The Basic Regulation, Implementing Rules and Soft Law

European Regulation Framework

In this waypoint we will briefly discuss the framework for regulation in the European Union. The objective is to place your course, and the particular Regulation you want to get a grasp on, into context.

The EU legislative process is a three-institution system. Legislative proposals come from the European Commission and are approved by the European Parliament, which is directly elected, and the European Council, the member states. Some high level, fundamental, EU aviation regulations go through this full process, but other regulations are given to the Commission to draft, approved by a committee of member states and scrutinized by Parliament. If there is no successful motion against the draft regulation as a package, it becomes law.

The entity within the European Commission responsible for aviation is DG MOVE, or the Directorate General for Mobility and Transport. In turn, DG move is assisted by EASA.

EASA drafts Opinions for the Commission to turn into legislative proposals. EASA also makes Decisions on “soft law” using specific procedures but without external scrutiny. It does so through the “Committee for the application of common safety rules in the field of civil aviation”, which everyone calls the “EASA Committee”.

The Basic Regulation and Implementing Rules

The Basic Regulation 2018/1139, as the name implies, is the most basic, essential, regulation. It provides the framework for the rest of the rules in EU aviation. Put simply, the Basic Regulation maps out requirements which are essential in its annexes. It also says that these essential requirements are supplemented by rules created by the Commission. These are known as “Implementing Rules“.

The Basic Regulation can only be changed by an act of the EU parliament.

It might be worth noting here, that the Basic regulation was recently changed as part of the European Commission’s new aviation strategy for Europe. This strategy wanted to address the future challenges faced by European aviation, as well as improve the competitiveness of the European aerospace industry on a global level.

Course Recommendation

The Implementing Rules which supplement the Basic Regulation are Commission Regulations. They usually consist of a ‘Cover Regulation’ which calls for an Annex (what we colloquially refer to as Part-something), and it contains detailed rules on the particular area. For example, for Air Operations we have the Implementing Rule, or Commission Regulation 965/2012, which has a Cover Regulation and multiple annexes, such as Part-ARO, Part-ORO, and so on. These contain detailed information on Air Operations. Other Implementing Rules cover other aviation themes, such as Aircrew Licensing, Unmanned Air Systems, or Airworthiness.

“Hard” and “Soft” Laws

Sometimes, Implementing Rules are also known as “Hard Law“, because they can only be adopted through the European Commission. So, to summarize – The Basic Regulation establishes the basic framework for the rest of the rules. Implementing Rules, which must be Commission Regulations, and which are sometimes known as “hard law”, are passed through Parliament for each thematic area.

“Soft Law” consists of technical content, which supplements the Implementing Rules, that can be varied by an executive act, a decision, within EASA. So, for soft law, no legislative act is necessary.

There are three types of “soft law”.

Certification Specifications (CS) are non-binding technical standards adopted by the EASA to meet the essential requirements of the Basic Regulation.

Acceptable Means of Compliance (AMCs) are linked to individual implementing rules and set out one way of complying with the IR. But this is not the only possible way. An ‘Alternative Means of Compliance’, known as an AltMoc, can be applied for to demonstrate another way of complying with the rule. In the regulation, you will see the AMC worded with the word ‘should’. For example, the operator ‘should’, or the flight crew member ‘should’. Unless an AltMoc has been applied for, then you must treat that ‘should’ as mandatory. In other words, as a ‘shall’.

Guidance Materials (GM) are also linked to individual implementing rules and provide interpretive and explanatory material (including in some cases, “good practice”). It is not mandatory.

Finish of the following game as a summary.

Regulatory Reference:- Commission Regulation (EU) 2018/1139 – The Basic Regulation