Could ECAC Speech by Eurocontrol Director General On EU ATC Have Protected MH17?

As the world grieves over the shootdown of MH17, the media is rife with speculation and misrepresentation of who could have and should have prevented the Malaysian Airlines flight from flying in the airspace where it was shot down.

The facts show that no NOTAMs were issued for the specific region where the plane was shot down by the FAA, until an updated NOTAM was issued by this Friday by the FAA prohibiting US Carriers from doing so.

Further, any NOTAMs issued by the FAA apply to US Carriers. Independent International and European carriers had no such formal restrictions, but had, according to the Eurocontrol Director General, generally avoided flight paths for the specific area of Simferopol ACC in Crimea (which an April NOTAM by the FAA also restricted) as a precautionary measure.

But it is critical to understand that Europe is not the US, and a central control of the airspace and unified ATC are still developing in Europe.  Europe is a collective of sovereign nations, not a single nation of United States under a centralised Federal Government.

This significant distinction affects all industries, including aviation.  The strength and scope of the national aviation infrastructure in the US, governed under the single organisation of the USDOT, confuses many covering aviation in general and the MH17 story in particular.

The expectation is that Europe, as a Union, should also have a strong central authority to control the governance of aviation–just as the US does–but those central governing bodies which exist are nascent.  They do not yet have reach comparable to that of the various departments of the USDOT over US Airspace, over US Carriers and US Aviation suppliers–all of which are themselves licensed under a single authority, namely the FAA.

The challenges posed to the developing EU infrastructure (and the relatively recent establishment of these unified regulators in the EU) is easy for those accustomed to the well-established USDOT regulations, standard practices and protocols to overlook and underestimate.

A tragic event, like the shootdown of MH17, brings these challenges to the surface and highlights the urgency establishing a strong unified structure of aviation governance in Europe.

Flight Chic has found that, in a speech presented by Eurocontrol’s Director General, Frank Brener to the ECAC EU Dialogue on European Air Transport Competitiveness in Vienna this July 3, Brener specifically mentioned the vulnerabilities of ATC infrastructure in Simferopol ACC in Crimea, and the need to overcome complaints over sovereignty of each nation’s airspace.

The concept of entrenched national monopolies is still alive and well in Europe, in Air Traffic Management.  We in Europe have over forty monopolies each running ATM well protected within their national boundaries.  And we have to ask the question “Why?”  What is special about ATM, that means it must be insulated from the changes going on in the rest of aviation?

Now here I’m not suggesting that there should be two sets of controllers managing the same airspace at the same time.  That is dangerous and that is why aircraft are still avoiding most of Simferopol ACC in Crimea, where we see that happening.  But that doesn’t mean that the whole of ATM is off limits as regards to competition.

Brenner could not have imagined the resonance his words would have in the context of MH17, but the points Brenner raised at ECAC are core to the challenges for Eurocontrol to establish strict flight to which all EU operators, and those flying over EU airspace, must adhere.

There is no EU airspace.  Eurocontrol does not have absolute authority.

The EU airspace is a quilt, pieced together from the swatches of the national sovereign airspace of various EU member states.

This is true of a number of other aviation governance processes.  Airline operating licenses are issued by each independent Member State and harmonised by Regulation (EC) No 1008/2008.   This harmonisation of legislations should not be confused with a single legislative governance.  No unified body exists for certification.  There is EASA, which evolved from the JAA (Joint Aviation Authority) relatively recently.  But EASA does not have sole authority.  For example, the UKCAA works with EASA and remains independent, even though the UK is an EU Member State.

The EU in general, and therefore EU governance are fluid and developing structures, subject to change.  Nations retain their sovereign status, and can opt-out of participation in certain functional areas where they feel their own national governance should rule.  This often impacts aviation.

As I reported on Skift, the central body for aircraft investigation of aircraft accidents is ENCASIA the European Network of Civil Aviation Safety Investigation Authorities.  But the name should be a clue of its function.  It is a collaborative of the various investigation authorities, a bureaucratic body which brings together the various national investigators to unify standards.  It is not akin to the NTSB.

This is why MH17 presents such a challenge to Europe.  There is no central authority to go into the region and establish control over the area where the remains of MH17 are found.  Add to this how MH17 was shot down–the very dangerous and out of control circumstances of the fighting between the Russia-backed Ukranian separatists as well as the present fragile state of the Ukranian government–and we have the nightmare we face now.

