Strasbourg, 1 August 2007

Dear Mr X,

On 18 April 2006, acting on behalf of the company C, you submitted a complaint to the European Ombudsman against the European Aviation Safety Agency ("EASA") concerning the implementation by EASA of the provisions of Article 2(3)(a)(i) of Commission Regulation (EC) No 1702/2003.

In accordance with your request, your complaint has been treated confidentially.

On 19 June 2006, I forwarded the complaint to the Executive Director of EASA and asked EASA to submit an opinion. EASA sent its opinion on 27 September 2006. I forwarded the opinion to you with an invitation to make observations, which you sent on 27 November 2006.

On 22 February 2007, I made a proposal for a friendly solution to EASA concerning your case, to which EASA replied on 23 March 2007. I forwarded the reply to you with an invitation to make observations. No written observations have been received from you. On 2 July 2007, my services telephoned a member of your staff in order to find out the position of your company as regards EASA's above reply.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant is an executive of C, a company providing maintenance and repair services for aircraft ("C").

His complaint concerns the implementation by EASA of Article 2(3)(a)(i) of Commission Regulation (EC) No 1702/2003 of 24 September 2003 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations(1) (the "Implementing Regulation"). The Implementing Regulation was enacted on the basis of Regulation (EC) No 1592/2002 of 15 July 2002 of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency(2) (the "Basic Regulation").

In his complaint, the complainant refers to Article 2(3) of the Implementing Regulation, which reads as follows:

"3. With regard to a product that has a type-certificate issued before 28 September 2003 by a Member State, the following provisions shall apply:

(a) Such a product shall be deemed to have a type-certificate issued in accordance with this Regulation when:

(i) its type-certification basis is:

- the JAA type-certification basis, for products that have been certificated under JAA procedures, as defined in their JAA data sheet; or

- for other products, the type-certification basis as defined in the type-certificate data sheet of the State of design, if that State of design is:

- a Member State, unless the Agency determines, taking into account, in particular, airworthiness codes used and service experience, that such type-certification basis does not provide for a level of safety equivalent to that required by the basic Regulation and this Regulation; or

- (…)" (emphasis added).

The complainant further refers to Decision No 2004/01/CF of the Executive Director of EASA of 28 April 2004 on the implementation of Article 2(3)(a) of the Implementing Regulation ("Decision 2004/01/CF").

In Decision 2004/01/CF, EASA determined that since:

"(1) Products designed in a Member State can only be deemed to have a type certificate issued in accordance with the Implementing Regulation if, taking into account, in particular, airworthiness codes used and service experience, the type-certification basis provides for a level of safety equivalent to that required by the Basic Regulation and the Implementing Regulation;

(2) Airworthiness codes used in some Member States are not sufficiently known to ensure that they provide for the appropriate level of safety;

(3) Sufficient details of the type-certification basis used in the certification of products by some Member States are not currently available to the Agency

(…)

The type-certification basis of the products listed in the attachment may not provide for a level of safety equivalent to that required by the Basic Regulation and the Implementing Regulation."(3)

In the complainant's view, the interpretation given to Article 2(3)(a)(i) of the Implementing Regulation by Decision 2004/01/CF is incorrect and, therefore, Decision 2004/01/CF has no legal basis.

In particular, the complainant argues that the fact that EASA was not able to acquaint itself with certain airworthiness codes is not a valid reason for concluding that the national type-certification basis of the aircraft types listed in the annex to Decision 2004/01/CF does not provide for a level of safety equivalent to that required by the Basic Regulation and the Implementing Regulation ("equivalent level of safety"). In the complainant's opinion, the applicable rules should be interpreted as implying that all aircraft which have already been certified in a Member State should be automatically deemed to have a type-certificate (a "TC") issued in accordance with the Implementing Regulation (an "EASA-TC"). Any derogation from this principle of automatic recognition should be duly specified and reasoned.

