The Bilateral Aviation Safety Agreement between Canada and the European Union came into force on July 26 2011. The agreement was signed at the EU-Canada Summit on May 6 2009 and the parliaments of Canada and the European Union have now approved it. It sets the framework for a broader reciprocal acceptance of the certification of aeronautical products and services. Some of the press releases which followed its entry into force suggested that it would introduce a 'brave new world' overnight, though – unsurprisingly – that is not the case.

Article 3 specifically states that the agreement "shall not be construed to entail reciprocal acceptance of standards or technical regulations", and (except as specified) "shall not entail the mutual recognition of the equivalence of standards or technical regulations". Transport Canada and the European Aviation Safety Agency (EASA) must now agree upon implementation procedures; the benefits of the agreement will not be enjoyed until these are in place.

While there is a long way to go before full implementation, the agreement has not arisen from a 'legal vacuum'. For instance, Canada has had bilateral agreements on airworthiness with France and Italy for over 20 years, technical arrangements and bilateral airworthiness understandings with a number of other European states and a technical arrangement on maintenance with the members of the Joint Aviation Authorities.

In 2002 developments in Europe led to the transition of aeronautical authority from individual EU member states to the EASA. In 2004 two arrangements followed between Transport Canada, Civil Aviation Directorate and the EASA. The first arrangement allows for a certain amount of reciprocal recognition of approved maintenance organisations. A maintenance organisation regulated by one party, and which is compliant with the terms of the arrangement, is thus authorised to perform maintenance functions on a civil aeronautical product which is regulated by the other party. The second arrangement deals with airworthiness and product certification. This arrangement is not reciprocal. It defines the circumstances in which an aeronautical product approved by Transport Canada may be accepted by the EASA without independent verification of standards.

Thus, Canada and its European trading partners have made progress in "recognising the emerging trend towards multinational design, production, and interchange of Civil Aeronautical Products".(1) The first objective of the new agreement is to enable the reciprocal acceptance of approvals regarding airworthiness, certification and maintenance. This objective will be achieved by defining specified procedures for assessing products and services, and confirming their conformity to the requirements of aeronautical laws. Once these have been specified, the parties will agree (subject to the conditions of the agreement) to accept or recognise the results of the specified procedures. The work for defining the implementation procedures is now underway.

The new agreement applies to airworthiness approval, continues airworthiness monitoring, provides for the approval and monitoring of manufacturing and maintenance facilities, and applies to the environmental approval and testing of civil aeronautical products. It also provides for the identification of competent aeronautical authorities capable of assessing the conformity of products or organisations. In addition, the agreement defines a procedure by which a party may contest the competence of an aeronautical authority and creates a joint committee to which such challenges can be addressed.

The parties retain authority to take immediate measures in certain circumstances, irrespective of the other provisions of the agreement. Thus, a party can:

  • take "all appropriate and immediate measures" to avoid health or safety risks; and
  • subject to a requirement to engage in prior consultations, suspend its reciprocal acceptance obligations in certain circumstances related to inadequate performance by the other party.

The 'working parts' of the agreement are found in two annexes which specify procedures for the certification (Annex A) and maintenance (Annex B) of products. The annexes will create a joint sectorial committee to establish further working procedures and ensure the agreement's proper operation.

Annex B reflects a broad agreement on the equivalence of each party's applicable legislation, the adequacy of certification practices as proof of compliance and the equivalence of the "respective standards of the parties pertaining to licensing of maintenance personnel".

Annex A is considerably more complicated and requires extensive work to streamline certification procedures. Annex A governs the approval of type certificates, supplemental type certificates, repairs, parts and appliances. The parties agree that a design organisation approved by one party will also have the power to satisfy any requirements of the other party.

The importing party which issues a type certificate to define the required standards of an imported product is required to consult its own standards for a similar product in force at the time that the application for the original type certificate was submitted for approval to the exporting party. This is the presumptive certification basis. The importing party can specify exemptions to or deviations from the certification basis, but in doing so it "shall not be more demanding for the products of the Exporting Party than it would be for similar products of its own".

Each design approval will proceed on the basis of a certification programme, which will be overseen by the joint sectorial committee on certification. With respect to type certificates and supplemental type certificates for aircraft, engines or propellers, the agreement provides that the importing party will issue these once three conditions are met. First, the exporting party must have issued its own certificate. Second, it must have certified to the importing party that the design complies with the certification basis, as defined in the agreement. These first two conditions are within the control of the exporting party; however, the final condition is not. This requires that the importing party issues its certificate only when "all issues raised during the certification process have been resolved".

In the case of changes to type design and in respect of repair designs of products for which the importing party has issued a certificate, a distinction is made between two categories established by the joint sectorial committee. First, for changes that require the involvement of the importing party, approval will be granted provided that the exporting party issues a written statement that all design changes comply with the certification basis. For all other changes, approval of the exporting party will constitute "a valid approval of the importing party without additional action".

With respect to export certificates of airworthiness, the exporting party must issue a certificate to certify that the aircraft:

  • conforms to a type design approved by the importing party;
  • complies with all airworthiness directives issued by the importing party; and
  • meets all additional requirements of the importing party.

Similar provisions deal with used aircraft, as well as authorised release certificates for products and assemblies.

For further information on this topic please contact Gerard A Chouest or Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected] or [email protected]).


(1) In the words of the recitals to the agreement.