Commission Implementing Regulation (EU) 2023/2691 of 29 November 2023 amending Regulation (EC) No 474/2006 as regards the list of air carriers banned from operating or subject to operational restrictions within the Union

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating carrier, and repealing Article 9 of Directive 2004/36/CE (1), and in particular Article 4(2) thereof,

Whereas:

(1) Commission Regulation (EC) No 474/2006 (2) establishes the list of air carriers, which are subject to an operating ban within the Union.

(2) Certain Member States and the European Union Aviation Safety Agency (‘the Agency’) communicated to the Commission, pursuant to Article 4(3) of Regulation (EC) No 2111/2005, information that is relevant for updating that list. Third countries and international organisations also provided relevant information. On the basis of the information provided, the list should be updated.

(3) The Commission informed all air carriers concerned, either directly or through the authorities responsible for their regulatory oversight, about the essential facts and considerations, which would form the basis of a decision to impose an operating ban on them within the Union or to modify the conditions of an operating ban imposed on an air carrier, which is included in the list set out in Annex A or B to Regulation (EC) No 474/2006.

(4) The Commission gave the air carriers concerned the opportunity to consult all relevant documentation, to submit written comments and to make an oral presentation to the Commission and to the Committee established by Article 15 of Regulation (EC) No 2111/2005 (the ‘EU Air Safety Committee’).

(5) The Commission has informed the EU Air Safety Committee about the ongoing consultations, within the framework of Regulation (EC) No 2111/2005 and Commission Delegated Regulation (EU) 2023/660 (3), with the competent authorities and air carriers of Armenia, Egypt, Iraq, Kazakhstan, Kenya, Nepal, and Pakistan. The Commission also informed the EU Air Safety Committee about the aviation safety situation in Congo (Brazzaville), Libya, South Sudan, and Suriname.

(6) The Agency informed the Commission and the EU Air Safety Committee about the technical assessments conducted for the initial evaluation and the continuous monitoring of third country operator (‘TCO’) authorisations, issued pursuant to Commission Regulation (EU) No 452/2014 (4).

(7) The Agency also informed the Commission and the EU Air Safety Committee about the results of the analysis of ramp inspections carried out under the Safety Assessment of Foreign Aircraft programme (‘SAFA’), in accordance with Commission Regulation (EU) No 965/2012 (5).

(8) In addition, the Agency informed the Commission and the EU Air Safety Committee about the technical assistance projects carried out in third countries affected by an operating ban under Regulation (EC) No 474/2006. Furthermore, the Agency provided information on the plans and requests for further technical assistance and cooperation to improve the administrative and technical capability of civil aviation authorities in third countries with a view to helping them assure compliance with applicable international civil aviation safety standards. Member States were invited to respond to such requests on a bilateral basis in coordination with the Commission and the Agency. In that regard, the Commission reiterated the usefulness of providing information to the international aviation community, particularly through the International Civil Aviation Organisation’s (‘ICAO’) Aviation Safety Implementation Assistance Partnership tool, on technical assistance to third countries provided by the Union and Member States to improve aviation safety around the world.

(9) Eurocontrol provided the Commission and the EU Air Safety Committee with an update on the status of the SAFA and TCO alarming functions, including statistics about alert messages for banned air carriers.

Air carriers from Armenia

(10) In June 2020, air carriers certified in Armenia were included in Annex A to Regulation (EC) No 474/2006, by Commission Implementing Regulation (EU) 2020/736 (6).

(11) As part of the continuous monitoring activities the Commission identified that the air carrier Aircompany Armenia has been rebranded and its new commercial name is AIR DILIJANS.

(12) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that with respect to air carriers from Armenia, the list of air carriers, which are subject to an operating ban within the Union, should be amended to include AIR DILIJANS in Annex A to Regulation (EC) No 474/2006, and to remove Aircompany Armenia from that Annex.

