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17.7.2012 Official
Journal
of
the
European
Union L
187/29
COMMISSION IMPLEMENTING REGULATION (EU) No 646/2012
of 16 July 2012
laying down detailed rules on fines and periodic penalty payments pursuant to Regulation (EC)
No 216/2008 of the European Parliament and of the Council
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
(6) These
rules
and
procedures
should
be
guided
by
the
need
to ensure the highest possible safety and environmental
Having regard to the Treaty on the Functioning of the European
protection standards, by the need to encourage an
Union,
effective conduct of the inquiry and of the decision-
making phases as well as by the need to guarantee the
fairness and transparency of the procedures and the
Having regard to Regulation (EC) No 216/2008 of the European
imposition of fines and periodic penalty payments.
Parliament and of the Council of 20 February 2008 on
common rules in the field of civil aviation and establishing a
European Aviation Safety Agency, and repealing Council
(7) The
provisions
of
this
Regulation
can
be
effectively
Directive 91/670/EEC, Regulation (EC) No 1592/2002 and
enforced only in a framework of close cooperation
Directive 2004/36/EC ( 1 ), and in particular Article 25(3) thereof,
between the Member States, the Commission and the
Agency. For that purpose it is necessary to set up
arrangements for consultation and cooperation between
Whereas:
them in order to ensure the effective conduct of the
inquiry and the decision-making process regarding
(1) Regulation
(EC)
No
216/2008
aims
to
establish
and
alleged breaches.
maintain a high uniform level of civil aviation safety in
Europe. That Regulation provides for the means of
achieving that objective and other objectives in the
(8)
It is appropriate that, for the purposes of the initiation
field of civil aviation safety.
and conduct of the non-compliance procedure and the
quantification of fines and periodic penalty payments, the
Commission and the Agency should take into account
(2) Pursuant
to
Regulation
(EC)
No
216/2008
the
European
other procedures against the same certificate holder
Aviation Safety Agency (‘the Agency’) is responsible for
which have been initiated or concluded by a Member
the certification of certain products, persons and
State or by third countries.
undertakings. In those areas under its responsibility,
the Agency has to oversee that those products, persons
and undertakings comply with the applicable
(9) The
Commission
and
the
Agency
should
also
take
into
requirements including the provisions of Regulation (EC)
account any pending procedure initiated, or decision
No 216/2008 and its implementing rules.
taken, by the Agency regarding the amendment, limi
tation, suspension or revocation of the relevant certificate
in accordance with Regulation (EC) No 216/2008.
(3) In
cases
where
identified
potential
shortcomings
are
not
adequately resolved during the existing oversight process,
Article 25 of Regulation (EC) No 216/2008 empowers
(10) Without
prejudice
to
Union
law
preventing
the
use
of
the Commission, at the request of the Agency, to impose
safety information for the purposes of blame or liability,
fines or periodic penalty payments on holders of
in particular Article 16(2) of Regulation (EC)
certificates issued by the Agency for the intentional or
No 216/2008, Article 19(2) of Regulation (EU)
negligent breach of any of the obligations laid down in
No 996/2010 of the European Parliament and of the
Regulation (EC) No 216/2008 or its implementing rules.
Council of 20 October 2010 on the investigation and
prevention of accidents and incidents in civil aviation and
repealing Directive 94/56/EC
(
(4) Through
the
introduction
of
fines
and
periodic
penalty

2 ) and Article 7 of
payments the Commission should have a supplementary
Directive 2003/42/EC of the European Parliament and
tool, allowing it to give a more nuanced, flexible and
of the Council of 13 June 2003 on occurrence
graduated response to a breach of the rules, compared
reporting in civil aviation ( 3 ), any oversight power
to the withdrawal of a certificate which the Agency has
conferred on the Commission or the Agency by Union
issued.
law as regards certificates issued in accordance with

Regulation (EC) No 216/2008 may be used in the
course of the investigation or during the decision-
(5) It
is
necessary
to
lay
down
rules
concerning
procedures,
making stages of such a non-compliance procedure.
inquiries, associated measures and reporting by the
The Commission's decision imposing fines or periodic
Agency as well as rules of procedure for decision-
penalty payments should be based on the inquiry by
making, including provisions on the quantification and
the Agency, the observations of the certificate holder
collection of fines and periodic penalty payments. It is
subject to the non-compliance procedure and, where
also necessary to lay down detailed criteria for estab
appropriate, other information submitted to the Agency
lishing the amount of the fines or periodic penalty
and the Commission.
payments.
