Ipourgos Metaforon kai Epikinonion v Ipourgos Ikonomias kai Ikonomikon[2012] EUECJ C-271/11 (08 November 2012)

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(Air transport – Regulation No 2042/2003 – Technical requirements and administrative procedures in the field of civil aviation – Continuing airworthiness of aircraft – Approval of members of staff involved in tasks of inspection – Qualifications required)

REFERENCE for a preliminary ruling under Article 267 TFEU from the Simvoulio tis Epikratias (Greece), made by decision of 19 October 2010, received at the Court on 31 May 2011, in the proceedings

1 This reference for a preliminary ruling concerns the interpretation of Article 2 and provision M.B.902 of Annex I to Commission Regulation (EC) No 2042/2003 of 20 November 2003 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and staff involved in these tasks (OJ 2003 L 315, p. 1).

2 The reference has been made in legal proceedings brought by the legal person governed by public law Techniko Epimelitirio Elladas (‘TEE’), the association Sillogos Ellinon Diplomatouchon Aeronafpigon Michanikon (‘SEA’), seven employees of the Ipiresia Politikis Aeroporias (‘the Civil Aviation Authority’), the Panellinios Sillogos Aerolimenikon Ipiresias Politikis Aeroporias, as a trade union association, and four employees, airport staff of the Civil Aviation Authority, against the Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis (Minister for the Interior, Public Administration and Decentralisation), the Ipourgos Metaforon kai Epikinonion (Minister for Transport and Communications) and the Ipourgos Ikonomias kai Ikonomikon (Minister for the Economy and Finance), concerning the partial annulment of Presidential Decree No 147 of 17 August 2005 on inspectors of aircraft and aviation standards, belonging to the aviation safety inspectorate of the Civil Aviation Authority (FEK A’ 200/17.8.2005, ‘Decree 147/2005’).

3 The objective of Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1, ‘the basic regulation’) is to establish common rules in the field of civil aviation in order to establish and maintain a high uniform level of civil aviation safety in Europe.

4 For the purpose of its implementation, Article 12 of the basic regulation provides for the creation of a European Aviation Safety Agency (EASA), one of whose tasks is to assist the European Commission by preparing measures to be taken for the implementation of the basic regulation.

5 The Commission adopted Regulation No 2042/2003 on the basis of the provisions of the basic regulation and of the opinion of the EASA.

6 Article 1(1) of that regulation provides that its objective is to establish ‘common technical requirements and administrative procedures for ensuring the continuing airworthiness of aircraft’ which are registered in a Member State or in a third country and used by an operator for which the EASA or a Member State ensures oversight of operations.

7 The following definitions are stated in Article 2(d) and (h) of that regulation:

– ‘(d) “continuing airworthiness” means all of the processes ensuring that, at any time in its operating life, the aircraft complies with the airworthiness requirements in force and is in a condition for safe operation;

– (h) “maintenance” means any one or combination of overhaul, repair, inspection, replacement, modification or defect rectification of an aircraft or component, with the exception of pre-flight inspection’.

8 Article 3(1) of that regulation provides that ‘the continuing airworthiness of aircraft and components shall be ensured in accordance with the provisions of Annex I’. Article 3(2) states that ‘organisations and staff involved in the continuing airworthiness of aircraft and components, including maintenance, shall comply with the provisions of Annex I and where appropriate those specified in Articles 4 and 5’.

9 Regulation No 2042/2003 contains four Annexes, which respectively, deal with the continuing airworthiness of aircraft and the issue of airworthiness certificates (Annex I), the approval of aircraft maintenance organisations (Annex II), the issue of aircraft maintenance licences (Annex III) and the approval of organisations to conduct aircraft maintenance training (Annex IV).

10 Annex I to that regulation contains a Section A, headed ‘Technical requirements’, and a Section B headed ‘Procedures for competent authorities’.

11 Under the heading ‘Competent authority’, provision M.B.102, which is part of Subpart A, headed ‘General’, in section B of that annex, provides:

A Member State shall designate a competent authority with allocated responsibilities for the issuance, continuation, change, suspension or revocation of certificates and for the oversight of continuing airworthiness. This competent authority shall establish documented procedures and an organisational structure.

The number of staff shall be appropriate to carry out the requirements as detailed in this Section B.

12 Headed ‘Acceptable means of compliance’, provision M.B.103 of that annex authorises the EASA to develop acceptable means of compliance that the Member States may use to establish compliance with the requirements of Regulation No 2042/2003.

