EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVIGATION EUROCONTROL EUROCONTROL EXPERIMENTAL CENTRE SECURITY AND PASSENGER RIGHTS. EEC Note No.

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1 EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVIGATION EUROCONTROL EUROCONTROL EXPERIMENTAL CENTRE SECURITY AND PASSENGER RIGHTS EEC Note No. 06/06 Project INO-1-AC-1001 Issued: June 2006 The information contained in this document is the property of the EUROCONTROL Agency and no part should be reproduced in any form without the Agency s permission. The views expressed herein do not necessarily reflect the official views or policy of the Agency.

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3 REPORT DOCUMENTATION PAGE Reference: EEC Note No. 06/06 Originator: EEC/INO (INOvative Research Area) Sponsor: EUROCONTROL Experimental Centre Security Classification: Unclassified Originator (Corporate Author) Name/Location: EUROCONTROL Experimental Centre Centre de Bois des Bordes B.P.15 F Brétigny-sur-Orge Cedex FRANCE Telephone: +33 (0) Sponsor (Contract Authority) Name/Location: EUROCONTROL Agency 96, Rue de la Fusée B-1130 Brussels Telephone: WEB Site: TITLE: SECURITY AND PASSENGER RIGHTS Authors A. Sauty (IFURTA) Date 06/2006 Pages x + 59 Figures 6 Tables - Annexes 6 References - Project INO-1-AC-1001 Distribution Statement: (a) Controlled by: Vu Duong, Head of INO (b) Special Limitations: None Descriptors (keywords): Task No. Sponsor Period 2005 Legal issues. passengers right, European legislation, Security, RFid, Human right Abstract: Security at airports and on board are more and more motive adduced for introducing new constraints on airlines and passengers. But introducing a new technology in passengers boarding pass may endanger human s fundamental rights of freedom, such as the free movement of people as well as the respect of private life. The report presents first an overview of the European legislation dealing with passengers rights, introduces then the Radio Frequency Identification (RFid) and possible use of this new technology in passengers boarding pass, and finally, fixes limitations for a potential use of the RFid technology in passenger s boarding pass. This note is the publication of a law student end of studies report, carried out in Innovative Research Area from June to December 2005.

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5 Security and passenger rights EUROCONTROL REVISIONS Release Date Subject V0.0 Draft 21/09/2005 Draft version for approval V1.0 Initial Initial version V1.1 Approved version Project INO-1-AC-1001 EEC Note No. 06/06 v

6 EUROCONTROL Security and passenger rights Page intentionally left blank vi Project INO-1-AC EEC Note No. 06/06

7 Security and passenger rights EUROCONTROL PREFACE EUROCONTROL is the European organisation for the safety of air navigation. To fulfil this task EUROCONTROL deals mainly with operational concepts and advanced technologies. Concepts and technologies may have positive and negative effect at the same time depending of the viewpoint or their use. Until now, concepts and technology were mainly seen by EUROCONTROL under its positive advantages. In 2004, the Innovative R&D unit of the EUROCONTROL Experimental Centre initialised a first juridical study on the use of a new technology in boarding pass, the Radio Frequency Identification (RFid). This juridical study contributes to these specific concerns by a two-side approach: Overview of the European legislation dealing with passenger s rights. Before deploying a new promising technology, as RFid in boarding pass for passengers, it shall be interesting to understand the legislation dealing with passenger s rights. The aim of this first part of the report will be to better understand the contractual relation between carrier and passenger, the fundamental need of protection to preserve security of passengers but also states themselves and finally try to highlight the interaction between passenger s fundamental rights and security consideration. This brief overview describes and tries to understand these different concepts, their motivations and their impacts on air transport. The multiplication of security standards, linked with States sovereignty, impose more and more constraints for passengers, such as Passenger Name Record lists or the use of RFid, even if this is for their own security. The question of the use, qualification and protection of these personal data should be clearly identified and discussed. An inappropriate use of these data could hinder passengers in their fundamental rights of freedom, for example, the free movement of people as well as the respect of private life. This study will be the basis of the proposed framework to reconcile human s fundamental rights of freedom and the use of RFID. Advanced intelligent boarding pass for passengers. Would Mr. Brown flying to Rome on Alitalia 345 please proceed immediately to gate 25. You can hear such desperate calls many times a day in an airport. Such delayed passengers disturb the orderly departure of a flight. At busy airports the aircraft departure slot may be lost or passenger luggage may have to be located and unloaded from the aircraft s hold. Consequently the aircraft may be delayed at destination and so this delay is propagated to the aircraft s following flights and to its connecting flights. The snowball effect of one passenger delay may create expensive supplementary costs for the carrier. Nowadays RFid technique incorporated in the passengers boarding pass could help to reduce passenger delays. This technique allows retrieving digital information from a nearby (1 2 m) boarding pass with a special transceiver without physical contact. Therefore the owner of the boarding pass could be traced automatically on its way between check-in and boarding-gate. Passengers, who might be potentially delayed on their way, could then be invited to proceed quicker by personalised visual or audio information. Project INO-1-AC-1001 EEC Note No. 06/06 vii

8 EUROCONTROL Security and passenger rights The RFid labelling of the boarding passes for the automatic localisation of the passenger within the airport area might trespass fundamental human rights of freedom. The innovative research unit of the EUROCONTROL Experimental Centre is aware of this. Fore this reason a master-thesis study by Aurelien Sauty has been initiated. The study is limited to juridical and economical aspects of the European Union. It points out limitations for a potential use of the RFid technology for passenger s boarding pass and gives an overview of the European legislation dealing with passenger s rights. Horst Hering, Sandrine Guibert INOvative Research Area viii Project INO-1-AC EEC Note No. 06/06

9 Security and passenger rights EUROCONTROL TABLE OF CONTENTS LIST OF FIGURES... IX LIST OF ANNEXES... X 1. INTRODUCTION ECONOMICAL RIGHTS OF THE EUROPEAN AIR PASSENGER INTERNATIONAL AND EUROPEAN LIABILITY REGULATION General definition and presentation Warsaw System The European initiative: Regulation 2027/ The Montreal Convention EUROPEAN REGULATION GRANTING AN ECONOMIC PROTECTION Definitions of notions related to passengers economic rights Premises of such regulation The European Regulation 261/2004 as an achievement THE EUROPEAN SECURITY REGULATION IMPLEMENTATION OF THE SECURITY CONCEPT ON THE INTERNATIONAL LEVEL Brief overview of the historical aspect of this activity Annex 17 and Updating THE SECURITY CHALLENGE AFTER SEPTEMBER The Need to address this Challenge on a European Level The Role played by the European Institutions REGULATION 2320/2002 AS A EUROPEAN RESPONSE TO A GLOBAL THREAT Core Principles of the Regulation Objectives of the Regulation The Settings of an Appropriate Compliance Monitoring System THE BALANCE BETWEEN SECURITY AND PASSENGERS FUNDAMENTAL RIGHTS EUROPEANS CITIZENS FUNDAMENTAL RIGHTS Owing to the Institutions Dedication and Regulation Owing to the Charter of Fundamental Rights ILLUSTRATION BY THE PNR CASE Presentation of the Case A Solution founded in an Unbalanced Compromise CONCLUSION OF THE JURIDICAL STUDY...44 LIST OF FIGURES Figure 1: Structure of an RFid System Figure 2: Illustration of a passive RFid tag Figure 3: Model of pre-printed RFid tags developed by Diagramm Albarch Figure 4: Scheme of an airport using RFid technology Figure 5: Scheme representing a security area framed by RFid readers Project INO-1-AC-1001 EEC Note No. 06/06 ix

10 EUROCONTROL Security and passenger rights Figure 6: RFid boarding pass (c=chip; a=antenna) LIST OF ANNEXES ANNEX A: INTERNATIONAL LIABILITY SYSTEMS ANNEX B - PASSENGERS RIGHTS PROTECTED IN THE EU ANNEX C - KEY REGULATION ANNEX D - Key regulation ANNEX E: PNR data elements required by CBP from air carriers ANNEX F - Key Regulation x Project INO-1-AC EEC Note No. 06/06

11 Security and passenger rights EUROCONTROL PART 1: OVERVIEW OF THE EUROPEAN LEGISLATION DEALING WITH PASSENGERS RIGHTS 1. INTRODUCTION This document realizes an overview of European regulation. Its aim is to show different mechanisms and preoccupations peculiar to air transport. These specific concerns contributed to shape modern civil aviation, and their common points are the intervention of the European Union regulatory bodies and their impact on air passengers rights. This tendency is characterised by the will to protect European passengers, considered as European citizens, and to assure a safe and secure development of civil aviation. Indeed, by laying down principles of passenger protection three perceptions of this notion could be isolated. First, there is the protection of the passenger during the transportation period, understood as the execution of the contract of carriage. This individual has a contractual relation with the carrier and therefore some rules need to be settled in order to bond the parties rights and obligations. Then, this protection principle also concerns the fight against a world scourge known as terrorism. This protection is a basic but fundamental protection preserving and conditioning the existence of civil aviation by re-establishing confidence in this mean of transportation. Finally, the safeguarding of passengers interest will lead us to emphasize the protection of their fundamental rights, as foreseen on the European level, and as considered on the international scene. Civil aviation is international by essence thus; the interaction between States and their perception of these protection concepts impacts passengers legal status and their way of travelling. These questions are necessary to pose and to understand since the three notions of protection are not fully compatible with one another or with regard to carriers interest or States sovereignty. This brief overview describes and tries to understand these different concepts, their motivations and their impact on air transport. Our first part will concern the International and European protection of passengers economical rights. The second part will concern security s definitions and issues. We will conclude by describing European passengers fundamental rights and their confrontation to security topics, especially on the international scene. Project INO-1-AC EEC Note No. 06/06 1

12 EUROCONTROL Security and passenger rights 2. ECONOMICAL RIGHTS OF THE EUROPEAN AIR PASSENGER 2.1. INTERNATIONAL AND EUROPEAN LIABILITY REGULATION General definition and presentation The need of a legal protection The beginning of the twentieth century was a period characterised by an embryonic civil aviation. Therefore, carriers had to be preserved in order to ensure their development. The main risks were constituted by dangers inherent to their activities. They could not cope with high damages or contractual liability. Besides, this mean of transportation was not as democratised as it is now. Only few people were taking an aircraft to travel. So, a limited liability system was considered by these actors as an advantage preserving their industry. The contract of carriage has a specific juridical qualification. It is a bilateral contract characterised by the fact that the action of a party to the contract is justified by the obligation of the other contracting partner. In the case in point, the passenger s obligation of paying is justified by the fact that the carrier will take him, safely, from a place of departure to a specified destination. Non compliance can result in the cancelling of the agreement and/or damages. As seen in the maritime and rail transport, a situation without any liability regulation led the strong contracting partner to impose his point of view and preoccupations to the weaker. This practice led to the exemption of liability of air carrier. The situation was tolerated because air transport was only directed toward happy few passengers. Their options were to fly at these conditions or not fly at all. Now, we should notice that this approach is not operatively efficient or satisfying. Like the transportation industries mentioned above, an international regulation occurred in order to change this situation. Indeed, with the aviation s development, travels by air were crossing States borders. Then, international liability rules were required to harmonise the different state controlled regulations A new approach of the liability conventions applicable to international civil aviation A first conference was organised in Paris in A committee of expert was created in order to prepare a unifying Convention concerning liability. Then, a second Convention took place in Warsaw. The Convention for the Unification of Certain Rules Relating to International Carriage by Air was signed the 12 October It entered into force the 13 February 1933 owing to the ratification of 5 States. This Convention unifies the rules relating to documents of carriage, liability of the carrier and competent tribunals. This international text regroups 155 Member States. However, following the inflation phenomena and other factors, such as the democratisation of air transport, amendments to the founder text were needed. The first updater was The Hague Protocol in This text doubled the liability limits in the event of a passenger death or wounding. 2 Project INO-1-AC EEC Note No. 06/06

13 Security and passenger rights EUROCONTROL Then, the Convention of Guadalajara, in 1961, enlarged the scope of the Warsaw text by allowing its application to the non contracting carrier. The Guatemala Protocol was supposed to settle an objective liability of the carrier. In this situation, there is no necessity to prove the carrier s fault. He is automatically responsible of any accident that occurred during the transportation process. This text did not enter into force because of insufficient ratifications. In 1975, 4 additional protocols 1 converted the damages amounts foreseen in SDR (Special Drawing Rights). This chain of texts constitutes a unity known as the Warsaw system. As the air transport was developing, limitations established by the Warsaw system were violently criticized. They were considered as not adapted, because of an identified tendency seeking the raising or even suppression of these limitations. This aim was strengthen by the fact that the different updaters were not taken into account by the Warsaw Convention Parties. We shall therefore focus on the content of this liability structure. Our study will lead us to describe different initiatives, such as the European regulation 2027/97, that contributed to the modification and continuation of the Warsaw regime. Our overview concerning international conventions on liability will end with the description of the Montreal Convention adopted in 1999, that entered into force the 4 November Warsaw System We shall study the updated Convention and not limit our observations and remarks to the original text. As presented in the introduction of this part the original text has been modified several times. Therefore our presentation will include these modifications. The Convention is presented in five chapters. The first one contains the scope and definitions of the Convention. The second deals with documents of carriage. The third chapter settles rules concerning carrier s liability. The fourth includes provisions relating to combined carriage. The fifth is about general and final provisions. We shall focus on the three first chapters Scope and Object of the Convention The main object of the Convention is to unify the rules relating to transportation documents, carriers liability and courts jurisdiction. This text only applies to international air transport whether it concerns the carriage of persons, of baggage or goods. It does not apply to postal services 2. Several definitions shall be given in order to border its concrete application. Air transport should be understood as a carriage performed by aircraft for reward. There are no precision concerning the amount or nature of the reward. Therefore, we can wonder if it is linked to an idea of profit. 1 The first Protocol introduces SDR in the Warsaw original text. The second modifies the Warsaw text as amended by The Hague Protocol. The third introduces SDR in the text modified by The Hague and Guatemala Protocols (did not entered into force). Finally the fourth Protocol aligns the liability system of goods carried by air on the passenger and luggage one. Note: 1 SDR equals to Article 1 of the Convention. Project INO-1-AC EEC Note No. 06/06 3

