Commission Regulation (EU) No 452/2014 of 29 April 2014 laying down technical requirements and administrative procedures related to air operations of third country operators pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council Text with EEA relevance

Article 1

Subject matter and scope

This Regulation lays down detailed rules for third country operators of aircraft referred to in Article 2(1), point (c), of Regulation (EU) 2018/1139 of the European Parliament and of the Council (¹) who are engaged in commercial air transport operations into, within or out of the territory subject to the provisions of the Treaties, including conditions for issuing, maintaining, amending, limiting, suspending or revoking their authorisations, the privileges and responsibilities of the holders of authorisations as well as conditions under which operations shall be prohibited, limited or subject to certain conditions in the interest of safety.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘flight’ means a departure from a specified aerodrome towards a specified destination aerodrome;

(2) ‘third country operator’ means any operator in respect of which the functions and duties of the State of the operator are not carried out by a Member State or the Agency.

Article 3

Authorisations

Third country operators shall only engage in commercial air transport operations into, within, or out of the territory subject to the provisions of the Treaties if they comply with the requirements of Annex 1 and hold an authorisation issued by the Agency in accordance with Annex 2 to this Regulation.

Article 4

Entry into force

It shall apply from the 20th day following that of its publication in the Official Journal of the European Union.

After the date the Agency has taken a decision for the relevant third country operator, or after a maximum period of 30 months after entry into force of this Regulation, whichever comes sooner, the Member State shall no longer perform a safety assessment of that third country operator in accordance with their national law when issuing operating permits.

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

ANNEX 1

SECTION I

General requirements

TCO.100   Scope

This Annex (‘Part-TCO’) establishes requirements to be followed by a third country operator engaged in commercial air transport operations into, within or out of the territory subject to the provisions of the Treaties.

TCO.115   Access

(a)The third country operator shall ensure that any person authorised by the Agency or the Member State in whose territory one of its aircraft has landed will be permitted to board such aircraft, at any time, with or without prior notice to:

(1) inspect the documents and manuals to be carried on board and to perform inspections to ensure compliance with Part-TCO; or

(2) carry out a ramp inspection as referred to in Annex II to Commission Regulation (EU) No 965/2012 (²).

(b)The third country operator shall ensure that any person authorised by the Agency is granted access to any of its facilities or documents related to its activities, including any subcontracted activities, to determine compliance with Part-TCO.

SECTION II

Air operations

TCO.200   General requirements

(a)The third country operator shall comply with:

(1) the applicable standards contained in the Annexes to the Convention on International Civil Aviation, in particular Annexes 1 (Personnel licensing), 2 (Rules of the Air), 6 (Operation of Aircraft), as applicable, 8 (Airworthiness of Aircraft), 18 (Dangerous Goods), and 19 (Safety Management);

(2) the applicable safety directives issued by the Agency in accordance with Article 76(6) of Regulation (EU) 2018/1139;

(3) the relevant requirements of Part-TCO; and

(4) the applicable requirements of Regulation (EU) No 923/2012 (³).

(b)The third country operator shall ensure that an aircraft operated into, within or out of the territory subject to the provisions of the Treaties is operated in accordance with:

(1) its air operator certificate (AOC) and associated operations specifications in accordance with ICAO Annex 6; and

(2) the TCO authorisation issued in accordance with this Regulation and the scope and privileges contained therein.

(c)The third country operator shall ensure that an aircraft operated into, within or out of the territory subject to the provisions of the Treaties has a certificate of airworthiness (CofA) issued or validated in accordance with ICAO Annex 8 by:

(1) the State of registry; or

(2) the State of the third country operator, provided that the State of the third country operator and the State of registry have entered into an agreement under Article 83bis of the Convention on International Civil Aviation that transfers the responsibility for the issue of the CofA.

(d)The third country operator shall, upon request, provide the Agency with any information relevant for verifying compliance with Part-TCO.

(e)Without prejudice to Regulation (EU) No 996/2010 of the European Parliament and of the Council (⁴), the third country operator shall without undue delay report to the Agency any accident as defined in ICAO Annex 13, involving aircraft used under its AOC, including those aircraft that are not intended to be flown into, within or out of the territory subject to the provisions of the Treaties.

TCO.205   Navigation, communication and surveillance equipment

When undertaking operations within the airspace above the territory to which the Treaties apply the third country operator shall equip its aircraft with and operate such navigation, communication and surveillance equipment as required in that airspace.

TCO.210   Documents, manuals and records to be carried

The third country operator shall ensure that all documents, manuals and records that are required to be carried on board are valid and-up-to-date.

TCO.215   Production of documentation, manuals and records

Upon request by a person authorised by the Agency or the competent authority of the Member State where the aircraft operated by a third country operator has landed, the pilot-in-command of that aircraft shall, without undue delay, present any documentation, manuals or records required to be carried on board.

