Common position 3/2007 adopted on 11 December 2006 with a view to the adoption of a Regulation on common rules in the field of civil aviation security and repealing Regulation 2320/2002

COMMON POSITION (EC) No 3/2007

adopted by the Council on 11 December 2006

with a view to the adoption of a Regulation (EC) No .../2007 of the European Parliament and of the

Council of ... on common rules in the field of civil aviation security and repealing Regulation (EC)

No 2320/2002

(Text with EEA relevance)

(2007/C 70 E/02)

EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN (5) Given the need for more flexibility in adopting security

UNION, measures and procedures in order to meet evolving risk

assessments and to allow new technologies to be intro-

Having regard to the Treaty establishing the European Com- duced, this Regulation should lay down the basic princi-

munity, and in particular Article 80(2) thereof, ples of what has to be done in order to safeguard civil

aviation against acts of unlawful interference without

going into technical and procedural details on how they

Having regard to the proposal from the Commission, are to be implemented.

Having regard to the opinion of the European Economic and

Social Committee (1),

(6) This Regulation should apply to airports serving civil

Having consulted the Committee of the Regions, aviation located in the territory of a Member State, to

operators providing services at such airports and to enti-

Acting in accordance with the procedure laid down in ties providing goods and/or services to or through such

Article 251 of the Treaty (2), airports.

Whereas:

(1) In order to protect persons and goods within the (7) Without prejudice to the Convention on offences and

European Union from acts of unlawful interference with certain other acts committed on board aircraft, Tokyo,

civil aircraft, common rules for safeguarding civil aviation 1963, the Convention for the suppression of unlawful

should be established. This objective should be achieved seizure of aircraft, The Hague, 1970 and the Convention

by setting common rules and common basic standards for the suppression of unlawful acts against the safety of

on aviation security as well as mechanisms for moni- civil aviation, Montreal, 1971, this Regulation should

toring compliance. also cover security measures that apply on board an

aircraft, or during a flight, of Community air carriers.

(2) It is desirable, in the interests of civil aviation security

generally, to provide the basis for a common interpreta-

tion of Annex 17 to the Chicago Convention on Interna-

tional Civil Aviation of 7 December 1944. (8) Each Member State may decide for itself whether to

deploy in-flight security officers on aircraft registered in

(3) Regulation (EC) No 2320/2002 of the European Parlia- that Member State and on aircraft of air carriers licensed

ment and of the Council of 16 December 2002 estab- by that Member State.

lishing common rules in the field of civil aviation

security (3) was adopted as a result of the events of

11 September 2001 in the United States.

(4) The content of Regulation (EC) No 2320/2002 should be (9) The various types of civil aviation do not necessarily

revised in the light of the experience gained, and the present the same level of threat. In setting common basic

Regulation itself should be repealed and replaced by this standards on aviation security, the size of the aircraft, the

Regulation seeking the simplification, harmonisation and nature of the operation and/or the frequency of opera-

clarification of the existing rules and the improvement of tions at airports should be taken into account with a

the levels of security. view to permitting the grant of derogations.

(1) OJ C 185, 8.8.2006, p. 17.

(2) Opinion of the European Parliament of 15 June 2006 (not yet

published in the Official Journal), Council Common Position of

11 December 2006 and Position of the European Parliament of ... (not (10) Member States should also be allowed, on the basis of a

yet published in the Official Journal).

(3) OJ L 355, 30.12.2002, p. 1. Regulation as amended by Regulation (EC) risk assessment, to apply more stringent measures than

No 849/2004 (OJ L 158, 30.4.2004, p. 1). those laid down in this Regulation.

C 70E/22 EN Official Journal of the European Union 27.3.2007

(11) Third countries may require the application of measures (18) In particular, power should be conferred on the Commis-

that differ from those laid down in this Regulation in sion to establish the conditions under which the

respect of flights from an airport in a Member State to, measures referred to in Articles 4(3) and 9(2) are to be

or over, that third country. However, without prejudice to adopted. Since those measures are of general scope and

any bilateral agreements to which the Community is a are designed to amend non-essential elements of this

party, it should be possible for the Commission to Regulation, or to supplement it by the addition of new

examine the measures required by the third country. non-essential elements, they should be adopted in accord-

ance with the regulatory procedure with scrutiny

provided for in Article 5a of Council Decision

1999/468/EC.