(13) Member States should continue verifying the effective compliance of air carriers certified in Armenia with the relevant international safety standards through prioritisation of ramp inspections of those air carriers, pursuant to Regulation (EU) No 965/2012.

Air carriers from Egypt

(14) Air carriers certified in Egypt have never been included in Annex A or B to Regulation (EC) No 474/2006.

(15) As part of the continuous monitoring of TCO authorisations, issued pursuant to Regulation (EU) No 452/2014, and as a result of the analysis of ramp inspections carried out under the SAFA programme in accordance with Regulation (EU) No 965/2012, air carriers certified by Egypt have shown a growing number of safety concerns. Significant findings for a number of Egyptian TCO authorised air carriers have been noted. In addition, the TCO authorisation of Almasria Universal Airlines has been suspended on safety grounds for a second time in a two-year timeframe.

(16) On 21 June 2023, the Commission addressed a letter to the Egyptian Civil Aviation Authority (‘ECAA’) expressing its concerns regarding the safety performance of air carriers certified by the ECAA, and requested a set of documents describing the organisation and illustrating its oversight capacities and associated activities.

(17) On 13 July 2023 the ECAA provided a first set of information and documentation about their organisation, staffing, inspectors’ training, procedures, manuals, as well as an overview of the audits performed and planned, and occurrence reporting, for the period 2020-2023.

(18) Assessment of the documents, done with the assistance of the Agency experts, revealed that the ECAA did not provide all the requested information on the number of staff and personnel qualification requirements, inspector training requirements, and actual training performed. Therefore, the Commission addressed a second letter to the ECAA on 5 October 2023 for the missing documents and information, which was subsequently received on 13 November 2023, and is currently being reviewed and analysed. The Commission will organise a technical meeting with the ECAA in the first quarter of 2024.

(19) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that at this time there are no grounds for amending the list of air carriers which are subject to an operating ban within the Union with respect to air carriers certified in Egypt.

(20) Member States should continue verifying the effective compliance of air carriers certified in Egypt with the relevant international safety standards through prioritisation of ramp inspections of those air carriers, pursuant to Regulation (EU) No 965/2012.

(21) Where any pertinent safety information reveals imminent safety risks resulting from non-compliance with the relevant international safety standards, further action by the Commission may become necessary, in accordance with Regulation (EC) No 2111/2005.

Air carriers from Iraq

(22) In December 2015, the air carrier Iraqi Airways was included in Annex A to Regulation (EC) No 474/2006 by Commission Implementing Regulation (EU) 2015/2322 (7).

(23) Fly Baghdad applied for a TCO authorisation on 10 February 2022. The Agency assessed Fly Baghdad’s TCO application in accordance with the requirements as set out in Regulation (EU) No 452/2014.

(24) The Agency, in conducting its assessment, raised concerns regarding the lack of ability by Fly Baghdad to respond to identified safety concerns. Notably, it determined that Fly Baghdad did not control and ensure that the planned and accomplished flight times, flight duty periods, duty periods and rest periods are within the limitations pursuant to the prescriptive fatigue management regulations established by Iraq.

(25) Fly Baghdad’s inability to address these safety concerns was evidenced by submission of an unacceptable Corrective Action Plan (‘CAP’) to deal with the identified safety concerns. As such, Fly Baghdad did not demonstrate compliance with applicable international safety standards associated with the identified safety concerns. The Agency therefore concluded that further assessment would not result in the issue of an authorisation to Fly Baghdad, and that therefore it did not meet the applicable requirements of Regulation (EU) No 452/2014. Consequently, on 22 December 2022, the Agency rejected, on safety grounds, the TCO application of Fly Baghdad.

(26) On 11 February 2023, Fly Baghdad, in accordance with Article 109 of Regulation (EU) 2018/1139 of the European Parliament and of the Council (8), lodged an appeal contesting the Agency’s decision of 22 December 2022 refusing Fly Baghdad’s application for a TCO authorisation. The decision of 7 September 2023 of the EASA Board of Appeal, established pursuant to Article 105 of Regulation (EU) 2018/1139, rejected Fly Baghdad’s appeal as unfounded, thus confirming the validity of the Agency’s decision of 22 December 2022.