SECTION III

Authorisation of third country operators

TCO.300   Application for an authorisation

(a)Prior to engaging in commercial air transport operations under Part-TCO the third country operator shall apply for and obtain an authorisation issued by the Agency.

(b)An application for an authorisation shall be:

(1) submitted at least 30 days before the intended starting date of operation; and

(2) made in a form and manner established by the Agency.

(c)Without prejudice to applicable bilateral agreements, the applicant shall provide the Agency with any information needed to assess whether the intended operation will be conducted in accordance with the applicable requirements of TCO.200(a). Such information shall include:

(1) the duly completed application;

(2) the official name, business name, address, and mailing address of the applicant;

(3) a copy of the applicant's AOC and associated operations specifications, or equivalent document, that attests the capability of the holder to conduct the intended operations, issued by the State of the operator;

(4) the applicant's current certificate of incorporation or business registration or similar document issued by the Registrar of Companies in the country of the principal place of business;

(5) the proposed start date, type and geographic areas of operation.

(d)When necessary, the Agency may request any other additional relevant documentation, manuals, or specific approvals issued or approved by the State of the operator or State of registry.

(e)For those aircraft not registered in the State of the operator the Agency may request:

(1) details of the lease agreement for each aircraft so operated; and

(2) if applicable, a copy of the agreement between the State of the operator and the State of registry pursuant to Article 83bis of the Convention on International Civil Aviation that covers the aircraft.

TCO.305   One-off notification flights

(a) By way of derogation from point TCO.300(a), the third country operator may carry out the following flights into, within or out of the territory subject to the provisions of the Treaties without first obtaining an authorisation: (1) flights that are performed in the public interest, to address an urgent need, such as humanitarian missions and disaster relief operations; (2) air ambulance flights that are performed to move sick or injured patients between healthcare facilities or deliver patient medical care.

(b) The provisions of point (a) shall only apply if the third country operator: (1) notified the Agency prior to the intended date of the first flight in a form and manner established by the Agency; (2) is not subject to an operating ban pursuant to Regulation (EC) No 2111/2005; (3) is not subject to a suspension or revocation pursuant to point ART.235 of Annex 2; (4) has not been subject to rejection of an application for TCO authorisation pursuant to point ART.200(e)(1) of Annex 2; and (5) applies for an authorisation pursuant to point TCO.300 within 14 days after the date of notification to the Agency pursuant to point (b)(1) above.

(c) The flight(s) specified in the notification prescribed in point (a) may be performed for the period requested by the third country operator, but no longer than for a maximum of 12 consecutive weeks after the date of notification or until the Agency has taken a decision on the application in accordance with point ART.200 of Part-ART, whichever comes sooner.

(d) A notification may be filed only once every 24 months by the third country operator.

TCO.310   Privileges of an authorisation holder

The privileges of the operator shall be listed in the specifications to the authorisation and not exceed the privileges granted by the State of the operator.

TCO.315   Changes

(a) Any change, other than those agreed under point ART.210(c) of Annex 2, affecting the terms of an authorisation shall require prior approval by the Agency.

(b) The third country operator shall submit the application for prior approval by the Agency at least 30 days before the date of implementation of the intended change. The third country operator shall provide the Agency with the information referred to in point TCO.300, restricted to the extent of the change. After submission of an application for a change, the third country operator shall operate under the conditions prescribed by the Agency pursuant to point ART.225(b) of Annex 2.

(c) All changes not requiring prior approval, as agreed in accordance with point ART.210(c) of Annex 2, shall be notified to the Agency before the change takes place.

TCO.320   Continued validity

(a)The authorisation shall remain valid subject to:

(1) the third country operator remaining in compliance with the relevant requirements of Part-TCO. The provisions related to the handling of findings, as specified under TCO.325, shall also be taken into account;

(2) the validity of the AOC or equivalent document issued by the State of the operator and the related operations specifications, if applicable;

(3) the Agency being granted access to the third country operator as specified in TCO.115;

(4) the third country operator not being subject to an operating ban pursuant to Regulation (EC) No 2111/2005;

(5) the authorisation not being surrendered, suspended or revoked;

(6) the third country operator being able to substantiate, upon request by the Agency, its intention to continue to conduct operations under its TCO authorisation;

(7) the third country operator operating at least one aircraft under its TCO authorisation.

(b)If the authorisation has become invalid, the third country operator shall obtain a new authorisation from the Agency, prior to recommencing operations into, within or out of the territory subject to the provisions of the Treaties. The third country operator shall apply for the new authorisation in a form and manner established by the Agency and shall provide any document necessary to determine that the reasons for the authorisation to become invalid are no longer present, and that the third country operator complies with the requirements to obtain the authorisation under Part-TCO.

