU licence. Accordingly, the Commission's understanding is that during an opt-out period a Member State may decide to apply the new implementing rules taking a step by step approach either to all licences/certificates mentioned above or only to selected types of licences/certificates (e.g. only for LAPL). This means that for any particular opt out chosen, a Member State is allowed to start issuing the specific licenses covered by the opt-out, before the opt-out period is concluded, in line with the new rules (e.g. Part- FCL) as long as it completes issuing them at the end of the opt-out period. This would eliminate the need to issue/revalidate all licences at the end of the opt-out (big-bang) which could create a huge backlog for CAAs. Also, following the same line, a Member State would be allowed to apply the new rules and formats in a phased approach, for example, starting with revalidation of licences/certificates and then moving to conversion or issuing of licences/certificates before a transitional period is concluded. The same idea applies to various Articles containing transitional provisions. For example, Article 4(1)of the Aircrew Regulation, where a Member State might start replacing JARcompliant certificates with licences complying with the new format laid down in Part-ARA as of 8 April 2012 but complete the process no later than 8 April Interpretation of the applicability date of the Regulation The reference in Article 4(2) of the Arcrew Regulation to "[non JAR-compliant licence] issued before the applicability of this Regulation" should be understood as in relation to specific opt outs. In particular, if a Member State decides to use an opt out, the applicability date mentioned in Article 4(2) equals the end date of the chosen opt out. This interpretation is to support the possibility of issuing and revalidating JAR-compliant and national licences during the opt-out periods as mentioned under points 1 and 2 above. 3

4 5. Different types of organisations and certificates There will be several recognition levels for the training organisations under the Aircrew Regulation: JAR-compliant training organisations providing training for JAR-compliant licences will be fully grandfathered; non JAR-compliant organisations will need to comply with requirements until 8 April 2014 to obtain Part-ARA certificates. JAR-compliant training organisation and JAR-compliant registered facilities would be grandfathered and therefore would be allowed to train for valid JAR-compliant licences (e.g. PPL, CPL, ATPL) as of 8 April 2012, as these organisations are grandfathered in relation to existing JAR licences. These training organisations would also be allowed to provide training valid for issuing Part-FCL licences even during the transitional period given to them - until for adapting their management systems, training programmes, procedures and manuals (Articles 11a of the amending Regulation). However, JAR-compliant training organisation would not be allowed to provide training valid for issuing new Part-FCL licences (SPL, BPL LAPL, etc) before they are certified in accordance with the new rules. Therefore, when a person participates in a training for new type of licence under current national rules, this person will need to be issued a national licence. Indeed, following what was said under section 1 above, a Member State can continue issuing national licences during the opt out period however they should at the same time proceed with the process of approving training organisations. These licences can be then converted into Part-FCL licences as part of the opt out process. The same logic would apply to JAR-compliant aero-medical centres. On the contrary, non JAR-compliant ATOs, including non JAR-compliant registered facilities covered by the opt out of Article 2(2)(c) of the amending Regulation, would not be allowed to provide training for issuing valid JAR-compliant or Part-FCL licences until they are fully in line with the new rules. For this reason, licences issued on the basis of training provided by these organisations during the mentioned opt out should be considered national licences, and therefore requiring a conversion afterwards. 6. General principles governing the transition In line with Article 12(7) of the Aircrew Regulation and 2(3) of its amending Regulation, if a Member State decides to make use of an opt out, it shall notify the Commission and the Agency. This notification shall describe the reasons for the decision, the annexes, chapters, sections or provision affected as well as the programme envisaged to ensure that the new rules are fully implemented by the end of the opt out. For that reason, Article 12(7) requests an implementation programme containing envisaged actions and related timing. Under this provision, it is also possible to inform that the new rules will apply in a Member State in a progressive manner to different certificate holders. This implementation programme should be of great importance to assess the progress of implementation of the new rules during the standardisation visits. These programmes might not need to include all the details when being notified and may be amended during the out period if necessary. 4

5 In case of making substantial amendments to those programmes, it is advisable to inform accordingly the Commission and the Agency. The notifications concerning opt outs encompassed only in Part AOR need to be submitted by MS to the COM shortly (within 2 months) after the publication of the Regulation in the Official Journal of the EU. The other horizontal opts out as enumerated in Part FCL and MED (adopted on ) should be notified before April It is also of an utmost importance that all Member States, while implementing opt outs, respect the principle of sincere cooperation. This duty is enshrined in Article 4(3) of the Treaty on European Union, which implies taking all appropriate measures to ensure fulfilment of obligations arising out of the Treaties. In particular, Member States should abstain from any action which would endanger the full implementation on the new EU rules by the end of the transitional period, should start converting national licences and issuing new licences as soon as possible and should abstain from regulating at national level in areas covered by implementing rules. 5