(12) Even though, within a single Member State, there may be

two or more bodies involved in aviation security, each

Member State should designate a single authority respon- (19) The goal of `one-stop security' for all flights within the

sible for the coordination and monitoring of the imple- European Union should be advanced.

mentation of common basic standards on aviation

security.

(20) This Regulation is without prejudice to the application of

rules on aviation safety, including those relating to the

(13) In order to define responsibilities for the implementation transport of dangerous goods.

of the common basic standards on aviation security and

to describe what measures are required by operators and

other entities for this purpose, each Member State should (21) Member States should determine the penalties applicable

draw up a national civil aviation security programme. to infringements of the provisions of this Regulation. The

Furthermore, each airport operator, air carrier and entity penalties provided for, which may be of a civil or admin-

implementing aviation security standards should draw istrative nature, should be effective, proportionate and

up, apply and maintain a security programme in order to dissuasive.

comply both with this Regulation and with whichever

national civil aviation security programme is applicable. (22) The Ministerial Statement on Gibraltar Airport, agreed in

Cordoba on 18 September 2006 during the first Minis-

terial meeting of the Forum of Dialogue on Gibraltar, will

(14) In order to monitor compliance with this Regulation and replace the Joint Declaration on Gibraltar Airport made

with the national civil aviation security programme, each in London on 2 December 1987, and full compliance

Member State should draw up and ensure the implemen- with it will be deemed to constitute compliance with the

tation of a national programme to check the quality of 1987 Declaration.

civil aviation security.

(23) Since the objectives of this Regulation, namely to safe-

guard civil aviation against acts of unlawful interference

(15) In order to monitor the application by Member States of and to provide a basis for a common interpretation of

this Regulation, and also to make recommendations to Annex 17 to the Chicago Convention on International

improve aviation security, the Commission should Civil Aviation, cannot be sufficiently achieved by the

conduct inspections, including unannounced inspections. Member States and can therefore, by reason of the scale

and effects of this Regulation, be better achieved at Com-

munity level, the Community may adopt measures, in

(16) Implementing acts setting out common measures and accordance with the principle of subsidiarity as set out in

procedures for the implementation of the common basic Article 5 of the Treaty. In accordance with the principle

standards on aviation security and containing sensitive of proportionality, as set out in that Article, this Regu-

security information, together with Commission inspec- lation does not go beyond what is necessary in order to

tion reports and answers of appropriate authorities achieve those objectives,

should be regarded as `EU classified information' within

the meaning of Commission Decision 2001/844/EC,

ECSC, Euratom of 29 November 2001 amending its

internal Rules of Procedure (1). Those items should not

be published; they should only be made available to

those operators and entities with a legitimate interest. HAVE ADOPTED THIS REGULATION:

(17) The measures necessary for the implementation of this

Regulation should be adopted in accordance with

Council Decision 1999/468/EC of 28 June 1999 laying Article 1

down the procedures for the exercise of implementing

powers conferred on the Commission (2). Objectives

(1) OJ L 317, 3.12.2001, p. 1. Decision as amended by Decision

2006/548/EC, Euratom (OJ L 215, 5.8.2006, p. 38).

(2) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 1. This Regulation establishes common rules to safeguard

2006/512/EC (OJ L 200, 22.7.2006, p. 11). civil aviation against acts of unlawful interference.

27.3.2007 EN Official Journal of the European Union C 70E/23

It also provides the basis for a common interpretation of 6. `entity' means a person, organisation or enterprise, other

Annex 17 to the Chicago Convention on International Civil than an operator;

Aviation.

7. `prohibited articles' means weapons, explosives or other

2. The means of achieving the objectives set out in para- dangerous devices, articles or substances that may be used

graph 1 shall be: to commit an act of unlawful interference;

(a) the setting of common rules and common basic standards

on aviation security; 8. `screening' means the application of technical or other

means which are intended to identify and/or detect prohib-

(b) mechanisms for monitoring compliance. ited articles;

9. `security control' means the application of means by which

Article 2 the introduction of prohibited articles may be prevented;

Scope 10. `access control' means the application of means by which

the entry of unauthorised persons or unauthorised vehicles,

1. This Regulation shall apply to the following: or both, may be prevented;

(a) all airports or parts of airports located in the territory of a

Member State that are not exclusively used for military 11. `airside' means the movement area of an airport, adjacent

purposes; terrain and buildings or portions thereof, access to which is

restricted;