13 Under the heading ‘Airworthiness review by the competent authority’, provision M.B.902, in Subpart I, headed ‘Airworthiness review certificate’, of the same annex, provides:

‘(a) When the competent authority decides to carry out the airworthiness review and issue the airworthiness review certificate EASA Form 15a (Appendix III), the competent authority shall carry out an airworthiness review in accordance with the prescriptions of M.A.710.

(b) The competent authority shall have appropriate airworthiness review staff to carry out the airworthiness reviews. These staff shall have acquired:

(c) The competent authority shall maintain a record of all airworthiness review staff, which shall include details of any appropriate qualification held together with a summary of relevant continuing airworthiness management experience and training.

14 Regulation No 2042/2003 entered into force on 29 November 2003. However, under Article 7(3) thereof, Member States could elect not to apply, until 28 September 2008:

15 The EASA Decision No 2003/19/RM of 28 November 2003, adopted on the basis of provision M.B.103 of Annex I to Regulation No 2042/2003, concerns ‘acceptable means of compliance and guidance material to Regulation No 2042/2003’. That decision provides further detail on the competent authorities, their responsibilities and the qualifications required of staff involved in ensuring the continuing airworthiness of aircraft.

16 Decree 147/2005 was adopted on the basis of Article 32 of Law 2912/2001 on the improvement of State supervision of air safety standards, regulation of organisational matters connected with the Civil Aviation Authority (FEK A’ 94).

‘1. The Inspectors of the Directorate of Aviation Standards shall form a category of inspectors of the Aviation Safety Inspectorate of the Civil Aviation Authority established under Article 32(1) of Law 2912/2001.

2. The duties of the Aircraft and Aviation Standards Inspectors of the Aviation Safety Inspectorate shall comprise the supervision and inspection of compliance with aviation safety standards relating to airworthiness and flight operations in general, aircraft support systems, and civil aviation licensing.’

18 Article 3 of that decree divides Aircraft and Aviation Standards Inspectors into various categories, namely airworthiness and avionics inspectors, flight operations inspectors, aircraft cabin safety inspectors, licensing inspectors and medical inspectors.

20 Article 7 of Decree 147/2005 defines the matters to be inspected by the various categories of inspectors.

21 Article 8(1) of that decree defines the qualifications required of airworthiness and avionics inspectors as follows:

‘Airworthiness and avionics inspectors must have at least five years previous experience in an aircraft maintenance workshop, and must have worked in aircraft maintenance. They must also have a very good knowledge of English aviation terminology.

It is desirable that they have been promoted successively to higher management positions and to positions of responsibility in an aircraft maintenance workshop. They must also hold an aeronautical engineer’s diploma in accordance with JAR 66 or hold a diploma issued by a higher education establishment in relation to aeronautical studies.

Inspectors who specialise in aircraft electronic systems must also have an electronic aircraft system engineer’s diploma awarded following university study in Greece or abroad or a university level certificate in electronics or an aircraft electronics technician certificate.’

22 Article 9 of that decree regulates the training of individuals who have been deemed to possess the qualifications required by Article 8.

The dispute in the main proceedings and the questions referred for a preliminary ruling

24 Between September and November 2005 four actions for the annulment of Decree 147/2005 were brought.

25 The first three actions, brought respectively by the TEE, the SEA and seven employees of the Civil Aviation Authority, seek the annulment of the part of Decree 147/2005 relating to airworthiness and avionics inspectors, in other words, essentially, Articles 8 and 9 of that decree. The applicants challenge in particular the conditions introduced by those provisions in relation to the qualifications required by individuals seeking to work as airworthiness inspectors.

26 The fourth action, brought by the Panellinios Sillogos Aerolimenikon Ipiresias Politikis Aeroporias and four employees, airport division staff of the Civil Aviation Authority, seeks the annulment of Decree 147/2005 in so far as, first, it excludes the supervision and oversight of air carriers and airports from the tasks of aircraft and aviation standards inspectors and, secondly, Article 8 thereof deprives employees in the airport division staff of the opportunity to be accredited as aircraft cabin safety inspectors and as licensing inspectors.