6 Annex I to the staff working paper TRANSITIONAL PERIODS IN THE AIRCREW REGULATION State of play after the EASA committee held in July 2011 Horizontal opt out In order to facilitate the transition towards the new system, a general opt out of 1 year (until 8 April 2013) is foreseen in both; aircrew and amending regulation, covering the applicability of Annexes I to VII. It is understood that Member States, persons and organisations concerned will prepare for the implementation of the new system during this year. In addition to this horizontal transition period, other specific ones are included as explained below. *** JAR-compliant pilot's licences and certificates JAR-compliant licences issued by 8 April , and in some cases until , will be grandfathered but need to be exchanged for a new format licences before April This is also the case for JAR-compliant medical certificates. Non JAR-compliant pilot's licences and certificates Non JAR-compliant licences shall be converted into Part-FCL licences however an opt out is possible until 8 April Non JAR-compliant medical is allowed until the next revalidation or until 8 April 2017 at the latest. MS agreed during the meeting in February 2011 that transitional periods for licences and medical certificates should expire on different dates, in order to reduce administrative burden. New pilot's licences (vis-à-vis JARs) and ratings/qualifications Provisions on LAPL, powered-lift aircraft, airships, balloons and sailplanes licences can be opted out from until April LAPL medical certificate can be opted out from (as a new type of certificate) until April 2015 so the dates are aligned with the licences mentioned in the previous indent. 2 One additional year is foreseen due to the horizontal opt out. 3 PPL in "small traning organisations" 4 One additional year is foreseen due to the horizontal opt out. 6

7 The provisions of section 8 (MCCI) of Subpart J but only in the case of helicopters; as well as Sections 10 (mountain instructor) and 11 (flight test instructor) of Subpart J and paragraphs FCL.800 (aerobatic rating), FCL.805 (sailplane towing and banner towing ratings), FCL.815 (mountain rating) and FCL.820 (flight test rating) can be opted out from until April Foreign licenses and medical certificates Member States may decide not to apply the provisions of this Regulation to pilots holding a licence and associated medical certificate issued by a third country involved in the non-commercial operation of aircraft specified in Article 4(1) (b) or (c) of Regulation (EC) No 216/2008 until 8 April Pilot training organisations *** JAR-compliant TO certificates will be grandfathered but need to be exchanged for a new format certificate before April The privileges of these organisations will be limited to these included in the approval issued by MS. However in the case of organisations that have filled the gaps vis-à-vis the new rules; they could be allowed to expand their privileges. In addition, these organisations shall adapt their management system, training programmes, procedures and manuals no later than 8 April Non JAR-compliant training organisations benefit from a possible opt out for compliance with Part-ARA and Part-ORA until 8 April Training organisations providing training only to light aircraft pilot licence, private pilot licence, balloon pilot licence or sailplane pilot licence, shall comply with Part- ARA and Part-ORA until 8 April 2015, in accordance with an opt out. JAR-compliant registered facilities are covered under this provision and would need to receive a certificate at the latest at the end of the opt out. Training organisations providing training for flight test ratings in accordance with FCL.820 shall comply with Part-ARA and Part-ORA, in accordance with an opt out, by no later than 8 April Flight simulation training Flight simulation training devices granted JAR-compliant certificates will be grandfathered but need to be exchanged for a new format qualification certificates before April The provisions of ORA.GEN.200(a)(3) (the identification of aviation safety hazards) to FSTD certificate holders not being an approved training organisation and not holding an air operator certificate can be opted out from until 8 April

8 Aero medical centres JAR-compliant certificates will be grandfathered but need to be exchanged for a new format certificate before April In addition, these organisations shall adapt their management system, training programmes, procedures and manuals until no later than 8 April Non JAR-compliant aero-medical centres benefit from a possible opt out for compliance with Part-ARA and Part-ORA until 8 April Cabin crew medical *** Medical examinations or assessments conducted in accordance with EU-OPS are grandfathered until the end of their validity period. The validity period is either the one determined by the competent authority under EU-OPS or 5 years, whichever date comes first. Provisions on cabin crew medical fitness may be opted out until April Cabin crew qualification and attestations EU-OPS attestations kept current are grandfathered but shall be replaced with cabin crew attestations complying with the new format by 8 April 2017 at the latest. EU-OPS attestations not used in CAT for more than 5 years are not grandfathered. His/her holder shall complete the initial training course and pass the related examination as required in Part-CC. JAR-OPS 3 training kept current is grandfathered but cabin crew attestations complying with Part-ARA shall be issued to the relevant cabin crew by 8 April 2013 at the latest. However, cabin crew members involved in commercial operations by helicopters benefit of a possible opt out until 8 April Such opt out could cover the obligation under Article 11a(5) of the Cover Regulation. JAR-OPS 3 training and checking not used in CAT for more than 5 years are not grandfathered. His/her holder shall complete the initial training course and pass the related examination as required in Part-CC. However, cabin crew members involved in commercial operations by helicopters benefit of a possible opt out until 8 April *** Agency becomes the competent authority 8

9 Member States shall transfer to the Agency all records related to the oversight of organisations for which the Agency becomes the competent authority no later than 8 April Certification process initiated before 8 April 2012 by a Member State shall be finalised by that Member State in coordination with the Agency. The Agency shall assume all its responsibilities as competent authority concerning such organisation after the issuance of the certificate by that MS. 9