1.3 Rulemaking, Bilateral Agreements & Non-EASA Aircraft

The EASA Rulemaking Lifecycle

The drafting and updating of European aviation legislation follows a transparent, consultative rulemaking procedure defined by the EASA Management Board. Rulemaking tasks originate from safety recommendations (e.g. following accident investigations under ICAO Annex 13), technological advances, international harmonization initiatives, or changes to ICAO SARPs.

The rulemaking lifecycle follows six distinct stages:

1. Strategic Planning & EPAS:

   • The European Plan for Aviation Safety (EPAS) is a rolling five-year strategic roadmap adopted annually by EASA.
   • Identifies systemic safety vulnerabilities, emerging operational risks, and environmental priorities, scheduling specific Rulemaking Tasks (RMT).

2. Terms of Reference (ToR):

   • Once an RMT is initiated, EASA issues a formal Terms of Reference (ToR).
   • The ToR defines the task scope, technical objectives, expected safety impact, regulatory delivery timeline, and the composition of the drafting group (comprising EASA technical experts and nominated industry/NAA stakeholders).

3. Notice of Proposed Amendment (NPA):

   • The drafting group produces a comprehensive consultation paper termed a Notice of Proposed Amendment (NPA).
   • Published on the EASA website, the NPA contains the proposed regulatory text, explanatory preamble, and a regulatory impact assessment.
   • Undergoes a mandatory public consultation period, typically lasting two to three months, during which any airline, maintenance facility, manufacturer, national authority, or individual licensed technician can submit comments via EASA's automated Comment Response Tool (CRT).

4. Comment-Response Document (CRD):

   • EASA reviews and evaluates every submitted comment.
   • Produces a Comment-Response Document (CRD) summarizing stakeholder positions, providing formal agency responses, and presenting the revised regulatory draft.

5. The Regulatory Fork: EASA Opinion vs Agency Decision:

   • EASA Opinion: If the proposal requires amendments to binding European legislation (Hard Law, such as amending Regulation (EU) No 1321/2014, Part-66, or Part-145), EASA submits a formal Opinion to the European Commission.
   • Executive Director Decision (EDD): If the proposal modifies non-binding soft law (Certification Specifications, AMC, or Guidance Material), the EASA Executive Director directly signs and issues an Agency Decision, immediately updating the soft law without Commission involvement.

6. Commission Adoption and Comitology:

   • For Opinions, the European Commission presents draft Implementing Regulations to the EASA Committee (comprising representatives from each EU Member State) under the EU comitology procedure.
   • Following committee approval and scrutiny by the European Parliament and Council, the European Commission formally adopts the regulation.
   • The text is published in the Official Journal of the European Union (OJEU), specifying an entry-into-force date (typically 20 days post-publication) and applicable transition dates.

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Bilateral Aviation Safety Agreements (BASA)

Civil aviation is intrinsically global. Major airlines operate aircraft manufactured across multiple jurisdictions (e.g., Boeing in the United States, Airbus in Europe, Bombardier/De Havilland in Canada, Embraer in Brazil), and aeronautical components constantly move across borders for maintenance, repair, and overhaul. To eliminate redundant regulatory inspections, reduce operating costs, and facilitate trade, the European Union enters into Bilateral Aviation Safety Agreements (BASA) with non-EU nations (third countries).

Structure of a Bilateral Agreement

A BASA is a formal government-to-government treaty negotiated by the European Commission (with technical assistance from EASA) and ratified by the European Parliament and Council. It comprises:

• The Executive Agreement: Establishes common institutional mechanisms, dispute settlement procedures, and a bilateral Joint Committee.
• Technical Annexes: Specific annexes addressing individual aviation domains:
  • Annex 1 (Airworthiness & Environmental Certification): Reciprocal acceptance of Type Certificates, Supplemental Type Certificates (STCs), repair designs, and parts approvals.
  • Annex 2 (Maintenance): Reciprocal acceptance of maintenance organisation approvals and maintenance releases.
  • Annex 3 (Flight Simulation Training Devices - FSTD): Mutual evaluation and qualification of flight simulators.
  • Annex 4 (Pilot Licensing): Conversion and mutual recognition of private and commercial pilot licenses.