27 Since those actions call into question the validity of the contested provisions of Decree 147/2005 in the light of the provisions of Regulation No 2042/2003, the Simvoulio tis Epikratias decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Within the meaning of Article 2 of Regulation No 2042/2003, in conjunction with provision M.B.902(b), point 1, in Subpart I of Section B of Annex I to the said regulation, and in light of the requirements of provision AMC M.B.102(c)(1), subparagraphs 1.1 to 1.4, 1.6 and 1.7, in Subpart A of Section B of Annex 1 to Decision No 2003/19 …, does the national legislature have the discretion, when enacting additional measures for the implementation of the said regulation, to divide the job of aircraft review, in order to establish compliance with current airworthiness requirements, between several categories/specialisms of inspectors, each of whom is only required to inspect one particular aspect of the aircraft’s airworthiness? More importantly, is a national regulation, such as the critical regulation at issue, which makes provision for Airworthiness and Avionics Inspectors, Flight Operations Inspectors, Cabin Safety Inspectors and Licensing Inspectors, compatible with Regulation No 2042/2003?

(2) If the answer to the previous question is in the affirmative, does provision M.B.902(b), point 1, in Subpart I of Section B of Annex I to Regulation No 2042/2003 mean that anyone to whom aircraft airworthiness inspection duties are assigned in respect of one particular aspect only must have five years experience in all aspects ensuring the continuing airworthiness of the aircraft or does it suffice if they have five years experience in the particular duties assigned to them and their particular specialism?

(3) If the answer to the above question is that five years experience in the particular duties assigned to the inspection staff suffices, does a national regulation, such as the critical regulation at issue, which stipulates that Airworthiness and Avionics Inspectors responsible for supervising and controlling aircraft, approved maintenance organisations and air travel in accordance with the rules set out in the ICAO [International Civil Aviation Organisation] manual doc.9760 must have at least five years previous experience in an aircraft maintenance workshop and must have worked on aircraft maintenance, satisfy the requirements of the aforementioned provision M.B.902(b), point 1, in Subpart I of Section B of Annex I to Regulation No 2042/2003 requiring review staff to have “at least five years” experience in continuing airworthiness?

(4) If the answer to the previous question is in the affirmative, is a national regulation, such as the critical regulation at issue, which equates holders of aircraft maintenance licences in accordance with Annex III (“Part-66”) of the said regulation with holders of an aeronautical degree, by providing that both these categories of persons must have experience in an aircraft maintenance workshop in order to obtain accreditation as Airworthiness and Avionics Inspectors, compatible with Regulation No 2042/2003?

(5) In light of the requirements of provision AMC M.B.102(c)(1), subparagraphs 1.4 and 1.5, in Subpart A of Section B of Annex I to Decision No 2003/19 …, does five years experience in continuing airworthiness, in accordance with provision M.B.902(b), point 1, in Subpart I of Section B of Annex I to the said Regulation No 2042/2003, mean practical experience which may have been acquired during the course of studies leading to academic qualification or only experience acquired under actual working conditions, independently of studies and once they have been completed and the qualification obtained?

(6) Within the meaning of the above provision of Regulation No 2042/2003, does five years experience in continuing airworthiness also mean experience which may have been acquired by performing aircraft airworthiness inspections in the past, even before the said regulation entered into force?

(7) Within the meaning of provision M.B.902(b), point 2, in Subpart I of Section B of Annex I to Regulation No 2042/2003 and for the purpose of initial selection as an inspector, must the holder of an aircraft maintenance licence in accordance with Annex III (“Part 66”) to the said Regulation No 2042/2003 undergo additional training in aspects of aircraft airworthiness prior to selection or does it suffice if that person is provided with such training after their initial selection and before they assume the duties of inspector?

(8) Within the meaning of provision M.B.902(b), point 3, in Subpart I of Section B of Annex I to Regulation No 2042/2003, which requires inspection staff to have “formal aeronautical maintenance training”, can a training system adopted by the national legislature be construed as constituting such training if: (i) it provides training after the initial selection of an inspector based on formal qualifications alone; (ii) that training is not differentiated depending on the formal qualifications of the person initially selected as inspector and (iii) the training system does not make provision either for a procedure and criteria for evaluating trainees or for final examination of trainees on completion of training, in order to establish their aptitude?

(9) Does provision M.B.902(b), point 4, in Subpart I of Section B of Annex I to Regulation No 2042/2003, providing that airworthiness review staff should have “a position with appropriate responsibilities”, mean that the position is a qualification which a person must have in order to be accredited as an inspector, in the sense that they must have held a senior position in their previous employment? Or does the above provision of Regulation No 2042/2003 mean, in light of the requirements of provision AMC M.B.902(b)(3) in Subpart A of Section B of Annex I to Decision No 2003/19 …, that, having been initially selected as an inspector, the person must be given a position in the airworthiness review authority which allows him to engage the liability of that authority by signing on its behalf?