The complainant points out that the Implementing Regulation implies that a product will be deemed to have an EASA-TC unless EASA determines, on the basis of the airworthiness codes and service experience, that its "type-certification basis" does not provide for a level of safety equivalent to that required by the Basic Regulation and the Implementing Regulation. Decision 2004/01/CF, however, implies that a product will not be deemed to have an EASA-TC unless EASA determines, on the basis of the airworthiness codes and service experience, that its "type-certification basis" does provide for an equivalent level of safety.

Further, the complainant refers to the process whereby EASA determines the EASA-TCs of the aircraft types listed in the annex to Decision 2004/01/CF, as required by Article 2(3)(c) of the Implementing Regulation(4). In particular, the complainant refers to EASA's approach to certifying certain Czech aircraft types. The aircraft types concerned are L 410 UVP, L 410 UVP-E and L 410 UVP-E9, which are produced by Aircraft Industries, a. s. ("AI"). AI is the holder of the TCs issued by the Czech Civil Aviation Authority ("CAA") concerning these aircraft types. According to the complainant, EASA has declared that, from a technical view, aircraft type L 410 UVP-E9 is acceptable. This evaluation was not subject to any reservations. Aircraft type L 410 UVP-E is acceptable provided that certain minor modifications are made. Aircraft type L 410 UVP had yet to be substantially examined by EASA. However, the complainant considers that, due to its similarity with the L 410 UVP-E, an analogous approach would be applicable to it.

AI does not wish these aircraft to be granted EASA-TCs. The complainant states that the position of AI is motivated purely by its commercial interests since AI sees the upgrading of L 410 UVP-E and L 410 UVP-E9 aircraft (with a view to transforming them into L 410 UVP-E20s(5)) as a source of revenue.

According to the complainant, Article 2(3)(a)(i) of the Implementing Regulation refers to the airworthiness codes used and to service experience. It does not refer to the views of a current TC holder. Nevertheless, EASA takes these views into account when applying Article 2(3)(a)(i) of the Implementing Regulation. Therefore, according to the complainant, EASA's decision not to grant EASA-TCs for the above aircraft violates the Implementing Regulation.

On the basis of the above statements, the complainant made the following allegations and claims:

1. The complainant alleges that EASA was not entitled to base its Decision 2004/01/CF on Article 2(3)(a)(i) of the Implementing Regulation.
2. He also alleges that EASA, in breach of Article 2(3)(a)(i) of the Implementing Regulation, failed to determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E.
3. The complainant claims that EASA should reconsider its views concerning aircraft types certificated in new Member States in general.
4. He also claims that EASA should determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E, and continue its review concerning aircraft L 410 UVP, without taking into account the views of AI.

THE INQUIRY

The opinion of EASA

In its opinion, EASA expressed its disagreement with the complaint and held that there has been no maladministration vis-à-vis the complainant or vis-à-vis C.

First, EASA referred to the applicable legal framework (the Basic Regulation and the Implementing Regulation) and provided certain explanations as regards the aircraft types concerned and the mechanism of type-certification.

According to EASA, type-certification is an internationally accepted means by which an aircraft 'design' is approved by a regulator. Type-certification confirms that the aircraft design complies with the appropriate airworthiness requirements. Compliance with the airworthiness requirements is the mechanism by which EASA can confirm that an aircraft design complies with the Basic Regulation.

After the Czech Republic acceded to the EU, EASA issued the EASA-TC "EASA.A.026" for the L-410 UVP-E20 and L-420 aircraft types (the two most recent models of aircraft produced by AI). These aircraft types were designed according to well known airworthiness standards (JAR-23 Normal, Utility, Aerobatic, and Commuter Category Aeroplanes). However, 76 aircraft produced by AI which are currently registered in EU Member States are earlier "E" models. Amongst the "E" models, the L-410 UVP-E9 model was certificated in accordance with the American airworthiness code FAR-25. FAR-25 is acceptable to EASA. Another model, the L-410 UVP-E, was awarded a certificate in accordance with NGLS-2, a Russian airworthiness code. NGLS-2 is currently not sufficiently well-known to EASA.