(27) On 20 April 2023, as part of the Commission’s ongoing monitoring activities, a technical meeting took place involving the Commission, the Agency, Member States, and the Iraq Civil Aviation Authority (‘ICAA’). During that meeting, the Commission conveyed to the ICAA that, based on the negative decision made by the Agency regarding Fly Baghdad’s application for a TCO Authorisation, the air carrier would undergo further review by the EU Air Safety Committee.

(28) On 2 October 2023 the Commission wrote to the ICAA and Fly Baghdad, to inform both parties that the case of Fly Baghdad had been placed on the agenda of the 14 to 16 November 2023 meeting of the EU Air Safety Committee, and that both the ICAA and Fly Baghdad would be given the opportunity of being heard before the EU Air Safety Committee in accordance with Regulation (EC) No 2111/2005.

(29) The ICAA and Fly Baghdad were heard by the EU Air Safety Committee on 15 November 2023. Amongst other elements, the ICAA reported that it has oversight responsibility for seven AOC holders, including Fly Baghdad, as regards ensuring the application and implementation of international safety standards and Iraq Civil Aviation Regulations, in compliance with ICAO Convention obligations.

(30) The ICAA also provided an overview of its surveillance policy and activities, highlighting relevant audits planned and conducted for Fly Baghdad in 2023. Furthermore, the ICAA provided a summary of planned actions aimed at strengthening its oversight capabilities, notably by means of availing itself of services of experts in the fields of flight operations, airworthiness, and personnel licensing. With specific regard to the safety concerns identified by the Agency as part of its TCO authorisation process, the ICAA provided an overview of how it has investigated and is ensuring relevant follow up, with Fly Baghdad, to implement the appropriate corrective actions.

(31) Fly Baghdad’s presentation to the EU Air Safety Committee focussed on the actions taken by it to address the safety concerns identified by the Agency as part of its TCO authorisation process. The detailed overview included information pertaining to its root cause analysis and the consequential actions taken in terms of the organisation, procedures, training, and compliance. While expressing Fly Baghdad’s commitment to continuous safety improvement, the presentation addressing the individual safety concerns, did not provide sufficient evidence of the detailed functioning of Fly Baghdad’s safety and quality management system.

(32) The information provided by Fly Baghdad was not sufficient in nature to fully address the safety concerns from which the decision by the Agency to refuse the TCO authorisation of Fly Baghdad emanated. The CAP provided by Fly Baghdad, notably the associated root cause analysis, did not demonstrate the air carrier’s ability to implement appropriate measures to assure compliance with international safety standards.

(33) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, it is therefore assessed that the list of air carriers which are subject to an operating ban within the Union should be amended to include the air carrier Fly Baghdad in Annex A to Regulation (EC) No 474/2006. Furthermore, the Commission intends to carry out, with the assistance of the Agency and the support of Member States, a Union on-site assessment visit to Iraq to verify whether certification and oversight of air carriers by the ICAA is conducted in compliance with the relevant international safety standards. This Union on-site assessment visit will focus on the ICAA and selected air carriers certified in Iraq.

(34) Member States should continue verifying the effective compliance of air carriers certified in Iraq with the relevant international safety standards through prioritisation of ramp inspections of those air carriers, pursuant to Regulation (EU) No 965/2012.

(35) Where any relevant safety information reveals imminent safety risks resulting from non-compliance with the relevant international safety standards, further action by the Commission may become necessary, in accordance with Regulation (EC) No 2111/2005.

Air carriers from Kazakhstan

(36) In December 2016, air carriers certified in Kazakhstan were removed from Annex A to Regulation (EC) No 474/2006, by Commission Implementing Regulation (EU) 2016/2214 (9), with the exception of Air Astana, which had been removed from Annex B to Regulation (EC) No 474/2006 already in 2015 by Implementing Regulation (EU) 2015/2322.

(37) On 13 October 2023, as part of its continuous monitoring activities, the Commission, the Agency, Member States and representatives of the Civil Aviation Committee of Kazakhstan (‘CAC KZ’) and the Aviation Administration of Kazakhstan Joint Stock Company (‘AAK’) held a technical meeting.

(38) During the meeting, CAC KZ and AAK reported on the progress made in executing and improving their CAP. On 19 October 2023, and again on 7 November 2023, AAK provided the Commission with information to substantiate their claim that they have addressed all observations and recommendations. According to their statement, thirty-five of these issues are now considered fully resolved, three partially resolved, and one remains outstanding due to its long-term implementation process.

(39) AAK introduced its new organisational structure, aligned with ICAO requirements, and reported on the progress made in its transition towards becoming a self-financing organisation by means of a new financing scheme established as of July 2023.

(40) In terms of the Kazakh aviation legislative framework, AAK and CAC KZ noted the revision of the Primary Aviation Law, which was formally enacted in December 2022. Subsequent to the enactment of this law, AAK proceeded to revise forty four secondary aviation regulations throughout 2023. At the time of the meeting, they were actively engaged in the revision of an additional thirteen secondary regulations, which, according to their statements, are expected to be updated before the end of 2023. Furthermore, from the start of 2023 up to the date of the meeting, AAK has approved a number of both new and updated procedures and guidance materials, with twelve having received full approval and more than fifteen in their final draft stages. However, it’s still unclear whether the secondary regulations have only integrated the recent amendments to the Primary Aviation Law, or if they have also been updated to align with the latest amendments to the ICAO Annexes.

(41) While various matters and concerns were deliberated during the technical meeting, it was agreed that a Union on-site assessment visit would be appropriate in order to verify the effective implementation of the indicated changes. Agreement was reached that such a visit should take place in the first quarter of 2024.

(42) In accordance with the common criteria set out in the Annex to Regulation (EC) No 2111/2005, the Commission considers that at this time there are no grounds for amending the list of air carriers which are subject to an operating ban within the Union with respect to air carriers from Kazakhstan.

(43) Member States should continue verifying the effective compliance of air carriers certified in Kazakhstan with the relevant international safety standards through prioritisation of ramp inspections of all those carriers, pursuant to Regulation (EU) No 965/2012.

(44) Where any relevant safety information reveals imminent safety risks resulting from non-compliance with the relevant international safety standards, further action by the Commission may become necessary, in accordance with Regulation (EC) No 2111/2005.

Air carriers from Kenya

(45) Air carriers certified in Kenya have never been included in Annex A or B to Regulation (EC) No 474/2006.

(46) A number of accidents and incidents occurred in June and July 2022, involving aircraft registered in Kenya operating flights into airports in South Sudan. The circumstances surrounding these accidents and incidents prompted the Commission to address a letter, on 20 September 2022, to the Civil Aviation Authority of Kenya (‘KCAA’) requesting information about the status of these aircraft in the Aircraft Registry of Kenya, their air carriers and/or lessors, as well as the outcome of any preliminary reports from the accident investigations.

(47) As a follow up to this correspondence, the Commission organised a call with the Director-General of the KCAA and his services on 31 May 2023 to discuss and clarify the nature of the request.

(48) On 21 June 2023 the Commission addressed a letter to the KCAA and requested a set of documents describing the organisation and illustrating its oversight capacities and associated activities with regards to air carriers it has certified. As part of this request, the Commission specifically requested information about effective oversight of its air carriers and aircraft operating outside of Kenya, notably as regards the two companies whose aircraft were involved in the June and July 2022 accidents and incidents.

(49) On 18 July 2023 the KCAA provided a first set of information and documentation about their organisation, staffing, inspectors’ training, procedures, manuals, as well as audits performed and planned, and occurrence reporting, for the period 2020-2023.