THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC, and in particular Article 25(3) thereof,
Whereas:
(1)
Regulation (EC) No 216/2008 aims to establish and maintain a high uniform level of civil aviation safety in Europe. That Regulation provides for the means of achieving that objective and other objectives in the field of civil aviation safety.
(2)
Pursuant to Regulation (EC) No 216/2008 the European Aviation Safety Agency (‘the Agency’) is responsible for the certification of certain products, persons and undertakings. In those areas under its responsibility, the Agency has to oversee that those products, persons and undertakings comply with the applicable requirements including the provisions of Regulation (EC) No 216/2008 and its implementing rules.
(3)
In cases where identified potential shortcomings are not adequately resolved during the existing oversight process, Article 25 of Regulation (EC) No 216/2008 empowers the Commission, at the request of the Agency, to impose fines or periodic penalty payments on holders of certificates issued by the Agency for the intentional or negligent breach of any of the obligations laid down in Regulation (EC) No 216/2008 or its implementing rules.
(4)
Through the introduction of fines and periodic penalty payments the Commission should have a supplementary tool, allowing it to give a more nuanced, flexible and graduated response to a breach of the rules, compared to the withdrawal of a certificate which the Agency has issued.
(5)
It is necessary to lay down rules concerning procedures, inquiries, associated measures and reporting by the Agency as well as rules of procedure for decision-making, including provisions on the quantification and collection of fines and periodic penalty payments. It is also necessary to lay down detailed criteria for establishing the amount of the fines or periodic penalty payments.
(6)
These rules and procedures should be guided by the need to ensure the highest possible safety and environmental protection standards, by the need to encourage an effective conduct of the inquiry and of the decision-making phases as well as by the need to guarantee the fairness and transparency of the procedures and the imposition of fines and periodic penalty payments.
(7)
The provisions of this Regulation can be effectively enforced only in a framework of close cooperation between the Member States, the Commission and the Agency. For that purpose it is necessary to set up arrangements for consultation and cooperation between them in order to ensure the effective conduct of the inquiry and the decision-making process regarding alleged breaches.
(8)
It is appropriate that, for the purposes of the initiation and conduct of the non-compliance procedure and the quantification of fines and periodic penalty payments, the Commission and the Agency should take into account other procedures against the same certificate holder which have been initiated or concluded by a Member State or by third countries.
(9)
The Commission and the Agency should also take into account any pending procedure initiated, or decision taken, by the Agency regarding the amendment, limitation, suspension or revocation of the relevant certificate in accordance with Regulation (EC) No 216/2008.
(10)
Without prejudice to Union law preventing the use of safety information for the purposes of blame or liability, in particular Article 16(2) of Regulation (EC) No 216/2008, Article 19(2) of Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC and Article 7 of Directive 2003/42/EC of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation, any oversight power conferred on the Commission or the Agency by Union law as regards certificates issued in accordance with Regulation (EC) No 216/2008 may be used in the course of the investigation or during the decision-making stages of such a non-compliance procedure. The Commission's decision imposing fines or periodic penalty payments should be based on the inquiry by the Agency, the observations of the certificate holder subject to the non-compliance procedure and, where appropriate, other information submitted to the Agency and the Commission.
(11)
It is appropriate to give certificate holders the opportunity, within a specified time-limit, to voluntarily comply with Regulation (EC) No 216/2008 and its implementing rules, in which case no fines or periodic penalty payments should be imposed by the Commission. This possibility to demonstrate voluntary compliance should nonetheless be limited in time.
(12)
Decisions imposing fines or periodic penalty payments should be based exclusively on grounds on which the certificate holder concerned has been able to comment.
(13)
The fines or periodic penalty payments imposed should be effective, proportionate and dissuasive, having regard to the circumstances of the specific case.
(14)
It appears appropriate to provide for a specific procedure in cases where the Commission intends to impose periodic penalty payments for failure by a certificate holder subject to a non-compliance procedure to cooperate with the Commission or the Agency with regard to measures of inquiry or other requests for information.
(15)
This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular as regards the rights of defence and the principle of confidentiality in accordance with the general principles of law and the case-law of the Court of Justice of the European Union.
(16)
For the purposes of ensuring legal certainty in the conduct of the non-compliance procedure, it is necessary to lay down detailed rules for the computation of time-limits and limitation periods for the imposition and enforcement of fines and periodic penalty payments.
(17)
Decisions imposing fines and periodic penalty payments should be enforceable in accordance with Article 299 of the Treaty on the Functioning of the European Union and should be subject to review by the Court of Justice of the European Union.
(18)
The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 65(1) of Regulation (EC) No 216/2008,
HAS ADOPTED THIS REGULATION: