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Air-Safety Brussels-style: The looming regulation
mess over Europe's skies
Open Republic: July / August / September
2005
Dr. Constantin Gurdgiev, Lecturer in Economics (TCD), Research Fellow (Policy Institute) and a Director of the Open Republic Institute (www.openrepublic.org),
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In December 2003 the European Council approved a major expansion of EU powers in the field of air safety. In a single vote, the Council created the European Aviation Safety Agency (EASA) to create and implement common standards of air safety and maintenance within the EU — a role it tookover from its predecessor, the European Joint Airworthiness Authorities (JAA). However, 18 months after its creation, the EASA is spearheading a European Commission push to centralise air safety regulation in the hands of largely unaccountable, supra-national officials. In an approach that, for the European Commission, is becoming familiar the Commission is bent on reducing national air-safety regulatory bodies to mere implementation agencies, accountable only to itself.
FROM JAA TO EASA: A HISTORY OF ARBITRARY REGULATION
The EASA inherited the tradition of persistent arbitrary over-regulation of aviation that its predecessor had perfected. As early as 1996, the operations committee of the JAA proposed a rule requiring all small twin-engine airplanes to restrict their flight paths to a range of no more than 120 minutes flying time to the nearest airport. Offering no safety rationale for this decision, the JAA wanted to mandate a restriction that would have required all business jets flying across the Atlantic to change their routes to include an unnecessary refueling stop-over in Iceland or Greenland – two territories with some of the most extreme weather and terrain conditions on earth. These regulations were designed to accord an uncontested advantage to the French aircraft manufacturer, Dassault, which at the time of the proposal was the only company manufacturing three-engine business jets, exempt from the restriction. Only a threat of legal action from the US forced the JAA to consider a 180-minute limit.
In 1997, the JAA adopted another set of rules aimed at changing the competitive position of European aviation but which also risked undermining air safety. The JAA proposed a requirement that all schools training European pilots had to be at least 51% European-owned and be headquartered in the JAA countries. Once again, the rule was entirely arbitrary, and was designed to discriminate against the more competitive US-based training schools. Given the higher costs of instruction, more restrictive admissions and training practices and shortages of infrastructure in the EU relative to the US, the proposal could have a negative impact on the quality of pilot training. As with the flight-path restrictions the requirements on ownership were changed only under the threat of US legal action.
More recently, the European Union has adopted a set of regulations on the use of noise reduction technology in aviation that directly targets non-EU aircraft and gives unfair advantages to European carriers. Known as hushkit regulations, these rules circumvent the International Civil Aviation Organization (ICAO) which, operating under a UN mandate and covering 185 member states, deals with the issue of aircraft noise. As the result of the hushkit regulation, several aircraft are banned from flying in Europe despite the fact that they comply with international noise level standards.
According to the US General Aviation Manufacturers Association (GAMA), there is strong evidence that “… European regulators have at times used the certification and validation [of aircraft] to delay the entry of US products into the European marketplace”. Despite the fact that all US aircraft are certified by the Federal Aviation Administration (FAA) in a rigorous process that requires roughly 16,000 hours of FAA work, according to GAMA, “… the JAA gives little recognition to the work of the FAA”. The JAA team members responsible for certification “… often apply nationalistic certification interpretations and policies, contrary to JAA policy”. This treatment of the non-EU manufacturers is contrasted by the certification approach of the FAA of the JAA-approved aircraft. The FAA spends 15-17% of the time it takes to certify a US aircraft on validating the JAA-certified plane. Yet, for the US certified aircraft, JAA recertification requires almost 3.5 times longer.
DOES THE APPLE EVER FALL FAR FROM THE TREE?
The EASA programme was initially lauded by the EU as a step forward in resolving some of the problems encountered under the JAA. Specifically, the EASA was supposed to address the issues of competing national regulations and harmonise the safety and approval processes with an aim of reducing red tape and costs to the manufacturers. It was also supposed to be more transparent and neutral in its treatment of manufacturers. However, a year and a half after its inception, the EASA is proving to be as obstructionist and anti-competitive as the JAA.
For example, in late 2003 the EASA was engaged in a battle with the British Civil Aviation Authority (BCAA) over the Piper Twin Comanche (PTC) aircraft. The aircraft manufacturer applied for approval to carry out a number of routine safety-enhancing modifications to the plane. However this application was stonewalled by the EASA office in Rome responsible for the PTC. The EASA refused to deal with BCAA and the manufacturer. The case highlighted an urgent need to restrict EASA authority in even the smallest cases of aircraft modifications — a response that was supported by Germany, Sweden, France and the UK.
Fortunately, judging by the EASA Opinion 3/2004, the agency was finally forced to accept member-states opinion that some of the micro-level regulations can be delegated to the national authorities. However the EASA was also quick to point out that it would not "answer individually to … commentators [on its proposals]”, thus further underscoring its lack of accountability.
Taking its cue from the JAA, the EASA continues to attempt to subvert the authority of the ICAO. For example, in January of this year the EASA outlined in a document its position on basic EU licensing requirements still did not include a consideration of the work, done by the ICAO, to develop policy cohesion between the EU and other ICAO members on the issues of safety and registration. Instead, the document suggests “that the opportunity be taken to reconsider the question of regulation of third country aircraft” within the context of EASA mandate. Similarly the EASA has stipulated, among other things, that it believes that any non-EU aircraft should hold a certificate issued by EASA. Such an approach suggests that the EASA will a. continue to expand its scope of operations into areas covered by the ICAO, and b. will retain the JAA ethos of imposing anti-competitive restrictions on non-EU manufacturers and operators. In addition, the EASA position document stresses that new rules should be developed for extending EASA control over unspecified ‘commercial activities’ and ‘air operations’. It is unclear from the wording whether the new rules will apply to the safety regulations alone or to the other aspects of air operations, such as for example maintenance and airport staff. However, given that the issue of cabin crew licensing, despite being opposed by many national regulatory bodies, remains on the EASA agenda, hope that the EASA will accommodate specific needs of international and national agencies seems to be rather small.
A NEW SYMBOL OF EUROPEAN TECHNOLRAY
Drawing on the less than glamorous past of its predecessors, the EASA is evolving into another institution bent on technocratic bureaucratisation of the marketplace. No one can object to its original goal of ensuring greater cooperation across the member states on the issue of aircraft safety. Yet, given that prior to the creation of the EASA the European aviation industry was functioning well within existent regulatory controls, the true meaning of the EASA is best summarised by the European Commission statement concerning the need to create it. According to the European Parliament Report on the creation of EASA, continued regulatory work within the constraints of the JAA and other European bodies “would have involved lengthy ratification procedures in the national parliaments… which would not necessarily have been successful”. One cannot imagine a more technocratic and undemocratic approach to regulation than the one exemplified by this statement. The lack of democratic scrutiny and oversight, coupled with the un-transparent nature of EASA operations and scope implies that the agency will never be able to escape the threat of capture by European producers and operators for for whom standardisation of aircraft safety will take second place to self-interest.
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Copyright:
Open Republic Institute Ltd.