Major Bilateral Aviation Agreements

• EU-US BASA: Formally titled the Agreement between the United States of America and the European Community on Cooperation in the Regulation of Civil Aviation Safety. Signed in 2008, it entered into full force on 1 May 2011, replacing preceding bilateral agreements between individual EU states and the Federal Aviation Administration (FAA).
• EU-Canada BASA: Entered into force in 2011, establishing mutual airworthiness and maintenance recognition between EASA and Transport Canada Civil Aviation (TCCA).
• EU-Brazil BASA: In force since 2013, governing airworthiness cooperation with the Agência Nacional de Aviação Civil (ANAC).
• EU-UK Trade and Cooperation Agreement (TCA): Following the United Kingdom's withdrawal from the EU (Brexit) and EASA on 31 December 2020, aviation relations between the UK Civil Aviation Authority (UK CAA) and EASA are governed by the aviation safety chapter and annexes of the EU-UK TCA.

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Technical Implementation Procedures (TIP) and Maintenance Annex Guidance (MAG)

To translate high-level BASA treaty provisions into practical hangar-floor procedures, the technical regulatory agencies publish two vital implementation documents:

1. Technical Implementation Procedures (TIP): Developed jointly between EASA and the foreign authority (e.g., FAA). Governs the administrative and technical procedures for validating type certificates, approving major design changes, and monitoring continued airworthiness under the Airworthiness Annex.
2. Maintenance Annex Guidance (MAG): Detailed operational guidance detailing how an EASA Part-145 organisation can secure and maintain FAA approval, and conversely how an FAA Part-145 repair station can secure EASA approval under the Maintenance Annex.

FAA FAR Part-145 Dual-Release Requirements

Under the EU-US BASA and its MAG, an EASA Part-145 maintenance organisation located within an EU Member State servicing US-registered (N-registered) aircraft, or components intended for installation on N-registered aircraft, does not receive a separate ground-up inspection from FAA inspectors. Instead, the facility is audited by its local National Aviation Authority (NAA) acting as the FAA's administrative agent.

To obtain and maintain this FAA FAR Part-145 Repair Station Certificate, the EU facility must fulfill specific regulatory conditions:

• MOE FAA Supplement: The organisation drafts an FAA Supplement to its existing EASA Maintenance Organisation Exposition (MOE). This supplement bridges differences between EASA and FAA rules.
• FAA Special Conditions:
  1. Suspected Unapproved Parts (SUP): Mandatory reporting of suspected unapproved parts and unairworthy conditions directly to the FAA within 96 hours.
  2. FAA Airworthiness Directives: Verification of compliance with all applicable FAA ADs and manufacturer service documents approved by the FAA.
  3. Drug and Alcohol Testing: Implementation of an unannounced employee drug and alcohol testing programme (applicable to US-based operations or as required for contractors servicing US commercial air carriers).
  4. Tool Calibration: Tooling and test equipment calibration must be traceable to the US National Institute of Standards and Technology (NIST) or an approved European national standard (e.g., PTB in Germany, NPL in the UK).

The Dual Release Statement

When an approved facility completes maintenance on a component intended for both European and American markets, it issues an EASA Form 1 containing a recognized Dual Release Statement in Block 11/12:

"Certifies that the work specified in Block 11/12 was carried out in accordance with EASA Part-145 and in respect to that work the aircraft/component is considered ready for release to service under FAA approval certificate number [FAA Repair Station Certificate Number]."

This single dual release document legally authorizes the component for immediate installation on both EU-registered and US-registered aircraft.

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European Military Airworthiness Requirements (EMAR)

Under Article 2(3)(a) of Regulation (EU) 2018/1139, aircraft carrying out military, customs, police, search and rescue, firefighting, and coastguard services are strictly excluded from EASA's legal jurisdiction. Airworthiness for military aircraft remains under the sovereign authority of individual national Ministries of Defence.

