MEMO/09/162

Brussels, 08 April 2009

Questions and answers on the list of air carriers subject to an operating ban in the EU (the "black list")

1 How is the European Community blacklist updated?

All Member States and the European Aviation Safety Agency (EASA) have the obligation to communicate to the Commission all information which may be relevant to updating the list. This may include reports showing serious safety deficiencies of an air carrier (such as reports of Safety Assessment of Foreign Aircraft inspections performed at airports within the European Community), operating bans imposed by third countries, audit reports drawn up by the International Civil Aviation Organisation (ICAO) following safety inspections (in the framework of the Universal safety Oversight Audit Programme) of the civil aviation authorities of the 189 Contracting parties to the Chicago Convention, as well as accident-related information or other serious incident-related information.

For the purpose of updating the list, the Commission is assisted by the Air Safety Committee composed by technical air safety experts from all the EU Member States (plus Iceland, Norway and Switzerland which, however, have no voting rights) and chaired by the Commission (the Commission does not have any voting rights). Acting on a proposal by the Commission, the Air Safety Committee adopts its opinion by qualified majority, which is then submitted to the European Parliament before final adoption by the Commission and subsequent publication in the Official Journal.

The decision to include or remove a carrier (or a group of carriers certified in the same State) is taken on the basis of the common safety criteria annexed to the "Basic Regulation" (Regulation 2111/2005/EC establishing a Community list of banned carriers). These criteria take into consideration, for instance, the existence of safety deficiencies on the part of an air carrier, or the lack of ability (or willingness) by an air carrier or authorities responsible for its oversight to address safety deficiencies, operating bans imposed by third countries, audit reports drawn up by third countries or international organisations (ICAO) and substantiated accident related information. All criteria are based on international aviation safety standards.

2 To whom does it apply?

The rules establishing the Community list of banned carriers apply to all air carriers irrespective of their nationality – EU and non-EU ones. The rules apply only to commercial air transport, that is to air transport of passengers and cargo for remuneration or hire. The rules do not apply to private and non-commercial flights.

European air carriers are vetted against EU safety rules, which comply with international rules but follow stricter procedures and sanctions. Non-EU air carriers are vetted against internationally binding safety standards established by the 1944 Chicago Convention and its annexes. The International Civil Aviation Organisation (ICAO) was established by this Convention.

3 How often is the list updated and what is the timeframe for this? Is there not a risk that it will quickly become obsolete?

In accordance with "the Basic Regulation", the Community "blacklist" may be updated whenever the Commission deems that it is necessary, or upon request of an EU Member State. In any case however, at least every three months, the Commission verifies whether it is appropriate to update the list. Of course, every decision to impose a ban must be the result of a careful assessment and including a suitable right of defence for all carriers under investigation. However, this can be done very quickly in urgent cases where an immediate threat to air safety is detected.

4 How can an airline be cleared and taken off the list?

If an airline considers that it should be taken off the list because it complies with the relevant safety standards, it can address a request to the Commission or a Member State, either directly or through its civil aviation authority. Only the Commission or a Member State may ask for the list to be updated. The Air Safety Committee will then assess the evidence presented by the airline and/or its oversight authority to substantiate its request for being withdrawn from the EC "blacklist" and formulate its opinion to the Commission.

5 How is an airline added to the list?

The procedure is the same as that for updating the list. If the Commission or a Member State acquires evidence indicating serious safety deficiencies on the part of an airline or its oversight authority anywhere in the world, they ask for the list to be revised immediately. Indeed, in such cases Member States have the obligation to ask for the update of the "blacklist". A decision is then taken in the light of the common safety criteria for banning established by the "Basic Regulation".

Where the Commission is of the opinion that the continuation of operations into the Community of an air carrier is likely to constitute a serious risk to safety and that such risk has not been resolved satisfactorily at national level (by measures taken by the civil aviation authority of a Member State) it can take provisional measures, whereby the carrier is banned from entering the European air space. These measures are then presented to the Air Safety Committee for confirmation or modification.

6 What do the common safety criteria cover?

These objective and transparent criteria were drawn up during the adoption process of the "Basic Regulation" on the basis of work undertaken by the Air Safety Committee of experts, taking into account the long and rich experience of Member States in this field. They focus mainly on the safety related information available in the Member States and in the Commission and the European Aviation Safety Agency. The criteria reflect measurable and verifiable documented evidence of:

• results of aircraft ramp checks carried out in European airports
• the use of poorly maintained, antiquated or obsolete aircraft
• the inability of the airlines involved to rectify the shortcomings identified during the inspections (evidenced by a repetition of the same deficiencies over a period of time) and the inability of the authority responsible for overseeing the airline to perform this task and to ensure that the international safety standards are at all times respected.