TCO.325   Findings

After receipt of a notification of findings pursuant to ART.230 raised by the Agency, the third country operator shall:

(a) identify the root cause of the non-compliance;

(b) establish a corrective action plan to address the root cause of the non-compliance within an acceptable time frame and submit it to the Agency;

(c) demonstrate corrective action implementation to the satisfaction of the Agency within the period agreed with the Agency as defined in ART.230(e)(1).

ANNEX 2

SECTION I

General

ART.100   Scope

This Annex (‘Part-ART’) establishes administrative requirements to be followed by Member States and the Agency, specifically regarding:

(a) the issuance, maintenance, change, limitation, suspension or revocation of authorisations of third country operators engaging in commercial air transport operations; and

(b) the monitoring of these operators.

ART.110   Exchange of information

(a)The Agency shall inform the Commission and the Member States when it:

(1) rejects an application for an authorisation;

(2) imposes a limitation due to safety concerns, suspends or revokes an authorisation.

(b)The Agency shall inform the Member States about the notifications it has received in accordance with point TCO.305 of Annex 1 without any undue delay.

(c)The Agency shall regularly make available to the Member States an updated list containing the authorisations it has issued, limited, changed, suspended or revoked.

(d)Member States shall inform the Agency when they intend to take a measure pursuant to Article 6(1) of Regulation (EC) No 2111/2005.

ART.115   Record-keeping

(a)The Agency shall establish a system of record-keeping providing for adequate storage, accessibility and reliable traceability of:

(1) training, qualification and authorisation of its personnel;

(2) third country operator authorisations issued or notifications received;

(3) authorisation processes and continuing monitoring of authorised third country operators;

(4) findings, agreed corrective actions and date of action closure;

(5) enforcement measures taken, including fines requested by the Agency in accordance with Regulation (EU) 2018/1139;

(6) the implementation of corrective actions mandated by the Agency in accordance with Article 76(6) of Regulation (EU) 2018/1139; and

(7) the use of flexibility provisions in accordance with Article 71 of Regulation (EU) 2018/1139.

(b)All records shall be kept for a minimum period of 5 years, subject to applicable data protection law.

SECTION II

Authorisation, monitoring and enforcement

ART.200   Initial evaluation procedure — general

(a)Upon receiving an application for an authorisation in accordance with TCO.300, the Agency shall assess the third country operator's compliance with applicable requirements in Part-TCO.

(b)The Agency shall complete the initial assessment within 30 days after receipt of all required documents pursuant to point TCO.300 (c) and (d) of Annex 1.

When the initial assessment requires a further assessment or an audit, the assessment period shall be extended for the duration of the further assessment or the audit, as appropriate.

(c)The initial assessment shall be based on:

(1) documentation and data provided by the third country operator;

(2) relevant information on the safety performance of the third country operator, including ramp inspection reports, information reported in accordance with ARO.RAMP.145(c), recognised industry standards, accidents records and enforcement measures taken by a third country;

(3) relevant information on the oversight capabilities of the State of the operator or State of registry, as applicable, including the outcome of audits carried out under international conventions or State safety assessment programmes; and

(4) decisions, investigations pursuant to Regulation (EC) No 2111/2005 or joint consultations pursuant to Regulation (EC) No 473/2006 (⁵).

(d)When the third country operator does not provide the information required for the assessment in accordance with point TCO.300 (c) and (d) of Annex 1 within the timeline established by the Agency, the Agency may decide to suspend the assessment of the application until the information is provided. In this case, the Agency shall inform the third country operator of its decision.

(e)When the Agency cannot establish a sufficient level of confidence in the third country operator and/or the State of the operator during the initial assessment, it shall:

(1) reject the application when the outcome of the assessment indicates that further assessment will not result in the issue of an authorisation; or

(2) conduct further assessments to the extent necessary to establish that the intended operation will be conducted in compliance with the applicable requirements of Part-TCO.

(f)When an application from a third country operator was previously rejected or authorisation revoked, the Agency may decide to wait 9 months from the date of revocation or rejection before starting to process the new application.

ART.205   Initial evaluation procedure — third country operators subject to an operating ban

(a)Upon receiving an application for an authorisation from the third country operator subject to an operating ban or an operational restriction pursuant to Regulation (EC) No 2111/2005, the Agency shall take into account the scope of the ban in order to define the relevant assessment procedure, as described in point ART.200. When the third country operator is subject to an operating ban covering the entire scope of its operations, the assessment shall include an audit of the third country operator.

(b)When the operator is subject to an operating ban due to the State of the operator not performing adequate oversight, the Agency shall inform the Commission for further assessment of the operator and the State of Operator under Regulation (EC) No 2111/2005.

(c)The Agency shall perform an audit only if:

(1) the third country operator agrees to be audited;