( 2 ) OJ L 295, 12.11.2010, p. 35.
( 1 ) OJ L 79, 13.3.2008, p. 1.
( 3 ) OJ L 167, 4.7.2003, p. 23.

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L 187/30
EN
Official Journal of the European Union
17.7.2012
(11) It
is
appropriate
to
give
certificate
holders
the
oppor
2. This
Regulation
applies
to
the
imposition:
tunity, within a specified time-limit, to voluntarily
comply with Regulation (EC) No 216/2008 and its
(a) of fines on persons and undertakings to which the European
implementing rules, in which case no fines or periodic
Aviation Safety Agency (‘the Agency’) has issued a certificate
penalty payments should be imposed by the
(‘certificate holder’) where, intentionally or negligently, the
Commission. This possibility to demonstrate voluntary
provisions of Regulation (EC) No 216/2008 or its imple
compliance should nonetheless be limited in time.
menting rules have been breached and where interests of
the Union are involved;
(12) Decisions
imposing
fines
or
periodic
penalty
payments
should be based exclusively on grounds on which the
(b) of periodic penalty payments on certificate holders referred
certificate holder concerned has been able to comment.
to in point (a) in order to compel them to comply with
Regulation (EC) No 216/2008 or its implementing rules.
(13) The
fines
or
periodic
penalty
payments
imposed
should
be effective, proportionate and dissuasive, having regard
CHAPTER II
to the circumstances of the specific case.
NON-COMPLIANCE PROCEDURE
(14) It
appears
appropriate
to
provide
for
a
specific
procedure
SECTION 1
in cases where the Commission intends to impose
Inquiry
periodic penalty payments for failure by a certificate
holder subject to a non-compliance procedure to
Article 2
cooperate with the Commission or the Agency with
regard to measures of inquiry or other requests for
The non-compliance procedure
information.
1. The
non-compliance
procedure
laid
down
in
this
Chapter
covers all the administrative stages of investigation of possible
(15) This
Regulation respects the fundamental rights and
breaches of Regulation (EC) No 216/2008 or its implementing
observes the principles recognised by the Charter of
rules.
Fundamental Rights of the European Union, in particular
as regards the rights of defence and the principle of
2. The
Agency
may
initiate
the
non-compliance
procedure
confidentiality in accordance with the general principles
on its own initiative or following a request from the
of law and the case-law of the Court of Justice of the
Commission or a Member State.
European Union.
3. Where
the
initiation
of
the
non-compliance
procedure
(16) For
the purposes of ensuring legal certainty in the
follows a request from the Commission or a Member State,
conduct of the non-compliance procedure, it is
the Commission or the Member State shall be informed by
necessary to lay down detailed rules for the computation
the Agency of the course given to their request.
of time-limits and limitation periods for the imposition
and enforcement of fines and periodic penalty payments.
Article 3
Requests for information
(17) Decisions
imposing
fines
and
periodic
penalty
payments
should be enforceable in accordance with Article 299 of
1. For
the
purposes
of
initiating
and
conducting
a
non-
the Treaty on the Functioning of the European Union
compliance procedure the Agency may use any information
and should be subject to review by the Court of Justice
obtained in the exercise of any oversight power conferred on
of the European Union.
it by Union law as regards certificates issued in accordance with
Regulation (EC) No 216/2008. This empowerment is without
(18) The
measures
provided
for
in
this
Regulation
are
in
prejudice to Union law preventing the use of information for
accordance with the opinion of the Committee estab
the purposes of attributing blame or liability.
lished by Article 65(1) of Regulation (EC) No 216/2008,
2. Prior
to
initiating
a
non-compliance
procedure,
the
Agency may request from the certificate holder concerned
HAS ADOPTED THIS REGULATION:
information relating to the alleged breach.
CHAPTER I
The Agency shall state the purpose of the request and the fact
GENERAL PROVISIONS
that it is made under this Regulation, and set a time-limit for
the submission of the information.