The Commission takes a decision to impose a complete or partial ban on an airline only after it has analysed these different factors on a case-by-case basis, and after having given the airline in question the right to explain its position, and after having held detailed consultations with the oversight authority of the airline concerned and with the Air Safety Committee of experts.

7 Does the inclusion of an airline in the EC "blacklist" always mean that it is no longer allowed to fly in Europe?

YES. As long as the air carrier is subject to a total ban, it cannot operate with its aircraft and personnel in the EC. The airline is placed on Annex A to the regulation whereby the "blacklist" is updated. Equally, as long as an air carrier is subject to a partial ban it can operate only with the aircraft stipulated in the Regulation and cannot expand its network. The airline is placed on Annex B to the regulation whereby the "blacklist" is updated.

Nevertheless, banned airlines can still fly their aircraft into the Community for maintenance (notably to resolve safety deficiencies in this area) without carrying any passengers or payload – the so-called "ferry flights". Also, banned airlines can use other airlines (their aircraft and personnel) on the basis of contracts called "wet-lease agreements". In this way, passengers and cargo can still be transported but only by airlines which fully comply with the safety rules. Furthermore, aircraft which are used for government or state purposes (e.g. transport of the heads of state and/or government), escape the requirements of ICAO. Therefore, these aircraft are considered to be operating "state flights" and can therefore fly into the EC even if they are banned from operating commercial flights. Such flights need however a special authorisation as foreseen by ICAO, from all the Member States that the plane flies over as well as from the state of destination.

Finally, banned airlines cannot enter the airspace of any Member State and fly over their territory while they are banned (totally or partially).

8 Does the list prevent EU Member States from taking individual safety measures at a national level?

NO. The general principle is that whatever measure is considered at national level must be also examined at Community level. When an air carrier is considered unsafe and therefore banned in one Member State, there is an obligation to examine this measure at EU level with a view to applying it throughout the European Union. Nevertheless, even where a ban is not extended to the EU, there is scope for Member States to continue to act at national level in certain exceptional cases, particularly in emergencies or in response to a safety issue specifically affecting them.

9 What are airlines’ “rights of defence”?

Airlines which have been banned, or which are being investigated in view of a potential ban, have the right to express their points of view, submit any documents which they consider appropriate for their defence, and make oral and written presentations to the Air Safety Committee and the Commission. This means that they can submit comments in writing, add new items to their file, and ask to be heard by the Commission or to attend a hearing before the Aviation Safety Committee, which then formulates its opinion based on these proceedings and the materials submitted prior to or during the hearing. The rules foresee that carriers and authorities are given a deadline within which they have to respond.

10 Is there not a risk of retaliation by affected countries?

The Commission's sole aim is to improve aviation safety, which is in everyone’s interest, and in no way to affect a country’s economic or social development. Countries affected can put in place technical assistance measures to help airlines achieve a satisfactory level of aviation safety. Moreover, the Commission is always ready to explore any possible way of cooperating with countries which show a genuine intention of addressing their shortcomings with regard to aviation safety.

11 How is the public informed about the EC "blacklist" of unsafe airlines?

The latest version of the list is made available to the public online at http://ec.europa.eu/transport/air-ban/flywell_en.htm. The Commission also liaises closely with European and international travel agent associations each time that any changes are made to the list in order that they may be in the best possible position to aid their clients – the passengers – in making informed decisions when making their travel arrangements. Moreover, the "blacklist" regulation also obliges national civil aviation authorities, EASA and airports in the territory of the Member States to bring the EC "blacklist" to the attention of passengers, both via their websites and, where relevant, in their premises.

12 In what way does publishing the list help European citizens travelling beyond EC territory?

Publishing the list provides useful information to people wishing to travel outside the European Community - where the EC flight ban does not apply - in order for them to avoid travelling with these airlines. The list also safeguards the rights of consumers who have bought a trip at a travel agent which includes a flight operated by an airline on the EC "blacklist".

The "blacklist" regulation also establishes passengers' right to know the identity of every airline they fly with throughout their trip. To this effect, the contracting carrier is required to inform passengers of the identity of the operating air carrier or carriers when making a reservation, whatever the means used to make the booking. The passenger must also be kept informed of any change of operating carrier, either at check-in or, at the latest, when boarding. The Regulation also gives passengers the right to reimbursement or re-routing if a carrier with which a booking has been made is subsequently added to the blacklist, resulting in cancellation of the flight concerned.