14 EUROCONTROL Security and passenger rights The concept of reward includes payment but it applies equally to a gratuitous carriage performed by an air transport undertaking. Then, this reward is not limited to the payment of an amount of money. It can be found in a transport by interest like the transport of airline s personnel by an aircraft of the company. The Convention does not apply if the transport, without reward, is realised by a carrier that is not an airline. Meaning that carriage, as defined by the convention, is not its principal activity. Courts will, in case of litigation, determine the existence or lack of reward as it is the first condition requested to apply the Convention. The Convention only applies to international air transport 3. Basically an international transport is understood as the carriage between two distinct countries. It is a transport between two points, from one point of departure to a point of arrival whether there is or not a carriage interruption or transhipment. In other words domestic flight, without flying over another country, will not be qualified as international air transport. We shall insist on three specific characteristics leading to an international flight qualification. First, the place of departure and the place of arrival shall be located within the territory of two Contracting States. Then, the place of departure and arrival can be located within the same territory. The flight is qualified as international if there is an agreed stopping in another State, event if this State is not a Member to the Convention. Indeed, it is not the stop that determines courts jurisdiction as foreseen in the Convention. Finally, this qualification is linked to the contract s stipulations, understood as the will expressed during the conclusion of the contract. If there is an interruption in the transport operation, the place of destination taken into account will be the one planned in the contract. The flight will be considered international if it was planned as an international flight. The Warsaw Convention also applies to carriage performed by States or legally constituted public bodies. We wish to conclude this part by insisting on two specific points constituted by successive and combined carriage. The successive carriage 4 is constituted when the passenger has to turn to several carriers in order to reach his final destination. The carriage is foreseen as a single transport operation even though it might be artificially divided in different contracts. The Warsaw Convention insists on the fact that this carriage operation is considered as a single operation if it was the contracting partners intentions. Therefore, each carrier is liable for the transportation accomplished under his control. Combined carriage concerns carriage made by different means of transportation. In this case the Warsaw Convention only applies to the air transport operation, if it corresponds to the above described scope. 3 Article 2 of the Convention 4 Article 30 of the Convention 4 Project INO-1-AC EEC Note No. 06/06

15 Security and passenger rights EUROCONTROL Documents of carriage There are three documents of carriage considered in the second chapter: the passenger ticket, the luggage ticket and the air consignment note. We will describe only the two first documents that are directly linked to the passenger. The passenger ticket. It must contain particulars such as the place of departure and destination, the agreed stopping place(s), a statement that the carriage is subject to the rules relating to liability as established by the Convention. These three details are binding. Non compliance will result in the non applicability of liability limitations. The luggage ticket. This specific ticket only concerns checked luggage placed in the aircraft s hold. Cabin baggages are not subjected to such procedure. This ticket should carry the same information and respond to the same conditions than the ones mentioned on the passenger ticket. Airlines do not deliver distinct luggage tickets. There practice consists in delivering a document called air ticket which is the reunion of the passenger and luggage ticket. They deliver one tag per luggage hooked to the passenger ticket. Even if these practice are not mentioned in the Convention they are presentable in front of a Court in case of litigation. The documents of carriage materialize the contract of carriage. But the absence, irregularity or loss of such document are not obstacles with regard to the contract s validity. However, accepting a passenger or a luggage without a valid document will lead to the sanction of the carrier. He will not be entitled to benefit from any liability limitation contemplated in the Convention. The purpose of these provisions is to ensure clarity regarding the applicability of the Convention and thus, to specify the international nature of the journey. Other provisions serve to indicate the probative nature of the air ticket. A passenger could be allowed to board an aircraft even without a ticket, but in that case the carrier loses his legal protections. Hence, no carrier would admit a passenger without a valid travel document. To conclude we wish to underline that the probative nature of the ticket is not limited to the passenger s right to be carried. It is also a proof of other accessory or instrumental rights like the one existing between two carriers. It is the case concerning the use of the International Air Transport Association clearing house used for the settlement of interline account for its 330 members and participants Liability of the carrier The carrier s liability is based on: Article 17 of the Convention concerning damages sustained in the event of death or wounding of a passenger. Article 18 concerning damages sustained in the event of destruction, loss of, or damage to, any registered luggage. Article 19 concerning damages occasioned by delay in carriage by air of passengers and their luggage. The new feature introduced by the Convention is the presumption of carrier s guilt. Therefore, the carrier is liable if the damage, sustained by the passenger, is the result of an accident that occurred on board the aircraft or in the course of any operation of embarking or disembarking. Project INO-1-AC EEC Note No. 06/06 5

16 EUROCONTROL Security and passenger rights Then, two conditions are requested to trigger the carrier s liability: a proven damage that occurred during a specific period. The need of a proven damage. The damage taken into account will only result of the carrier s non compliance to two particular obligations: safety (concerning carriage of persons and luggage) and rapidity. Damages resulting from other causes are depending of common law. Considering article 17, these damages include pecuniary loss, non pecuniary loss, physical injuries, and moral prejudice. It will be the judge s duty to determine the existence or not of a specific damage and the possible beneficiaries of these compensations. Concerning article 18, the damages aimed are resulting of the carrier s incapacity to deliver luggage or cargo. Schematically, destruction will be due to an accident, loss to a bad organisation. Damage to luggage is considered as an intermediate state. They are delivered in a state that does not match with the one they had when they were given to the carrier, but they are not totally destroyed. A basic illustration would be a scratch on a brand new luggage for example. The notions of delay and carriage are strongly linked. If a deadline is foreseen in the contract of carriage the delay is easy to establish. In return, it is less obvious when there are no deadlines or specific delivery conditions. In case of litigation, the judge will have to determine the delay and the sustained damage. Delays are always determined following specific circumstances. An abnormal delay will be estimated owing to the duration of the flight, the lack of due diligence shown by the carrier, or even the proof of a fault made by the carrier. The period of occurrence. Concerning passenger, the accident that causes the damage must have occurred on board the aircraft, or during any operation of embarkation or disembarkation. If the accident occurs around the aircraft, just before boarding or just after disembarking, the situation is clear and the Convention applies. But there are some marginal cases and questioning concerning this period and its borders. Courts have elaborated a specific jurisprudence based on the notion of control. The contract of carriage begins, and the Convention applies, when the passenger loses his freedom and ends when he recovers it, meaning that he is no longer under the direction, or orders, of the carrier and its agents 5. Concerning the carriage of luggage, the carrier is liable for the damage that occurred during air transport. This length of time is understood as the period during which the carrier is in charge of the luggage, in the aerodrome, in the airplane or in any location in the event of landing outside an aerodrome. Its liability ends with the delivery of the luggage to the passenger. As a result of this observation, the carrier could be liable for damage caused to luggage that occurred before or after the strict period of carriage. Having said so, we can question ourselves concerning the terms and conditions of carrier s liability. This liability is built on a guilt presumption. In other words, the injured party is not required to prove the carrier s guilt. On the contrary, it is up to the carrier to demonstrate that it put in place the 5 Courts base their estimations on four criterions. The passenger s state (is he free to decide where he should or could go?), the existence of a control of the carrier, the imminence of boarding, presence of the passenger in a public or security area. 6 Project INO-1-AC EEC Note No. 06/06

17 Security and passenger rights EUROCONTROL necessary measures for avoiding damages, or that it was impossible to do so. Under those circumstances it is not held liable. In addition, the judge may qualify or even rule out liability if the carrier can prove that the passenger caused or even contributed to his damage. The judge s appreciation is based on the due diligence approach. This model refers to all measures that a prudent and hasty carrier would have taken in the same situation. This behaviour is estimated in concreto meaning that the judge will take into account all relevant characteristics of the flight. This behaviour guidelines are also applicable to the carrier s agents. This qualification of agent embodies the carrier s employees, other employees acting for the carrier, and occasional agents requested by the carrier. The injured passenger s fault is also an exemption case. The consequence, concerning carrier s liability, may vary from one court to the other. Indeed the Convention states that this exemption and its consequences depend of the national law appreciation. It can result in a sharing of responsibility or even in a total exemption of the carrier. The carrier has the obligation to prove the cause of the damage in order to demonstrate that it occurred because of the victim s guilt. In addition, it has to prove the causal link between this specific guilt and the damage suffered by the victim. The core principle settled in the Convention is a limitation to the carrier s liability. This limitation is the counterpart of the guilt presumption. Once these liability conditions are met, the question is to know whether the carrier can benefit from this limitation or pay for the entire prejudice. The liability for each passenger is limited to SDR ( ). This amount is the result of the Warsaw system process. Limitations were raised from SDR to SDR owing to The Hague Protocol and Montreal Protocols. This amount constitutes a basic limitation that can be raised by a specific contract passed with the carrier. The initiative of such contract belongs to the passenger. For every checked luggage the liability is limited to 17 SDR (20 ) per kilogram. A specific contract is also possible (special declaration of interest). Concerning cabin baggage the liability is limited to 332 SDR (400 ). These limitations cease to apply in some specific cases laid down in the Convention. As shown in article 25 (1) of the Warsaw Convention, the carrier shall not be entitled to avail himself of the provisions of this convention excluding or limiting his liability, if the damage is caused by his wilful misconduct or by such default on his part that is considered to be equivalent to misconduct. The Hague Protocol defines more clearly these principles. The wilful misconduct is understood as the act characterised by the intention to cause damage with full awareness of its result. The equivalent misconduct is defined as an act characterised by the fact that the author knows the possible consequences but does not want them. We shall underline that, in the original text, these limits were non evocable by the carrier if the damage was caused by one of its agent acting within the limits of his task. Finally, the absence of delivery of air ticket, or of mentioning the Convention leads to a suppression of these protections. Project INO-1-AC EEC Note No. 06/06 7

18 EUROCONTROL Security and passenger rights Proceedings and Courts competence Preliminary complain 6. Concerning the carriage of luggage, proceedings are submitted to a previous complain to the carrier forthwith after the discovery of the damage. These complain should be done within 7 days for damaged luggage, and within 21 days in case of delays. Prescription 7. The right to damages shall be extinguished if an action is not brought within two years. This prescription time starts from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. Competent Court 8. The Convention settles four competent courts chosen at the option of the plaintiff. The action can only be brought in the territory of one of the high Contracting Parties. Therefore the possibility of forum shopping practices are seriously reduced. The options are shown as following: the court having jurisdiction where the carrier ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination. Question of procedure shall be governed by the law of the chosen Court The European initiative: Regulation 2027/ Presentation of preliminary initiatives The Warsaw system became a fragmented and non adapted approach of international civil aviation. If this first step was needed in order to permit aviation s development, the impossibility to successfully update it led to its obsolescence. In addition, several States and international organisations decided of initiatives out of the Warsaw frame. The United States of America, unsatisfied by the low liability limitations, imposed specific conditions to all companies with a point of departure, stopover or destination in the USA. This State was about to denounce the Warsaw Convention. Owing to the importance of the threat, theses requirements were handled in the International Air Transport Association (IATA) 1966 Interim Agreement made in Montreal. This text is not an international convention but represents an intercompany accord. Companies insert in their fees a specific contract containing a liability limit reaching US $ in case of passenger death or injury. Another intercompany agreement occurred in 1995 at Kuala Lumpur. This IATA general assembly text provides a non limited liability and gives the possibility to passengers to ask for the application of his national law (the law of his domicile). But its recommending nature and the poor number of parties limited the impact of such initiative. 6 Article Article Article Project INO-1-AC EEC Note No. 06/06

19 Security and passenger rights EUROCONTROL Presentation and main characteristics of the European initiative The European Union Council adopted, the 9 October 1997, the Regulation (EC) n 2027/97 on air carrier liability in the event of accidents. This regulation only applies to European carriers, meaning the ones who have a valid European operating license delivered consistently with Regulation 2407/92. Its content can be summed up as following. The abandon of all liability limitation in case of death, wounding or any bodily injury of a passenger; The carrier is liable if the damage sustained by the passenger is the result of an accident that occurred on board an aircraft or during operations of embarking or disembarking. The carrier s full and objective liability for damage not exceeding SDR. In this case the carrier could be exonerated only if he proves the victim s guilt. The Community carrier shall proceed to advance payments in favour of the beneficiary. Their amount shall not be inferior to SDR per passenger in case of death. An advance payment is not considered as liability recognition of but it is not returnable. An obligation of informing passengers of this specific liability system. To conclude this brief presentation, we wish to underline that the European initiative is based on the Montreal convention preliminary work. Therefore there was no opposition between these two texts but more a constructive and regional approach of a global issue The Montreal Convention This Convention is the result of a diplomatic conference under the aegis of the International Civil Aviation Organisation. The new Convention applies to international air transport. Therefore, it coincides with the Warsaw system s one. It entered into force in November 2004, after 30 ratifications. Concerning the European Union, the situation is made more complex by the introduction of a Regional Economic Integration Organisation (REIO) clause. This clause allows the EU to sign the Convention and to be party just like one of its Member State. Therefore each and every members of the Union had to sign and ratify the new text. This procedure was done by the 29 of April 2004, and the Convention entered into force, for the 15 member States, the 18 June We shall therefore analyse the principal improvements of this Convention. Liability of the carrier and extent of compensation for damage: a two level liability scheme The carrier is liable for damages not exceeding SDR. The only request is that the passenger proves that the accident occurred on board the aircraft or during embarking or disembarking operations. The only exemption is constituted by the victim s negligence. Concerning damages exceeding SDR, liability is based on guilt presumption. Project INO-1-AC EEC Note No. 06/06 9

