Commission Implementing Regulation (EU) 2021/1296 of 4 August 2021 amending and correcting Regulation (EU) No 965/2012 as regards the requirements for fuel/energy planning and management, and as regards requirements on support programmes and psychological assessment of flight crew, as well as testing of psychoactive substances (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91⁽¹⁾, and in particular Article 31 thereof,

Whereas:

1. Commission Regulation (EU) No 965/2012⁽²⁾ lays down detailed rules for air operations and in particular for fuel planning and management. Those rules should be updated to reflect recent advances in engine technology and best practices in the domain of air operations, and to take into account worldwide aviation experience and scientific and technical progress in air operations.

2. The latest fuel-related amendments to Annex 6 of the Convention on International Civil Aviation (ICAO), being Part I (11th edition), Part III (9th edition) and the new guidance of ICAO Document 9976 ‘Fuel planning manual’ should be incorporated in Regulation (EU) No 965/2012, with the exception of certain requirements applicable to helicopters, where other solutions are considered by EASA as meeting the required level of safety.

3. The new rules on fuel/energy planning and management should allow for a level playing field for all interested parties in the internal aviation market and improve competitiveness of the Union aviation industry.

4. The new fuel/energy planning and management requirements should support innovation and allow for the smooth integration of new technologies into the air operations domain. Therefore, the term ‘fuel/energy’ should be used instead of the term ‘fuel’, wherever appropriate, to accommodate operations with aircraft that use other energy sources than conventional hydrocarbon-based fuel.

5. The requirements related to the different types of operations should be proportionate to the scale and complexity of such operations, as well as to the risks involved in such operations.

6. Air operators should be able to use a performance-based planning and management procedures that improve operational efficiency by producing financial and environmental benefits, while maintaining or even improving the level of safety. Therefore, the new requirements for aeroplanes used in commercial air transport (CAT) operations should introduce a comprehensive fuel scheme encompassing three main policies related to fuel: fuel/energy planning, aerodrome selection and in-flight fuel and energy management. This should allow a more flexible management of risk by the operator, leading to potential efficiency gains.

7. Safety information collected by EASA suggests that new requirements should be introduced to address the risks associated with refuelling, and more specifically when refuelling with passengers on board, disembarking or embarking, and when refuelling a helicopter with rotors turning.

8. The assessment of complex fuel/energy schemes requires enhanced capabilities from the competent authorities, therefore it is necessary to introduce criteria to guide competent authorities when making operational safety risk assessments to support the application of fully performance-based fuel/energy schemes.

9. Following the principles of proportionality and better regulation, the fuel and energy requirements for non-commercial operations with complex motor-powered aircraft (NCC) and for specialised operations (SPO) should be better aligned with those for CAT operations. On the other hand, the fuel and energy requirements for non-commercial operators of other-than-complex motor-powered aircraft should be based on safety objectives and should allow a performance-based approach. The new requirements on fuel and energy planning and management should reduce regulatory burden, increase cost-effectiveness and, with some exceptions, lead to harmonisation with requirements laid down by ICAO.

10. Commission Regulation (EU) 2018/1042⁽³⁾ added to Regulation (EU) No 965/2012 requirements for support programmes, the psychological assessment of flight crew and the systematic and random testing of psychoactive substances to ensure the medical fitness of flight crew and cabin crew members. Those requirements have become applicable in February 2021. The Agency was mandated to continuously evaluate the effectiveness of the new provisions and produce a first evaluation report by August 2022. Taking into account the impact of the Covid-19 pandemic on aviation, it is advisable to allow for more time for the Agency to collect the relevant data for the evaluation. Therefore, it is necessary to postpone the deadline for the completion of the evaluation report to 14 August 2023.

11. Regulation (EU) 2018/1042 introduced into Annex I to Regulation (EU) No 965/2012 a point 98(a) which defined the term ‘psychoactive substances’. Commission Implementing Regulation (EU) 2020/2036⁽⁴⁾, which subsequently amended Annex I to Regulation (EU) No 965/2012, inadvertently replaced point 98(a) by new text, defining the term ‘proficient’, and deleted the definition of the term ‘psychoactive substances’. That definition is essential for the consistent interpretation of the provisions introduced by Regulation (EU) 2018/1042 and in particular to clearly define which substances are subject to those provisions and which are not. Therefore, in order to safeguard legitimate expectations of the persons subject to those provisions that definition should be reintroduced in Annex I to Regulation (EU) No 965/2012 with effect from the date of application of the related changes introduced by Regulation (EU) 2018/1042, that is from 14 February 2021.

12. The European Union Aviation Safety Agency has prepared a draft implementing rule and submitted it with Opinion 02/2020⁽⁵⁾ in accordance with Article 75(2), points (b) and (c), and Article 76(1) of Regulation (EU) 2018/1139.

13. Regulation (EU) No 965/2012 should therefore be amended and corrected accordingly.

14. In order to ensure the proper implementation of this Regulation, Member States and affected stakeholders should be given sufficient time to adapt their procedures to the new requirements established by this Regulation. Therefore, its application should be deferred.

15. The measures provided for in this Regulation are in accordance with the opinion of the Committee established in accordance with Article 127 of Regulation (EU) 2018/1139,

HAS ADOPTED THIS REGULATION: