1. Institutional changes The role of Bilateral Oversight Boards
Claude Probst
European Aviation Safety Agency

2. Presentation I. The principles
II. The bilateral aviation safety agreement
III. The implementation procedures
VI. Industry involvement

3. The principles
In a domain where Community competence has been established, Member States may no more act individually, particularly vis-à-vis third countries.
Existing agreements are not affected and may continue to be implemented. Member States shall however modify/renounce them if they are contrary to their Community obligations.
The Community has legal personality and may conclude international agreements to supersede existing agreements.

4. The principles
The EC Treaty provides for the delegation of executive powers to the Commission, which can adopt secondary law.
There is no precedent of agreements concluded by the Community delegating powers to the Commission for concluding implementation procedures.
The Commission can however be given the power to adapt/update such procedures.

5. The principles
An Agency may also be given the power to implement Community law as a technical executive agent.
EASA can issue certification specifications and certification procedures to clarify how it will issue its certificates.
The agency may also conclude working arrangements with its partners.

6. Bilateral Aviation Safety Agreements
Bilateral aviation safety agreements have for objective to facilitate certification by making use of the certification capabilities of a partner recognised fit and able.
Conclusion of such agreements suppose sufficient equivalence of rules and procedures, but not full harmonisation.
They are based on the principle of reciprocal acceptance of certification findings or certificates, depending on the level of trust between the parties.

7. Bilateral Aviation Safety Agreements
The Commission negotiates on the basis of an authorisation granted by the Council which specifies its negotiating directives.
When negotiations are concluded, the finalisation of the agreement requires formal approval, on the basis of a European Parliament and Council act, whose legal basis depends on the content of the agreement and its impact on Community law.

8. Bilateral Aviation Safety Agreements
As the Commission may not conclude itself agreements that commit the Community, the current format of the Bilateral Aviation Safety Agreements is not appropriate.
All implementation procedures shall be part of the agreement itself and be concluded by the Community.

9. Bilateral Aviation Safety Agreements
The agreement shall contain two main parts:
the core agreement itself including general provisions and
a set of annexes covering the implementation procedures.
Entry into force of the provisions of the agreement is linked to appropriate reciprocal confidence building

10. Bilateral Aviation Safety Agreements
the core agreement :
describes the scope,
defines the obligations of the parties,
appoints the executive agents,
establishes safeguard measures,
clarifies various administrative issues (applicable fees, territorial applicability, third parties involvement, protection of data….),
sets entry into force, dispute management and termination provisions and
creates a joint oversight board.

11. Bilateral Aviation Safety Agreements
The joint committee or bilateral oversight board is composed of representatives of the parties. It is given executive powers for the implementation of the agreement.
It is the forum in which both parties may discuss:
subjects of common interest for the good functioning of the agreement,
regulatory co-operation, including participation in each other rule making processes,
broad policy issues,
possible common positions in international organisations.

12. Bilateral Aviation Safety Agreements
The bilateral oversight board may in particular:
oversee smooth implementation,
address any issue related to such implementation,
discuss and solve possible dispute,
handle safeguards provisions,
amend annexes (implementation procedures) and
propose amendments to the agreement (including new annexes)

13. Bilateral Aviation Safety Agreements
The Commission is the representative of the Community in the bilateral oversight board. It is assisted by the Agency.
When the bilateral oversight board takes decisions affecting the Community, the Commission shall act in accordance with a mandate. Such mandate is agreed with a Committee of Member States assisting the Commission. This provides for their involvement in the functioning of the agreement.

14. Implementation procedures
For each domain the implementation procedures:
describe the scope of findings or certificates subject to reciprocal acceptance,
nominate the accepted competent authorities,
set, as appropriate, a confidence building process,
specify the applicable requirements, in particular how the importing party will notify its certification requirements to the exporting one,
clarify how the findings shall be made and how they will be accepted, including possible safeguards,
creates a joint sectoral oversight board.

15. Implementation procedures
The sectoral oversight board is composed of the technical agents of the parties. It is given executive powers for the implementation of the procedure.
It is the place where technical agents in charge with daily certification tasks :
discuss individual projects,
try to solve differences at the most appropriate level and
identify candidate requirements or procedures for harmonisation.

16. Implementation procedures
The sectoral oversight board may in particular:
oversee day-to-day implementation,
keep list of applicable requirements update,
address any issue and possible dispute,
develop implementation measures, such as the TVP or standard management plans,
adopt individual management plans for individual project,
manage confidence building and keep list of accepted competent authorities update,
propose amendments to the procedure

17. Implementation procedures
The Agency is the representative of the Community in the sectoral oversight board. The main player is the Certification directorate, but other operational directorates are also involved.
Other persons may be invited as appropriate.
This may include National Aviation Authorities, inasmuch as they are competent authorities for the execution of the related implementation procedure

18. Industry involvement
Direct industry involvement is not possible in such a bilateral structure, which only includes executive agents exercising their delegated powers.
New mechanisms to allow industry consultation and seek its comments have to be established. They should allow:
either party to know its industry views and
both parties to jointly interact with those affected by the functioning of the agreement.

19. Industry involvement
On its side the Agency intends to establish a co-ordination process with the industry. Preliminary contacts have already been established with the industry to seek their opinion on priorities for concluding agreements or arrangements with third countries, as well as their possible scope and content. Formalisation is envisaged.
The annual industry meeting could also be a forum where the Agency receives feed back on international developments.

20. Industry involvement
On a bilateral basis, nothing is envisaged yet. The establishment of several consultation forum for each agreement and their related implementation procedures, is a heavy undertaking that the executive agents or the industry can probably not bear.
Making use of the annual International Conference would be an option to provide bilateral partners with a forum where they receive guidance and feed back on the functioning of their bilateral agreements or arrangements.

21. Industry involvement
In both cases, efficiency suggest that industry organises itself to initiate and maintain a structured dialogue with the bilateral partners.
To limit the frequency of meetings and their number, a process similar to that established within the framework of the Transatlantic Business Dialogue and the Transatlantic Economic Partnership between the EU and the US could be envisaged. Link with such processes could also provide for the politic support that is missing in previous arrangements.

22. Industry involvement
With the current trend towards global economy and pending the time appropriate multilateral structures are put in place, bilateral and pluri-lateral approaches will develop.
Industry involvement is wished and welcome. This however requires that new mechanisms are established and that industry organises itself to accompany such evolutions.
Comments and ideas are welcome!