(b) all operators, including air carriers, providing services at

airports referred to in point (a); 12. `landside' means those parts of an airport, adjacent terrain

and buildings or portions thereof that are not airside;

from premises located inside or outside airport premises

and provide goods and/or services to or through airports 13. `security restricted area' means that area of airside where, in

referred to in point (a). addition to access being restricted, other aviation security

standards are applied;

2. The application of this Regulation to the airport of

Gibraltar is understood to be without prejudice to the respective

legal positions of the Kingdom of Spain and the 14. `demarcated area' means an area that is separated by means

United Kingdom with regard to the dispute over sovereignty of access control either from security restricted areas, or, if

over the territory in which the airport is situated. the demarcated area itself is a security restricted area, from

other security restricted areas of an airport;

15. `background check' means a recorded check of a person's

Article 3 identity, including any criminal history, as part of the

assessment of an individual's suitability for unescorted

Definitions access to security restricted areas;

For the purposes of this Regulation: 16. `transfer passengers, baggage, cargo or mail' means passen-

gers, baggage, cargo or mail departing on an aircraft other

1. `civil aviation' means any air operation carried out by civil than that on which they arrived;

aircraft, excluding operations carried out by State aircraft

referred to in Article 3 of the Chicago Convention on Inter-

national Civil Aviation; 17. `transit passengers, baggage, cargo or mail' means passen-

gers, baggage, cargo or mail departing on the same aircraft

2. `aviation security' means the combination of measures and as that on which they arrived;

human and material resources intended to safeguard civil

aviation against acts of unlawful interference; 18. `potentially disruptive passenger' means a passenger who is

either a deportee, a person deemed to be inadmissible for

3. `operator' means a person, organisation or enterprise immigration reasons or a person in lawful custody;

engaged, or offering to engage, in an air transport opera-

tion; 19. `cabin baggage' means baggage intended for carriage in the

4. `air carrier' means an air transport undertaking holding a cabin of an aircraft;

valid operating licence or equivalent;

5. `Community air carrier' means an air carrier holding a valid 20. `hold baggage' means baggage intended for carriage in the

operating licence granted by a Member State in accordance hold of an aircraft;

with Council Regulation (EEC) No 2407/92 of 23 July

1992 on licensing of air carriers (1); 21. `accompanied hold baggage' means baggage, carried in the

hold of an aircraft, which has been checked in for a flight

(1) OJ L 240, 24.8.1992, p. 1. by a passenger travelling on that same flight;

C 70E/24 EN Official Journal of the European Union 27.3.2007

22. `air carrier mail' means mail whose origin and destination (a) methods of screening, access control and other security

are both an air carrier; controls;

23. `air carrier materials' means materials either whose origin (b) methods of performing aircraft security checks and aircraft

and destination are both an air carrier or that are used by security searches;

an air carrier;

24. `mail' means dispatches of correspondence and other items,

other than air carrier mail, tendered by and intended for

delivery to postal services in accordance with the rules of (d) performance criteria and acceptance tests for equipment;

the Universal Postal Union; (e) staff recruitment and training requirements;

25. `cargo' means any property intended for carriage on an

aircraft, other than baggage, mail, air carrier mail, air (f) the definition of critical parts of security restricted areas;

carrier materials and in-flight supplies;

(g) the obligations of, and the validation procedures for, regu-

26. `regulated agent' means an air carrier, agent, freight lated agents, known consignors and account consignors;

forwarder or any other entity who ensures security controls

in respect of cargo or mail; (h) categories of persons, goods and aircraft that for objective

reasons shall be subject to special security procedures or

27. `known consignor' means a consignor who originates cargo shall be exempted from screening, access control or other

or mail for its own account and whose procedures meet security controls.

common security rules and standards sufficient to allow

carriage of cargo or mail on any aircraft; 3. The Commission shall, by amending this Regulation

through a decision in accordance with the regulatory procedure

28. `account consignor' means a consignor who originates with scrutiny referred to in Article 15(3), set criteria to allow

cargo or mail for its own account and whose procedures Member States to derogate from the common basic standards

meet common security rules and standards sufficient to referred to in paragraph 1 and to adopt alternative security

allow carriage of that cargo on all-cargo aircraft or mail on measures that provide an adequate level of protection on the

all-mail aircraft; basis of a local risk assessment. Such alternative measures shall

be justified by reasons relating to the size of the aircraft, or by

29. `aircraft security check' means an inspection of those parts reasons relating to the nature, scale or frequency of operations

of the interior of the aircraft to which passengers may have or of other relevant activities.

had access, together with an inspection of the hold of the

aircraft in order to detect prohibited articles and unlawful

interferences with the aircraft; On imperative grounds of urgency, the Commission may use

the urgency procedure referred to in Article 15(4).

