Commission Implementing Regulation (EU) No 646/2012Show full title

SECTION 1 Inquiry

Article 2 The non-compliance procedure

1. The non-compliance procedure laid down in this Chapter covers all the administrative stages of investigation of possible breaches of Regulation (EC) No 216/2008 or its implementing rules.

2. The Agency may initiate the non-compliance procedure on its own initiative or following a request from the Commission or a Member State.

3. Where the initiation of the non-compliance procedure follows a request from the Commission or a Member State, the Commission or the Member State shall be informed by the Agency of the course given to their request.

Article 3 Requests for information

1. For the purposes of initiating and conducting a non-compliance procedure the Agency may use any information obtained in the exercise of any oversight power conferred on it by Union law as regards certificates issued in accordance with Regulation (EC) No 216/2008. This empowerment is without prejudice to Union law preventing the use of information for the purposes of attributing blame or liability.

2. Prior to initiating a non-compliance procedure, the Agency may request from the certificate holder concerned information relating to the alleged breach.

The Agency shall state the purpose of the request and the fact that it is made under this Regulation, and set a time-limit for the submission of the information.

Article 4 Notification

1. The Agency shall send written notification of the initiation of a non-compliance procedure to the certificate holder, to the Commission and to the national aviation authorities of the Member State(s) or the third country or countries where the certificate holder has its principal place of business and where the breach has taken place as well as, where appropriate, to the aeronautical authorities of third countries and international organisations competent in matters covered by this Regulation.

2. The notification shall:

(a) set out the allegations against the certificate holder, specifying the provisions of Regulation (EC) No 216/2008 or its implementing rules allegedly breached, and the evidence on which those allegations are founded; and

(b) inform the certificate holder that a fine or a periodic penalty payment may be imposed.

Article 5 Inquiries

1. Once the inquiry has been initiated, the Agency shall clarify the facts and allegations.

2. The Agency may request the certificate holder to provide written or oral explanations, or particulars or documents.

The request shall be addressed in writing to the certificate holder. The Agency shall state the legal basis and the purpose of the request, set a time-limit by which the information is to be provided, and inform the certificate holder about the periodic penalty payments provided for in Article 16(1)(a) and (b) for failing to comply with the request or for supplying incorrect or misleading information.

3. The Agency may request national aviation authorities to cooperate in the investigation and, in particular, to provide any information relating to the alleged breach.

The request shall state the legal basis and the purpose of the request and shall set a time-limit for the submission of the reply or the conduct of the measure of inquiry.

4. The Agency may ask any natural or legal persons or aeronautical authorities of third countries to provide information relating to the alleged breach.

The request shall state the legal basis and the purpose of the request, and shall set a time-limit by which the information is to be provided.

Article 6 Voluntary compliance

1. At the notification of the initiation of the non-compliance procedure or thereafter the Agency shall set a time-limit within which the certificate holder may indicate in writing that it has voluntarily complied, or, where appropriate, that it intends to comply, with the breached provisions. In case of voluntary compliance by the certificate holder within the time-limit set by the Agency, the Agency shall decide to close the initiated non-compliance procedure.

The Agency shall not be obliged to take into account replies received after the expiry of that time-limit.

2. The time-limit provided for in paragraph 1 shall in no case expire later than the date on which the Agency notifies the statement of objections provided for in Article 7.

Article 7 Statement of objections

1. When the Agency has established the facts and found that there are grounds to continue the non-compliance procedure, it shall notify in writing a statement of objections to the certificate holder concerned. The statement of objections shall contain:

(a) the allegations against the certificate holder, specifying the provisions of Regulation (EC) No 216/2008 or its implementing rules allegedly breached, and the evidence on which those allegations are founded;

(b) the information that a fine or a periodic penalty payment may be imposed.

2. When notifying the statement of objections, the Agency shall invite the certificate holder to submit written observations in response. It shall do so in writing, indicating a time-limit for the submission of those observations.

Article 8 Oral hearing

1. Where a certificate holder requests it, the Agency shall give them an opportunity to develop their arguments at an oral hearing.

2. Where necessary, the Agency may invite the national aviation authorities or any other persons to take part in the oral hearing.

3. The oral hearing shall not be public. Each person may be heard separately or in the presence of other persons invited to attend, having regard to the legitimate interest of certificate holders and other persons in the protection of their business secrets and other confidential information.

Article 9 Time limits

For the purposes of ensuring legal certainty in the conduct of the inquiry procedure, the Agency shall lay down detailed rules for the setting of time-limits.

Article 10 Report

1. The Agency shall provide the Commission, the Member States and the certificate holder with a report summarising its findings in the light of the inquiry conducted in accordance with this Section. The Agency shall also submit to the Commission the file under inquiry.

2. Where the report by the Agency concludes that the certificate holder has breached provisions of Regulation (EC) No 216/2008 or its implementing rules, the report shall also include:

(a) an assessment of the circumstances of the case in accordance with the criteria set out in Article 15 of this Regulation;

(b) a request to the Commission for imposition of a fine or a periodic penalty payment;

(c) a reasoned proposal containing the amount of the fine or periodic penalty payment.

3. The Agency shall adopt its report no later than [12 months] after notification of initiation of the non-compliance procedure in accordance with Article 4 or [6 months] after notification by the Commission of the return of the file in accordance with Article 12.