A spate of EU legislation has done nothing to improve security at airports argues Thomas Ross, special advisor for legal affairs at Munich Airport
After the 9/11 attacks in New York, the EU Commission assumed responsibility for legislation in the field of aviation security. Regulation (EC) No 2320/2002 of the European Parliament established goals without indicating who would be in charge of achieving them – understandable, since aviation security is structured and organised differently in every single member state of the EU.
The first and core implementing regulation to complement the 2320 was the “Commission Regulation (EC) No 622/2003 of 2003 laying down measures for the implementation of the common basic standards on aviation security. This was subsequently amended by more than a dozen regulations most of them kept confidential. Europe’s citizens remained left in the dark, as were airports and airlines who on the one hand, were legally bound to fulfil so-called “self-protection-obligations” but, on the other had to supplicate the authorities to provide them with the secret texts.
An example of this anti-constitutional approach was regulation 68/2004 which, by its secret annex, inserted the long-expected list of prohibited articles. Years later, this secrecy became the stumbling block for the EU Commission in front of the European Court.
Regulation No 781/2005 did not even in its headline disclose that it dealt with the specifications of conventional x-ray equipment for baggage screening. This meant that airports, bound to purchase such equipment had to call for tenders in the official journal due to the EU´s public procurement regime, but was unable to specify the requirements.
In 2006 in the UK attempts to smuggle liquid explosives on board transatlantic flights within hand luggage were discovered. It should be noted that terrorists were not tracked down during hand-baggage inspections at control stands, the terrorists were spotted by the intelligence services, following tip offs from near-east friendly services, after telephone-tapping, intelligence supervision and monitoring of their homeland airport. The EU Commission reacted swiftly: After a legislative procedure of roughly six weeks, it banned liquids, aerosols and gels (LAGs) from carry-on luggage via Regulation 1546/2006, an amendment to the secret list of prohibited articles. Together with solving the LAGs-problem, the Commission had undertaken to ban oversized hand luggage as an allegedly dangerous article something which most airports saw as ludicrous and happily were able to ignore.
Another incident triggered a change in security in relation to transfer controls. During an EU inspection performed on the German ministry of transport at the end of 2003, the inspection team complained about the separation of arriving passengers, originating from non-EU airports, from departing passengers. In the case of arrivals, passengers have to be led directly to the baggage claim and exit, without any contact. In the case of transfers, passenger and baggage have to be screened before entering the gate for the ongoing flight.
The German ministry held that it lay within its own discretion to assess non-EU airports and to label them “clean” or “unclean”, which the ministry in fact had done – the “unclean”-list originating from this assessment was short, below 20 airports , a number which could be tackled without remodeling terminal buildings. But the EU insisted that judgment lay exclusively within its own powers and that in its opinion, each and every non-EU airport was “unclean”. As a consequence of this the two big hub-airports in Germany, Munich and Frankfurt, had to remodel their terminal buildings accordingly. In Munich, it cost 6.5 million Euros for Terminal 1, (the remodeling was completed in 2007) and 60 million Euros for Terminal 2 (inaugurated only on 29 June 2003) where an entire new corridor was constructed on top of the building. In Frankfurt, the remodeling also cost a fortune although Fraport did not make public the exact costs. The concept and capacity of the transfer corridor were mainly based on the volume of passengers arriving from the US, the bulk of non-EU arrivals and transfers in Munich.
Effective from 13 june 2011, the EU Commission has acknowledged security measures taken in the US as being equivalent with those taken in the EU – in other words: Passengers arriving from the USA enjoy one-stop-security (OSS), they are no longer to be regarded as insecure, they must not be led through transfer screening. The remodeling in Frankfurt and Munich could have been smaller and cheaper.
In May 2007, an EU inspection team appraised security of hangar 3 at Munich Airport as gravely deficient, both in terms of infrastructure and the performance of personnel – admittedly with full justification. But the hangar was, at that time, let to the airlines LTU, DBA and Augsburg Airways, and legally speaking they were in charge of security, not the airport. Furthermore, EU inspection teams when conducting such appraisals consider the airport as an integrated whole – so the entire airport would have been branded as being insecure and had to put in place immediate temporary makeshift measures. It took until 2011 to resolve these issues. A new perimeter and modern control gate were completed on 11 August of that year. What this shows is that regulations can be quickly concocted and a security inspection takes only a week. However the resulting negotiations, designs, agreements and construction work take a lot longer.
In 2006, the EU Commission undertook a revision of its self-created thicket of regulations, intending to replace them completely with a new framework regulation 300/2009, together with implementing regulation 185 instead of the unworkable 622. But just as these legislatory endeavors were going into the final round, the EU found itself overtaken by events following a judgment by the European Court.
On 25 September 2005, a passenger was prevented from boarding at Vienna Airport because he was carrying four tennis rackets belonging to his family and tennis rackets are prohibited articles under EU regulation 68/2004. His wife and children had already boarded and flew without him, he lost the flight and sued the state.
On 10 April 2008, Advocate General Eleanor Sharpston in her final submission suggested to the European Court that the regulation on aviation security should be declared non-existent highlighting the “fundamental absurdity” in the Commission’s position. On 10 March 2009, the European court passed its annihilating judgment.