As regards the L-410 UVP-E9 model, its certification in accordance with FAR-25 included 14 exemptions. EASA needs to investigate these exemptions with a view to determining their significance as regards airworthiness. As regards the L-410 UVP-E model, even though the Russian code may not be directly acceptable to EASA, EASA proposed to investigate the physical differences between the L-410 UVP-E and L-410 UVP-E9 model and to attempt to "justify" the L-410 UVP-E model on this basis.

According to EASA, these models cannot be transferred under its responsibility without the support of the current TC holder. AI is the current TC holder. AI, however, requested that these models not be transferred under EASA's responsibility. EASA emphasised that the technical input of the current TC holder is necessary for establishing the certification basis of these models. Moreover, the Implementing Regulation requires that there must be an appropriately approved EASA-TC holder in order for an EASA-TC to be valid, and therefore, the continuous cooperation of the EASA-TC holder is required.

EASA noted that the implications of the above situation are that the aircraft in question would have no legal basis to operate after 28 March 2007.

AI has offered to modify the affected aircraft in order to comply with the EASA-TC standards. However, the operators regard the costs of such modification as excessively high. EASA noted that it had been in communication with AI in order to identify a solution acceptable to all parties before 28 March 2007.

1. Absence of a legal basis for taking the Decision 2004/01/CF

As regards the complainant's first allegation, EASA stated that Article 2(3)(a)(i) of the Implementing Regulation constitutes the legal basis enabling EASA to determine the certification basis of so-called "grandfathered approvals". EASA added that, as it is responsible for ensuring civil aviation safety, it is "not only entitled but obliged to use the so called safeguard text in Article 2.3(a)(i) as a basis to act if, in its judgement, the levels of safety established by the Regulation are not ensured." It took the position that it correctly exercised this responsibility through the adoption of Decision 2004/01/CF. EASA went on to explain that, in Decision 2004/01/CF, it established that it could not, at the time the Implementing Regulation was adopted, guarantee that the "type-certification basis" of a number of aircraft types provided for an equivalent level of safety.

EASA also referred to the process of determining the EASA-TCs of the aircraft types listed in the annex to Decision 2004/01/CF, as required by Article 2(3)(c) of the Implementing Regulation, and noted that this process is continuously progressing. Once EASA is able to establish a safe certification basis for an aircraft type listed in the annex to Decision 2004/01/CF (that is, the annex setting out which aircraft types do not, according to EASA, have an EASA-TC), the Decision is immediately amended to remove that aircraft type from the annex. The type then becomes "EASA approved", with an EASA-TC. The Decision has, to date, been amended three times.

As regards the complainant's first allegation, therefore, EASA concluded that it has a firm legal basis in Article 2(3)(a) of the Implementing Regulation to take, as well as to amend, Decision 2004/01/CF.

2. Failure to determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E

With respect to the allegation that, in breach of Article 2(3)(a)(i) of the Implementing Regulation, EASA failed to determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E, EASA pointed out that the determination of a certification basis is made on the basis of the Type Certificate Data Sheet ("TCDS"). If any of the information contained in the TCDS appears to be unacceptable from a safety point of view, EASA must satisfy itself by further investigation that an acceptable level of safety is maintained.

EASA reiterated that this investigation cannot be performed successfully without the support of the current TC holder and the relevant national aviation administration. In the present case, the position of the current TC holder (AI) made this investigation impossible because AI is clearly not interested in participating in the process of transposing the national TC into an EASA-TC. In this regard, EASA referred to letters sent to it by AI on 4 May 2006 and 1 June 2006, and provided copies thereof(6). EASA added that it has no means to force a current TC holder to assist in transforming the national TC into an EASA-TC. It noted that an EASA-TC holder also has an important role in ensuring the continued airworthiness of the aircraft types for which it is responsible, and that any reluctance of an EASA-TC holder to participate in this process would seriously undermine safety. In this regard, EASA referred to Article 21A.44(a)(7) in combination with Articles 21A.3(8), 21A.3B(9) and 21A.61(10) of the Implementing Regulation. The uninterrupted support from an EASA-TC holder for the types for which it is responsible is thus a key element for aviation safety.

3. Complainant's claims

First, EASA addressed the complainant's claim that it should reconsider in general its view concerning aircraft types certificated in new Member States. EASA emphasised that it had no "view in general" about aircraft types certificated in new Member States, but would continue to assess any aircraft type on its merits from a safety perspective. In this respect, EASA notes that "EASA must apply the Implementing Regulation, i.e. Article 2(3)([a])(i), including its annexes, as drafted." EASA emphasised that, in the present case, it had concluded that, without the support of the current TC holder (AI), it cannot determine whether the aircraft types in question are or are not safe. The fact that these aircrafts originate from a new Member State has no relevance as regards this conclusion.

Second, as regards the complainant's claim that EASA should determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E, and continue its review concerning aircraft L 410 UVP without taking into account the views of AI, EASA once more emphasised that it is not possible to transpose safely a national type approval to the EASA system without the support of the current TC holder. Furthermore, EASA reiterated that, according to Article 21A.44 of the Implementing Regulation, an EASA-TC holder is responsible for important continued airworthiness oversight functions. Continued airworthiness cannot be ensured without the continuous active support from the relevant EASA-TC holder. Nothing in the applicable legal framework forces an EASA-TC holder to continue to carry out these responsibilities involuntarily.

As regards the aircraft types concerned in the present case, EASA declared its willingness to continue the process of transposing them safely into the EASA system, if and when AI confirms that it is interested in having an EASA-TC. The outcome of this process cannot, of course, be foreseen at this stage.

The complainant's observations

In his observations, the complainant disagreed with EASA's opinion. He stated that EASA did not, in its opinion, demonstrate that it did not violate the Implementing Regulation.

He also noted that EASA cited incorrect certification bases for the L-410 UVP-E20 and L-410 UVP-E9 models. According to the complainant, the correct certification basis for the L-410 UVP-E20 model is FAR-23 (and not JAR-23 as stated by EASA), and the correct certification basis for the L-410 UVP-E9 model is JAR-25 (and not FAR-25 as stated by EASA).

1. Absence of a legal basis for taking Decision 2004/01/CF

The complainant contested EASA's statement that, by adopting Decision 2004/01/CF, it correctly exercised its responsibilities under Article 2(3)(a)(i) of the Implementing Regulation. The complainant maintained that Decision 2004/01/CF was issued in breach of Article 2(3)(a)(i) of the Implementing Regulation. The complainant pointed out that, according to Decision 2004/01/CF, the aircraft types concerned could not be transferred to EASA because their certification basis was not "sufficiently known." According to the complainant, this reason, that is, the lack of knowledge by EASA staff of the relevant "type-certification basis", goes beyond Article 2(3)(a)(i) of the Implementing Regulation (according to which the reason for not transferring a TC is that the relevant "type-certification basis" does not provide for an equivalent level of safety) and is thus invalid.

2. Failure to determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E

As regards EASA's statement that it is not possible to transpose safely a national type approval to the EASA system without the support of the current TC holder, the complainant stated that the Implementing Regulation does not provide for such a reason for not transferring an aircraft type. According to the complainant, EASA's position as regards a possible transfer must be purely technical, having regard to airworthiness and environmental requirements. The fact that the current TC holder may disagree with the transfer, with the result that certain data may be unavailable to EASA, is not a circumstance which EASA should take into account as regards the transfer of the TC. The complainant noted that this legal opinion was also confirmed by the answer from Mr Barrot, Vice-President of the European Commission and Commissioner for Transport, to written question P-2266/06CS by Mr Tomáš Zatloukal MEP. The complainant provided the Ombudsman with a copy of the question in Czech (which was the language of the question), as well as a translation into Czech of the Commissioner's answer(11).