Article 1
Article 4
Subject-matter and scope
Notification
1. This
Regulation
lays
down
detailed
rules
for
the
imple
mentation of Regulation (EC) No 216/2008 concerning the
1. The
Agency
shall
send
written
notification
of
the
initiation
criteria for establishing the amount of fines or periodic
of a non-compliance procedure to the certificate holder, to the
penalty payments, procedures for inquiries, associated
Commission and to the national aviation authorities of the
measures and reporting, as well as rules of procedure for
Member State(s) or the third country or countries where the
decision-making, including provisions on rights of defence,
certificate holder has its principal place of business and where
access to the file, legal representation, confidentiality and
the breach has taken place as well as, where appropriate, to the
temporal provisions and the quantification and collection of
aeronautical authorities of third countries and international
fines and periodic penalty payments.
organisations competent in matters covered by this Regulation.

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2. The
notification
shall:
shall notify in writing a statement of objections to the certificate
holder concerned. The statement of objections shall contain:
(a) set out the allegations against the certificate holder, spec
ifying the provisions of Regulation (EC) No 216/2008 or its
(a) the allegations against the certificate holder, specifying the
implementing rules allegedly breached, and the evidence on
provisions of Regulation (EC) No 216/2008 or its imple
which those allegations are founded; and
menting rules allegedly breached, and the evidence on
which those allegations are founded;
(b) inform the certificate holder that a fine or a periodic penalty
payment may be imposed.
(b) the information that a fine or a periodic penalty payment
Article 5
may be imposed.
Inquiries
2. When notifying the statement of objections, the Agency
1. Once the inquiry has been initiated, the Agency shall
shall invite the certificate holder to submit written observations
clarify the facts and allegations.
in response. It shall do so in writing, indicating a time-limit for
the submission of those observations.
2. The
Agency
may
request
the
certificate
holder
to
provide
written or oral explanations, or particulars or documents.
Article 8
The request shall be addressed in writing to the certificate
Oral hearing
holder. The Agency shall state the legal basis and the purpose
1. Where
a
certificate
holder
requests
it,
the
Agency
shall
of the request, set a time-limit by which the information is to
give them an opportunity to develop their arguments at an
be provided, and inform the certificate holder about the periodic
oral hearing.
penalty payments provided for in Article 16(1)(a) and (b) for
failing to comply with the request or for supplying incorrect or
misleading information.
2. Where
necessary,
the
Agency
may
invite
the
national
aviation authorities or any other persons to take part in the
3. The
Agency
may
request
national
aviation
authorities
to oral hearing.
cooperate in the investigation and, in particular, to provide any
information relating to the alleged breach.
3. The
oral
hearing
shall
not
be
public.
Each
person
may
be
heard separately or in the presence of other persons invited to
The request shall state the legal basis and the purpose of the
attend, having regard to the legitimate interest of certificate
request and shall set a time-limit for the submission of the reply
holders and other persons in the protection of their business
or the conduct of the measure of inquiry.
secrets and other confidential information.
4. The Agency may ask any natural or legal persons or aero
Article 9
nautical authorities of third countries to provide information
relating to the alleged breach.
Time limits
The request shall state the legal basis and the purpose of the
For the purposes of ensuring legal certainty in the conduct of
request, and shall set a time-limit by which the information is
the inquiry procedure, the Agency shall lay down detailed rules
to be provided.
for the setting of time-limits.
Article 6
Article 10
Voluntary compliance
Report
1. At the notification of the initiation of the non-compliance
1. The
Agency
shall
provide
the
Commission,
the
Member
procedure or thereafter the Agency shall set a time-limit within
States and the certificate holder with a report summarising its
which the certificate holder may indicate in writing that it has
findings in the light of the inquiry conducted in accordance
voluntarily complied, or, where appropriate, that it intends to
with this Section. The Agency shall also submit to the
comply, with the breached provisions. In case of voluntary
Commission the file under inquiry.
compliance by the certificate holder within the time-limit set
by the Agency, the Agency shall decide to close the initiated
2. Where
the
report
by
the
Agency
concludes
that
the
non-compliance procedure.
certificate holder has breached provisions of Regulation (EC)
No 216/2008 or its implementing rules, the report shall also
The Agency shall not be obliged to take into account replies
include:
received after the expiry of that time-limit.