(10) If the aforementioned provision M.B.902(b), point 4, in Subpart I of Section B of Annex I to the regulation has the second meaning set out above, can the requirement of the regulation be construed, in light of that meaning, as being satisfied by a national regulation that makes provision for inspectors to be accredited following theoretical and practical training, at which point they can carry out aircraft airworthiness inspections and engage the liability of the competent authority by alone signing the inspection documents?

(11) Furthermore, if the aforementioned provision M.B.902(b), point 4, in Subpart I of Section B of Annex I to Regulation No 2042/2003 has the second meaning set out above, is a national provision, such as the critical regulation at issue, which provides that it is desirable for persons initially selected as Airworthiness and Avionics Inspectors to have previously been promoted to “senior positions of responsibility in an aircraft maintenance workshop”, compatible with it?

(12) Within the meaning of Regulation No 2042/2003, which does not regulate the question of whether and under what conditions persons performing airworthiness inspection duties before it entered into force are entitled to continue to perform such duties following the entry into force of the said regulation, was the national legislature obliged to provide that persons who were performing the duties of inspector when the above regulation entered into force (or possibly before then) should automatically be reaccredited as inspectors, without first undergoing a selection and appraisal procedure? Or does the above Regulation No 2042/2003, the aim of which is to improve the safety of air transport, not to safeguard the professional rights of employees of the Member State’s authority responsible for airworthiness reviews, mean that the Member States are simply granted the discretion, in light also of the relevant requirements of provision AMC M.B.902(b)(4) in Subpart A of Section B of Annex I to Decision No 2003/19 …, to continue, if they deem appropriate, to employ as airworthiness inspectors persons who were carrying out airworthiness reviews before the aforementioned regulation entered into force, even if those persons do not have the qualifications required under the said regulation?

(13) If it is found that, within the meaning of Regulation No 2042/2003, the Member States are obliged automatically to reaccredit persons who were performing the duties of inspectors before the said regulation entered into force, without applying a selection procedure, is a national provision, such as the critical provision at issue, which provides that, in order to be reaccredited as inspectors, those persons must have actually been performing the duties of inspector not on the date on which the above regulation entered into force, but on the later date, when the said provision of national law entered into force, compatible with that regulation?’

28 In its written observations, the Commission stated that both when Decree 147/2005 was adopted, in August 2005, and when the actions for annulment were brought, in other words between September and November 2005, the provisions of Annex I to Regulation No 2042/2003 were not applicable to the Hellenic Republic. At the hearing, the Greek Government confirmed that the Hellenic Republic had availed itself of the option, provided by Article 7 of that regulation, not to apply the provisions at issue until 28 September 2008.

29 In that regard, it must be recalled that, under Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and acts of the European Union institutions. In the context of cooperation between the Court and the national courts, established by Article 267 TFEU, it is for the national courts alone to assess, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court (see, inter alia, Case C-482/10 Cicala [2011] ECR I-0000, paragraph 15 and case-law cited).

30 Consequently, where questions referred concern the interpretation of a provision of European Union law, the Court is, in principle, obliged to give a ruling (see, inter alia, Cicala, paragraph 16 and case-law cited).

31 The Court can decline to rule on a request for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or to its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-160/09 Ioannis Katsivardas – Nikolaos Tsitsikas [2010] ECR I-4591, paragraph 27 and case-law cited).

32 In the present case, it is true that questions (2) to (11) referred by the national court specifically concern provision M.B.902 in Subpart I of Section B of Annex I to Regulation No 2042/2003, which the Hellenic Republic had chosen not to apply on the date when the national measure the validity of which is challenged before the referring court was adopted.

33 Nonetheless, it cannot be concluded from that fact alone that the interpretation sought by the referring court is unrelated to the subject-matter of the main action or that the problem is hypothetical and, consequently, that the Court has no jurisdiction to give a ruling on the questions referred.

34 The Court has repeatedly held that it has jurisdiction to rule on requests for a preliminary ruling concerning provisions of European Union law in situations where the facts of the cases being considered by the national courts were outside the scope of European Union law but where such European Union law provisions had been rendered applicable by domestic law due to a reference made by that law to the content of those provisions. The Court has stated in that regard that where, in regulating purely internal situations, domestic legislation seeks to adopt the same solutions as those adopted in European Union law, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to that effect, Cicala, paragraphs 17 and 18 and case-law cited).