The complainant also referred to EASA's statements according to which (i): the certification of the L 410 UVP-E9 model in accordance with FAR-25 was subject to a number of exemptions which EASA needed to investigate with a view to determining their airworthiness significance; (ii) EASA proposed, as regards the L 410 UVP-E model, that, even though the Russian code may not be directly acceptable, it would investigate the physical differences between the E and E9 model and "justify" the E model on this basis; and (iii) the investigations of EASA, which are necessary in order to determine a certification basis for the L 410 UVP-E9 and L 410 UVP-E models, cannot be performed successfully without the support of the CAA and the current TC holder (whose technical input is needed). In this context, the complainant stated that the support of the CAA is still possible. He also stated that C has prepared the analyses required by EASA and these are with Mr H., the EASA Certification Manager. Mr H. confirmed that it is, in principle, irrelevant who has prepared these analyses. What is relevant, according to Mr H., is the verification thereof by the national aviation administration. The CAA, by letter of 10 April 2006 to C, officially confirmed the accuracy of the analyses carried out by C(12). According to the complainant, EASA cannot declare analyses that have been confirmed by the CAA to be unconvincing. Therefore, the complainant argued that an equivalent level of safety had been proved.

He went on to state that the fear that AI will no longer support the L 410 UVP-E and L 410 UVP-E9 models is not justified. AI declared several times that it envisaged fulfilling all the obligations which the current TC holder would, according to the Czech national regulation L-8/A, normally have to fulfil as regards the relevant models. The support of these models will thus remain uninterrupted.

The complainant added that, as regards the L 410 UVP-E model, EASA was obliged first to assess its certification basis, that is, the NLGS-2 code. EASA should only have proceeded to the investigation of the technical design of the L 410 UVP-E model once it had been established that the NLGS-2 code does not provide for a sufficient level of safety.

Finally, the complainant noted that, in its capacity as the supreme European civil aviation administration, EASA is entitled to request from the current TC holder any statement, including, for example, an analysis of differences between the E, E9 and E20 models, and that the current TC holder is obliged to supply such material.

3. Complainant's claims

The complainant also replied to EASA's statements according to which it: (i) would continue to assess any aircraft type on its merits from a safety perspective; (ii) must apply the Implementing Regulation, that is, Article 2(3)(a)(i), as drafted; and (iii) had concluded that, without the support of the current TC holder, it cannot determine whether the safety of the aircraft types in question is secured or not.

In this context, the complainant clarified that he did not argue that EASA should accept any aircraft without having assessed the safety thereof. He pointed out, however, that he considered EASA's approach to be procedurally erroneous. He went on to say that it follows from Article 2(3)(a)(i) of the Implementing Regulation that EASA should arrive at a determination of the aircraft types which it considers unacceptable and state the technical reasons which prevent their acceptance, and not vice versa. The legal basis for taking the approach suggested by the complainant is that Article 2(3)(a)(i) of the Implementing Regulation stipulates that aircraft with a national TC shall be deemed to have an EASA-TC unless EASA determines otherwise. The absence of support and cooperation from a current TC holder is not a reason why an EASA-TC should be denied.

As regards EASA's repeated statement that, without the support of the current TC holder, it is not possible to transpose safely a national type approval to the EASA system, and that nothing in the applicable legal framework forces an EASA-TC holder to involuntarily maintain the responsibilities relating to continued airworthiness oversight functions, the complainant referred to his previous arguments. More precisely, he pointed out that EASA has, or can have, sufficient materials for investigating the remaining L 410 models, and that the current TC holder does not envisage interrupting his support for those models. The complainant thus maintained his claim that EASA should determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E, and that it should continue its review concerning aircraft L 410 UVP, without taking into account the position of AI.