To eliminate cross-border maintenance friction and harmonize military airworthiness across European armed forces, the European Defence Agency (EDA) established the Military Airworthiness Authorities (MAWA) Forum. MAWA developed the European Military Airworthiness Requirements (EMAR), intentionally modeling them upon the civil EASA regulatory architecture:

• EMAR 21: Military aircraft initial airworthiness, design, and production organisation approvals.
• EMAR 145: Requirements for approved military maintenance organisations.
• EMAR 66: Military aircraft maintenance certifying staff licensing.
• EMAR M: Continuing airworthiness management for military aircraft fleets.

Many civil EASA Part-145 maintenance facilities maintain dual approvals (EASA Part-145 and national EMAR 145) to service government-owned military transport fleets (such as the Airbus A400M or C-130 Hercules).

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Annex I Aircraft (Non-EASA Aircraft)

In the EASA Basic Regulation (Regulation (EU) 2018/1139), Annex I defines categories of aircraft that are completely excluded from European Union airworthiness regulation (formerly known as Annex II under the repealed Regulation (EC) No 216/2008). These aircraft remain under the exclusive sovereign jurisdiction of individual National Aviation Authorities.

Excluded Categories under Annex I

1. Historic Aircraft:

   • Aircraft having clear historical relevance (participation in a notable historic event, major step in aviation development, or major role in armed forces).
   • Criteria: Original design originating before 1 January 1955 and production having ceased before 1 January 1975; or aircraft of individual historical significance as determined by the national authority (e.g., vintage warbirds, early jet trainers).

2. Research, Experimental, and Scientific Aircraft:

   • Aircraft specifically designed or modified for research, experimental, or scientific purposes, produced in very limited numbers.

3. Amateur-Built Aircraft:

   • Aircraft of which at least 51% is built by an amateur, or a non-profit association of amateurs, for their own personal purposes and without any commercial objective (the internationally recognized "51% amateur build rule").

4. State Aircraft:

   • Aircraft performing military, customs, police, search and rescue, firefighting, border control, or coastguard services (unless an individual Member State exercises the opt-in provision under Article 2(6) to bring state aircraft under EASA rules).

5. Light Aviation / Microlights (Ultralights):

   • Very light aircraft, gliders, and powered parachutes with low mass thresholds. Under Article 2(8) of Regulation (EU) 2018/1139, Member States may "opt out" light aeroplanes having a maximum take-off mass (MTOM) up to 600 kg (650 kg for amphibians) from EASA regulation, returning them to national oversight.

Legal Consequences for Maintenance Certifying Staff

• National Regulations Apply: Annex I aircraft are not governed by Part-66, Part-145, or Part-M/ML. They are operated under national flight permits (such as a national Permit to Fly rather than a standard ICAO Certificate of Airworthiness).
• Licence Applicability: An EASA Part-66 Aircraft Maintenance Licence does not automatically confer release privileges on Annex I aircraft. Release authority is governed exclusively by national aviation legislation (e.g., national engineer licenses, British BCAR Section L, or national ministerial authorizations).

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Practical Maintenance Scenario & Module 10 Exam Tips

Maintenance Practical Example: A Part-145 maintenance technician working at a line station in Amsterdam is asked to replace a main wheel assembly on a privately owned 1944 Supermarine Spitfire. The technician holds an EASA Part-66 B1.2 licence. Even though the aircraft is airworthy and based in an EU Member State, it is an Annex I historic aircraft. The technician cannot sign an EASA Part-145 Certificate of Release to Service (CRS) for this maintenance. Instead, the release must be executed under the national aviation code of the State of Registry using a national certifying authorization.

Module 10 Exam Tips:

• EASA Opinions go to the European Commission for Hard Law; EASA Decisions are signed by the Executive Director for Soft Law (CS/AMC/GM).
• An NPA has a public consultation period of two to three months.
• Under the EU-US BASA, foreign repair stations are governed by the Maintenance Annex Guidance (MAG) and must have an approved FAA Supplement in their MOE.
• Under the FAA Supplement, Suspected Unapproved Parts (SUP) must be reported to the FAA within 96 hours.
• Annex I under Regulation (EU) 2018/1139 was formerly Annex II under 216/2008.
• Amateur-built aircraft qualify for Annex I exclusion if at least 51% is constructed by an amateur for personal, non-commercial use.
• State aircraft (military, customs, police) are excluded from EASA scope unless a Member State formally opts in.