Basic Regulation Article 71 amendment

The CAA proposes to recommend that DfT amend Article 71 of Regulation (EU) 2018/1139 (the Basic Regulation) to widen its scope by removing current limitations on the CAA’s discretion to grant exemptions and more closely aligning the power with that found in domestic law under the Air Navigation Order 2016 (“the ANO”).

Article 71 currently only allows exemptions based on urgent operational need, or urgent and unforeseeable circumstances, and is subject to several further conditions on its use. These limitations confine the CAA’s discretion in matters of safety and restrict the CAA’s ability to issue exemptions from the requirements of assimilated safety law.

These constraints on the exercise of this power:

• limit innovation, as exemptions cannot be used to facilitate research and development, trials and testing of new technologies, or novel activities;
• may negatively impact safety as the CAA is unable to allow non-urgent activity which cannot meet the requirements of the regulations, but which the CAA considers to be in the interests of safety;
• may inhibit the CAA’s mission to regulate for growth and pursue a core mission of continuous safety improvement; and
• in the case of the additional conditions set out in paragraphs (a) to (d) of Article 71, set out considerations which the CAA is obliged to or does have regard to in any event.

There are no similar restrictions on the exercise of the CAA’s power to exempt from requirements under Article 266 of the Air Navigation Order 2016 (“the ANO”). The ANO provision pre-dates European aviation safety law made under the Basic Regulation, and affords the CAA a wide discretion to exempt from any provision of the ANO (subject to a small number of exceptions) and impose any conditions on the exemption it thinks fit.  

The CAA is considering recommending to the DfT that the limitations on the CAA’s ability to issue exemptions from the requirements of assimilated safety law made under Chapter III of the Basic Regulation should be removed. This will enable the CAA to issue exemptions in non-urgent situations where the CAA considers it safe and appropriate to do so. The CAA will also gain the ability to impose such conditions on exemptions as it sees fit, so that relevant risks can be addressed under each exemption application.

There is no intention to change the restriction on exempting from essential requirements under Chapter III of the Basic Regulation. The CAA will remain unable to make exemptions to these essential requirements, as these are core requirements.

Exemptions are, by their nature, used only in exceptional circumstances and the CAA does not intend any material change to the considerations relevant to the grant of an exemption. Each application for an exemption would continue to be considered on a case by case basis, as it is now. If this proposal is taken forward the CAA intends to publish a policy on the application of its exemption powers under any revised Article 71 and Article 266 of the ANO.

We will undertake a further consultation on the policy on the use of any revised exemption powers in due course.

The benefits of the proposed change are anticipated to be:

a)  Greater flexibility in the application of the rules will facilitate the development, testing and scaling of new technologies and support industry growth in new sectors.

b)   More adaptability in the regulatory framework across the established regulated industry in non-urgent cases where the CAA considers it safe and appropriate to do so.

c)   Greater clarity and consistency within the aviation regulatory rulebook on the CAA’s exemption powers and their application. 

The current wording of Article 71 is as follows:

                                                Article 71

Flexibility provisions

1.        The CAA may grant exemptions to any natural or legal person subject to this Regulation from the requirements applicable to that person pursuant to Chapter III, other than the essential requirements laid down in that Chapter, or to regulations made under that Chapter in the event of urgent unforeseeable circumstances affecting those persons or urgent operational needs of those persons, where all of the following conditions have been met:

(a)      it is not possible to adequately address those circumstances or needs in compliance with the applicable requirements;

(b)      safety, environmental protection and compliance with the applicable essential requirements are ensured, where necessary through the application of mitigation measures;

(c)       the CAA has mitigated any possible distortion of market conditions as a consequence of the granting of the exemption as far as possible; and

(d)      the exemption is limited in scope and duration to the extent strictly necessary and it is applied in a non-discriminatory manner.

The amended wording of Article 71 could be similar to the below:

                                                 Article 71

Flexibility provisions

1.        Subject to paragraphs 2 and 3, the CAA may grant exemptions to any natural or legal person subject to this Regulation from the requirements applicable to that person pursuant to Chapter III or to regulations made under that Chapter.

2.        Exemptions granted under this Article may not include exemptions from the essential requirements laid down in Chapter III.

3.        Exemptions granted under this Article may include such conditions as the CAA deems appropriate.

It is important to note that any decisions about whether and how to change the language of legislation rests with DfT and so if the proposal is taken forward, any amendments to the language of Article 71 could look different.

The CAA is seeking stakeholder views on a proposal to:
1.    Remove the requirement in paragraph 1 for “urgent unforeseeable circumstances” or “urgent operational needs” and the conditions contained in sub-paragraphs (a) to (d);
2.    Retain the restriction on exemptions from the essential requirements laid down in Chapter III of the Basic Regulations;
3.    Include a power to impose such conditions on any exemption granted under Article 71 as the CAA deems appropriate. 
4.    Create a policy on the use of CAA exemption powers.