The complainant concluded that EASA, as a Community administration body, must act strictly in accordance with, and within the limits of, the relevant regulations.

The complainant also contested the arguments contained in AI's letter of 1 June 2006 to EASA(13).

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and the complainant's observations, the Ombudsman was not satisfied that EASA had responded adequately to the complainant's allegations.

The proposal for a friendly solution

Article 3(5) of the Statute of the Ombudsman(14) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complaint.

The Ombudsman therefore addressed to the EASA the following proposal for a friendly solution:

EASA could consider amending its Decision 2004/01/CF so as to bring it into accordance with the Implementing Regulation and principles of good administration. In this respect, the Ombudsman points out that the Implementing Regulation empowers EASA, while taking into account, in particular, the airworthiness codes used and service experience, to determine that the "type-certification basis" (as defined in the TCDS of the State of design which is a Member State) of a product not certificated under JAA procedures does not provide for an equivalent level of safety. The Ombudsman also notes that nothing in this friendly solution proposal shall impede EASA, in the event it considers it appropriate to do so, from applying Article 21A.51 of the Implementing Regulation, in conjunction with Article 21A.44 of the Implementing Regulation, to withdraw an EASA-TC.

EASA's reply

In its reply to the Ombudsman's proposal for a friendly solution, EASA recalled that Decision 2004/01/CF was taken in the short interval between the adoption of the Implementing Regulation and its entry into force on 1 May 2004 in the new Member States. It followed that the duty of care and precaution imposed on EASA could be satisfied only by a decision that allowed it to review all designs and make reasoned opinions on a case-by-case basis.

Addressing the friendly solution proposal, EASA stated that, thanks to the combined efforts of its staff, the national aviation authorities concerned, and the aircraft designers, it had been able to determine the "approved design" for all aircraft subject to Decision 2004/01/CF that fall within the scope of its responsibilities. This also includes, according to EASA, the L 410 models for which an EASA-TC would be issued before 28 March 2007.

EASA concluded that, as a consequence, Decision 2004/01/CF had been repealed by Decision No 2007/002/C(15), of which it attached a copy.

The complainant's observations

The complainant did not submit any written observations.

However, on 2 July 2007, the Ombudsman's services telephoned a member of C's staff in order to find out the company's position concerning EASA's reply to the Ombudsman's proposal for a friendly solution.

During the above telephone conversation, the C staff member informed the Ombudsman's services that C appreciated the fact that EASA repealed its Decision 2004/01/CF. However, he pointed out that, in the new EASA-TC "TCDS EASA.A.026" issued on 28 March 2007(16), EASA listed, for certain aircraft types(17), serial numbers of the aircraft covered by that EASA-TC. Given that the serial numbers listed belong only to aircraft registered in the EU Member States, the operators of the same aircraft types from non-member countries would have to have their aircraft modified by their producer AI in order to be able to operate them within the EU. This is the reason why C was only partially satisfied with the EASA-TC "TCDS EASA.A.026", and was considering whether it could make any administrative approaches to EASA concerning that EASA-TC.

THE DECISION

1.1 The complainant, acting on behalf of the company C ("C"), complained about the implementation by EASA of Article 2(3)(a)(i) of Commission Regulation (EC) No 1702/2003 of 24 September 2003 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations(18) (the "Implementing Regulation"). In order to implement this article, EASA had adopted Decision No 2004/01/CF of the Executive Director of EASA of 28 April 2004 on the implementation of Article 2(3)(a) of the Implementing Regulation ("Decision 2004/01/CF"). In Decision 2004/01/CF, EASA determined that "[t]he type-certification basis of the products listed in the attachment may not provide for a level of safety equivalent to that required by the Basic Regulation and the Implementing Regulation."(19)

The complainant alleged that EASA was not entitled to base its Decision 2004/01/CF on Article 2(3)(a)(i) of the Implementing Regulation. He also alleged that EASA, in breach of Article 2(3)(a)(i) of the Implementing Regulation, failed to determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E. The complainant claimed that EASA should reconsider its views concerning aircraft types certificated in new Member States in general. He also claimed that EASA should determine the EASA-TCs for aircraft L 410 UVP-E9 and L 410 UVP-E, and continue its review concerning aircraft L 410 UVP, without taking into account the views of the current TC holder.