30. `aircraft security search' means an inspection of the interior

and accessible exterior of the aircraft in order to detect

prohibited articles and unlawful interferences with the The Member States shall inform the Commission of these

aircraft; measures.

31. `in-flight security officer' means a person who is employed

by a State to travel on an aircraft of an air carrier licensed 4. Member States shall ensure the application in their terri-

by it with the purpose of protecting that aircraft and its tory of the common basic standards referred to in paragraph 1.

occupants against acts of unlawful interference. Where a Member State has reason to believe that the level of

aviation security has been compromised through a security

breach, it shall ensure that appropriate and prompt action is

taken to rectify that breach and ensure the continuing security

Article 4 of civil aviation.

Common basic standards

Article 5

1. The common basic standards for safeguarding civil avia-

tion against acts of unlawful interference shall be as laid down

in the Annex. More stringent measures applied by Member States

2. Detailed measures for the implementation of the common 1. Member States may apply more stringent measures than

basic standards referred to in paragraph 1 shall be laid down in the common basic standards referred to in Article 4. In doing

accordance with the procedure referred to in Article 15(2). so, they shall act on the basis of a risk assessment and in

compliance with Community law. The measures shall be rele-

vant, objective, non-discriminatory and proportional to the risk

These measures shall, in particular, concern: that is being addressed.

27.3.2007 EN Official Journal of the European Union C 70E/25

2. Member States shall inform the Commission of such 2. The appropriate authority shall make available in writing

measures as soon as possible after their application. Upon on a `need to know' basis the appropriate parts of its national

reception of such information, the Commission shall transmit civil aviation security programme to operators and entities

this information to the other Member States. which it deems to have a legitimate interest.

3. Member States are not required to inform the Commission

if the measures concerned are limited to a given flight on a

specific date. Article 9

National quality control programme

Article 6

1. Every Member State shall draw up, apply and maintain a

Security measures required by third countries national quality control programme.

1. Without prejudice to any bilateral agreements to which

the Community is a party, a Member State shall inform the That programme shall enable the Member State to check the

Commission of security measures required by a third country if quality of civil aviation security in order to monitor compliance

they differ from the common basic standards referred to in both with this Regulation and with its national civil aviation

Article 4 in respect of flights from an airport in a Member State security programme.

to, or over, that third country.

2. The specifications for the national quality control

2. At the request of the Member State concerned or on its programme shall be adopted by amending this Regulation

own initiative, the Commission shall examine the application of through the addition of an annex in accordance with the regula-

any measures notified under paragraph 1 and may, in accord- tory procedure with scrutiny referred to in Article 15(3).

ance with the procedure referred to in Article 15(2), draw up an

appropriate response to the third country concerned.

On imperative grounds of urgency, the Commission may use

3. Paragraphs 1 and 2 shall not apply if: the urgency procedure referred to in Article 15(4).

(a) the Member State concerned applies the measures The programme shall allow for the swift detection and correc-

concerned in accordance with Article 5; or tion of deficiencies. It shall also provide that all airports, opera-

tors and entities responsible for the implementation of aviation

(b) the requirement of the third country is limited to a given security standards that are located in the territory of the

flight on a specific date. Member State concerned shall be regularly monitored directly

by, or under the supervision of, the appropriate authority.

Article 7

Appropriate authority Article 10

Where, within a single Member State, two or more bodies are Airport security programme

involved in civil aviation security, that Member State shall desig-

nate a single authority (hereinafter referred to as the appropriate

authority) to be responsible for the coordination and moni- 1. Every airport operator shall draw up, apply and maintain

toring of the implementation of the common basic standards an airport security programme.

referred to in Article 4.

That programme shall describe the methods and procedures

which are to be followed by the airport operator in order to

Article 8 comply both with this Regulation and with the national civil

aviation security programme of the Member State in which the

airport is located.

National civil aviation security programme

1. Every Member State shall draw up, apply and maintain a The programme shall include internal quality control provisions

national civil aviation security programme. describing how compliance with these methods and procedures

is monitored by the airport operator.