35 In the present case, the referring court has expressly stated that it places the questions referred by it for a preliminary ruling in the context of the adoption, by the competent national authority, of measures to complement the implementation of Regulation No 2042/2003. It is therefore clear that the referring court’s analysis of Decree 147/2005 is that it is a measure for the implementation of a number of provisions of that regulation, adopted prior to the expiry of the period of time which the Hellenic Republic had initially chosen to allow itself for their application.

36 It follows that, taking into consideration the fact that the European Union law provisions of which an interpretation is requested are intended to apply, within the national legal order, prior to the expiry of the period of time permitted by European Union law, the interpretation sought is not quite obviously unconnected with the subject-matter of the main proceedings and is not hypothetical.

37 Accordingly, the Court has jurisdiction to give a ruling on all the questions referred.

38 Before answering the questions referred, the objective of Regulation No 2042/2003 should be kept in mind. In that regard, Article 1(1) of that regulation states that it establishes common technical requirements and administrative procedures for ensuring the continuing airworthiness of aircraft, including any component for installation thereto.

39 As is clear from the definition of ‘continuing airworthiness’ in Article 2(d) of that regulation, that concept extends to all the processes ensuring that, at any time in its operating life, an aircraft complies with the airworthiness requirements in force and is in a condition for safe operation.

40 Those processes are specified in Annex I to Regulation No 2042/2003. Section A of that Annex imposes technical requirements, while Section B thereof lays down the administrative requirements to be followed by the competent authorities in charge of the application and enforcement of those technical requirements.

41 The scope of Regulation No 2042/2003 therefore does not extend to all aspects of aviation safety, but is clearly restricted to a number of technical aspects, namely those intended to ensure the continuing airworthiness of aircraft, and to the administrative procedures relating to compliance with those technical processes.

42 It is therefore for the referring court, which is alone competent to interpret national law, to determine whether the provisions of national law at issue in the main proceedings fall within the scope of that regulation. In particular, it is for the referring court to assess to what extent the technical responsibilities conferred by Decree 147/2005 on flight operations inspectors, cabin safety inspectors, licensing inspectors and medical inspectors correspond to the continuing airworthiness measures covered by that regulation.

43 By its first question, the referring court asks, in essence, whether Article 2 and provision M.B.902 of Annex I to Regulation No 2042/2003, read in the light of provision M.B.102 of Annex I to Decision 2003/19, must be interpreted as meaning that Member States have the option, when adopting measures to complement the implementation of that regulation, of distributing the tasks involved in the inspection of aircraft airworthiness among several specialised categories of inspectors.

44 As regards the allocation of specific tasks and responsibilities falling within the scope of Regulation No 2042/2003, it must be observed that provision M.B.102 of Annex I to that regulation does no more than provide that Member States are to designate a competent authority for the oversight of continuing airworthiness and for the control of certificates required for that purpose.

45 Beyond that, that provision leaves to each authority the task of establishing its own organisational structure, and does no more than state that the number of staff is to be appropriate to meet the responsibilities placed on the authority concerned.

46 The provision at issue therefore contains no direction as to the form of that structure or as to the distribution of tasks within that structure.

47 Moreover, Decision 2003/19, as a measure for the implementation of Regulation No 2042/2003, cannot impose on Member States obligations which exceed those laid down by that regulation.

48 In those circumstances, the answer to the first question is that Article 2 and provision M.B.902 of Annex I to Regulation No 2042/2003 must be interpreted as meaning that it is open to the Member States, when adopting measures to complement the implementation of that regulation, to distribute, within the competent authority provided for by provision M.B.102 of that annex, the tasks of inspection of aircraft airworthiness among a number of specialised categories of inspectors.

49 By its second question, the referring court asks, in essence, whether provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 must be interpreted as meaning that any individual who is responsible for the inspection of aircraft airworthiness in a specific field must have five years experience covering all aspects of what is involved in ensuring the continuing airworthiness of an aircraft.

50 The provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 provides that the staff responsible for reviewing the airworthiness of aircraft must have at least five years experience in the field of continuing airworthiness. That concept must be understood to have the meaning given to it by the regulation, as stated in paragraphs 38 to 41 of this judgment.

51 It follows from the fact that the wording of provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 is in general terms that the provision must be interpreted as meaning that any individual who is called on to assume the task of inspecting any aspect whatsoever of the airworthiness of aircraft must possess five years experience covering all the tasks and responsibilities involved in ensuring the continuing airworthiness of aircraft within the meaning of that regulation.