2. The time-limit provided for in paragraph 1 shall in no
(a) an assessment of the circumstances of the case in
case expire later than the date on which the Agency notifies the
accordance with the criteria set out in Article 15 of this
statement of objections provided for in Article 7.
Regulation;
Article 7
(b) a request to the Commission for imposition of a fine or a
periodic penalty payment;
Statement of objections
1. When the Agency has established the facts and found that
(c) a reasoned proposal containing the amount of the fine or
there are grounds to continue the non-compliance procedure, it
periodic penalty payment.

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L 187/32
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Official Journal of the European Union
17.7.2012
3. The Agency shall adopt its report no later than [12
paragraph 1, the Commission may, in that decision, impose
months] after notification of initiation of the non-compliance
periodic penalty payments per day not exceeding 2,5 % of the
procedure in accordance with Article 4 or [6 months] after
average daily income or turnover of the certificate holder in the
notification by the Commission of the return of the file in
preceding business year.
accordance with Article 12.
These periodic penalty payments may be imposed for a period
running from the date of notification of the decision until the
SECTION 2
day on which the breach is brought to an end.
Decision-making
3. For
the
purposes
of
paragraphs
1
and
2,
the
preceding
Article 11
business year refers to the business year preceding the date of
Requests for information
the decision referred to in paragraph 1.
1. Where,
following
a
request
from
the
Agency
pursuant
to
4. Fines
and
periodic
penalty
payments
shall
be
of
an
admin
Article 10 (2)(b), the Commission decides to further pursue the
istrative nature.
non-compliance procedure, it may request in writing the
certificate holder to provide written or oral explanations, or
5. The decision imposing fines and periodic penalty
particulars or documents. In such a case, the Commission
payments shall be enforceable.
shall inform the certificate holder of the periodic penalty
Article 14
payments provided for in Article 16(1) (c) and (d) for failing
to comply with the request or for supplying incorrect or
Contents of decisions
misleading information.
1. The
decision
provided
for
in
Article
13
shall
be
based
exclusively on grounds on which the certificate holder has
The Commission may also request the Agency, national aviation
been able to submit observations to the Commission.
authorities or any natural or legal persons to provide
information relating to the alleged breach.
2. The
Commission
shall
inform
the
certificate
holder
of
the
judicial remedies available.
2. The
Commission
shall
ensure
that
the
certificate
holder
can provide any written explanation or particular or
3. The
Commission
shall
inform
the
Member
States
and
the
documents in support of its case. Certificate holders may
Agency about the adoption of the decision.
request an oral hearing but the Commission shall have the
4. When
publishing
details
of
its
decision
and
informing
the
right to agree to such request only when it considers it
Member States, the Commission shall have regard to the
necessary.
legitimate interest of certificate holders and other persons in
the protection of their business secrets.
Article 12
Article 15
New period of inquiry
Criteria governing the application and quantification of
Having regard to the report of the Agency, the observations of
fines and periodic penalty payments
the certificate holder on the basis of that report, and other
relevant information, the Commission may consider that
1. In determining whether to impose fines and periodic
additional information is needed. In that case it may return
penalty payments and the amount of those fines and
the file to the Agency. The Commission shall clearly indicate
payments, the Commission shall be guided by the principles
to the Agency the points of fact which the Agency needs to
of effectiveness, proportionality and dissuasiveness.
investigate further and, if appropriate, suggest possible measures
of inquiry to that effect, as provided for in Regulation (EC) No
2. In
each
case,
the
Commission
shall
take
into
consider
216/2008. Section 1 of Chapter II of this Regulation shall apply
ation, where relevant, the following circumstances:
to the conduct of the new period of inquiry.
