Global governance: EU pilots to sleep in their cockpits

01/10/2013

Much to the surprise of observers, the European Parliament's Transport Committee has voted by 21 votes to 13 to reject Commission proposals for harmonised rules on pilots' flying times, the BBC reporting that the matter now goes to the full Parliament for a vote.

This is the issue we rehearsed at length on Saturday, when we noted that the proposed regulations were due to come before the committee for a vote. In fact, it was the first item of business on the formal agenda for the Monday session.

That the EP gets what amounts to a veto is owed to two entirely separate procedural streams. Firstly, because this is delegated legislation (a Commission Regulation), it goes through the Comitology procedure. But, because the enabling legislative act, Regulation (EC) No 218/2008, was passed before the Lisbon Treaty came into force, the "regulatory procedure with scrutiny" (RPS) applies. This permits the Parliament to veto the measure on certain grounds.

In this case, the grounds invoked are that the regulations lack proper scientific scrutiny and underpinning evidence - which brings in the second stream. Here, these specific requirements are not spelled out in the enabling legislation, but the regulations must conform with the Chicago Convention on aviation safety. It is this which specifies that account must be taken "of relevant scientific principles".

Thus, as we remarked in our earlier piece, allegedly unsafe regulations made under EU law are being blocked using global rules set by national parliaments and regulators – a triumph, in a sense, for global governance.

We must now wait so see how the full parliament reacts but, if it also rejects the regulations, the proposed regulations must be withdrawn. On the face of it, that would be the end of the matter, as the Commission would then be obliged to reframe its regulations and go through the approval procedure all over again.

However, this brings into play a controversial development in the field of comitology, which came into force with the Lisbon Treaty. As it stands, the RPS "veto" applies only where enabling legislation - known as the "basic act" - was passed pre-Lisbon. Then it comes under Art 5a of Council Decision 1999/486/EC, which sets up RPS.

Newer, post-Lisbon legislation comes under Art. 11 of Regulation (EU) No 182/2011. The procedure set out there requires the Commission only to "review" its proposed regulations if they are thrown out after scrutiny. It can then decide to amend or withdraw proposals, or ignore the Parliament altogether.

Why this matters is because the current "basic act", Regulation (EC) No 218/2008, is under revision, with a proposed new law set out in COM(2013) 409 final. This was published only in June of this year and is expected to get its first reading in the European Parliament in March of next year.

Interestingly, the new "basic act" strengthens the Commission's power to produce its own delegated legislation, allowing it to bring requirements into line with any new amendments to the Chicago Convention and its Annexes. That creates a direct relationship between the regional European Commission and the global rule-maker, but it is achieved by eliminating the European Parliament and the Council vetoes.

Given that a new "basic act" could be in force by next year, the response of the Commission could be simply to sit tight until it is implemented and re-issue its original flight rules, in the knowledge that they could not then be blocked. The only way to challenge the Commission would be to go to the ECJ.

According to European Law expert, Daniel Guéguen, the new comitology procedure represents a substantial power grab by the Commission. In his book, called Comitology: Hijacking European power?, he describes comitology as a "hot" subject, although he records a Parliament official saying that perhaps only "five or six at most" MEPs understand it. The Commission, he says, is able to exploit this ignorance, and use it to its advantage.

While the issues are being thrashed out, the British pilots' union, BALPA, and the European Cockpit Association, argue that the new rules are less safe than the best of those they replace. The Independent newspaper, on the other hand, has the Commission declaring that passenger safety is at risk because the new rules have not been adopted.

For the UK, though, this is only the half of it. British aviation has always been ahead of the field in fatigue management, having adopted rules (CAP371 - The Avoidance of Fatigue In Aircrews—Guide to Requirements) in 1975, long before many nations had even considered having any.

While the EU, via EASA, has finally moved to introduce comparable regulations applicable to all Member States, it has elected to go the prescriptive route, with rules that offer very little flexibility. It is thus imposing "one-size-fits-all" rules on a varied industry with very different operating conditions.

Meanwhile, regulatory thinking has moved on. The modern approach is for airlines to develop specific "Fatigue Risk Management Systems" (FRMS). These allow operators to manage the fatigue-related risks particular to their types of operations and context, providing "a viable alternative to traditional prescriptive flight and duty time rules".

The concept has been endorsed by IATA. It published implementation guidelines in July 2011, alongside the International Civil Aviation Organisation (ICAO), and the International Federation of Airline Pilots’ Associations (IFALPA). The ICAO has also amended its own rules and issued a Manual for Regulators. 

Adoption of FRMS would, by-and-large, render irrelevant the current arguments over UK safety levels. Each airline would be allowed to replace prescriptive rules with its own, as long as it could prove to the regulator that could provide an equivalent or better level of safety.

However, within the EU ambit, FRMS is beyond the capability of all Member States to enforce so - whatever actual rules are eventually agreed - prescriptive limits will be the norm. Conformity becomes a requirement and members with higher standards are required (or allowed) to reduce them to the EU level, a process known as regression (see page 5).

Thus, we are trapped in a system devised for "little Europe", arguing over minutia, as to whether flying for ten hours, eleven, or additional fractions are "safe" in certain circumstances.