That programme shall define responsibilities for the implemen-

tation of the common basic standards referred to in Article 4 2. The airport security programme shall be submitted to the

and shall describe the measures required by operators and enti- appropriate authority, which may take further action if appro-

ties for this purpose. priate.

C 70E/26 EN Official Journal of the European Union 27.3.2007

Article 11 inspections, including inspections of airports, operators and

entities applying aviation security standards, in order to monitor

Air carrier security programme the application by Member States of this Regulation and, as

appropriate, to make recommendations to improve aviation

security. For this purpose, the appropriate authority shall inform

1. Every air carrier shall draw up, apply and maintain an air

carrier security programme. the Commission in writing of all airports in its territory serving

civil aviation other than those covered by Article 4(3).

That programme shall describe the methods and procedures

which are to be followed by the air carrier in order to comply The procedures for conducting Commission inspections shall be

both with this Regulation and with the national civil aviation adopted in accordance with the procedure referred to in

security programme of the Member State from which it provides Article 15(2).

services.

2. Commission inspections of airports, operators and entities

The programme shall include internal quality control provisions applying aviation security standards shall be unannounced. The

describing how compliance with these methods and procedures Commission shall in good time before an inspection inform the

is monitored by the air carrier. Member State concerned thereof.

2. Upon request, the air carrier security programme shall be

submitted to the appropriate authority, which may take further 3. Each Commission inspection report shall be communi-

action if appropriate. cated to the appropriate authority of the Member State

concerned, which shall, in its answer, set out the measures taken

to remedy any identified deficiencies.

3. Where a Community air carrier security programme has

been validated by the appropriate authority of the Member State

granting the operating licence, the air carrier shall be recognised The report, together with the answer of the appropriate

by all other Member States as having fulfilled the requirements authority, shall subsequently be communicated to the appro-

of paragraph 1. This is without prejudice to a Member State's priate authority of the other Member States.

right to request from any air carrier details of its implementa-

tion of:

(a) the security measures applied by that Member State under Article 14

Article 5; and/or

(b) local procedures that are applicable at the airports served. Dissemination of information

Article 12 The following documents shall be regarded as `EU classified

documents' for the purposes of Decision 2001/844/EC, ECSC,

Euratom, and shall not be placed in the public domain:

Entity security programme

(a) measures and procedures as referred to in Articles 4(2), 4

1. Every entity required under a national civil aviation (3), 5(1) and 6(1), if containing sensitive security informa-

security programme referred to in Article 8 to apply aviation tion;

security standards shall draw up, apply and maintain an entity

security programme. (b) Commission inspection reports and answers of the appro-

priate authorities, as referred to in Article 13(3).

That programme shall describe the methods and procedures

which are to be followed by the entity in order to comply with

the national civil aviation security programme of the Member

State in respect of its operations in that Member State. Article 15

The programme shall include internal quality control provisions Committee procedure

describing how compliance with these methods and procedures

is monitored by the entity. 1. The Commission shall be assisted by a Committee.

2. Upon request, the programme shall be submitted to the

appropriate authority of the Member State concerned, which 2. Where reference is made to this paragraph, Articles 5 and

may take further action if appropriate. 7 of Decision 1999/468/EC shall apply, having regard to the

provisions of Article 8 thereof.

Article 13 The period laid down in Article 5(6) of Decision 1999/468/EC

shall be set at one month.

Commission inspections

3. Where reference is made to this paragraph, Article 5a(1)

1. The Commission, acting in cooperation with the appro- to (4), and Article 7 of Decision 1999/468/EC shall apply,

priate authority of the Member State concerned, shall conduct having regard to the provisions of Article 8 thereof.

27.3.2007 EN Official Journal of the European Union C 70E/27

4. Where reference is made to this paragraph, Article 5a(1), Article 17

(2) and (6) and Article 7 of Decision 1999/468/EC shall apply,

having regard to the provisions of Article 8 thereof. Repeal

Regulation (EC) No 2320/2002 is hereby repealed.

Article 16 Article 18

Penalties Entry into force

This Regulation shall enter into force on the 20th day following

Member States shall lay down the rules on penalties applicable its publication in the Official Journal of the European Union.

to infringements of the provisions of this Regulation and shall

take all measures necessary to ensure that they are implemented. It shall apply from ... (*), with the exception of Articles 4(2),

The penalties provided for must be effective, proportionate and 4(3), 9(2), 13(1) and 15, which shall apply from the date of

dissuasive. entry into force of this Regulation.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

... ...