(a) the seriousness and the effects of the breach and in
particular, the implications and effects for safety and for
SECTION 3
the environment of such breach;
Decisions on fines and periodic penalty payments
(b) the degree of diligence and cooperation shown by the
Article 13
certificate holder in the detection of the breach and the
application of the corrective action, or during the course
Fines and periodic penalty payments and maximum
of the non-compliance procedure or, any obstruction by
amounts
the certificate holder of the detection of a breach and the
1. Where
following
the
decision-making
provided
for
in
conduct of a non-compliance procedure, or any non-
Section 2, the Commission finds that the certificate holder
compliance by the certificate holder with requests made
has intentionally or negligently breached Regulation (EC) No
by the Agency, the Commission or a national aviation
216/2008 or its implementing rules, it may adopt a decision
authority in application of this Regulation;
imposing a fine not exceeding 4 % of the annual income or
(c) the good faith of the certificate holder in the interpretation
turnover of the certificate holder in the preceding business year.
and fulfilment of the obligations connected with certificate
holders in accordance with Regulation (EC) No 216/2008
2. Where the certificate holder has not terminated the breach
or its implementing rules, or any evidence of wilful deceit
at the time of the adoption of the decision referred to in
on the part of the certificate holder;

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(d) the turnover involved in the case and the economic capacity
(a) any non-compliance procedures already initiated or
of the certificate holder concerned;
concluded by a Member State or a third country against
the same certificate holder and based on the same legal
(e) the need to adopt provisional or urgent measures;
grounds and the same facts; and
(f) the repetition, frequency or duration of the breach by the
certificate holder;
(b) any procedure initiated by the Agency pursuant to Regu
lation (EC) No 216/2008 against the same certificate holder
(g) prior sanctions, including financial penalties, imposed on
and based on the same legal grounds and the same facts,
the same certificate holder.
with the view to amending, limiting, suspending or revoking
the relevant certificate.
3. In determining the amount of the fine and the periodic
penalty payment, the Commission shall take into account any
SECTION 5
enforcement measures already taken regarding the certificate
holder at national level or by the Agency and based on the
Article 19
same legal grounds and the same facts.
Recovery of fines and periodic penalty payments
SECTION 4
The Commission shall proceed with the recovery of fines and
Non-cooperation
periodic penalty payments by establishing a recovery order and
issuing a debit note addressed to the certificate holder
Article 16
concerned in accordance with Council Regulation (EC,
Periodic penalty payments for non-cooperation
Euratom) No 1605/2002 ( 1 ) and Commission Regulation (EC,
Euratom) No 2342/2002 ( 2 ).
1. At
the
Agency's
request
or
at
its
own
initiative,
the
Commission may by decision impose on certificate holders
periodic penalty payments per day not exceeding [0,5] % of
CHAPTER III
the average daily income or turnover of the certificate holders
ACCESS TO THE FILE, LEGAL REPRESENTATION, CONFIDEN
in the preceding business year where, intentionally or negli
TIALITY AND TEMPORAL PROVISIONS
gently:
SECTION 1
(a) they do not comply with a measure of inquiry adopted
Rights of defence
pursuant to Article 5;
Article 20
(b) they supply incorrect or misleading information in response
to a measure of inquiry adopted pursuant to Article 5;
Access to the file
1. Following
notification
under
Article
4,
the
certificate
(c) they do not comply with a request for information pursuant
holder shall have the right, on request, to access the
to Article 11;
documents and other materials compiled by the Commission
and the Agency which serve as evidence of an alleged breach.
(d) they supply incorrect or misleading information in response
to a request for information pursuant to Article 11.
2. Documents
obtained
through
access
to
the
file
shall
be
Periodic penalty payments may be imposed for a period
used only for the purposes of judicial or administrative
running from the date of notification of that decision until
proceedings for the application of this Regulation.
the non-cooperation has ceased.
2. For the purposes of paragraph 1, the preceding business
Article 21
year refers to the business year preceding the date of the
Legal representation
decision referred to in paragraph 1.
The certificate holder shall have the right to legal representation
Article 17
during the non-compliance procedure.
Procedure
Article 22
Where the Commission intends to adopt a decision as referred
to in Article 16(1), it shall first notify in writing the certificate
Confidentiality, professional secrecy and right to remain
holder, setting a time-limit within which the certicate holder
silent
may submit written observations to the Commission.
1. Without
prejudice
to
the
exchange
and
use
of
information
The Commission shall not be obliged to take into account
provided for in Articles 5(3) and 11(1), a non-compliance
written observations received after the expiry of that time-limit.
procedure shall be conducted subject to the principles of
confidentiality and of professional secrecy.