20 EUROCONTROL Security and passenger rights The carrier has three means of exemption: Victim s act or omission, due diligence, or, the damage is the result of a third person s act or negligence. This provision is interesting with regard to act of terrorism. Liability limits are unchanged for baggage and cargo. Liability due to delays These liability limit have been raised and the only practicable mean of exemption is due diligence. These limits are foreseen as following: For passengers, SDR per passenger For checked baggage, SDR per passenger Loss, destruction of or damage to checked baggage: The carrier is liable if those events occurred during operations of embarking or disembarking or during any period within which the checked baggage was under its responsibility. Exoneration is only possible by proving an inherent defect, quality or vice of the baggage. Concerning the cabin baggage, the carrier is liable if the damage is the consequence of its own guilt or of the guilt of one of its employee. Obligation of insurance: States parties shall require their carrier to maintain an adequate insurance covering their liability under this convention. This principle is inspired by the European Regulation 2027/97. It can be required by the State of arrival and helps to control the carriers policy toward liability. The fifth jurisdiction: The Montreal Convention adds a fifth jurisdiction located within the territory of a State Party in which the passenger has his residence. Therefore, three conditions are requested: It is, at the time of the accident, his principal and permanent residence. The carrier operates services from or to this jurisdiction, on its own aircraft or on another carrier s aircraft pursuant to a commercial agreement. The carrier conducts, in this jurisdiction, its business of carriage of passenger by itself or by another carrier with which it has a commercial agreement. The Montreal Convention entered into force the 4 November It is considered as another version of the Warsaw system taking in account, in one single instrument, the original text and the different upgrading. It is considered, and was designed, as a global response to global preoccupations. The Montreal Convention will substitute to the Warsaw one as soon as its 155 members abandon it by signing and ratifying this new international text. 10 Project INO-1-AC EEC Note No. 06/06

21 Security and passenger rights EUROCONTROL ANNEX A: INTERNATIONAL LIABILITY SYSTEMS INTERNATIONAL LIABILITY SYSTEMS Warsaw system. Montreal Convention. European Regulation. Passengers. Presumption of liability Limited Liability ( SDR per Passenger). Full liability up to SDR (in case of death or bodily injuries). Full liability up to SDR (in case of death or bodily injuries). Exemption of liability by: Exemption by victim s doing. Exemption by victim s doing. Proving due diligence. Fault of the victim. Presumption of liability above SDR (in case of death or bodily injuries). Presumption of liability above SDR (in case of death or bodily injuries). Carrier s limitation of liability non evocable in case of an inexcusable or intentional fault. Exemption by fault of the victim (carrier has the burden of proof). Exemption by third party s doing. Exemption by fault of the victim (carrier has the burden of proof). Or by proving that the carrier has not committed any fault. Exemption by due diligence. Liability for damages occasioned by delays: 4150 SDR per Passenger. Exemption by due diligence. SDR: Special Drawing Rights (1 SDR = 1.47 US$ = 1.18 ) Project INO-1-AC EEC Note No. 06/06 11

22 EUROCONTROL Security and passenger rights INTERNATIONAL LIABILITY Warsaw System Montreal Convention European Regulation SYSTEMS Baggage/freight Presumption of liability (delay, destruction, loss or damage). Exemption of the carrier by proving that he, and his agents, has taken all appropriate measures or that those measures were impossible to take. Liability in case of delays - Baggage 1000 SDR per Passenger. - Freight 17 SDR per Kilogram. Exemption by victim s doing. Liability in case of delay - Baggage 1000 SDR per passenger Exemption by due diligence. Liability for loss destruction and damage. Fault of the victim. Liability for loss, destruction or damage. - Hold baggage: 1000 SDR per passenger. For freight (Montreal Prot. 4) - Hold baggage: 1000 SDR per - Inherent vice. - Defective packing. - Act of war or armed conflict. - Act of public authority. Compensation for hold baggage and freight 17 SDR per KG. passenger. Exemption owing to an inherent vice. - Cabin baggage: 1000 SDR per passenger. - Freight: 17 SDR per Kilogram. Exemption owing to an inherent vice. - Cabin baggage: 1000 SDR per passenger. Compensation for cabin baggage 332 SDR per KG Exemption for inherent vice, defecting packing, act of war or armed conflict, act of public authority. 12 Project INO-1-AC EEC Note No. 06/06

23 Security and passenger rights EUROCONTROL 2.2. EUROPEAN REGULATION GRANTING AN ECONOMIC PROTECTION Definitions of Notions related to Passengers Economic Rights In this first subpart we shall define different concepts linked to passengers rights. This first work will lead us to explain notions of delays, cancellations, overbooking and denied boarding. Delays and cancellations are two significant inconveniences characterising air transport. They may be the result of circumstances contrary to the wishes and not involving the carrier s responsibility, especially when they are caused by strikes and/or traffic congestion. But the contrary is also observable, when these delays and cancellations are due to a non profitable coverage of seat sale or to technical problems as the result of poor maintenance or overuse of the aircraft. We can notice, as these last hypotheses do not occur often, that the main causes of delayed and cancelled flights are contrary to carriers will and do not, normally, involve their responsibility. Strikes and traffic congestion often cause crisis situations in the transport system. This second problem affects the whole civil aviation sector. Strikes and congestion are phenomena of which the passenger is victim, but they cannot be solved in the context of a policy focusing on their protection. Indeed, they require a broader sector policy. We end this brief introduction by underlining that bad weather is also a cause of delay or cancellation but technologies improvements allow a significant reduction of its impact on air transport regularity. Overbooking is a situation occurring when the number of confirmed reservations exceeds the number of available seats in the aircraft. This practice is a result of the implementation of yield management approach in the air transport activity. It is impossible to clearly illustrate how overbooking is managed by airlines. But, we can consider that these actors use the basis of historical data relating to no-show and to demands for seats. The soundness of the system relies on the accuracy of information. The airlines objective is to have an airplane, ready to take off, with all its seats occupied. A seat remaining vacant is a loss of productivity. Air transport is an activity of services and therefore, characterized by the fact that the proposed product is used as soon as it is created. Airlines cannot stock their vacant seat and propose them when there is a rise of demand. Hence, most of the cases of overbooking are not due to commercial choice but to objective operational measures. Denied boarding includes all case in which an airline refuses to carry out its transport contract obligation toward passengers. The main types of denied boarding are flight cancellation and overbooking. Refusal to carry out a contract is not governed by any international Convention. Therefore, passengers had to refer to general law of contract concerning these practices. The main contribution of Regulation 261/2004 is to take into account these behaviours Premises of Such Regulation More and more citizens of the European Union are travelling by air for business or leisure purposes. Yet, there is a steadily growing stream of complaints concerning quality of service, lack of information and recourses. This statement is worrying because passengers are the first beneficiaries of the Community policy on transport. Indeed, the third package of 1992 created a single market for air transport: since 1 st April 1997 each Community carrier is free to operate in any Member State. Project INO-1-AC EEC Note No. 06/06 13

24 EUROCONTROL Security and passenger rights These packages should allow a greater competition and permit specific strategic adaptations. Taking into account the passenger s economical rights could be part of this adaptation. But, no specific protection of passengers economic rights were granted except liability Conventions taken on the international level and general national and Community legislation on consumer protection. The International Air Transport Association (IATA) elaborated some recommendations concerning protection of passenger s rights. But we wish to underline that these recommendations do not have any binding effect and that their application and respect are conditioned by the carrier s good will. For these reasons, the Community decided that it was necessary to act on the European level. It therefore adopted, on the basis of article 80 (2) of the treaty, three regulations protecting the interest of air passengers. We already studied the regulation 2027/97 9 concerning carrier s liability in case of an accident. The two other concern computer reservation system 10 and compensation for denied boarding in scheduled air transport 11. Part of the problem, linked to this series of texts, is that passengers are, most of the time, unaware of their legal rights and so, unable to insist on their respect. Besides, enforcing Community regulation is made more difficult by the inexistence of adequate mechanism of control and sanction. This first step, even if it was not really efficient, allowed the idea of rights for passengers and their perception as consumers. Before insisting on this specific point we would like to underline that in a contact of transportation, the passenger is in a weak negotiation position, compared to the airline, when buying a ticket or subsequently making the flight. He is subjected to non negotiable conditions of carriage and to the carrier s commercial policy without being really aware of their exact terms and conditions. Besides, they do not have much choice concerning acceptation even if they are not satisfied. The passenger s position is even weakened by the fact that, in most of the case, they already paid for the service and this before even taking the flight. In case of delay, cancellation or denied boarding passengers will not be able to make any other arrangement because of financial commitments already made, or even because air transport is the only way to reach their destination. The Article 153 of the Amsterdam Treaty entitled the Commission to strengthen passengers rights. Indeed this article states that the Community shall contribute to protecting ( ) economic interest of consumers which in air transport means passengers. The development of competition, and regulation strengthening it, drew the attention of the European regulatory bodies. The Commission led several initiatives, such as advertising campaigns describing the passenger s rights. It also launched some discussions with airlines and consumers associations in order to assess the complexity of its new mandate. The result of these successive steps is Regulation 261/ The European Regulation 261/2004 as an achievement The main aim of this regulation is to ensure a high level of protection for passengers. This text takes into account denied boarding, cancellation of flights and long delays. 9 Council Regulation (EC) N 2027/97 of 9 October 1997 concerning air carrier liability in the event of accident. 10 Council Regulation (EC) N 2299/89 establishing a code of conduct for computerized reservation systems, amended by Regulation N 3089/93 of 29 October 1993 and by Regulation N 323/99 of 8 February Council Regulation (EC) N 259/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport. 14 Project INO-1-AC EEC Note No. 06/06

25 Security and passenger rights EUROCONTROL It recognizes the basic protection granted by regulation 259/91 but in the mean time repels it by underlining its poor results. Indeed some figures are representative of this situation: more than five million pieces of luggage were lost or damaged by European Union airlines and more than passengers were denied boarding in The other prevailing stake undertaken by the regulation is the balance between passengers rights and airlines viability. The new regulation introduces significant improvements allowing an important reduction in the frequency of denied boarding by forcing airlines to pay deterrent damages. This text applies from 17 February We shall therefore study the main principles of the regulation. Scope of the regulation The regulation applies to all flights, including charters, operated by European airlines from, or to European airport and to any flight departing from the European Union. This scope is quiet broad and settles obligations for non European carriers departing from European airports. The aim of the Commission is to improve quality of services and to protect European passengers. It only applies to passengers transported by motorised fixed wings aircraft. Therefore transportations made by helicopter are not concerned by this specific regulation. The commission defines the passenger subjected by the rights laid down in this text. The passenger has to fulfil his basic obligation such as presented themselves for check-in at the time indicated and in other cases not later than 45 minutes before the published departure time. It goes without saying that are only concerned passengers having a confirmed reservation. A passenger having ticket issued under frequent flyer program are protected by this regulation. It is not the case concerning passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. The text insists on the specific care concerning passengers with reduced mobility or special needs. Airlines shall give priority to carrying and assisting such persons. The regulation applies to the operating carrier whether it has or not a contract with the passenger. Indeed the operating carrier is defined as an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger. Situation taken into account The regulation takes into account three specific situations and settles specific obligations incumbent to the operating carrier. Denied boarding against the passenger s will When a carrier reasonably expects to deny boarding, it shall first call for volunteers to surrender their reservation in exchange for benefits. Volunteers shall be assisted by the airline, this assistance is additional to, and do not replace, the foreseen benefits. If the number of volunteers is not sufficient, the company might proceed to involuntary denied boarding. In this last situation the carrier shall immediately compensate the denied passengers. Project INO-1-AC EEC Note No. 06/06 15

26 EUROCONTROL Security and passenger rights Cancellation In case of cancellation, the carrier shall propose different solutions to the passenger. These propositions include assistance, re-routing, compensation, alternative transport. The aim is to reduce the impact of such cancellation on the passenger. These specific protection shall not be laid down if the passenger was informed of the cancellation at least two weeks before the scheduled time of departure or if the delay is less important but the carrier proposes solutions reducing the passenger s prejudice. This prejudice is assess by comparison to the scheduled time of arrival, if this delay does not exceed two hours, then the prejudice is considered as limited. The carrier should give the reasons of this cancellation. Therefore the passenger has a right to be informed. The carrier is not obliged to pay compensation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The carrier has the burden of proof. For example safety warning, bad weather or unforeseen strikes are circumstances that a company cannot avoid. These situations exclude compensations but do not affect other rights provided under the regulation. However the airline may request damages from the third person responsible for the problem under the relevant applicable laws. Delays There is no general definition of delay; it is estimated owing to the type of flight. for two hours concerning flight of 1500 kilometres, for three hours or more concerning flights of 1500 to 3500 kilometres, for four hours or more in the case of flights over 3500 kilometres. The carrier shall assist the delayed passenger and respect his rights to obtain reimbursement of his ticket or to continue his trip under satisfactory conditions. Passenger s rights Right to compensation In case of denied boarding and cancellation compensation are foreseen as following: 250 for flight of 1500 kilometres or less, 400 for flights between 1500 and 3500 kilometres, 600 for flights over 3500 kilometres. This compensation shall be done in any means including cash, electronic bank transfer, or even vouchers. Right to reimbursement and re-routing Passengers shall be offered the choice between reimbursement within seven days (and, if needed, a return flight to the first point of departure) and a re-routing, under comparable transport conditions, to his final destination. In the case were a town, city or region is served by several airports, an operating carrier shall offer solutions of re-routing even if this option is located in one of these airports. The carrier shall bear the cost of such transferring. 16 Project INO-1-AC EEC Note No. 06/06