52 On the other hand, it cannot equally be inferred that the experience required must also cover aspects which do not fall within the area of ‘continuing airworthiness’ within the meaning of Regulation No 2042/2003.

53 The answer therefore to the second question is that provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 must be interpreted as meaning that any individual who is responsible for inspecting any aspect whatsoever of the airworthiness of aircraft must have five years experience covering all aspects involved in ensuring the continuing airworthiness of an aircraft, and those aspects alone.

54 By its third, fifth and sixth questions, which concern the meaning of ‘at least five years experience in continuing airworthiness’, which must be possessed, in accordance with provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003, by the staff responsible for reviewing the airworthiness of aircraft, the referring court asks, in essence, whether that experience must necessarily have been acquired by work within an aircraft maintenance workshop (the third question), or whether it is possible to take into account practical experience which may have been acquired during or subsequent to university studies (the fifth question), and whether it is possible to take into account experience acquired by carrying out, before the entry into force of Regulation No 2042/2003, the duties of an inspector of aircraft airworthiness (the sixth question).

55 In that regard, it must be observed that it is clear from provision M.B.902(a) of Annex I to Regulation No 2042/2003 that the staff responsible for reviewing aircraft airworthiness must be capable of carrying out an airworthiness review in accordance with the technical requirements imposed by Section A of Annex I to that regulation.

56 To that end, provision M.B.902(b), point 1, of that Annex imposes the requirement that the staff concerned possess at least five years experience in continuing airworthiness. That provision does not however specify how that experience is to have been acquired.

57 Accordingly, while provision M.B.902(a) and (b) of Annex I to Regulation No 2042/2003 determines the degree and content of the experience which must be possessed by the staff who are, in the Member States, responsible for reviewing aircraft airworthiness, that provision does not lay down any obligation or any restriction or exclusion in relation to the circumstances in which that experience must have been acquired.

58 The Member States may therefore recognise any experience which is relevant to the duties to be performed, provided that that experience is sufficiently extensive to encompass all aspects which must be involved in the inspection of the airworthiness of aircraft.

59 That being the case, the Member States may choose to take into account experience acquired by work within an aircraft maintenance workshop, to recognise experience acquired during workplace-based practical training during aeronautical studies or also experience linked to having performed the duties of an airworthiness inspector in the past.

60 The answer therefore to the third, fifth and sixth questions is that provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 must be interpreted as meaning that Member States may determine the circumstances in which the experience of at least five years in continuing airworthiness which must be possessed by the staff responsible for reviewing aircraft airworthiness may be acquired. In particular, Member States may choose to take into account experience acquired by work within an aircraft maintenance workshop, to recognise experience acquired during workplace-based practical training during aeronautical studies or also experience linked to having performed the duties of an airworthiness inspector in the past.

61 By its fourth question, the referring court seeks, in essence, to ascertain whether Regulation No 2042/2003 enables Member States to treat in the same way and subject to the same obligations – in particular as regards the required experience of at least five years in continuing airworthiness – both graduates holding an aeronautical degree and holders of an aircraft maintenance licence, within the meaning of Annex ΙΙΙ to that regulation, headed ‘Part-66’ (‘a Part-66 licence’).

62 Provision M.B.902(b), point 2, of Annex I to Regulation No 2042/2003 provides that the staff responsible for reviewing aircraft airworthiness are to be the holders of a Part-66 licence or an aeronautical degree or equivalent. The wording of that requirement does not make any distinction between holders of a Part-66 licence and holders of a degree.

63 Further, provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 imposes the requirement that every member of staff responsible for reviewing aircraft airworthiness must have at least five years experience in continuing airworthiness.

64 As to how those two requirements are linked, it must be observed that the requirement in point 1 of provision M.B.902(b) concerns a qualification which is independent of the requirement in point 2 of that provision. Accordingly, there are two separate qualifications. The conjunction ‘and’ which connects the two points of the provision at issue indicates that the conditions required are cumulative.

65 No more than point 2 of provision M.B.902(b) of Annex I to Regulation No 2042/2003, point 1 of that provision does not make any distinction between holders of a Part-66 licence and holders of a higher education degree.

66 The same conclusion must be reached in relation to the requirements laid down in points 3 and 4 of provision M.B.902(b) of Annex I to Regulation No 2042/2003.

67 The answer therefore to the fourth question is that the provision M.B.902(b) of Annex I to Regulation No 2042/2003 must be interpreted as meaning that it does not make any distinction between holders of a Part-66 licence and holders of a higher education degree.

