On 22 March, 2006, the European Commission (EC) published a blacklist of airlines banned from operating into and out of the European Union (EU), including Norway and Switzerland, under EC Regulation 2111/2005, which came into force in January 2006.

The blacklist predominantly comprises carriers from five African countries – the Democratic Republic of the Congo, Equatorial Guinea, Liberia, Sierra Leone and Swaziland. These countries have been singled out due to their airlines' poor safety records and the failure by their civil aviation authorities charged with maintaining safety standards to implement adequate regulatory oversight.

This legislation has been in the pipeline since the 1996 crash of a Birgenair Boeing 757 in the Dominican Republic. It was after this incident that the European Parliament pressurised the EC to draw up a 'blacklist' of airlines which fell short of international safety standards.

In May 2005, a Turkish airline, Onur Air, which was suspended in France, circumvented restrictions by requiring passengers to fly from Charleroi airport in Belgium, with the effect that although it was blacklisted in one country, it was still free to operate from neighbouring states.

Prior to the publication of an EU-wide blacklist, individual national aviation authorities operated their own blacklists and had the power to suspend airlines from operating in their airspace on safety grounds. However, there was no obligation on those national aviation authorities to act upon the safety concerns of other member states or third countries, resulting in a patchwork of rules governing 'suspect' airlines flying in Europe. This became apparent in August 2005 when France, Belgium and Switzerland published their national blacklists comprising different airlines, with no airlines involved in recent crashes appearing on them.

The primary purpose of the publication of the blacklist by the EC is to improve aviation safety in the EU. If an airline is named on the list, it will be banned from flying in Europe.

The EU blacklist has been drawn up following extensive consideration by a panel of safety experts reporting to the EC Aviation Committee, which has consulted extensively with member states and regulatory authorities and used objective and transparent criteria in their assessments, including shortcomings identified during ramp inspections.

The Commission is very keen that the blacklist should be used as a 'naming and shaming' device, drawing inspiration from US websites that publish the names of airlines with poor safety records. Travel agents and airports will be obliged to display the blacklist, as will the national aviation authorities.

From mid-July 2006, passengers must be informed of the identity of the operating air carrier when making reservations, whether the flight is scheduled or non-scheduled, or the flight is part of a package. Such a requirement will clearly impact on industry practices such as wet leasing or code sharing, and while the Commission recognises the increased flexibility that these practices afford (particularly where technical and safety reasons require late substitution of operating air carriers), the regulation legislates for passengers' right of access to this information.

The regulation does not spell out what recourse, if any, is available to passengers who are not informed of the identity of the operating carrier. The regulation provides for member states to lay down penalties for infringement of the regulation, but these have not yet been brought in to effect.

The purpose of this legislation and the publication of the blacklist is principally:

. to encourage all airlines operating in Europe to comply fully with safety standards;

. to dissuade unscrupulous airlines from starting up services within Europe; and

. to stop the practice of flags of convenience being used, whereby some countries issue air operation certificates to airline companies operating unsafe aircraft.

The blacklist covers both passenger and cargo flights, and can prohibit specific types of aircraft from being operated. It will be updated at least every three months, although the review process can be triggered earlier by member states, and provisional measures can be adopted in cases of emergency. Banned airlines have the right to defend themselves and appeal, including asking to be heard by the Commission or the Aviation Safety Committee.

This legislation and the publication of the blacklist comes at a time when the EU is trying to take a coherent approach to safety standards and the rights of passengers, and coincides with the agreement that was reached between the International Civil Aviation Organisation and the International Air Transport Association on 31 March, 2006 to share safety-related information from their respective audit programmes to better identify potential safety risks and prevent aircraft accidents.

It should be emphasised that the EC operates – and will continue to operate – technical assistance programmes for the third country civil aviation authorities, and over the past five years the Commission has spent almost €80m (£55m) on such programmes. The blacklist will help focus technical assistance and co-operation programmes on countries that are willing to meet international safety standards, but lack necessary resources.

Paul Phillips is a commercial litigation partner and Russell Binch an assistant at Stephenson Harwood.