(*) Two years after the date of entry into force of this Regulation.

C 70E/28 EN Official Journal of the European Union 27.3.2007

ANNEX

COMMON BASIC STANDARDS (ARTICLE 4)

1. AIRPORT SECURITY

1.1. Airport planning requirements

1. When designing and constructing new airport facilities or altering existing airport facilities, requirements for the

implementation of the common basic standards set out in this Annex and its implementing acts shall be fully taken

into account.

2. At airports the following areas shall be established:

(a) landside;

(b) airside;

(d) critical parts of security restricted areas.

1.2. Access control

1. Access to airside shall be restricted in order to prevent unauthorised persons and vehicles from entering these areas.

2. Access to security restricted areas shall be controlled in order to ensure that no unauthorised persons and vehicles

enter these areas.

3. Persons and vehicles may be granted access to airside and security restricted areas only if they fulfil the required

security conditions.

4. Persons, including flight crew members, shall have successfully completed a background check before either a crew

identification card or an airport identification card authorising unescorted access to security restricted areas is issued

to them.

1.3. Screening of persons other than passengers and items carried

1. Persons other than passengers, together with items carried, shall be screened on a continuous random basis upon

entering security restricted areas in order to prevent prohibited articles from being introduced into these areas.

2. All persons other than passengers, together with items carried, shall be screened upon entering critical parts of

security restricted areas in order to prevent prohibited articles from being introduced into these parts.

1.4. Examination of vehicles

Vehicles entering a security restricted area shall be examined in order to prevent prohibited articles from being intro-

duced into these areas.

1.5. Surveillance, patrols and other physical controls

There shall be surveillance, patrols and other physical controls at airports and, where appropriate, in adjacent areas

with public access, in order to identify suspicious behaviour of persons, to identify vulnerabilities which could be

exploited to carry out an act of unlawful interference and to deter persons from committing such acts.

2. DEMARCATED AREAS OF AIRPORTS

Aircraft parked in demarcated areas of airports to which alternative measures referred to in Article 4(3) apply, shall

be separated from aircraft to which the common basic standards apply in full, in order to ensure that security stan-

dards applied to aircraft, passengers, baggage, cargo and mail of the latter are not compromised.

27.3.2007 EN Official Journal of the European Union C 70E/29

3. AIRCRAFT SECURITY

1. Before departure, an aircraft shall be subjected to an aircraft security check or aircraft security search in order to

ensure that no prohibited articles are present on board. An aircraft in transit may be subjected to other appropriate

measures.

2. Every aircraft shall be protected from unauthorised interference.

4. PASSENGERS AND CABIN BAGGAGE

4.1. Screening of passengers and cabin baggage

1. All originating, transfer and transit passengers and their cabin baggage shall be screened in order to prevent prohib-

ited articles from being introduced into security restricted areas and on board an aircraft.

2. Transfer passengers and their cabin baggage may be exempted from screening, if:

(a) they arrive from a Member State, unless the Commission or that Member State has provided information that

those passengers and their cabin baggage cannot be considered as having been screened to the common basic

standards; or

(b) they arrive from a third country where the security standards applied are recognised as equivalent to the

common basic standards in accordance with the procedure referred to in Article 15(2).

3. Transit passengers and their cabin baggage may be exempted from screening, if:

(a) they remain on board the aircraft; or

(b) they do not mix with screened departing passengers other than those who board the same aircraft; or

those passengers and their cabin baggage cannot be considered as having been screened to the common basic

standards; or

(d) they arrive from a third country where the security standards applied are recognised as equivalent to the

common basic standards in accordance with the procedure referred to in Article 15(2).

4.2. Protection of passengers and cabin baggage

1. Passengers and their cabin baggage shall be protected from unauthorised interference from the point at which they

are screened until departure of the aircraft on which they are carried.

2. Screened departing passengers shall not mix with arriving passengers, unless:

(a) the passengers arrive from a Member State, provided that the Commission or that Member State has not

provided information that those arriving passengers and their cabin baggage cannot be considered as having

been screened to the common basic standards; or

(b) the passengers arrive from a third country where the security standards applied are recognised as equivalent to

the common basic standards in accordance with the procedure referred to in Article 15(2).

4.3. Potentially disruptive passengers

Before departure potentially disruptive passengers shall be subjected to appropriate security measures.