1.2 In its opinion, EASA expressed the view that Article 2(3)(a) of the Implementing Regulation gave it the firm legal basis to adopt, as well as to amend, Decision 2004/01/CF. EASA also stated that it is not possible to transpose safely a national type approval to the EASA system without the support of the current TC holder, and that it has no means to force a current TC holder to assist in transforming the national TC into an EASA-TC.

1.3 In his observations, the complainant disagreed with EASA's opinion. He stated that EASA, in its opinion, failed to demonstrate that it did not violate the Implementing Regulation.

1.4 The Ombudsman was not satisfied that EASA had responded adequately to the complainant's allegations and therefore made a proposal for a friendly solution to the effect that EASA could consider amending its Decision 2004/01/CF so as to make it comply with the Implementing Regulation and principles of good administration.

1.5 In reply to the Ombudsman's proposal for a friendly solution, EASA stated that it had been able to determine the "approved design" for all aircraft subject to Decision 2004/01/CF that are within the scope of its responsibilities. EASA went on to say that an EASA-TC would be issued before 28 March 2007 for the L 410 models. EASA concluded that, as a consequence, Decision 2004/01/CF had been repealed by Decision No 2007/002/C, of which it attached a copy.

1.6 The Ombudsman welcomes EASA's rapid and positive response to his proposal for a friendly solution concerning the present complaint.

The Ombudsman notes that, according to Article 1 of Decision No 2007/002/C, "Decision 2004/01/CF of the Executive Director of the Agency of 28 April 2004 on the implementation of Article 2.3(a) of the Commission Regulation (EC) No 1702/2003 is hereby repealed." According to Article 3 of the same Decision, the latter shall enter into force on 28 March 2007.

1.7 The Ombudsman also notes that, on 28 March 2007, EASA issued the EASA-TC "TCDS EASA.A.026"(20) which includes, among others, the following L 410 models: L - 410 UVP - Turbolet; L - 410 UVP-E; and L 410 UVP-E9.

1.8 Finally, the Ombudsman notes that the complainant has welcomed the fact that EASA repealed its Decision 2004/01/CF, but was only partially satisfied with the EASA-TC "TCDS EASA.A.026" and was considering whether it could make any administrative approaches to EASA concerning that EASA-TC.

1.9 The Ombudsman takes the view that no further inquiries into the present complaint are justified, given that EASA (i) repealed, in its entirety, Decision 2004/01/CF which was the object of the present complaint, and (ii) issued the EASA-TC "TCDS EASA.A.026" which is, however, likely to be the object of new administrative approaches to EASA by the complainant.

2 Conclusion

On the basis of the results of the Ombudsman's inquiries, it appears that no further inquiries into this case are justified. The Ombudsman has, therefore, closed the case.

The Executive Director of EASA will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2003 L 243, p. 6.

(2) OJ 2002 L 240, p. 1.

(3) The annex to the Decision lists, among others, several Czech aircraft types.

(4) See Article 2(3)(c) of the Implementing Regulation which reads: "[t]he Agency shall determine the type-certificate of the products not meeting paragraph (a) before 28 March 2007."

(5) According to the complainant, the L 410 UVP-E20s are, thanks to a certification in Germany, automatically deemed to merit an EASA-TC.