The commission’s response to reforming its aviation security regulations was regulation 272/2009 in the so-called “procédure réglementaire avec contrôle” (PRAC). The European Parliament again flexed its muscles and did not tolerate the inclusion – proposed by the Commission – of liquids, aerosols and gels into the list of possibly prohibited articles. This soon brought a dilemma for the Commission – on the one hand, it was not entitled to list up LAGs, on the other hand, the development of technical equipment for checking liquids did not advance as quickly as was hoped. So it chose for no reason whatsoever to lay down the complete regime for LAGs as directly binding law, which was done via regulation 297/2010. The price demanded by the European Parliament for its cooperation was a two-stage-schedule for future abolition of the entire LAGs regime.
From 29 April 2011, transfer passengers arriving from non-EU-states should be allowed to keep their duty-free-liquids in so-called security tamper evident bags (STEBs) on condition that the passenger produced at the transfer-control-stand the untampered bag. A certain quota then should be checked at random. And in stage two, by 29 April 2013, LAGs should become principally allowed at all control stands, but submitted to a 100 per cent technical control.
As the deadline 29 April 2011 came nearer, adequate equipment was ready for use and available on the market. Germany and three other EU member states purchased equipment and installed it at the control stands. All other EU member states announced that they would, allegedly opt out of security considerations and stick to “more stringent measures” – in other words they would go on confiscating LAGs. Apparently, hub-airports in these non-compliant EU member states would have found themselves in an unfavourable competitive situation, once the hub-passengers found out about the different security controls – in some airports they would pass through with liquids and gels unimpeded, in others they would be told: “please dump it in the bin”. The EU Commissioner for Transport sent on 28 April 2011, a message to the little party of willing and prepared states. He urged them to suspend regulation 297/2010.
In the meantime, after concentrated information from member states and industry that adequate equipment to cope with this new task is still not in sight, and after hefty discussions with the US administration, on 18 july 2012 the EU Commission announced another postponement of stage two beyond 29 April 2013.
On 24 december 2009, Umar Faruk Abdulmutallab, the “undewear-bomber” on Northwest Airlines Flight No. NW 253 from Amsterdam to Detroit undertook an attempt to bring the aircraft down by igniting a bomb hidden in his underwear. The incident fostered endeavours to develop a scanner able to detect non-metallic devices. Legislative efforts for introducing security-scanners were laid down with Regulations 1141 and 1147/2011 on 10 November 2011, after long arguments about whether x-ray technology was acceptable and how personal rights should be protected.
At that time, the disappointing results of a field-test with security scanners performed at Hamburg airport (enormous rejection rates and clear false- alarms resulting in an intolerable drop of throughput at the control-stands) were broadly known, together with the decision of the German Minister of the Interior of 31 August 2011 neither to introduce this equipment in Germany nor to initiate further field- studies.
But other airports, in the Netherlands and the UK, are fully satisfied with their security-scanners – how do they trigger their sensitivity? And Manchester Airport who had long before installed, on a test-basis, x-ray-technology which is not in line with the 1141/1147 regulation, tried to get consent from the EU Commission to maintain their x-ray-equipment, claiming that recent studies have ended with a clearance certificate, irrespective of existing EU law.
We also need to consider the issue of air freight security. Between 29 October 2010 and 17 November 2010, there was a series of incidents in which explosive devices were smuggled in air freight and air mail; some in cargo aircraft, some in passenger aircraft; originating from Sanaa, Yemen or from Greece. These terrorist attacks failed but nonetheless triggered once more the grinding wheels of EU-legislation. Working groups started working, intermediate reports were submitted, the EU Commission was urged by member states to produce a kind of “unclean-list”. On 30 November 2011 Commissioner Kallas announced a legislative proposal on checking import-cargo. The German Police Trade Union spoke of checks to be performed on export-cargo but the target changed towards transfer-cargo. In Germany particularly the discussions kicked off a turf war around the administrative responsibilities between the Ministry of the Interior, the Federal Border Police, the Ministry of Transport, together with the Federal Aviation Office.
There were also noises of displeasure from the airline industry about the possibility of new fees and charges for air-cargo-controls. Meanwhile, a suggestion to support emerging countries in on the spot controls was immediately rebuffed by the German Ministry of the Interior on the basis that taxpayers’ money must not be spent on the private security interests of private companies.
What was the eventual result of all these discussions? Regulation 859/2011 a cryptic, enigmatic piece of legislation that created a new aviation acronym – the ACC3 . This relates to the air cargo or mail carrier operating into the EU from a third country airport. It sets out new obligations for carriers , new formats, declarations, files, documentations, certifications – paper security at any rate. The material improvement for aviation security remains uncertain because the core of the regulation is again held secret, placed into special resolutions of the EU Commission.
In summary what all these events have produced is a welter of aviation security law which will continue to grow. Whether this introduction of extra hassle for passengers and costs for airports has produced tangible improvements in security, remains unclear. Without security, aviation is of course unthinkable; but without aviation, once it has drowned under the weight of legislation, security as such, won´t make sense any more. A balanced, professional approach and legislatory self-restraint is called for.