5. HOLD BAGGAGE

5.1. Screening of hold baggage

1. All hold baggage shall be screened prior to being loaded onto an aircraft in order to prevent prohibited articles from

being introduced into security restricted areas and on board aircraft.

2. Transfer hold baggage may be exempted from screening, if:

(a) it arrives from a Member State, unless the Commission or that Member State has provided information that this

hold baggage cannot be considered as having been screened to the common basic standards; or

(b) it arrives from a third country where the security standards applied are recognised as equivalent to the common

basic standards in accordance with the procedure referred to in Article 15(2).

3. Transit hold baggage may be exempted from screening if it remains on board the aircraft.

C 70E/30 EN Official Journal of the European Union 27.3.2007

5.2. Protection of hold baggage

Hold baggage to be carried on an aircraft shall be protected from unauthorised interference from the point at which

it is screened or accepted into the care of the air carrier, whichever is earlier, until the departure of the aircraft on

which it is to be carried.

5.3. Baggage reconciliation

1. Each item of hold baggage shall be identified as accompanied or unaccompanied.

2. Unaccompanied hold baggage shall not be transported, unless that baggage has been either separated due to factors

beyond the passenger's control or subjected to additional security controls.

6. CARGO AND MAIL

6.1. Security controls for cargo and mail

1. All cargo and mail shall be subjected to security controls prior to being loaded on an aircraft. An air carrier shall not

accept cargo or mail for carriage on an aircraft unless it has applied such controls itself or their application has been

confirmed and accounted for by a regulated agent, a known consignor or an account consignor.

2. Transfer cargo and transfer mail may be subjected to alternative security controls to be detailed in an implementing

act.

3. Transit cargo and transit mail may be exempted from security controls if it remains on board the aircraft.

6.2. Protection of cargo and mail

1. Cargo and mail to be carried on an aircraft shall be protected from unauthorised interference from the point at

which security controls are applied until the departure of the aircraft on which it is to be carried.

2. Cargo and mail that are not adequately protected from unauthorised interference after security controls have been

applied shall be screened.

7. AIR CARRIER MAIL AND AIR CARRIER MATERIALS

Air carrier mail and air carrier materials shall be subjected to security controls and thereafter protected until loaded

onto the aircraft in order to prevent prohibited articles from being introduced on board an aircraft.

8. IN-FLIGHT SUPPLIES

In-flight supplies, including catering, intended for carriage or use on board an aircraft shall be subjected to security

controls and thereafter protected until loaded onto the aircraft in order to prevent prohibited articles from being

introduced on board an aircraft.

9. AIRPORT SUPPLIES

Supplies intended to be sold or used in security restricted areas of airports, including supplies for duty-free shops

and restaurants, shall be subjected to security controls in order to prevent prohibited articles from being introduced

into these areas.

10. IN-FLIGHT SECURITY MEASURES

1. Without prejudice to the applicable aviation safety rules:

(a) unauthorised persons shall be prevented from entering the flight crew compartment during a flight;

(b) potentially disruptive passengers shall be subjected to appropriate security measures during a flight.

2. Appropriate security measures such as training of flight crew and cabin staff shall be taken to prevent acts of

unlawful interference during a flight.

3. Weapons shall not be carried in the cabin or the flight crew compartment of an aircraft, unless authorisation has

been given by the States involved in accordance with their respective national laws.

4. Paragraph 3 shall also apply to in-flight security officers if they carry weapons.

27.3.2007 EN Official Journal of the European Union C 70E/31

11. STAFF RECRUITMENT AND TRAINING

1. Persons implementing, or responsible for implementing, screening, access control or other security controls shall be

recruited, trained and, where appropriate, certified so as to ensure that they are suitable for employment and compe-

tent to undertake the duties to which they are assigned.

2. Persons other than passengers requiring access to security restricted areas shall receive security training, before either

an airport identification card or crew identification card is issued.

3. Training as mentioned in paragraphs 1 and 2 shall be conducted on initial and recurrent basis.

4. Instructors engaged in the training of the persons mentioned in paragraphs 1 and 2 shall have the necessary qualifi-

cations.

12. SECURITY EQUIPMENT

Equipment used for screening, access control and other security controls shall be capable of performing the security

controls concerned.

C 70E/32 EN Official Journal of the European Union 27.3.2007

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In September 2005 the Commission tabled a proposal for a Council Regulation replacing Regulation

(EC) No 2320/2002 of the European Parliament and of the Council establishing common rules in the

field of civil aviation security (1). That Regulation, which had been drafted and adopted in response to

the terrorist attacks of 11 September 2001 in the United States, has been in force since January 2003.