I reached out to NATO for my Skift report because, though NATO has no authority over the governance of civil aviation, it might have the strength to back whatever collaborative investigators are pooled to enter the region where the remains of MH17 are scattered, and secure a search and recovery effort.  This will not happen without significant political and defence repercussions–which is why it has yet to happen.

NATO issued a strong statement on the day of the shootdown of MH17.  Secretary General, Anders Fogh Rasmussen said:

“It is important that a full international investigation be launched immediately, without any hindrance, to establish the facts and that those who may be responsible are swiftly brought to justice.”

But taking on Russia over this is not something Europe will do lightly, nor with the speed required to bring the area where the remains of MH17 are found under the control of aviation investigators.  

We have a very volatile set of circumstances at play here in Europe, and the grieving families of the victims of MH17 are paying the price.

Hindsight is 20/20.  It would have been far better for the EU to have achieved the stronger unity of ATC and over aviation governance which might have prohibited the flight path MH17 took.  As Brenner told ECAC:

It is at this point that normally someone mentions the ‘S’ word – sovereignty.  Now, the idea that each nation’s ATM system has to be completely self-sufficient as a result of sovereignty is a myth.  It is simply not true.  The success of the EUROCONTROL Maastricht Upper Air Traffic Control Area Centre covering airspace over 4 countries should have got rid of this myth, years ago.

Notice the number of countries Brenner was able to count as covered by unified airspace governance–of the 40 EUROCONTROL Member States–four.  Ten percent.  

Brenner also stated:

We are looking deconstructing the ATM monolith and seeing what services might be provided under market conditions.  This might be an ATM support service – such as one of the new Centralised Services where we are planning to put the development and operation out to competitive tender and to create a market. Or this might be a full ATC service at an airport.

There are some precedents for this sort of approach. This might sound frightening for some big ANSPs, that have distanced themselves from the CS initiative, but is it also a real market chance for those ANSPs that offer competitive structures to reach out of their national boundaries and to operate a pan-European service on behalf of all 40 EUROCONTROL Member States. It also might be the opportunity in the future to take those services, where proof can be given that they are operated under market conditions, out of economic regulation, which is hated by quite a lot of ANSPs. It is obvious that economic regulation is only a substitute for a missing market and results from a prevailing national monopoly situation. The European Commission in its current Charging Regulation already foresees that some services provided under market conditions are to be exempted from the Economic Regulation. This concept can be applied. And this concept can be further developed and enlarged for additional services.

The arguments Brenner made on July 3 were competitive.  They applied to the financial benefits which a greater system-efficiency and unified governance would bring to Europe.

MH17 proves that this is not just a debatable matter of money, but a critical matter of security and a clear matter of safety for the flying public.  It is too late to save the victims of MH17, and addressing the aftermath of this atrocity is something the EU will have to grapple with.  

In truth, avoiding the flight path over most of Simferopol ACC in Crimea would not have prevented the shootdown of MH17, which took place over a portion of the airspace previously deemed safe.  But unified governance might also have resulted in better intelligence over the airspace too marginally secure for commercial flights.  Unified governance might have looked at the downing of military cargo aircraft in the region and ensured that civil aircraft should fly nowhere near there.

Unified governance of aviation might also have ensured that a reliable body to lead an investigation would now be in place.  ENCASIA does not seem to have the necessary resources to lead this initiative on MH17.  It does not even seem to have the mandate to do so.  Here is what ENCASIA says of its purpose:

The mission of ENCASIA is to further improve the quality of civil aviation safety investigations and to strengthen the independence of the national investigating authorities. It is responsible for issues such as development of training activities, promoting best safety investigation practices, developing a mechanism for sharing investigating resources, and advising EU institutions on civil aviation safety investigation and prevention matters.

The EU Aviation Industry needs to take a careful look at itself after MH17.  It must consider the urgency of bringing the SES (Single European Sky) from a longed-for ideal, the source of constant debate, to a reality on which the ordinary flying public can rely.  Indeed, Europe may need an EUDoT, to bring these various regulatory agencies together under a single governing authority.  This may be difficult to carry out quickly.  But we can we really afford to wait?