27 Security and passenger rights EUROCONTROL Right to care This right to care is composed of a free of charge assistance, concerning meals and refreshments in reasonable relation to the waiting time, hotel accommodations when needed and transport between the airport and place of accommodation. In addition the passenger can benefit of telephone calls, fax message or . Upgrading and down grading If the carrier places a passenger in a class higher than that for which the ticket was purchased, it may not request any supplementary payment. On the contrary, if the carrier places a passenger in a lower class he shall reimburse the passenger within seven days. We shall conclude this part by insisting on the fact that this regulation applies without prejudice to passenger s rights to further compensation. Controls and sanctions Passengers must be informed of their rights and situation. Passengers rights are subjected to information campaign in airports and travel agencies across the European Union. Airlines shall ensure that at check-in a clearly legible notice laying down passengers rights is accessible. In addition, they have the obligation to give details about any situation taken into account by the regulation. The regulation gives the obligation to Member States to designate a national control organisation to which the passenger can refer to in case of infringement of his rights. These organisations are responsible for the enforcement of the regulation. They benefit of a direct link with airlines and State have to determine sanctions applicable in case of infringement. These sanctions shall be effective, proportionate and dissuasive. Threats There are two main treat to this regulation. First, a British national judge has put a preliminary question before the European Court of Justice about the legality of this regulation. We are still waiting for its decision but as the Court did not suspend the effect of the regulation it remains valid and applicable. Moreover, the International Air Transport Association is clearly hostile toward these new financial obligations binding airlines. The scope of the regulation and the importance of the European market justify the intervention of such international organisation. The other problem is more practical. Indeed by laying down new rights we can question ourselves concerning the impact of this policy on air fares. In addition, we would like to underline that the passengers that were denied boarding is not, as such, a relevant figure with regard to the several millions passengers carried by European airlines. The justification is more ideological and thus we can question ourselves concerning the balance of this regulation. According to some actors such as low cost airlines or insurance companies, the protection of passenger s rights will have a cost that will certainly impact the price of the air ticket. We might have a situation were passengers have more economical rights than before, but cannot use them because they will contribute to raise air fares and to make air transport less attractive with regard to other means of transportation such as the railway. Project INO-1-AC EEC Note No. 06/06 17

28 EUROCONTROL Security and passenger rights ANNEX B - PASSENGERS RIGHTS PROTECTED IN THE EU Passengers rights protected in the EU Regulation 295/91 Regulation 261/2004 Denied boarding Financial compensation < or = to 1500 Km : to 3000 Km : 0 < or = to 3500 Km : 150 > to 3500 Km : 300 Reimbursement or rerouting Included Accommodation and assistance Included Cancellation Financial compensation 0 Reimbursement 0 Right to care 0 Financial compensation < or = to 1500 Km : to 3000 Km : 400 > to 3500 Km : 600 Reimbursement or rerouting Included Accommodation and assistance Included Financial compensation As denied boarding (unless the carrier proves that extraordinary circumstances caused the cancellation and that its responsibility is excluded). Reimbursement Included when cancellation causes delay of more than five hours. Right to care Included Long delays (Two, Three or four hours depending on distance flight). Reimbursement 0 Right to care 0 Reimbursement Included in case of a delay of more than five hours. Right to care Included. 18 Project INO-1-AC EEC Note No. 06/06

29 Security and passenger rights EUROCONTROL ANNEX C - KEY REGULATION Date Type of act Content Scope 12 October 1929 (13 February 1933) 28 September 1955 (1 August 1963) 18 September 1961 (1 May 1964) International liability Conventions Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air. The Hague Protocol. Guadalajara Convention. Unified rules concerning carriers liability applying to international air carriage. The carrier is liable for damage caused to passengers, to their property and to air Cargo. This liability is limited. Doubled the liability limits in the event of a passengers wounding or death. Enlarges the scope of the Warsaw Convention by allowing an application of its content to non contracting carrier. 155 Members States carriers. Warsaw Convention Members States carriers and signatories States to the Hague Protocol. Warsaw Convention Members States carriers and signatories States to the Guadalajara Convention. 8 March 1971 Guatemala Protocol. Settles an objective liability of the carrier. Did not enter into force due to insufficient ratifications. 1 September 1975 (15 February 1996) 2 September 1975 (15 February 1996) First additional Protocol. Second Additional Protocol. Introduces Special Drawing Rights (SDR) in the Warsaw Convention. Introduces SDR in the Warsaw Convention as amended by the Hague Protocol. 3 September 1975 Third Additional Protocol. Introduces SDR in the Warsaw Convention as amended by the Hague Protocol and by the Guadalajara Convention. 25 September 1975 Fourth Additional Protocol (14 June 1998) 9 October 1997 Regulation 2027/97 on air carrier liability in the event of accidents. 28 May 1999 Montreal Convention for the Unification of Certain Rules Relating to International Carriage by Air Alignment of the liability system of air cargo on the passengers one Specific liability system based on the Montreal Convention preliminary provisions. Objective liability of the carrier concerning damage not exceeding SDR. Abandon of liability limitation in the event of death, wounding and bodily injury of a passenger. Two level liability scheme. An objective liability for damages not exceeding SDR. For damages exceeding this amount guilt presumption mechanism. Updating for the signatory States. Updating for the signatory States. Did not enter into force due to insufficient ratifications. Updating for the signatory States. European carriers, who have a valid European operating license delivered consistently with Regulation 2407/92. Member States carriers. Project INO-1-AC EEC Note No. 06/06 19

30 EUROCONTROL Security and passenger rights Date Type of act Content Scope European Economics rights 4 February Council Regulation N 259/91 establishes common rules for a denied-boarding compensation system in scheduled air transport European Union Member States carriers 18 June 1997 (1 May 1999) Amsterdam Treaty The Community shall contribute to protecting ( ) economic interest of consumers which in air transport means passengers. The development of competition, and regulation strengthening it. 17 February 2005 Council regulation N 261/2004 Establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. European Union Member State European Union Member States carrier and third State carrier departing from European Union airports. 20 Project INO-1-AC EEC Note No. 06/06

31 Security and passenger rights EUROCONTROL 3. THE EUROPEAN SECURITY REGULATION Definition of the security concept: The security concept concerns the fight against acts of unlawful interference affecting civil aviation. The main criterion is an act qualified as unlawful and the intention to commit it. The enforcement of this concept is based on prevention and protection. Its field of application is quiet wide and concerns the access to the restricted part of an airport, the screening of passengers, baggage and freight. An act of unlawful interference regroups all acts of terrorism, hijacking and even anonymous calls disrupting aircraft or airport security. These hostile acts can affect passengers, crew members, employees, etc Elements of definition of such acts can be found in the Penal Law Conventions elaborated in the late sixties. A distinction has to be done between the safety and the security concepts. Indeed they do not correspond to the same objectives. The aim of safety is to assure air navigation integrity. It implies to respect enacted regulations concerning aircrafts certification and operating. Its aim is to prevent involuntary incidents and accidents. Having said so, we should not operate an excessive disconnection between those two concepts. In fact, safety also includes general protection of persons and their property. Hence the definition of safety embraces security. Remains the intention that helps to qualify the concept to which the act is linked. If it is voluntary then it concerns security. Act s characteristics leading to the concepts definition: MALVOLENCE DEFICIENCY SECURITY SAFETY Concerning European State members, civil aviation security is characterized by a three-level system. These three echelons are connected and constituted by the international, regional and State level. We shall then, before presenting the European regulation, point out the International system and requirements. Project INO-1-AC EEC Note No. 06/06 21

32 EUROCONTROL Security and passenger rights 3.1. IMPLEMENTATION OF THE SECURITY CONCEPT ON THE INTERNATIONAL LEVEL Brief overview of the historical aspect of this activity Presentation of the International Civil Aviation Organization (ICAO) ICAO is an institution created by the International Civil Aviation Convention signed in Chicago on 7 December This organisation was established on 4 April Its aim is to organise a sure and orderly development of International air transport. Its force lies in the will of its Member States to promote the development of this activity, truly international. In this perspective, and in accordance with the article 54 (I) of the Chicago Convention, the ICAO Council adopts standards and recommended practices (here and after SARPs) for the safeguarding of international civil aviation embodied in Annexes. These Annexes to the Chicago Convention constitute the technical International Rules of the air. Members States have to apply the Organisation s SARPs. But the article 38 of the Chicago Convention 12 gives the possibility to deviate from these standards or even not apply them if a State finds it impracticable to comply with. In this specific case of standards modification, or non transposition, the State has to formally notify a difference to the Organisation. The notification establishes its non compliance. The legal status of these principles is connected to general International Law doctrine. Their binding effect could be affected by States sovereignty 13. Indeed, for some States the content of the ICAO Annexes are directly applicable but for some others they require a transposition in their National law. The main problem linked to this possibility of non compliance is the lack of noticing that constitutes an infringement to the Chicago Convention. The consequence of this failure of noticing is that a member State could see its International responsibility questioned if, for example, an airline crash is the result of non-compliance to the Annexes SARPs. We should not forget that the international aspect of aviation, and the necessity of confidence assuring commercial relationships by air, is an important incentive, motivating that compliance. This alternative given to States, with total transparency in return, allowed a wide participation without compromising the Organisation s initial objectives. The will to guarantee a sure and orderly development of air transport led the Organisation to define common standards in numerous domains foreseen implicitly or explicitly in its founder text. 12 Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State. 13 Sovereignty could be defined as the exclusive right to exercise supreme authority over a geographic region or group of people, such as a nation or a tribe 22 Project INO-1-AC EEC Note No. 06/06

33 Security and passenger rights EUROCONTROL Missions and activities There are currently 18 Annexes marking the Organisation s extremely wide spectrum of competence. Its activity has developed following various events and preoccupations concerning civil aviation. Its competence at first was limited to define the basic rules of the international civil aviation. When civil aviation is faced with a new type of difficulty; the Organisation elaborates new regulations in the name of its Members to maintain a statutory unity guarantor of this activity performance. The Annex 17, dealing with security matters, is a striking example. The necessity of elaborating international security standards followed upon the emergence of terrorist practices targeting civil aviation. This text exists because of a true political will of the State members. Thus, this Annex includes the entire applicable principles in this domain. It has been considerably improved following events that affected the security of civil aviation. This threat adaptation could be considered with regards to the installation of bullet-proof cockpit doors closed during flight in order to prevent another 09/11 like hijacking. This requirement impacts aircrafts certifications and airworthiness. The Annex 8 (ninth edition) dealing with airworthiness principles, has a specific chapter 11 setting such security recommendations 14 influencing aerial industry. The Joint Aviation Authorities (JAA) is part of the European Civil Aviation Conference (ECAC). The action of this associated body, based on states co-operation, is intended to provide and apply high standards of safety in Europe. Its mandate entitles the Authority to cooperate with the American Federal Aviation Authority (FAA), in order to harmonize their respective regulations. On the European level, the JAR OPS 1 has a security subpart requiring separations between the cabin and the cockpit 15. Therefore aircraft constructors are impacted in their designing and building procedures to maintain the airworthiness of their products Annex 17 and Updating Summary of the Annex 17 This text has been constantly updated and we are currently on the seventh edition. But we should underline that the annex 17 is not only a user s guide explaining the practical measure that should be taken. It is more a synthesis of the minimum standards, and therefore a sort of road book helping States to obtain an optimal level of security. The main purpose of this specific Annex is to settle common standards. Its first important act was to give a universal definition of the different security terms and concepts. In other words, all member States should talk the same language in order to undertake security issues. 14 Chapter 11. (11.3) In all aeroplanes, which are required by Annex 6, Part I, Chapter 13 to have an approved flight crew compartment door, and for which an application for the issue of a type certificate is first submitted to the appropriate national authority on or after 20 May 2006, the flight crew compartment bulkheads, floors and ceilings shall be designed to resist penetration by small arms fire and grenade shrapnel and to resist forcible intrusions, if these areas are accessible in flight to passengers and cabin crew. 15 From 1 November 2003, all passenger-carrying aeroplanes of a maximum certificated take-off mass in excess of kg or with a Maximum Approved Passenger Seating Configuration greater than 60 shall be equipped with an approved flight crew compartment door that is capable of being locked and unlocked from each pilot s station and designed to meet the requirements of JAR The design of this door shall not hinder emergency operations, as required in JAR (a)(4). Project INO-1-AC EEC Note No. 06/06 23

34 EUROCONTROL Security and passenger rights Then the next step was to guarantee a minimum security procedure. We can quote the prescription concerning passengers search. It is defined in a general way in order to present a goal but to give some autonomy concerning the way of reaching it. States can therefore use x-rays, explosive detection system, pat-down body check, profiling, etc It goes without saying that they can use one of these screening means or even combine them. The means could be different but the aims are settled. Another important point is the necessary compliance with other Annex such as the Annex 9 dealing with facilitation. This Annex points out the fact that air transport has an important advantage compared to other means of transportation. This advantage is speed. Therefore, when States apply the Annex 17 they should whenever possible arrange for the security controls and procedures to cause a minimum interference with, or delay to the activities of civil aviation ( ). The only condition is to maintain the effectiveness of security controls and procedures. This specific point can explain the current tendency to use biometrical controls and identification documents. They comply with both Annexes by allowing a quicker control of passengers without jeopardising security. The Annex 17 determines general objectives that member States have to reach in the framework of a tripartite organisation concerning State, airports and aircrafts operators. The State makes sure that the Annex content is applied by those operators. The State, in charge of security, has the function of a regulator. It shall establish and implement a written National civil aviation security programme, designate and specify to ICAO an appropriate authority responsible for this programme and create a National aviation security Committee or a similar arrangement for the purpose of coordinating security activities between departments, agencies, airports and aircraft operators. The operator of an airport serving international civil aviation has to establish and implement a written airport security programme to meet the national security programme requirements. Each State shall ensure that authorized and suitable trained personnel are available to enforce security. They shall also ensure that the architectural and infrastructure-related requirement necessary for the optimum implementation of these security measures are available. These operators have to implement access control in order to prevent unauthorized access to aircraft. The obligation of a written security programme to meet the national security programme standards is also established for aircraft operators. The preventive security measures shall avoid introduction of devices, which may be used to commit an act of unlawful interference, on board an aircraft engaged in international civil aviation. In concrete terms this part of the Annex focuses on the obligation to perform security check to such aircraft. In addition, passengers and their cabin baggage should be screened prior boarding. Finally their hold baggage should be subjected to proper security controls prior being loaded. A baggage without his owner on board cannot be transported unless he was subjected to proper security control including screening. Cargo, mail and other goods shall be protected during storage. They are subjected to appropriate security measures. An operator should not accept cargo on passenger flight unless they are subjected to such controls. The catering used on passenger flight has to fit in such standards. The Annex 17 settles a quality control obliging States to proceed to a background check and a selection of the persons implementing security controls. These personnel are also subject to a specific training. This quality control tends to ensure the effectiveness of the established national security program. 24 Project INO-1-AC EEC Note No. 06/06