(6) In these letters, AI informed EASA that: (i) it would only support the transfer of the L 410 UVP-E9 and L 410 UVP-E models subject to their full type-conversion to the L 410 UVP E-20 model; and (ii) it would not support the transfer of the older L 410 models (which cannot be converted into the L 410 UVP E-20 model). AI based its position on the following reasons: (i) economic reasons - costs which it incurred with respect to the development and certification of the L 410 UVP-E20 model; and (ii) technical and safety reasons, namely (a) differences between the L 410 UVP-E type design and the L 410 UVP-E20 type design, and (b) the unsatisfactory technical status of several L 410 UVP-E aircraft.

(7) This Article refers to obligations of an EASA-TC holder prescribed by other provisions of the Implementing Regulation, including Articles 21A.3, 21A3B and 21A.61 referred to in footnotes 8, 9 and 10 below.

(8) This provision basically stipulates that an EASA-TC holder shall have a system for collecting, investigating and analysing reports of, and information related to, failures, malfunctions, defects or other occurrences which cause or might cause adverse effects on the continuing airworthiness of the relevant product. It also provides for certain reporting and investigating duties of an EASA-TC holder.

(9) This provision determines obligations of an EASA-TC holder with respect to airworthiness directives issued by EASA.

(10) This provision determines obligations of an EASA-TC holder with respect to instructions for continued airworthiness.

(11) According to the information available on the European Parliament's website, the question was as follows:

"Commission Regulation (EC) No 1702/2003 lays down a transfer of competence for issuing type-certificates for aircraft from national aviation authorities to the European Aviation Safety Agency (EASA) (referred to in the regulation as ‘the Agency’). The regulation contains transitional provisions making reference to a transfer of type-certificates issued prior to the entry into force of the regulation. Article 2(3) states the following:

(…)

Does it follow from the abovementioned Commission Regulation (EC) No 1702/2003 that, when assessing a particular product, the Agency can take other factors into consideration than level of safety?"

The Commissioner's answer was, in the French original, as follows:

"L'Agence européenne de la sécurité aérienne évalue les produits, pièces et équipements aéronautiques au seul regard de leur conformité aux dispositions des articles 5 (navigabilité) et 6 (compatibilité environnementale) du règlement (CE) no 1592/2002 (…). Par conséquent, dans le cas d'espèce, elle ne saurait fonder son évaluation sur d'autres critères que le niveau de sécurité."

(12) In the letter in question, CAA stated, among other things, that C's technical comparison of the L 410 UVP-E9 type design against the L 410 UVP-E20 type design, as well as C's technical comparison of the L 410 UVP-E9 type design against the L 410 UVP-E type design, contain, in its [CAA's] view, correct and relevant information.

(13) In particular, the complainant contested: (i) the argument relating to complexity of development and certification of the L 410 UVP-E20 model; (ii) the argument concerning substantial differences between the L 410 UVP-E type design and the L 410 UVP-E20 type design; and (iii) most importantly, the argument concerning the unsatisfactory technical status of several L 410 UVP-E aircraft.

(14) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(15) Decision of the Executive Director of EASA of 23 March 2007 repealing Decision 2004/01/CF of the Executive Director of EASA of 28 April 2004 on the implementation of Article 2(3)(a) of the Commission Regulation (EC) No 1702/2003.

(16) The EASA-TC is available on EASA's website (http://www.easa.europa.eu/doc/Certification/Design_Appro/Aircrafts/TCDS_L_410_Iss%207a.pdf).

(17) Except the L 410 UVP-E20 and the L-420. See Part V "Notes" respectively in Sections A1, B1, C1 and D1 of the EASA-TC "TCDS EASA.A.026".

(18) OJ 2003 L 243, p. 6.

(19) The annex to the Decision listed, among others, several Czech aircraft types.

(20) The EASA-TC is available on EASA's website (http://www.easa.europa.eu/doc/Certification/Design_Appro/Aircrafts/TCDS_L_410_Iss%207a.pdf).