- The EU introduces revised rules on pilots’ background checks.
- One major change: As of 31 Dec 2020, intelligence information concerning an individual will become a mandatory component of background checks.
- The lack of such intelligence information would be sufficient to fail his/her background check even if there is no proven risk to aviation security. Pilots failing their background checks will not be able to work in any EU Member State.
- ECA has raised concerns that a failure of 3rd country intelligence authorities or agencies to provide (timely / correct) information will unnecessarily breach pilots’ right to work. It must be addressed at national level in a pragmatic manner via appeal mechanism.
A new revision of the EU regulation on pilots’ background checks introduces an “intelligence pillar” as of 31 Dec 2020. The new requirement to include and analyse intelligence information will become a mandatory element of the thorough background checks which pilots undergo every 5 year. Such checks are vital for aviation security and assess pilots’ trustworthiness. Currently, authorities look at education, employment and criminal records. But the revision of the Regulation adds intelligence background information as a mandatory requirement for a successful background check.
This amendment* will have major consequences for pilots. In practice, if intelligence information about the pilot is missing, or is just inaccurate, he/she will fail the background check and will not be able to get a crew identification card. He/she will be deprived of the right to work as a pilot in Europe. The simple lack of information will be sufficient to fail his/her background check even if there is no proven risk to aviation security.
If intelligence information about the pilot is missing, or is just inaccurate, he/she will fail the background check
It is not entirely known yet how different Member State authorities will fulfil this intelligence information collection. While exchange of such information within the EU would be not so difficult to imagine, 3rd country intelligence services may not be as responsive as the EU expects. Already now there are several cases of Dutch pilots, who have worked in 3rd countries, struggling to pass their background checks due to insufficient or inadequate intelligence information exchange: e.g. an agency simply does not reply to a request. When this intelligence pillar requirement rolls out, more pilots will be affected and may end up in similar situations.
The revised regulation does not include procedures or an appeal mechanism through which the pilot could contest any faulty or inaccurate information or challenge the decision. ECA has already raised concerns with the EU that this constitutes a disproportionate infringement of the pilot’s right to work and ECA will continue to advocate for a more fair and effective system for background checks. The good news is the EU Member States could decide to set up at least an appeal procedure. This would give pilots an opportunity to make their case and maintain their right to work. Unfortunately, it would mean different approaches across Europe and an additional financial burden on someone who is unemployed.
It is important for EU pilots to know that all background checks which have been successfully completed before 31 December 2020 will remain valid until their expiry or at the latest until 30 June 2023, whichever date comes earlier. As of 31 December 2020, background checks will be performed only in accordance with the new rules. By 30 June 2023 all staff shall have been checked/rechecked in accordance with the new regime.
The enhanced background checks – despite their difficult and unclear practical integration within the system – will become a new piece in an already very robust European aviation security chain. European pilots are part of this chain and are committed to striving for the highest possible levels of security.
In 2016 the EU Commission updated the whole set of legislation in the field of aviation security by adopting the new Commission Implementing Regulation (EC) N° 2015/1998. On a yearly basis, the EU Commission – in close cooperation with EU Member States but usually after only limited consultation of the stakeholders – carries out a regular ‘Small Amendment Exercise’. With this, the EU Commission considers “minor changes” to the Implementing Regulation designed to adjust current rules to e.g. technology developments and threats that may have emerged within the previous year.
In principle, such ‘Small Amendments’ are not meant to fundamentally change EU common basic standards on aviation security. In practice, however, a number of them may entail significant changes and affect the way companies and their employees operate in the aviation industry. The 2018 exercise, that was concluded in November last year, led to the changes of the rules on pilots’ background checks.