35 Security and passenger rights EUROCONTROL Another important aspect of this Annex is the management of response to acts of unlawful interference. This chapter is based on several principles such as prevention according to the standards mentioned above, response consisting in taking adequate measures for the safety of passengers and crew of an aircraft, and exchange of information to all concerned states such as the States responsible of ATC, the State of registration, the State whose citizens are on board the aircraft and, last but not least, the ICAO Updating Following the 11 September 2001 terrorist attacks the ICAO reacted by adopting a 10 th amendment to the Annex. It is based on measures reinforcement by upgrading recommended practices to standards and by the intensification of security cooperation between States. The most important improvement of the Annex mechanism is the ICAO Universal Security Audit Programme (USAP) launched in June It is a major initiative for strengthening aviation security worldwide and allows the establishment of a global aviation security system. It is based on universal, mandatory and regular audits of the security systems implemented in all ICAO member States. The auditing of States will be coupled with the provision of assistance in order to help them fulfil their aviation security responsibilities. There is around 3 to 4 audits per month and the 188 members of the Organisation will be examined by the end of The audit is led by ICAO inspectors and their report is classified. It only concerns ICAO and the audited State. But as we said above it is only a first step that opens the way for another more global and efficient security policy. USAP is an important improvement and constitutes an act that could change the responsibility and the international position of ICAO for the coming years THE SECURITY CHALLENGE AFTER SEPTEMBER 2001 The Annex 17 is applied by the European Union members States. But as underlined before the content of this text is general. Therefore security policies might be different from one state to the other. The European Union is an area of exchange based on the free movement of persons, services and goods. This ideal is described and enforced under different Treaties but there is a true need for confidence between partners. Security and safety are two basic concerns within air traffic. It is so obvious that when you ask passengers about their main priorities concerning airline services, the top three responses are price, comfort and regularity. It doesn t mean that the passenger has no interest with regards to his own safety or security. It simply means that when he takes an airplane it is obvious for him that he will reach his destination as planned. Fighting against terrorism requires a global approach. The ICAO approach sets basic standards on the international level. The European security regulation is based on a regional and tighter cooperation. The member States agreed to abandon some of their competences in favour of the European Union s Institutions Article 5 of the Rome Treaty The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the subsidiarity principle of, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty. Project INO-1-AC EEC Note No. 06/06 25

36 EUROCONTROL Security and passenger rights There was an opportunity for the Commission to continue its regulation work concerning civil aviation The Need to address this Challenge on a European Level Regional aspect of the EU First of all we should consider the difference between ICAO and its 188 members and the European Union including 25 members. The foundation of this Union isn t only based on civil aviation issues. These States cooperate on different subjects and therefore aviation is a specific domain part of a bigger entirety. For ICAO, aviation can greatly help to create and preserve friendship and understanding among the nations and people of the world 17. The political aspect of the text doesn t allow any doubt about its motivations. The European Union is a more integrated and regional organisation. Air transport abides by the common market general rules and therefore security is an important issue in order to assure the respect and living of these rules Precedents: the European Commission of Civil Aviation (ECAC) Recommendations The ECAC is an intergovernmental organisation created in 1955 in order to promote a safe, efficient and sustainable air transport system. This organization has 41 members and therefore benefits of a larger influence than the European Union, allowing it to have direct negotiations with the USA, and cooperation with the ICAO 18 concerning security issues. It has a mandate to settle standards in order to harmonize states policies and practices. It also promotes a convergence with other regions of the world. Consistently with its founder text the Commission elaborates security recommendations 19. The security program is deposited in the «Doc 30». This text settles various orientations allowing its members to understand and undertake the global security concern 20. This document is accompanied by an aviation security audit program, the AVSEC, verifying the matching of states regulation with the «Doc 30» arrangements. We could finish this brief presentation of the ECAC by insisting on the fact that this organization benefit of a large area of influence but that the texts adopted have no binding effects. They are only recommendations and therefore only compulsory if transposed in States national law Binding Aspect of the European Regulation This Document has been recovered, in the regulation 2320/2002, by the European Commission. Most of the European members are already part of the ECAC. The main improvement is that by this communitarian transposition the ECAC recommendations are biding for EU members State. The commission has the option of adapting this document in a directive or a regulation form. In both cases the content becomes binding and has to be enforced, otherwise some constraint procedures could be applied against recalcitrant States. 17 First paragraph of the Chicago Convention Preamble. 18 The ECAC collaborates with the ICAO but it isn t a subsidiary body of the organization. The Commission settles its own development program, its session and agenda. Therefore the Commission has certain autonomy. 19 Following the Lockerbie bombing in 1998 the Commission considered that a regional approach concerning security was necessary. 20 Part II of the Doc Project INO-1-AC EEC Note No. 06/06

37 Security and passenger rights EUROCONTROL They accepted, by signing the Rome Treaty, to abandon part of their sovereignty and to be ruled in defined cases by the European institutions. Therefore this mandatory regulation 2320/2002 entered into force the 19 January 2003 and since is applicable The Role played by the European Institutions With regard to the article 80 (2) of the Rome Treaty The fact that the European Commission elaborates security regulation was neither really considered, nor conceivable. If we refer to the Rome Treaty the consideration of civil aviation by the European transportation policy was inexistent. The air transport economical dimension was purely neglected. But there is nothing blameworthy if we consider that the Rome treaty was signed in The same noticing can be made concerning Security. International Organizations and States recognition were belated. The European Commission had just gone through the air transport deregulation and yet, was entitled by European member States to undertake the aviation security challenge. This mandate was given after the 9/11 events and underlines the necessity to take measures, on a regional level, to face the threat of terrorism. This competence was given consistently with article 80, paragraph 2, of the Rome Treaty Specific Missions of the European Commission Following the Transport Council of the 16 October 2001, the Commission had to assume questions referring to security and also to provide protection to the European citizens by preventing acts of unlawful interference. The requests of the Council were based on the application of the Doc 30 recommendations and on a specific peer reviews mechanism. We passed from a system where security was a State s ability to a new one characterized by a Communitarian competence. This change of scope concerns only standards elaboration and therefore excludes their application that remains kingly competences. This framework influenced the elaboration of Regulation 2320/2002 setting binding common security standards for European Union member State. Therefore, we can consider it as a global security policy founder text obliging States to adopt a national security program. It also established an Aviation Security Regulatory Committee in order to ensure technical adoption of the Annex to Regulation 2320/2002 and to permit the development of the necessary implementation tools. This Commission consists of experts representing all member States. Consistently with this assignment the Commission will also have to lead inspections checking the compliance with settled standards. It implies that this check will concern States ability to reach the required security level. Security is an international topic assessed on both international and regional level. The European Commission activity is not redundant since its approach is more legally binding. Project INO-1-AC EEC Note No. 06/06 27

38 EUROCONTROL Security and passenger rights Therefore this legislation gives the possibility to draw-up common standards ensuring the highest level of security, to oversee their uniform application across Europe, to promote them at world-wide, to facilitate the free movement of goods, persons and services REGULATION 2320/2002 AS A EUROPEAN RESPONSE TO A GLOBAL THREAT Core Principles of the Regulation Based on common standards The objectives of this regulation are to establish and maintain a high and uniform level of civil aviation security in Europe. The main aim of the Regulation is to assist members States fulfilling their obligations. Hence, this text also provides basis for a common interpretation of the related provisions of the Chicago Convention, in particular its Annex 17. By basing its approach on the Annex 17 and on the ECAC Document 30, the Regulation 2320 does not constitute an obstacle with regard to international exchanges. These two Organisations have a world-wide influence. In addition the article 10 of the Regulation plans cooperation with ICAO and ECAC in order to elaborate a mechanism assessing the security level of foreign countries airlines and airports. This approach of getting thoroughly these standards underlines the fact that the European community doesn t underestimate the importance of international aviation. This text and its implementation is binding for all airlines both EU and foreign departing or transiting any EU airport. It means that foreign aircraft, airlines or airports are entitled to maintain their commercial exchanges with European Countries without having to respect new security regulation or principles Possibility for the Member State to adapt those Measures Regulation 2320/2002 is mandatory for States and persons under their jurisdiction. This text benefits, in an autonomous way, of a compulsory force. States have to apply its standards constituting the minimum required by the European Commission 21. But they also have the possibility, consistently with the article 6, to apply more stringent measures in return for informing the Commission of the nature of these measures. Therefore, this one way ability of measures adaptation is under the Commission s control. In some limited cases, the Regulation might be disproportionate or none implemented for practical reasons. The State Authority shall adapt measures granting an adequate level of protection Article 10 of the Rome Treaty Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty. 22 Article 4 of the Regulation Project INO-1-AC EEC Note No. 06/06

39 Security and passenger rights EUROCONTROL Objectives of the Regulation Prevent acts of unlawful interference against civil aviation by setting security common standards This approach of preventing acts of unlawful interference is done to protect the European Union citizens from terrorism, considered as a threat to democracy, freedom and value of peace. It directly concerns all actors of civil aviation. Specific measures are contained in the Annex to the Regulation. Concerning airports, security imperatives have to be applied. It impacts their design and construction. A clear limit has to be established, separating the airside and landside. Indeed the air side is constituted by security areas and aprons, hence their access is restricted. Only entitled and screened personnel or screened passengers can access to this kind of areas. Controls at all time shall ensure that no unauthorised person or prohibited articles can be introduced. The Regulation 1138/2004 defines more precisely the critical parts of security restricted areas. Concerning personnel some back ground checks and specific security training are necessary. In addition a specific register of access cards shall be held. The air terminal, and adjacent areas accessible to the public, has to be under constant surveillance. The landside has to go under the same treatment. To access the restricted areas passengers and their baggage have to be screened by different means such as search by hand, metal detector, etc... The Regulation insists on the fact that passengers are subjected to searches whether they are justified by a detection equipment alarm or by random procedures. A strict separation between screened and non screened passengers has to be applied. Concerning baggage a distinction has to be done concerning cabin baggage and hold baggage. The cabin baggage shall be screened prior being allowed into security restricted areas and on board an aircraft. Any prohibited article shall be removed. Screening shall be processed with different means such as hand search or x-ray machines. The hold baggage shall be identically controlled. But their loading responds to certain requests like the fact that the baggage cannot be loaded if the passenger who has check in and placed it in the custody of the air carrier is not onboard the aircraft. The baggage should be protected from the moment they are placed in this custody until the departure of the plane. These requirements underline the need of several means to enforce the surveillance and control of these different areas and their entrance. Machines have to comply with some efficiency standards and should be subjected to updating. Aircraft cabin, hold and freight should be protected and placed under constant surveillance. Aircraft not in service shall be subjected to an aircraft security search and be secured or guarded from the commencement of the search until departure. Aircraft in service shall be subjected to a security check after passengers disembarkation or at least before passenger boarding or cargo loading. In a more general way, all goods or equipment approaching or being loaded on board an aircraft have to be the object of security checks and their sterility shall be maintained until and throughout their use or loading. Access to these areas, goods and equipment are restricted and implies screening and identity checks. Project INO-1-AC EEC Note No. 06/06 29

40 EUROCONTROL Security and passenger rights This responsibility lies on airports, airlines, catering and assistance companies. Their staffs have to be screened and their premises have to fulfil these protection and surveillance standards. A non compliance to this obligation stops the operating until those measures are enforced. Non protected freight cannot be loaded on board an aircraft except if it passes again trough the security systems. These security controls can be summed up as follow: Airports, airlines and other actors. access control and 100 % staff screening Staff Recruitment and Training Aircraft Passengers Cargo aircraft inspections and protection when in and out of service Passenger and Cabin Baggage Screening Hold Baggage Screening and Protection Cargo, Courier and Express Parcels, including detailed rules on handling, screening and protection of cargo Air Carrier Catering, Stores and Supplies Air Carrier Cleaning, Stores and Supplies Equipment Standards Company Mail and Materials Scope of the regulation and consequences on the national level Scope This Regulation applies to all European Union airports, service providers, catering, cleaning and cargo parties. It is compulsory for all airlines both European Union and foreign departing or transiting any European Union airport. This scope is wide and therefore each and every actor of air transport has a role to play. The Regulation settles good practices recognised on the international level National Civil Aviation Security Program The Member States have to establish a National Aviation Security Programmes which shall incorporate the Community standards and ensure there application. They shall also designate an appropriate Authority responsible for the coordination and monitoring of their National programme implementation. The objectives are settled but the means are so general that member States have the opportunity to apply them in different ways. For example screening of passengers can be done under the State s responsibility or given to airport authorities. 30 Project INO-1-AC EEC Note No. 06/06

41 Security and passenger rights EUROCONTROL Safety controls applied by States Safety controls attributed to airport authorities Germany, Austria, Spain, Finland, Italy, Luxembourg, Portugal, and Sweden. Belgium, Denmark, France, Great- Britain, Greece, Ireland and Holland. The Regulation sets an obligation to establish a National Quality Control Programmes monitoring that the National Aviation Security Programmes is well applied. The Regulation 1217/2003 sets out detailed requirements on how the National Quality Control Programmes shall be carried out. A statement of undertaken activities shall be reported to the Commission The Settings of an Appropriate Compliance Monitoring System The Commission undertakes the monitoring of the Member States obligations as set in Regulation 2320/2002 and 1217/2003. The Commission inspections take place in accordance with Regulation 1486/2003. These inspections are done by examining a representative sample of airports and operators. These inspections are unannounced and their main purpose is to verify the effectiveness of National Civil Aviation Security Programmes. The audited state has to fully cooperate. These inspection teams are composed of qualified national auditors made available by member States. These specialists receive a mandate from the Commission entitling them to inspect the Security and the Quality programme of the controlled states. Their observations are noted in a report. The subject of the inspections tackles directly states sovereignty. Hence some information qualified as sensitive should be treated as classified information. They should be kept confidential and only concern the Commission and the inspected state. The report could lead the Commission to take measures going from a simple request of explanation to an infringement procedure. Inspections have identified that Community standards level of implementation vary among member States. The Commission has taken action and the rectification actions are pending. Project INO-1-AC EEC Note No. 06/06 31