68 By its seventh and eighth questions, which can be examined together, the referring court seeks, in essence, to ascertain whether provision M.B.902(b) of Annex I to Regulation No 2042/2003 must be interpreted as meaning that the competent authorities of the Member States have the power to select, as candidates to perform the duties of aircraft airworthiness inspectors, individuals who do not possess one of the qualifications required, such as experience in continuing airworthiness or aeronautical maintenance training, and to provide that those individuals are to pursue training in the area(s) of deficiency after their selection and before they assume their duties, although no appraisal criterion is necessarily provided for on the conclusion of such training.

69 As stated in paragraph 55 of this judgment, it is clear from provision M.B.902(a) of Annex I to Regulation No 2042/2003 that the staff responsible for reviewing aircraft airworthiness must be capable of carrying out an airworthiness review in accordance with the technical requirements imposed by Section A of Annex I to that regulation.

70 To that end, by virtue of provision M.B.902(b) of Annex I to Regulation No 2042/2003 it is mandatory that the staff concerned possess certain qualifications, listed in the form of four requirements, in respect of which it has been held, in paragraphs 63 to 65 of this judgment, that the conditions are cumulative.

71 It follows that the review of aircraft airworthiness can be carried out only by staff who demonstrably satisfy all the criteria required. That presupposes that the staff concerned have undergone all the necessary education and training before assuming the duties of airworthiness inspectors.

72 In accordance with the objective pursued by the basic regulation, on the basis of which Regulation No 2042/2003 was adopted, which is to establish and maintain a high uniform level of civil aviation safety in Europe, it is essential that the prior acquisition of that education and training be the subject of a final appraisal, with the aim of verifying that the candidate to perform the duties of airworthiness inspector has fully acquired and assimilated the necessary knowledge and competencies to ensure that those duties are performed correctly and reliably.

73 The answer therefore to the seventh and eighth questions is that provision M.B.902(b) of Annex I to Regulation No 2042/2003 must be interpreted as meaning that only those individuals who have first undergone all the education and training required by that provision and whose knowledge and competencies on the conclusion of such training programmes have been subject to appraisal may perform the duties of inspectors of the airworthiness of aircraft.

74 By its 9th, 10th and 11th questions, which relate to the meaning of ‘a position with appropriate responsibilities’ which is a qualification required by the staff responsible for reviewing aircraft airworthiness, in accordance with provision M.B.902(b), point 4, of Annex I to Regulation No 2042/2003, the referring court asks, in essence, whether that requirement refers to duties performed in the past by such staff or, on the contrary, whether that provision must be interpreted as referring to the position occupied by the individual concerned in connection with his duties as an inspector of aircraft airworthiness (the 9th question) and, in the latter case, what specific conditions must be satisfied (the 10th and 11th questions).

75 As regards the ninth question, it must be observed that the requirement of a position with appropriate responsibilities is the fourth and last of the qualifications required by provision M.B.902(b) of Annex I to Regulation No 2042/2003 in order to carry out the duties of an inspector of the continuing airworthiness of aircraft. For the same reasons as set out in paragraphs 69 to 71 of this judgment, that requirement must be regarded as a cumulative addition to the three preceding requirements and must be satisfied by the staff concerned before the assumption of the duties of an airworthiness inspector.

76 As stated by the Commission, the requirement of a position with appropriate responsibilities answers the need to ensure that the staff in question have the professional maturity and the experience required to carry out the tasks of inspection in accordance with the procedures laid down by Regulation No 2042/2003 and to arrive at reliable conclusions as to the continuing airworthiness of inspected aircraft.

77 The appropriate responsibilities associated with the position occupied by the staff responsible for reviewing aircraft airworthiness must not be considered solely in terms of hierarchical status, but must be assessed in the light of the duties to be performed, which involve the ability to engage all the processes which ensure that, at any time in its operating life, an aircraft complies with the airworthiness requirements in force and is in a condition for safe operation. That ability involves both the capacity to carry out all the necessary technical controls and also the capacity to assess whether the results of those controls do or do not permit the issue of documents certifying the airworthiness of the inspected aircraft.

78 The answer therefore to the ninth question is that provision M.B.902(b), point 4, of Annex I to Regulation No 2042/2003 must be interpreted as meaning that only those individuals who have previously occupied a position with appropriate responsibilities, demonstrating both their capacity to carry out all the necessary technical controls and also the capacity to assess whether or not the results of those controls permit the issue of documents certifying the airworthiness of the inspected aircraft may perform the duties of inspectors of the airworthiness of aircraft.