Article 18
Complementarity of procedures
The Commission, the Agency and the national aviation auth
orities, when involved under Articles 5(3) and 11(1), their
For the purposes of the initiation and conduct of the non-
compliance procedure, the Commission and the Agency shall
( 1 ) OJ L 248, 16.9.2002, p. 1.
take into account:
( 2 ) OJ L 357, 31.12.2002, p. 1.

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Official Journal of the European Union
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officials and other persons working under their supervision shall
Time shall begin to run on the day on which the breach is
not disclose information acquired or exchanged by them
committed. However, in case of continuing or repeated
pursuant to this Regulation and of the kind covered by the
breaches, time shall begin to run on the day on which the
obligation of confidentiality and professional secrecy.
breach ceases.
2. Without prejudice to the right to access the file, the
2. Any
action
taken
by
the
Commission
or
the
Agency
for
certificate holder shall not have access to business secrets,
the purpose of the investigation or non-compliance procedure
confidential information or internal documents held by the
shall interrupt the limitation periods provided for in paragraph
Commission or the Agency.
1. The limitation period shall be interrupted with effect from
the date on which the action is notified to the certificate holder.
3. Any
person
who
submits
observations
or
information
pursuant to this Regulation shall clearly identify any material
3. Each
interruption
shall
start
time
running
afresh.
The
limi
considered to be confidential, giving reasons, and provide a
tation period shall, however, not exceed a period equal to twice
separate non-confidential version by the date set by the
the initial limitation period, except where limitation is
Commission or the Agency. In the absence of such identifi
suspended pursuant to paragraph 4. In that case, the limitation
cation, the Commission may assume that the observations or
period shall be extended by the time during which limitation is
information submitted do not contain confidential information.
suspended.
4. A
certificate
holder
shall
have
the
right
to
remain
silent
in
4. The
limitation
period
for
the
imposition
of
periodic
situations where they would otherwise be compelled to provide
penalty payments shall be suspended for as long as the
answers which might involve an admission on their part of the
decision of the Commission is the subject of proceedings
existence of a breach.
pending before the Court of Justice of the European Union.
Article 25
SECTION 2
Limitation periods for the collection of fines and periodic
Temporal provisions
penalty payments
Article 23
1. The
right
to
start
a
recovery
procedure
shall
expire
one
Application of time-limits
year after the decision pursuant to Article 13 or 16 has become
final.
1. The
time-limits
laid
down
in
this
Regulation
shall
run
from the day following receipt of a communication or
delivery thereof by hand.
2. The
limitation
period
for
the
recovery
of
fines
and
periodic penalty payments shall be interrupted by any action
of the Commission or of a Member State, acting at the request
Where the certificate holder is required to submit observations
of the Commission, designed to enforce payment of the fines or
or information within a time-limit, it shall be sufficient for the
periodic penalty payments.
submission to have been dispatched by registered post before
the expiry of the time-limit.
3. Each
interruption
shall
start
time
running
afresh.
2. Where a time-limit falls to expire on a Saturday, Sunday
4. The
limitation
period
for
the
recovery
of
fines
and
or public holiday, it shall be extended up to the end of the
periodic penalty payments shall be suspended for so long as:
following working day.
(a) time to pay is allowed;
3. In
setting
the
time-limits
provided
for
in
this
Regulation,
the Commission and the Agency, as the case may be, shall have
(b) enforcement of payment is suspended pursuant to a
regard both to the time required for preparation of the
decision of the Court of Justice of the European Union.
submission and to the urgency of the case.
CHAPTER IV
4. Where
appropriate
and
upon
reasoned
request
made
before the expiry of the original time-limit, time-limits may
FINAL PROVISIONS
be extended.
Article 26
Article 24
Application
Limitation periods for the imposition of fines and periodic
In the case of breaches which began before its entry into force,
penalty payments
this Regulation shall apply to the part of the breach which takes
places after that date.
1. The
right
of
the
Commission
to
adopt
a
decision
imposing fines and periodic penalty payments pursuant to
Article 27
Article 13 shall expire after five years.
Entry into force
In the case of the periodic penalty payments provided for in
This Regulation shall enter into force on the twentieth day
Article 16, the right of the Commission to adopt a decision
following that of its publication in the Official Journal of the
imposing such a penalty shall expiry after three years.
European Union.

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This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 July 2012.
For the Commission
The President
José Manuel BARROSO

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Document Outline

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