42 EUROCONTROL Security and passenger rights ANNEX D - KEY REGULATION Date Type of act Content Scope International Security regulation 7 December Chicago Convention. Regulation to international civil aviation. 188 Member States. 4 April Creation of the ICAO. Mandate to organise a sure and orderly development of the international air Chicago Convention Member States. transport. Article 54 of Chicago Convention ICAO Council adopts standards and recommended practices (SARPs) for the safeguarding of international civil aviation Chicago Convention Member States. embodied in Annexes. 22 March 1974 Annex 17 SARPS applicable to security issues. Chicago Convention Member States. 25 March 1949 Annex 9 SARPS applicable to facilitation issues. Chicago Convention Member States Creation of the ECAC Mandate to promote a safe, efficient and sustainable air transport system. 41 ECAC Member State Rome Treaty Establishing a common policy concerning transport EU Member States. 19 January (directly applicable) Regulation 2320/2002. (founder text) Mandatory regulation based on standards contained in ICAO Annex 17 and ECAC Document 0. It established an Aviation Security Regulatory Committee in charge of technical adoption of the Annex and of the development of implementation tools. Requires the establishment of National Aviation Security Programme and a National Quality Programme EU Member States. All European Union airports, service providers, catering, cleaning and cargo parties. All airlines both European Union and foreign departing or transiting any European Union airport. 04 April 2003 Reg.622/2003 (implementing) Operations standards needed to ensure harmonized implementation of the EU Member States. 32 Project INO-1-AC EEC Note No. 06/06

43 Security and passenger rights EUROCONTROL Date Type of act Content Scope International Security regulation (directly applicable) Regulation 2320/2002. Common definition of concepts. 04 July 2003 (directly applicable) Reg. 1217/2003 (implementing) Requirements on how a Member State shall effectively monitor proper implementation of Community and National aviation security standards. Common definitions. EU Member States. 22 August 2003 (directly applicable) Reg.1486/2003 (implementing) Requires that Commission shall lead inspections of Member State application of Regulation 2320/2002 Commission. 29 April 2004 (directly applicable) Reg. 849/2004 (amendments) Amendments to the Regulation 2320/ January 2004 (01/02/2004) Reg. 68/2004 (implementing) Additional implementing devices brought to the Reg. 2320/ June 2004 Reg. 1138/2004 (implementing) The Aviation Security Regulatory Committee will continue its regulatory work and improve international cooperation. Definition of critical parts of a security restricted areas. Aviation Security Regulatory Committee. EU Member States. Project INO-1-AC EEC Note No. 06/06 33

44 EUROCONTROL Security and passenger rights 4. THE BALANCE BETWEEN SECURITY AND PASSENGERS FUNDAMENTAL RIGHTS 4.1. EUROPEANS CITIZENS FUNDAMENTAL RIGHTS Owing to the Institutions Dedication and Regulation First we shall underline that the concept of Fundamental Rights has been recognized on the international level. Such consideration was granted by the United Nation Universal declaration of Human Rights in But this text is characterized by its declarative aspect and therefore, it cannot be referred to in front of a court. Let s focus on the European level. One of the European Union specificity is the recognition and protection of person s fundamental rights The Council of Europe Precedent The first step, concerning this recognition, was taken by a regional organization. The European convention on Human rights was adopted by the Council of Europe in and refers to the United Nations Declaration. The objectives of this Convention are to protect human rights and fundamental freedoms. The European Court of Human rights was established on these bases. The original text and the Court s competence were enlarged by several protocols allowing for example any person, feeling his rights have been violated under the Convention by a party State, to take a case to the court. The decisions of the Court are legally binding and it has the power to award damages. State parties can also take cases against other members, although this ability is rarely used. This Convention and specific mechanism improved the recognition and respect of fundamental rights in the European geographic area Continuation by the European Union Concerning the European Union a development of these maters is noticeable. Article 6 of the Treaty on the European Union is the key provision as far as fundamental rights are concerned. It states that the Union shall respect fundamental rights, as guaranteed by the European Convention for the protection of Human rights and fundamental freedoms signed in Rome on 4 November 1950 and as they result from the Constitutional tradition to the Member States, as general principles of Community law. Much work was carried out, both on European and national level to recognize the European citizens rights and freedoms. 23 The Council of Europe is an international organisation of 46 member states in the European region. Membership is open to all European states which accept the principle of the rule of law and guarantee fundamental human rights and freedoms to their citizens. 34 Project INO-1-AC EEC Note No. 06/06

45 Security and passenger rights EUROCONTROL The European Union treaty has always provided for some basic freedoms, such as freedom to work and travel around the Union. Its different updating has enriched citizens Rights. The market freedoms, illustrated by free movement of goods, services, people and capital are applicable to them. In addition discriminations based on nationality, race, ethnic groups, gender, age and sexual orientation are banned. The treaty allows European citizens to vote and stand in local and European elections in every Member State. It also gives them the right of residence throughout the EU. The Treaty of Amsterdam explicitly refers to notions like social rights of workers. Protection of fundamental rights can be noticed by other mechanisms. The Union can suspend certain rights of a Member State, if it has determined the existence of a serious and persistent breach of these rights 24. In addition, all Candidate country has to respect these principles in order to join the Union 25. The Court of Justice of the European Communities also had a role to play in this dedication. Its case law sets standards of protection for citizens. We can quote the example of the right to a fair trial, to an affective judicial appeal, privacy, property, free expression 26. We can also underline the existence of some specific regulation recognizing and protecting citizens fundamental rights. It is the case of the Directive 95/46/CE. This Directive 95/46/CE is the reference text, at European level, concerning the protection of personal data. It lays down a regulatory framework standing for an adequate balance between a high level of protection with regard to person s privacy and the free movement of personal data within the European Union. To do so, the Directive sets strict limits on the collection and use of personal data and demands that each Member State creates or designates an independent national body responsible for the protection of these data 27. Its scope concerns all processing of personal data and herewith, is biding for the member States and the persons under their jurisdiction. In addition Regulation 45/ aims to protect personal data within European Union institutions and bodies. This text lays down rules to ensure a high level of protection and establishes an independent supervisory body to monitor application of these rules by the Institutions. Therefore, protection of personal data is biding for European institutions, Member States and the persons under their jurisdiction Owing to the Charter of Fundamental Rights Presentation of the Charter Proclaimed in Nice on 7 December 2000, the Charter summarises the common values of the European Union Member States. Its purpose is set out in the preamble: "it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter." 24 Article 7 of the European Union Treaty. 25 Article 49 of the European Treaty. 26 Article 46 of the European Treaty. 27 Article 1 concerning the Object of the Directive. 28 Adopted by the European Parliament and the Council of 18 December Project INO-1-AC EEC Note No. 06/06 35

46 EUROCONTROL Security and passenger rights The Charter helps to develop the concept of citizenship of the European Union and to create an area of freedom, security and justice. The Charter enhances legal security as regards the protection of fundamental rights, where in the past such protection was guaranteed only by the case law of the Court of Justice and Article 6 of the Treaty on European Union and specific regulations. Its content is displayed in seven chapters, proclaiming the recognition of both human and citizen s rights Content relating to Air Passengers The European passenger is not taken in account as such in the Charter. He is considered as a European citizen and can claim for the rights that are laid down on the Community level. These rights are binding and apply during different operations such as booking of an airline ticket, screening operations in an airport If this protection is guaranteed in the European Union it might not be the case on the international scene ILLUSTRATION BY THE PNR CASE Presentation of the Case The Passenger Name Record is a daily reality of air transport. It is the name given to files created for each passenger s booking. These files are stocked in airlines or Global Distribution Services (GDS) databases. They allow different actors, intervening in the transport operation, to recognize the passenger and to access any relevant information relating to his journey. These information concerns basic identity data (name, first name, etc.), day and time of the flight, connecting flight, special request services (specific menus or required assistance, etc ), frequent flying program membership, financial data (credit card number, billing address, etc.). These data are collected for commercial purposes. Indeed, the principal aim of PNR is to offer services matching passenger s expectations The US administration s requirements The adoption of the Air Transport Security Act (ATSA) 29 gives new security obligations to European airlines. Their PNR shall be disclosed, upon request, to American administration. Indeed, according to this legislation the Custom and Border Protection (CBP) has the right to access the data processed by the airlines reservation and departure system. This practice tends to allow a more proactive security procedure. By having access to this information, the CBP is able to detect any potential threat before the airline carrying it approaches the US territory. This security procedure is based on software allowing matching between passengers names and characteristics registered on PNR files and the one contained in criminal or intelligence databases. The main problem of these ATSA requirements is that they are elaborated in a unilateral way. This sharing of information lies on the companies shoulder and could be contrary to the juridical system to which they are linked. 29 Entered into force since 19 November Project INO-1-AC EEC Note No. 06/06

47 Security and passenger rights EUROCONTROL Since 5 February, 2003, non compliance to this obligation results in sanctions such as fines, interdiction of landing or even loss of landing rights. The PNR transfer has to be done before, or at the latest 15 minutes after, take off. The initial recipient is the CBP but these data could be subject to sharing with other federal authorities for comparison with their own records. The reason of this transfer is not limited to border protection but directly concerns American public order. This measure is part of a general effort of the US government following the 11 September 2001 to enhance homeland security. For federal administrations these data permit an evaluation of the treat constituted by passengers before they even reach the American soil. These PNR are needed to prevent and fight against terrorism and other related crimes and offences Affront of European regulation The main legal basis applicable to this case is the Directive 95/46 concerning personal data processing. First we underline that, according to this text, the personal data qualification is applicable to any information relating to an identified or identifiable natural person 30. Their processing is defined as any operation or set of information which is performed, whether or not by automatic means 31. Consistently with this definition we can note that PNR data enter the scope of the directive. Therefore their processing shall respond to different characteristics. Personal data must be processed fairly and lawfully. Their collect is done for specified, explicit and legitimate purpose. These processing characteristics imply a treatment strictly limited to the explicit motivation of the data gathering. The duration of processing shall be adequate. The collect is done for specified, explicit and legitimate purposes. Therefore the data subject has to give an unambiguous consent: In addition the information processor shall be known since the beginning of the collecting. The problem with the American administration requirements is that the PNR collecting is made for commercial motivations. Indeed the PNR is a file containing all relevant information concerning a specific trip. It is linked to a passenger and his requests concerning the flight. The purposes of collecting aren t clear because the passenger give his consent to the airline in order to have an adequate execution of the transportation contract. The requests of American administration are based on public order considerations. Therefore the final processing, in the US, doesn t match with the collecting purposes. In addition the keeping duration provided in the ATSA is 50 years. It goes without saying that this duration isn t adequate. 30 An identifiable person is the one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Article 2 (a) of the Directive. 31 These means are illustrated by examples such as collection, recording, organization, storage, adaptation or alteration, retrial, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Art 2 (b). Project INO-1-AC EEC Note No. 06/06 37

48 EUROCONTROL Security and passenger rights The data subject has the right to access information concerning him. It signifies that he has the right to know if data relating to him/her are being processed and has to be aware of the undergoing processing. This access right embodies rectification, erasure or blocking of data processing. The data subject has the right to object to the processing. His request must be based on legitimate grounds. First of all there is an obligation of informing the passenger that has to be done. The carriers abided lately by this obligation. They were practicing their activities without any legal certainty. It can explain why they were so reluctant to fulfil this specific obligation. Then we should underline that information sharing with other federal administration makes any rectification, erasure, etc. more difficult. We could see in these specifications an expropriation of the passenger. Indeed he has no longer control on the existence of this information. Special categories of data are forbidden to process. It is the case for personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, tradeunion membership, health or sex life. This provision comes with certain qualifications concerning, for example, cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis. Some information contained in the PNR has this specific qualification. Indeed the Special Service Request 32 could concern kosher or halal food. The religious convictions of the passenger ordering such meals are unambiguous. The national supervisor authority shall be informed prior to any personal data processing. This information is made to determine if there are any specific risks to the rights and freedoms of data subjects. These characteristics are incumbent upon the processor (in this case the European airline). Their non compliance leads to juridical sanctions that can be alleged by any person victim of a non complying data processing. By principle, transfers of personal data from a Member State to a third country are forbidden except in the cases of the derogations listed 33. However, they may be sent to a third country which is qualified as ensuring an adequate level of protection. This qualification competence is given to the European Commission 34 and is binding for every Member State. The level of protection adequacy afforded by a third country shall be assessed in the light of all circumstances surrounding a data transfer operation. This embodies nature of the data, the purpose and duration of the operation, the rules of law, professional rules and security measures, etc. The aim is to protect European citizens by obliging third countries to reserve a protective treatment at least as developed as the European one. 32 Annex 1 item Article 26 contains derogations such as explicit consent of the data subject. But is it possible to talk about such consent when the passenger has no other choice than accepting these conditions if he wants to go to the USA? 34 Article 31 of the directive. 38 Project INO-1-AC EEC Note No. 06/06

