Last March, the Council and the European Parliament adopted the Directive No 12/2009 on airport charges. But this Directive does not cover security charges. In 2007, during the negotiations leading to the adoption of framework regulation 300/2008 on aviation security, the European Parliament requested the Commission to report on the principles of financing the costs of civil aviation security measures. Following the presentation of the report, in May 2009 the Commission proposed a draft directive on aviation security charges. The Regulation 300/2008 on common rules in the field of civil aviation security lays down the common standards on civil aviation security. Member States may apply, on the basis of a risk assessment, and in conformity with Community law, more stringent measures than those provided in this Regulation. Member States must inform the Commission of such measures as soon as possible after their application.

Presently, systems for the recovery of aviation security costs are regulated at national level. It is each Member State responsibility to fix the level of security charges and to determine the methods for financing security measures. The aim of the proposal is to set up common principles for the levying of security charges at Community airports. The proposal provides for a set of rules to be observed when member states and airport operators determine the levels of security charges.

The Commission proposed text is not line with subsidiarity principle and would cause further administrative burdens on member states and businesses.

The Transport Council has been discussing the Commission’s proposal but no agreement was reached yet. On 12 March, it was unable to resolve the outstanding issues as no position was acceptable to the majority of the EU member states.

Under the Commission proposal the directive would apply to any EU airport. There is no annual traffic threshold for airports included in the scope of the draft Directive. Whereas the Airport Charges Directive applies to airports with an annual traffic of five million or more passenger movements. The Government is concerned with the impact that the draft proposal might have on small airports, such as those in the Highlands and Islands. In fact, the smaller airports have already raised concerns about the administrative burdens they are likely to face if the proposal is not amended. The Government is seeking to align the scope of the proposal with the Airport Charges Directive. The Swedish EU Presidency has proposed that the draft directive should cover all commercial EU airports with annual traffic of over five million passenger movements. However, several member states are asking for a lower threshold for passenger movements covering therefore, more airports. Hence, the Spanish Presidency has proposed a threshold to two million passenger movements, however this would entail more administrative burden, therefore the majority of Member States is against such idea.

Member States would be required to ensure that all necessary information on the costs of providing aviation security services at airports is accessible to the airport managing body. Under the draft proposal airport operators would be required to respected several principles whilst determining their security charges. The draft directive requires that the airport managing bodies and the air carriers serving the airport exchange regular views on the security charging system applicable at an airport, particularly on the levels of the charges. There are no provisions on the methods for calculating security charges that would apply in each Member State. But the draft proposal regulates the amount of information which should be provided on a regular basis by the airport managing body. The airport managing body would be required to provide airport users with information on how and on what basis aviation security charges are calculated. On the other hand, the airport users would be required to provide the airport managing body with information as regards their operational forecasts as well as their development projects and their requirements at the airport concerned.

The draft directive would require member states to undertake an impact assessment with regard to the effects on the level of security charges before adopting more stringent aviation security measures than the ones foreseen in Community legislation. Moreover, they would be obliged to inform the Commission as well as to consult airport users about impact assessments’ outcome. According to the Parliamentary Under-Secretary of State, Department for Transport, Paul Clark, the Government has serious concerns about this provision. The Government believes that by requiring an impact assessment to be undertaken first, the draft proposal would limit the Member States’ ability to swiftly put in place more stringent measures for aviation security. Moreover, the Government has deemed as inappropriate the Commission’s proposal to the requirement for impact assessments for more stringent measures to be retrospective. The Government is, therefore, seeking to ensure that Member States' ability to swiftly put in place more stringent measures when the situation requires it is not restricted. The Swedish EU Presidency has proposed to clarify the text in order to ensure that member states do not have to carry out an impact assessment to introduce more stringent measures if they are of limited duration and based on imminent and identified threats. However, there is no agreement yet on this regard.

Member States would be also required to establish a supervisory authority which would be in charge of ensuring “the proper and effective application of this Directive.”

The draft directive expressly specifies that member states must ensure that security charges are used exclusively to meet security costs. Hence, the principle of cost-relatedness would be, therefore, established, as the security charges levied must not exceed security costs. The Commission has proposed criteria to determine the costs of aviation security. Paul Clark has said to the European Scrutiny Committee that such requirement might increase “the charge on other elements of airport service to maintain the overall level of charge”, on privatised and non-price regulated airports, “(…) as private firms look to maintain profits.” Member States could not agree yet on the criteria to determine the costs of aviation security.

The proposal goes through the co-decision procedure. The European Parliament has already requested, without success, proposals on the financing of aviation security measures by Member States. But the MEPs have come back with the request for the EU to impose financing of aviation security measures by Member States. Unsurprisingly, the European Parliament’s Committee on Transport has recently voted to require Member States to finance aviation security measures that are stricter than common EU requirements. The Council would never accept such an amendment to the Commission’s proposal. It is well know that the majority of the EU Member States, including the UK, is against such an obligation imposed at EU level. The Government has reiterated its position that “the user should continue to pay.” However, the MEPs are ready for a fight with the Council. In fact, according to the European Parliament’s press release, the Transport Committee Chairman, Brian Simpson, Labour MEP, has said that “he would recommend rejecting the proposal as a whole if EU ministers did not accept Parliament's position.”

Moreover, whereas the Government is seeking to ensure that the draft directive will cover commercial EU airports with annual traffic of over five million passenger movements, the MEPs voted to lower the threshold, including, therefore, all commercial airports.