79 Given the answer to the ninth question, there is no need to answer the 10th and 11th questions.

80 By its 12th and 13th questions, the referring court asks, in essence, whether Regulation No 2042/2003 must be interpreted as meaning that the competent authorities of the Member States are obliged to provide that the individuals who were performing the duties of inspecting aircraft airworthiness at the date when that regulation entered into force are to continue, automatically and without any selection procedure, to perform such duties.

81 First, it must be observed that Regulation No 2042/2003 contains a number of provisions intended to ensure that the administrative authorities of Member States have sufficient time to adjust to the new regulatory framework, including, in particular, the option, provided by Article 7(3), to delay the application of the new provisions.

82 However, there is no provision in that regulation which requires the competent authorities of Member States to provide that the individuals who, at the date when that regulation entered into force, were performing the duties of inspecting aircraft airworthiness are to continue to perform those duties. In particular, there is no provision which obliges the Member States to re-accredit, automatically and without any selection procedure, the competencies of those individuals.

83 As stated in paragraph 47 of this judgment, Decision 2003/19, as a measure for the implementation of Regulation No 2042/2003, cannot, in that regard, impose on Member States obligations which are additional to those of the regulation.

84 The answer therefore to the 12th and 13th questions is that Regulation No 2042/2003 must be interpreted as meaning that the authorities of Member States are under no obligation to provide that the individuals who were performing the duties of inspecting aircraft airworthiness at the date when that regulation entered into force are to continue, automatically and without any selection procedure, to perform such duties.

85 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. Article 2 and provision M.B.902 of Annex I to Commission Regulation (EC) No 2042/2003 of 20 November 2003 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks must be interpreted as meaning that it is open to the Member States, when adopting measures to complement the implementation of that regulation, to distribute, within the competent authority provided for by provision M.B.102 of that annex, the tasks of inspection of aircraft airworthiness among a number of specialised categories of inspectors.

2. Provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 must be interpreted as meaning that any individual who is responsible for inspecting any aspect whatsoever of the airworthiness of aircraft must have five years experience covering all aspects involved in ensuring the continuing airworthiness of an aircraft, and those aspects alone.

3. Provision M.B.902(b), point 1, of Annex I to Regulation No 2042/2003 must be interpreted as meaning that Member States may determine the circumstances in which the experience of at least five years in continuing airworthiness which must be possessed by the staff responsible for reviewing aircraft airworthiness has been acquired. In particular, Member States may choose to take into account experience acquired by work within an aircraft maintenance workshop, to recognise experience acquired during workplace-based practical training during aeronautical studies or also experience linked to having performed the duties of an airworthiness inspector in the past.

4. Provision M.B.902(b) of Annex I to Regulation No 2042/2003 must be interpreted as not making any distinction between holders of an aircraft maintenance licence, within the meaning of Annex III to that regulation, headed ‘Part-66’, and holders of a higher education degree.

5. Provision M.B.902(b) of Annex I to Regulation No 2042/2003 must be interpreted as meaning that only those individuals who have first undergone all the education and training required by that provision and whose knowledge and competencies on the conclusion of such training programmes have been subject to appraisal may perform the duties of inspectors of the airworthiness of aircraft.

6. Provision M.B.902(b), point 4, of Annex I to Regulation No 2042/2003 must be interpreted as meaning that only those individuals who have previously occupied a position with appropriate responsibilities, demonstrating both their capacity to carry out all the necessary technical controls and also the capacity to assess whether or not the results of those controls permit the issue of documents certifying the airworthiness of the inspected aircraft may perform the duties of inspectors of the airworthiness of aircraft.

7. Regulation No 2042/2003 must be interpreted as meaning that the authorities of Member States are under no obligation to provide that the individuals who were performing the duties of inspecting aircraft airworthiness at the date when that regulation entered into force are to continue, automatically and without any selection procedure, to perform such duties.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ipourgos Metaforon kai Epikinonion v Ipourgos Ikonomias kai Ikonomikon[2012] EUECJ C-271/11 (08 November 2012) URL: http://www.bailii.org/eu/cases/EUECJ/2012/C27111.html Cite as: ECLI:EU:C:2012:696, [2012] EUECJ C-271/11, EU:C:2012:696

Court of Justice of the European Communities (including Court of First Instance Decisions)