49 Security and passenger rights EUROCONTROL Reactions of the different European Institutions This case is a perfect illustration of the differences existing between the European institutions mandates. Indeed, on the one hand we have the Parliament main mission that is to protect European people interests. Basically, the interest of the European people is the respect of their rights and freedom. And on the other hand we have the Commissions will to preserve the Union s interest. The interest of the union is the 11 millions of passengers flying across the Atlantic Ocean and total revenue of US$24 billion per annum. The survival of European airlines is also part of the issue. This case, and the interests at stake, showed the confrontation of these opposing visions The reaction of the European Commission Concerned about the situation the European commission decided to negotiate with the American authorities. Its aim was to negotiate a founder agreement guaranteeing a global solution to the PNR issues. The first common statement was made the 18 th February A high-level meeting between representative of the European Union and US customs led to underline the existence of the problem. The protagonists recognized that the American administration offered some guarantees concerning European passengers. Therefore the transatlantic dialogue was instigated. Then, the 22 May 2003 the CBP made some voluntary and unilateral undertakings. Yet the situation improved but wasn t consistent with the European regulation. The negotiations were continuing. The 16 December 2003 the commission elaborates a project of bilateral agreement and stands for an adequate protection qualification. And, the 27 of February, as provided in article 31 of the directive, the European Commission launches the procedure of adequacy findings. Finally the 28 may 2004 the Commission grants this qualification to the American administration and signs a bilateral agreement depositing the results of the negotiations. It directly entered into force. The adequacy findings were based on the US customs undertakings The position of the European Parliament The Parliament was violently opposed to the negotiation of an agreement because it never accepted the American requirements. It is important to note that, in this agreement procedure, the Parliament collaboration of was not requested. In addition members of the Parliament denied the Commission s competence to elaborate and sign this accord in the name and for he community. The most notable action was the seizure, in emergency proceeding, of the European Court of Justice. This emergency request was rejected by the Court. Hence we still wait for its decision concerning the legality of the agreement. Project INO-1-AC EEC Note No. 06/06 39

50 EUROCONTROL Security and passenger rights A Solution founded in an Unbalanced Compromise Description of this agreement Before going further into the analysis of this agreement we would like to underline its double structuring. It shall recognize the protection of European passengers rights and the American security aspirations 35. Therefore, the fight against terrorism doesn t automatically lead to the denial of passengers rights. But this text legitimates the resort to commercial data in order to enforce US security. The federal authorities agreed to reduce their request relating to the number of categories composing the PNR. They reduced from the entire PNR to 34 categories 36. The special category of data will not be preceded, and if so, they will be filtered and erased in a very brief lapse of time. The CBP is competent for this erasing. We have here, without prejudging CBP intentions, an important obstacle. This administration has an exclusive competence concerning the American borders protection. So we can wonder, for questions of pure procedure, who will control the controller? The motivations of transfers are more precise. The PNR data will only be use to fight or to prevent terrorism, some crime connected to terrorism and the serous crimes like transnational ones. Such an approach is already adopted in several countries of the European Union and draws the attention of European institutions such as Europol. The recipient remains the CBP and the services of Immigration. The sharing of information will be proceeded case by case in order to answer precise preoccupations following push principle 37. The duration of data conservation experienced the most tangible improvement. Indeed originally the United States demanded a right of conservation of fifty years. This duration was returned to three and a half years. The consulted files will be the object of a conservation of eight years for audit purposes. Finally, a specific procedure is established with the Department of Homeland Security in order to allow the passengers to consult and modify the data concerning them. In case of difficulty, mediation is foreseen between authorities in charge of data protection and this Department. The agreement was concluded for three and a half years and will be prolonged if both protagonists agree. An annual assessment is foreseen Consequences A number of countries (Canada, Australia) have requested access to data held by airlines on passengers as a security measure. Further adequacy considerations will be made by the Commission. We can imagine that this agreement will inspire future ones. 35 Recognizing the importance of respecting fundamental rights and freedoms, notably privacy, and the importance of respecting these values, wile preventing and combating terrorism and related crimes and other serious crimes that are transnational in nature, including organized crime. 36 See Annex 1 37 Opposed to pull, meaning that the data are given by the carrier to the administration. 40 Project INO-1-AC EEC Note No. 06/06

51 Security and passenger rights EUROCONTROL The bilateral agreement has a reciprocity principle allowing European States to request these data from American carriers., a Directive, framing this practice, has been taken. It gives guidelines for Member State wishing to use such measures. This text allows the treatment of American passenger personal data flying to Europe, but Member States will have to respect the Community principles. The solution to this problem might be found on the international scene, under the ICAO aegis. But, for the moment nothing, in this Organisation s work plan, seems to reply to such preoccupations. Project INO-1-AC EEC Note No. 06/06 41

52 EUROCONTROL Security and passenger rights ANNEX E: PNR DATA ELEMENTS REQUIRED BY CBP FROM AIR CARRIERS 1. PNR record locator code 2. Date of reservation 3. Date(s) of intended travel 4. Name 5. Other names on PNR 6. Address 7. All forms of payment information 8. Billing address 9. Contact telephone numbers 10. All travel itinerary for specific PNR 11. Frequent flyer information (limited to miles flown and address(es)) 12. Travel agency 13. Travel agent 14. Code share PNR information 15. Travel status of passenger 16. Split/divided PNR information 17. address 18. Ticketing field information 19. General remarks 20 Ticket number 21. Seat number 22. Date of ticket issuance 23. No show history 24. Bag tag numbers 25. Go show information 26. OSI information (Other Specific Information) 27. SSI/SSR information (Special Service Request) 28. Received from information 29. All historical changes to the PNR 30. Number of travellers on PNR 31. Seat information 32. One-way tickets 33. Any collected APIS (Advanced Passenger Information System) information 34. ATFQ (Automatic Ticketing Fare Quote) fields 42 Project INO-1-AC EEC Note No. 06/06

53 Security and passenger rights EUROCONTROL ANNEX F - KEY REGULATION Date Type Content Scope European Passenger s fundamental rights 4 November 1950 European Convention for the protection of Human rights Recognition of human rights on regional level and establishment of the European court of Human rights 1957 Treaty on the European Union Article 6 stands for the respect of fundamental rights as guaranteed in the European Convention Article 7 gives the possibility to sanction Member State breach Article 46 entitles the European Court of justice to dedicate standards of protection for citizens Article 49 all candidate country to the UE has to respect these priciples to join the Union Directive 95/46CE Reference text concerning personal data collecting and protection 7 December 2000 Charter of fundamental rights Recognition of the European fundamental rights in one single text. All 46 Member States of the Council of Europe All European union Member State and institutions EU member States and persons under their jurisdiction Did not enter into force because of the status of the European Constitution. 18 December 2001 Regulation 45/2001 Protection of personal data within EU institutions and body 19 November 2001 Air Transport Security Act American Congress gives new security EU airlines obligation for carriers operating inbound and outbound international flights 14 May 2004 Commission decision 2004/535 Recognition of an adequate protection EU Member States provided by the CBS 28 May 2004 Bilateral agreement concerning Agreement concerning collecting and EU airlines and US administrations PNR transmission use of the PNR data by US administration. Project INO-1-AC EEC Note No. 06/06 43

54 EUROCONTROL Security and passenger rights 5. CONCLUSION OF THE JURIDICAL STUDY As noted in along this document, the intervention of the European Union concerning air transport regulation is broad and efficient. Indeed by several and successive steps the Community elaborated a harmonized regulation basis applying in all 25 Member States. If these rules were at first tackling single market issues, they became more and more precise and impacted the functioning of airlines and the way of travelling. Concerning the scope and treated matters we can quote the success of such regulation. Indeed, by its compulsory aspect the European Union regulation allows a unified approach and respect competition rules within the European borders. Concerning security issues this binding regulation is a needed approach in order to preserve the industry and establish confidence concerning air transportation. Regarding economic regulation enforcing passengers rights, regulation s effectiveness is unquestionable. Indeed concerning liability this regional approach was needed at a time when the international systems where not functioning properly and therefore not efficiently protecting passengers. The economical rights protected on the European level are considered by the Commission as an achievement. But even if passengers need this economic protection, these provisions, as they add more obligations toward carriers, might raise prices and endanger the industry by heightening fixed costs such as insurance. The impact on airlines is no yet noticeable but the declaration and consecration of passengers rights will deeply modify the different actors approach. Finally, the interaction between European passengers rights and safety consideration is a current and future stake. Indeed, States sovereignty and the multiplication of security standards, both on international and national level, endanger those rights. The PNR case is a perfect illustration of this interaction. The lesson given by its settlement is the primacy of economic interest over passengers rights considerations. Therefore a question is posed concerning the qualification and protection of these rights on the international scene. The overview presented here will serve as a reference to the next study. Indeed passengers rights and security regulation will help to estimate the feasibility of the introduction of RFID technologies on air passenger tickets and luggage. 44 Project INO-1-AC EEC Note No. 06/06

55 Security and passenger rights EUROCONTROL PART 2: A CONCRETE APPLICATION TO A TECHNICAL PROJECT This legal overview was realized in order to draw up the specific security and passengers rights framework in which actors of civil aviation evolve. These constraints and rights will be once more abridged in the followings paragraphs; it will contribute to the understanding of the interest and threats undermined by the possible use of RFid. Our further work will be twofold: a general presentation of the RFid technology, by insisting on its promising improvement with regard to civil aviation operating characteristics, and the needed juridical framework allowing its implementation in airports infrastructures. 1. PRESENTATION OF RFID Radio frequency identification technology refers to a wireless system allowing devices to read information contained in or on objects without any physical contact or line of sight between the tag and the reader. RFid concrete commercial applications have been developed during the late sixties and we can consider that this technology tends to be part of our daily lives. These devices can be placed in car keys, highway tolls and security access cards. Some projects are led in order to use this technology as a mean of payment, to secure bank notes or to implement the smart shelves concept in supermarkets 38. Its development and the subsequent drop of prices allow their actual and future spreading in different sectors such as retail activities (prices lower then 10 cents per tag are forecasted). In addition, the increase of capacity permits an important stocking of information. An example illustrating this capacity enhancement is the embedding of such systems in passports, broadcasting the content composed of written and biometrical information. Therefore, these travel documents are reaching Machine Readable Travel Documents standards (here and after MRDT) as defined by the International Civil Aviation Organisation 39 and in the mean time fulfils facilitation 40 expectations. We want to insist on the fact that there is not one definitive RFid technology, but rather a broad range of technical solutions that vary in their complexity and cost. But, we can isolate some basic characteristics. Transponder Figure 1: Structure of an RFid System 38 As tested in some Metro and Wal-Mart stores in countries such as Germany, Great Britain, United States 39 Document 9303 of the ICAO Council. 40 For further details see infra page 28. Project INO-1-AC EEC Note No. 06/06 45

56 EUROCONTROL Security and passenger rights An RFid system is composed of a reader, connected to a host system, and a transponder. The reader and the transponder communicate on precise radio waves bands 41 generating a data energy clock. The distance of this invisible link varies with factors such as the used frequency, physical obstacles or transponder utilized in this connection. Under perfect conditions, the average range of such tags goes from few centimetres to several metres 42. The frequency largely determines the speed of communication and the distance from which the transponder can be read. Generally, higher frequencies indicate a longer read range. There is a two fold option concerning the reader: it can be located in a specific place such as the entrance of a security area or carried by personnel in order to randomly localize tagged items. The reader activates, or initiates, communication with the tag by broadcasting a radio signal. It behaves like a transceiver meaning that it can read and write data on the tag s chip. This point is important because there is a possibility of enriching information contained on the tag by recording the different steps of its handling or processing. This recording can also be made directly in the host system owing to a simple cartography of the process. Finally, the transponder, or tag, is composed of a chip, made of silicon or polymer, and an antenna 43. There is a twofold option concerning the type of tag. We can have an active tag composed of a chip and a battery or a passive tag not requiring any internal power source. This last alternative allows a passive broadcast and identification on request only. Beside, as there is no internal power supply, its lifetime is long-lasting and the simplicity of its components allows cheap price, a quite basic and reliable building. As it does not carry its own power source it cannot initiate any communication. The tag only responds to the reader s radio frequency emission and derives its power from the energy waves transmitted. In addition, the only information broadcasted is the one embedded in the tag. In other word a passive tag is not a smart tag meaning that its functions and use are limited to identification and localisation. Figure 2: Illustration of a passive RFid tag As a comparison, a tag carries more data than barcode or magnetic stripe and can be reprogrammed if necessary 44. The chip can be attached to, or embedded in, an item to be identified allowing its permanent and remote tracking. 41 There are some common RFid frequencies such as the low frequency (125 KHz), the high frequency (13.56 MHz). Some International Organisations, like the International Organisation for Standardisation (ISO) or the International Air Transport Association (IATA), intend to adopt some specific frequencies as standards requested for a global use. 42 From physical contact up to 3 metres. 43 Made of any energy conductive material. 44 Indeed, the type of memory used can be read only or read and write or write-once read many. Read only tags have minimal storage capacity (typically less than 64 bits) and contain permanently programmed data that cannot be altered. 46 Project INO-1-AC EEC Note No. 06/06

57 Security and passenger rights EUROCONTROL A unique serial number is stored in the chip and therefore, the RFid system can be considered as an advanced identification technology. This serial number refers to a database to which the system is linked. Information contained in the database includes item identifier, description, movement of the item and localisation. The type of information housed will vary by application. The core interest of RFid is the given ability to localise and identify an object owing to the possible interaction with its direct surrounding. Indeed, an interesting example is the joint adoption of RFid tags by KLM and Airbus concerning maintenance items and operation. These objects are connected to a central database owing to an RFid tag broadcasting its nature, history and exact position. This application helps to save time. It was shown in an AMR Research study that technicians were wasting 70% of their active time trying to find a specific spare part. RFid will solve this particular issue. After this brief presentation of the technology s basic characteristics and main advantages we shall focus on the particularities of civil aviation in order to isolate its constraints and see how RFid could grant an appropriate response. 2. PRESENTATION OF THE CONSTRAINTS INHERENT TO AIR TRANSPORT ACTIVITY First of all the airline industry is characterised by several constraints of both operational and regulatory aspects. A specific business characterised by a specific product and capacity bottlenecks. Concerning operational aspects we can first insist on the definition of the product proposed by airlines. It is the most perishable one, non subject to stocking, and therefore responding to a supply chain scheme. Indeed, when an airplane leaves the apron with some vacant seats, these seats constitute a loss of productivity and therefore a loss of money. Airlines activities are characterized by the fact that their product is simultaneously created and consumed. As a result, the airline will be reluctant to leave a late passenger and might try, by delaying the flight, to get him on board. But the real reason might be linked to security purposes. Indeed, a reconciliation proceeding concerning the passenger and its checked luggage as to be done. Therefore a late passenger implies a choice between waiting for him or disembarking his luggage. The same logic is applicable to airports because of their limited apron capacity. When a plane is delayed, and therefore exceeds the time of its planned stop, it represents an important loss of productivity and a characterized disruption of the planned service. A delayed plane impacts, by wasting capacity, the daily scheduled program. Secondly, there will be an important increase of demand not well integrated because of capacity bottlenecks. Indeed, according to EUROCONTROL forecast, the number of flights in Europe is expected to grow by 3.4% per year between 2004 and Airlines and airports will have to face this increasing demand by creating capacity and resort to new approach of the business including a high level of service to their consumers 46. Maximising of capacity and productivity will be requested due to the fact that a simple increase of capacity will not be possible because of a lack of free space concerning airports or to an overcapacity and destructive competition opposing airlines. These figures linked with the fact that airlines need to lower their costs, because of their bottom position on the air transport value chain 47, tends to demonstrate the extreme difficulties surrounding in which these actors progress. 45 EUROCONTROL press release, 29 March Presentation of the Simplifying the business. A program developed by IATA, an International organisation representing 98% of the world s scheduled air traffic AEA - Association of European Airlines) presentation, Le Bourget - 14 October The used criterion is the return on capital invested. According to this study airlines and airport operators experience the lowest return on capital invested corresponding to 6 and 10%. Project INO-1-AC EEC Note No. 06/06 47

