Security checks at airports

Facts

Belgian national Public Service (hereinafter: SPF Intérieur) imposed a fine on the company liable for safety tasks at Liège Airport (hereinafter: LAS) and 2 of its employees due to the fact that LAS it did not have the legal licence required and these employees did not have the compulsory certification. According to SPF Intérieur they violated the Belgian law on private safety agencies.

By a preliminary question, the referring court sought to find whether LAS and 2 of its staff carrying out safety tasks at Liège Airport (such as controlling the access of passengers to the airport panel and inspecting posts) could be inspected by a body another than the Directorate-General for Air Transport (hereinafter: DGTA), on the basis of the abovementioned Act, and could subsequently be fined by that body for not complying with that Act? In a situation whenever DGTA has been designated by Belgium as ‘competent authority’ within the meaning of Article 9 of Regulation (EC) No 45/2001 of the European Parliament and of the Council No 300/2008 of 11.3.2008 on common rules in the field of civilian aviation safety and repealing Regulation (EC) No 2320/2002 (OJ L 2008, 97, p. 72 as amended), liable for coordinating and monitoring the implementation of the common basic standards referred to in Article 4 of that Regulation.

TS Position

Pursuant to Article 9 of Regulation 300/2008/EC, where more than 1 authority is active in civilian aviation safety in a associate State, that associate State shall designate a one authority which is considered to be ‘competent authority’, liable for coordinating and monitoring the implementation of the common basic standards referred to in Article 4 of Regulation 300/2008/EC. The Court found that the wording of that provision shows that it is not excluded that in a associate State several authorities were active in civilian aviation security. This area includes, in accordance with the first subparagraph of Article 1(1) of Article 3(2) of Regulation 300/2008/EC, civilian aviation safety activities against acts of unlawful interference threatening its safety. This anticipation is besides clearly indicated in recital 12 of that Regulation. Secondly, in specified a case, the multiplicity of the national authorities afraid should be designated by the associate States to be the ‘competent authority’ was liable for coordinating and monitoring the implementation of common basic standardsas referred to in Article 4 of Regulation 300/2008/EC. The TS’ assessment of Article 9 of that Regulation so shows that competent authorityreferred to in that provision, differs from another national civilian aviation safety authorities that it is liable for ensuring national coordination and monitoring of the implementation of the common basic standards referred to in Article 4 of that Regulation. Consequently, provided that those authorities comply with the prerogatives of the competent authority designated in accordance with Article 9 of Regulation 300/2008/EC concerning the coordination and monitoring of the implementation of the common basic standards referred to in Article 4 of Regulation 300/2008/EC, the TS has concluded that it is not apparent from the linguistic explanation of Article 9 that the associate State must guarantee that that that authority is the only 1 liable for monitoring compliance with all aspects of the field of civilian aviation safety at national level.

In accordance with Article 1 above, recitals 5 and 10 of Regulation 300/2008/EC, 1 of the objectives that Regulation is establishing common rules to defend civilian aviation from acts of unlawful interference threatening civilian aviation security, by establishing common basic standards for aviation safety and monitoring mechanisms for compliance, while leaving any scope for associate States to recognise how to implement these common rules.

The second subparagraph of Article 1(1) of Regulation 300/2008/EC provides that that Regulation should form the basis for a common explanation of Annex 17 to the Chicago Convention for the associate States, since that common explanation is the second nonsubjective pursued by that Regulation, as follows from recitals 2 and 25. However, point 3.1.2 of that Annex only provides that Contracting States should designate a competent authority within their administration liable for the development, implementation and maintenance of a national civilian aviation safety programme, without requiring them to entrust all civilian aviation safety powers to 1 national authority. The TS’s assessment of the above shows that The nonsubjective of Regulation 300/2008/EC is not to regulate the allocation of responsibilities in associate States for the implementation of common basic standards, as referred to in Article 4 of Regulation 300/2008/EC, and even more so by forcing those countries to entrust all civilian aviation safety obligations to 1 national authority.

About context, as set out in Article 9 of Regulation 300/2008/EC, the TS has indicated that Article 10(1) of that Regulation provides that each associate State shall lay down in a national civilian aviation safety programme, which should lay down obligations for the implementation of the common basic standards referred to in that Article 4.

In the present case, the TS found that checks specified as those carried out by SPF Intérieur, do not fall within the scope of the powers which should be mandatoryly reserved to the competent authority designated in accordance with Article 9 of Regulation 300/2008/EC in so far as they aim not to guarantee coordination and monitoring of the implementation of the common basic standards within the meaning of Article 4 of that Regulation, but to verify that the persons afraid execute their tasks in accordance with the circumstantial requirements of national rules on the provision of safety services by private operators. Although these national regulations and the resulting requirements can be regarded as indirectly related to civilian aviation safety, where data from private safety agencies and their staff supply services at an airport, this does not alter the fact that this is simply a general regulation, not only related to civilian aviation security, not having in peculiar the intent of implementing the common basic standards referred to in Article 4 of that Regulation. According to the TS, it follows from the above that erstwhile a national authority, specified as in the present case, SPF Intérieur, is entitled to verify the fulfilment of the obligations resulting from specified arrangements and to carry out checks for that purpose, and even imposes fines in the event of a breach, it cannot be considered, even if these checks concern the activities carried out at the airport, that that authority is so liable for coordinating and monitoring the implementation of those basic standards within the meaning of Article 9 of Regulation 300/2008/EC.

The Court held that Article 9 of Regulation 300/2008/EC should be interpreted as meaning that it does not preclude a body another than the ‘competent authority’ designated under that provision from being liable for verifying whether a legal individual governed by private law and its employees who carry out safety tasks at a national airport fulfil the obligations resulting from national rules governing the provision of safety services by private operators.

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