The replacement of Regulation (EC) No 2320/2002 with a new text is considered necessary because its

application has given rise to a number of implementation problems.

On 15 June 2006, the European Parliament adopted its opinion at first reading,

containing 85 amendments.

The Council seriously examined the possibility of reaching an agreement with the European Parliament

at first reading on the text of the draft Regulation. During informal contacts with representatives of the

European Parliament, it appeared however that the issue of financing the security measures would need

to be studied more carefully in order to arrive at a text that would be acceptable to all parties. The

Council therefore decided to adopt a common position, taking account as much as possible of the

amendments by the European Parliament at first reading, and to seek an agreement with the European

Parliament at a later stage.

Following revision of the entire text by legal-linguistic experts, the Council adopted its common position

on 11 December 2006. In adopting this position, the Council took good note of the opinion of the

European Parliament at first reading, accepting 46 amendments.

The Council took also note of the opinion of the Economic and Social Committee.

II. ANALYSIS OF THE COMMON POSITION

The Council was able to agree on the main lines of the Commission proposal. On some points,

however, the Council decided to modify the text, generally in order to make it clearer, simpler and easier

to understand.

The most significant changes made by the Council to the Commission's proposal were in the two areas

identified below:

Firstly, with respect to comitology, the Council took into account the new rules which were adopted by

the Council in July 2006 (2). The new regulatory procedure with scrutiny introduced by these new rules,

which gives greater powers to the European Parliament, is foreseen in Articles 4(3) and 9(2) of the draft

Regulation. Article 4(3) relates to the criteria under which Member States may derogate from the general

standards for small airports or small aircrafts. Article 9(2) specifies the standards applicable to Member

States' national quality control programmes.

Secondly, Article 5(2) allows Member States to apply stricter national measures than those contained in

the Regulation. Given the issues at stake, the gravity of the various security threats and the fast-changing

circumstances surrounding these threats, the Council took the view that Member States should have a

sufficient margin of manoeuvre to impose any additional or special measures they judge necessary. Such

measures should not, in the opinion of the Council, require special justification at Community level.

With regard to the amendments proposed by the European Parliament, the Council was able to accept,

entirely or partially, the following 46 amendments:

2, 4, 5, 7, 8, 11, 12, 15, 17, 18, 20, 21, 23-30, 33, 34, 37, 40, 45-49, 51, 53-58, 65-68, 73, 77-79,

82 and 84.

However, the Council was unable to accept a number of other amendments. Chief among these are

amendments 3, 35, 43 and 44 on the financing of security arrangements under the Regulation. The

Council holds that it is inappropriate for a technical regulation such as the one at hand to contain

requirements or obligations on financing. The principle of subsidiarity dictates that such questions be

addressed at national level.

(1) OJ L 355, 30.12.2002, p. 1. Regulation as amended by Regulation (EC) No 849/2004 (OJ L 158, 30.4.2004, p. 1).

(2) OJ L 200, 22.7.2006, p. 11.

27.3.2007 EN Official Journal of the European Union C 70E/33

A number of other amendments were not accepted, or were partially not accepted, because they

extended the scope of the Regulation beyond the security objectives which it is designed to meet. This is

the case notably for amendments 6, 9, 19, 36, 45, 57, 80 and 85. Amendments 1, 10, 13, 14, 16, 18,

22, 31, 32, 33, 50, 52, 60, 63, 72 and 74 were not accepted, wholly or partially, on the grounds that

they contradicted other parts of the draft Regulation, did not add any substantive meaning to the text or

were not in line with accepted terminology on aviation security. Lastly, amendments 20, 21, 38, 39, 41,

42, 59, 61, 62, 64, 69, 70, 71, 75, 76 and 83 were not accepted, wholly or partially, as the Council is

of the opinion that they either contain too great a level of detail for a Regulation of this type or are

incompatible with the Community's institutional arrangements or contain provisions which would prove

impractical to implement, either by Member States or the economic operators concerned.

III. CONCLUSION

The Council submits that the text of its common position is appropriate and balanced. The Council is of

the opinion that the common position reflects the aims behind the majority of the Parliament's amend-

ments.

The Council would like to underline the great effort which has gone into securing early agreement on

this Regulation and trusts that the common position will allow for early adoption of the legislation in

due course.