58 EUROCONTROL Security and passenger rights We can focus on the regulatory constraints adding complexity to this business. A complex regulatory surrounding concerning security and economical constraints. First, security imposes new obligations toward airlines and airports operators. These actors have to ensure the integrity of specific areas and infrastructures. Indeed, Regulation 2320/2002 imposes a protection of the security area. This part of the airport is only accessible to passengers with boarding pass and authorised persons such as the airport operator s employees or airlines crew members. These persons, and their property, are subjected to specific and compulsory screening procedures. The aim is to protect the airplane and its passengers against any act of unlawful interference and or introduction of prohibited articles 48. The passenger has to be detaining a boarding pass allowing him to penetrate in this area. Airline must assure the integrity and genuine aspect of this document by protecting their counter and customer use self service (CUSS). For example, electronic tickets, printed by the passenger, or a ticket, delivered by the airline, are always replaced by a boarding pass during check in procedures. This ticket contains core information relating to the travel that are both printed on it, and integrated on its magnetic stripe. And last but not least, the passengers subjected to security checks must be separated from those who have not been through such procedure. This procedure impacts airports planning and operational approach. Indeed, in case of non respect of this principle all passengers have to pass, once again, these checks. The passenger s luggage must follow the same type of procedure. Therefore, they are subjected to tagging and security checks. The tag contains printed and bare-coded information. Security regulation insists on the fact that such luggage cannot be loaded in an aircraft hold if its owner, the passenger, is not on board. The compliance is checked during the reconciliation procedure preceding every commercial flight. Therefore, an airline dealing with a late passenger is confronted to a serious dilemma: wait for the passenger or decide to leave without him and then proceed to the research and disembarkation of his luggage. But in the present system the only moment when the airline has a precise idea of the localization of the latter is during the check in procedure and when the passenger is claming his luggage on the conveyor belt. There is, between these two moments, some uncertainty jeopardizing the efficiency of such unloading manoeuvres. In addition, the lack of information concerning localisation and state of these goods is quiet disturbing with regards to the carrier s economic liability existing during the entire transportation process. The second constraint on the regulatory level is the economic regulation. According to the Warsaw system and the Montreal Convention, the carrier is liable in case of loss, destruction of luggage or even delay in delivery 49. Therefore a lost or lately delivered luggage will result in a financial charge for the non diligent airline. Coupling this international regulation with operational constraints, such as hub type airports, leads to situations in which airlines pay tremendous damages. This problematic is also impacted by the size and complexity of growing airports, having some difficulty to cope with the application of supply chain logic. 48 For further details see infra page For further details see infra page Project INO-1-AC EEC Note No. 06/06

59 Security and passenger rights EUROCONTROL European regulation 261/2004 provides an extra protection for consumers in case of denied boarding, or even delays. If we refer to the above mentioned example of the late passenger, a too long delay might have convinced the airline to unload his luggage and to let the flight take off without him. The passenger will have to take the next flight, but, as we mentioned before, airplanes have a fixed capacity and the carriage of this passenger might result in the disembarkation of another passenger that will be eligible to compensation. The main problem is that the airline might not be responsible but considered as liable by this European regulation. Having pointed out these constraints we can realize that, even if the actual system is working, a reshaping of the operational approach could be necessary in order to face future challenges. We believe that RFid could contribute to solve some inherent difficulties to this specific activity of transportation. 3. RFID TAGS AS A SOLUTION CLOSER TO THE OPERATING SPIRIT We could briefly analyse these improvement by focusing, first, on the passenger and then on the treatment of his luggage. A new approach toward passengers. As we mentioned above, managing passengers lost in airports is not an easy challenge. Indeed, most of the European major airports are built following a hub structure. This kind of structure is characterized by its crossroad aspect, granting, during scheduled length of time, an air junction between short haul, incoming flights and long haul, outbound flights. These structures are oversized, or at least respond to a complex designing logic, as they are planned to respond to peak periods. Finding a passenger or, as a passenger, finding our way through these modern mazes tends to become a real challenge. Therefore, this infrastructure constraint implies that the passenger moves from one part of the airport, a specific terminal for instance, to another one in order to catch his connecting flight. Complexity and lack of visibility during peak periods can contribute to explain why a passenger is late. In addition the super-sizing characteristics of those structures and the absence of reliable or comprehensive guidance contribute to the fact that, in France for example, almost 10 percent of delayed departures, superior to 15 minutes 50, are caused by passengers 51. We shall add that the situation is made more tangible by underlining that 30% of these delays are caused by late arrival of the plane. To conclude this brief paragraph we would like to insist on the fact that, in Europe the delays due to ATC are getting less important, whereas the ones due to passengers, airlines and airport tends to take a bigger part in this sharing. A survey accomplished by IATA, underlined that delaying an airplane costs approximately $10,000, or more, for every five minutes a plane is stalled at a gate 52. Therefore, the situation is quite clear: the possibility given to airlines to control and know exactly where their passengers are located will contribute to improve the operating process. This simple fact helps to understand the stakes undertaken by this technology and the reply it could grant by permitting tremendous cost reduction. 50 A 15 minutes period is an International criterion determining a delayed plane. 51 Observatoire des retards du transport aérien, bilan de l année 2004, Revue du conseil national des client aérien. This figure reaches 9.1 % whereas this proportion was 8.8% in International Air Transport Association Business Intelligence service 2004, Montreal Geneva. Project INO-1-AC EEC Note No. 06/06 49

60 EUROCONTROL Security and passenger rights RFid will help to locate passengers in the security area between the security screening points, marking the entrance to this area, and the boarding gates. Regulation 2320/2002 insists on the fact that a passenger shall only enter this specific area with the intent to board an airplane. In addition the IATA general contract of carriage settles obligation for the carrier but also for the passenger with regard to the accomplishment of the contract. The carrier has to provide any relevant information allowing the passenger to take his flight. The passenger has to abide by these information and recommendations. RFid pass will address these obligations in a very broad manner. The RFid boarding pass will allow a personal guidance of the passenger to his plane. Some specific counter could read this tag and give relevant updated information to the passenger, such as the fastest way to reach his gate or at least the number of the latter. We can also envisage the possibility given to the airline employees to isolate, out of the crowd, a passenger of a flight finishing its boarding process. This might be useful in order to reduce the effect of bottlenecks created by enhanced security screening procedures. A reader placed at the entrance of a security screening point combined with one located at the exit could allow an easy localisation of passenger undergoing security measures. This localisation ability could help determining the position of a passenger trying to get his connecting flight. We can easily foresee the potential improvement when the A 380, and its average 550 seats capacity, will be operational. This tag embedded in the boarding pass would respond to transponders placed in strategic areas of the terminal. We can imagine, the creation of virtual entries to shops, services, etc. allowing a walking pace screening. The main improvement is that the information written on the boarding pass will not be limited to the passengers understanding or vigilance. Indeed, these broadcasted information, gives airline employees the ability to fulfil their obligation and satisfy their client with on time flight. To conclude we shall add that, as abovementioned, the embedding of RFid tags will assure the integrity of boarding pass, protecting and strengthening the reliability of this security area sesame. We will give more details concerning the boarding pass building as we describe the principles framing the use of this technology. Concerning luggage, the potential improvements are even more impressive. The technology s potential and the real constraints inherent to the management of luggage led IATA to consider this RFid bag tag as one of the pillar of its policy. The program Simplifying the Business relies on the collaboration and common implementation of airport operators and airlines. The actual objectives are to initiate 5 airports trials and to design a single RFid standard by the end of There are some airports in which the deployment of the technology is positively forecast. We can quote the example of the Hong Kong International Airport 53 which decided to implement, in 2004, such structure. The main motivation was the improvement of customer satisfaction 54. All baggage handling facilities including baggage carrousels, unit load devices (ULD) and conveyors shall host an RFid reader. During the check in procedure an RFid tag is attached to the luggage. This chip contains all relevant information concerning the planned journey and therefore the luggage is able to reach the aircraft hold without any assistance in the directing process. Being a unique experimentation in Asia, the airport operators hope they paved the way for further developments in the region. 53 This airport represents annually 35 million passengers and 3 tons of air cargo. 54 We shall not forget that the main customers of an airport operator are airlines and their passengers. 50 Project INO-1-AC EEC Note No. 06/06

61 Security and passenger rights EUROCONTROL The implementation of such means of treatment is an important argument in the competition opposing airport operators. Indeed this competing phenomenon is more and more verifiable and the idea of service quality is taking an important place in the customers final decision. Our second example is constituted by the McCarran International airport in Las Vegas. This platform became the first airport to implement RFid baggage tracking system in its operating procedures. It is designed to track all passengers bags through inline explosive detection and screening equipment. Therefore they expect to reach both baggage handling objectives of security and reliability. Another interesting initiative is the one designed by an airline, British Airways, in order to reduce the number of lost or lately delivered luggage. The airline has decided to implement RFid tags in its baggage processing model. The actual handling systems are already automated but based on code bar systems which tend to be subject to failure. Indeed, it was shown that most of the loss or mishandlings of baggage had limited cause. They were due to a bad or impossible automatic reading and/or to the destruction or damages caused to the traditional bar code tag. The event that triggered this initiative was the massive strike of ground handling personnel that occurred in London Heathrow causing the mishandling of bags. RFid systems tend to be a solution to this problem occurring when there is a drop or failure in the handling process. By implementing such systems the airline intends to lower its loss rate, which reaches 18 bags over The main motivation is to save up to 600 million euros. Indeed, every missing or mishandled bag costs the responsible airline approximately $80 to $120 or an average of $100 per bag 55. These several examples show the opportunities granted by such system. We can sum them up as following by insisting on the fact that: Baggage mishandling has an important cost for airlines that are liable, due to international regulations. Therefore, the opportunity of tracking these bags and knowing exactly were they are gives them the possibility to maximise the management of this part of their activity. Indeed, we believe that being an air carrier supposes a two fold obligation that is carrying passengers and of course their property. Time used for baggage claming or dealing with customer services has a bad impact on air transport. It extends the time of travel because it is impossible to summarize the operation of carriage to the time of flight. Therefore, if the luggage processing is more reliable and efficient then air transport, as a whole, is more efficient. RFid will contribute to reduce mishandling of bags and positively impact the perception of passengers toward air transport 56. Concerning airlines the reduction of mishandlings will of course lower the overhead costs but also provide a greater visibility and accountability in the baggage handling process. We can add that the cost benefit ratio, or approach, is fully applicable in this specific application owing to the direct and tangible cost of baggage mishandling. The British Airways initiative has been followed by other companies such as Delta Airlines. 55 «Simplifying the Business Industry revolution Kicks Off», IATA News, November 16, These figures include labor and transportation costs for redirecting the bag and delivering it to the owner, or replacement costs to reimburse the owner for the lost luggage and content. 56 The technology developed at the McCarran Airport allows an over 99% reading accuracy. Improving airport operations and security with RFID, June 2005, Symbol. Project INO-1-AC EEC Note No. 06/06 51

62 EUROCONTROL Security and passenger rights Being able to localise a bag gives the airline the ability to reinforce security by being sure that it followed the appropriate checking procedure. In addition, the RFid disposal could allow a quick localisation and removal of bags if their owners are not on board. RFid enables increased visibility of bag as it allows a localisation without any line of sight and through different type of materials. These opportunities are leading the Transportation Security Administration, to stand for the development and spreading of these devices across American airports. Airports could benefit from this technology by having a faster and potentially cheaper baggage management system. This could be an appropriate response to capacity constraints based on maximisation principles. In a nutshell, the main advantages and possibility of the technology are: A permanent and remote tracking of passengers and cargo. An appropriate tool granting flexibility for airlines and airports. A real guarantee for security purposes. 4. DIFFICULTIES AND POTENTIAL THREATS Using RFid for tracking luggage or passengers is not a new idea as such. This technology has been developed and tested for more than a decade, but technical limitation, such as a short read distance, or high cost, impacting the return on interest (ROI) rate, limited its wide spreading. The vast work of standardization and the use of new techniques, such as polymers allowing the use of pre-printed RFid tags (with an embedded chip and antenna) permit a new approach with divided costs 57. Figure 3: Model of pre-printed RFid tags developed by Diagramm Albarch A volume effect, resulting of the wide spreading of the technology, will also contribute to reduce the tags price and will further stimulate demand. The opportunity given by the direct printing of RFid tag is paramount for its implementation in civil aviation. Development of the characteristics of this technique such as the read range or chip storage capacity is another important improvement drawing our intention. The price per tag will surely be lower then 10 cents a tag, limiting its cost impact on actors that are, most of the time, fighting for survival. Readers are following the same logic of prices decrease. This technology is characterised by a positive cost/benefit ratio. 57 Such printers already exist and the first was developed by an American firm, Transcore, specialised in retailing activities. The Tag Teller allows the printing of RFid tags as a mean of payment for highway tolls. 52 Project INO-1-AC EEC Note No. 06/06