This follows Washington's formal lodging of a complaint against Europe's hushkit regulation on 14 March, under Article 84 of the Chicago Convention, after protracted but fruitless talks.
The EU only has observer status at the International Civil Aviation Authority and the European response has therefore taken the shape of identical submissions by all 15 EU member states.
Under ICAO procedures Europe had until the end of July to respond to the US submission, or so-called 'memorial'. Instead of filing its own counter-memorial, in so-called 'preliminary objections', Europe has asked the ICAO to reject the US complaint as invalid on the three grounds that:
there had not been adequate negotiations before the complaint was lodged; the USA had failed to exhaust local remedies - essentially European legal procedures; the action requested by Washington - the annulment of the EC's hushkit regulation - goes far beyond the scope of the Chicago Convention.The ICAO is now required to rule on these European objections but may not be able to reach a decision before early next year. Only then can the ICAO examine the hushkit dispute itself - but only if Europe's objections are rejected.
The coming months, however, will see a flurry of ICAO activity on new aircraft noise regulations and it may well be that the entire US-European hushkit dispute will be superseded by the new rules.
In Brussels it is thought that the Americans were hoping that their so-called Article 84 complaint could be adjudicated by the end of this year. Washington is understood to be deeply irritated at Brussels' legal tactics and the consequent delay.
At the heart of the affair is the EC's Regulation 925/1999 which went into effect on 29 April 1999. This banned new registrations in Europe of hushkitted aircraft with effect from 4 May this year.
In a move to prevent hushkitted aircraft being shifted to flags of convenience to side-step the ban, it prohibited the operation into Europe as of 1 April 2002 of hushkitted aircraft registered in third countries unless the aircraft was operated into Europe between 1 April 1995 and 4 May 2000.
Hushkits were developed as a response to a unilateral US decision in 1990 to phase out noisy aircraft - known as Chapter Two aircraft (or Stage Two in the USA), after the section of the Chicago Convention defining noise standards applicable to those aircraft.
Hushkitted aircraft are nevertheless far noisier than most Chapter Three aircraft and the EC regulation was aimed solely at reducing noise levels around European airports.
Under heavy pressure from US hushkit manufacturers and operators of hushkitted aircraft, Washington asserted that the regulation unfairly discriminated against the US aviation industry.
There was talk of a complaint to the World Trade Organisation, and Congress threatened to retaliate by banning British Airways and Air France Concorde flights to the USA.
Brussels and Washington undertook intensive discussions in the two years before the regulation's adoption. In an effort to avert a crisis, the EC even agreed to delay by a year the entry into force of the ban on new registrations of hushkitted aircraft, originally to have been applicable from 1 April 1999.
Progress was made but a workable compromise proved impossible. Brussels officials say a major impediment was Washington's reluctance to discuss technical issues for fear this might be seen by US industry as an acceptance the regulation was in fact a justifiable noise reduction measure.
The ICAO has meanwhile been working on new noise standards - to be contained in a new chapter of Annex 16 of the Chicago Convention - for new aircraft types, and on rules for the phasing out of the noisiest Chapter Three aircraft.
Recommendations are expected to be presented at the fifth plenary session of the ICAO's Committee on Aviation and Environmental Protection (CAEP) scheduled for January. These are likely to be debated at an ICAO workshop on aircraft noise scheduled for next April.
The new Chapter Four standards and phase-out rules could be approved formally at the ICAO's 33rd Assembly in September next year.
The new rules on the phase-out of noisy Chapter Three aircraft are likely to be similar to the provisions of the EC's hushkit regulation. If so, the USA could find its complaint against Brussels hard to sustain.
Source: Airline Business
