Commission Implementing Regulation (EU) 2019/317 of 11 February 2019 laying down a performance and charging scheme in the single European sky and repealing Implementing Regulations (EU) No 390/2013 and (EU) No 391/2013 (Text with EEA relevance.)

COMMISSION IMPLEMENTING REGULATION (EU) 2019/317 of 11 February 2019 laying down a performance and charging scheme in the single European sky and repealing Implementing Regulations (EU) No 390/2013 and (EU) No 391/2013 (Text with EEA relevance)

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

This Regulation applies to:

(a) the air navigation service providers referred to in Article 2(5) of Regulation (EC) No 549/2004;

(b) the body nominated by the Commission to perform the tasks necessary for the execution of the network functions (the ‘Network Manager’) in accordance with Article 6(2) of Regulation (EC) No 551/2004 and appointed in accordance with Article 4 of Implementing Regulation (EU) 2019/123.

This Regulation also applies, for the purpose of target setting and performance monitoring on cost-efficiency, to the authorities or entities incurring eligible costs to be recovered through user charges, as specified in point (b) of Article 15(2) of Regulation (EC) No 550/2004 and in the third subparagraph of Article 22(1) of this Regulation.

Member States may decide to apply the provisions of this Regulation also to:

(a) air navigation services and network functions provided in airspace under their responsibility within other ICAO regions than the ICAO EUR region, without prejudice to the rights and duties of Member States under the 1944 Chicago Convention on international civil aviation (the ‘Chicago Convention’);

(b) providers of air navigation services having the permission to provide air navigation services without certification, in accordance with Article 7(5) of Regulation (EC) No 550/2004.

Member States shall ensure that the duration of those decisions corresponds to the duration of a reference period. They shall not amend or withdraw those decisions during a reference period.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘actual cost’ means a cost actually incurred in a calendar year for the provision of air navigation services which are subject to certified accounts or, in the absence of such certified accounts, subject to a final audit;

(2) ‘air traffic services unit’ or ‘ATS unit’ means a unit, either civil or military, responsible for providing air traffic services in a given airspace;

(3) ‘airport coordinator’ means the natural or legal person appointed by a Member State to carry out the coordination duties at coordinated airports set out in Article 4 of Council Regulation (EEC) No 95/93 (¹);

(4) ‘airport operator’ means any legal or natural person who operates one or more aerodromes;

(5) ‘airspace user’ means the operator of the aircraft at the time when the flight is performed or, if the identity of the operator is not known, the owner of the aircraft, unless it can be proved that another person was the operator at that time;

(6) ‘airspace users' representative’ means any legal person or entity representing the interests of one or several categories of airspace users;

(7) ‘area control centre’ means a unit providing air traffic services to controlled flights in its area of responsibility.

(8) ‘en route charging zone’ means a volume of airspace that extends from the ground up to, and including, upper airspace, where en route air navigation services are provided and for which a single cost base and a single unit rate are established;

(9) ‘exceptional event’ means circumstances under which ATM capacity is abnormally reduced so that the level of air traffic flow management (‘ATFM’) delays is abnormally high, as a result of a planned limitation induced through operational or technical change, major adverse weather circumstances, the unavailability of large airspace parts either through natural or political reasons, or industrial action, and the activation of the European Aviation Crisis Coordination Cell (‘EACCC’) by the Network Manager;

(10) ‘IFR air transport movements per year’ means the sum of take-offs and landings performed under IFR, calculated as the yearly average over the three calendar years preceding the year in which the draft performance plan was to be submitted in accordance with Article 12;

(11) ‘forecast inflation index’ means the annual inflation index based on the third year before the start of a reference period and computed by using the latest available inflation forecast of average Consumer Price Index percentage change published by the International Monetary Fund for the Member State concerned at the time of drafting the performance plan. In case the percentage change published by the International Monetary Fund for a given year is negative, a zero value shall be used.

(12) ‘actual inflation index’ means the annual actual inflation index based on the third year before the start of a reference period and computed by using the actual inflation rate published by the Commission in the Eurostat Harmonised Index of Consumer Price for the State concerned in April of year n+1. In case the percentage change published by the Commission for a given year is negative, a zero value shall be used.

(13) ‘major investment’ means the acquisition, development, replacement, upgrade, or leasing of fixed assets representing a total value over the whole lifetime of the assets greater than EUR 5 million in real terms;

(14) ‘national authority’ means a regulatory or supervisory authority established by one or more Member States at national or functional airspace block level;

(15) ‘new and existing investment’ means the acquisition, development, replacement, upgrade or leasing of fixed assets where depreciation costs, cost of capital, or in the case of leasing, operating costs, for that investment are incurred during the reference period covered by the performance plan;

(16) ‘reference period’ means the period of validity and application of the Union-wide performance targets, as set out in point (d) of Article 11(3) of Regulation (EC) No 549/2004 and Article 7 of this Regulation;

(17) ‘reference value’ means the value computed by the Network Manager of en route ATFM delay for each Member State and each functional airspace block for the purpose of ensuring that the Union-wide en route ATFM delay target is met;

(18) ‘restructuring costs’ means significant one-time costs incurred by air navigation service providers in the process of restructuring for introducing new technologies, procedures or business models to stimulate integrated service provision, compensating employees, closing air traffic control centres, shifting activities to new locations, writing off assets or acquiring strategic participations in other air navigation service providers;

(19) ‘runway incursion’ means any occurrence at an aerodrome involving the incorrect presence of an aircraft, vehicle or person on the protected area of a surface designated for the landing and take-off of aircraft;

(20) ‘separation minima infringement’ means a situation in which prescribed separation minima were not maintained between aircraft;

(21) ‘terminal charging zone’ means an airport or a group of airports, located within the territories of a Member State, where terminal air navigation services are provided and for which a single cost base and a single unit rate are established.

CHAPTER II

TASKS AND RESPONSIBILITIES

Article 3

Assistance by the Performance Review Body

Where necessary for carrying out the tasks of the Commission related to the detailed functioning of the performance scheme, the Commission may request assistance from the Performance Review Body as regards the following:

(a) the collection, examination, validation and dissemination of relevant data for the performance of air navigation services and network functions;

(b) the selection or adaptation of key performance areas;

(c) the definition of key performance indicators and indicators for monitoring;

(d) the setting of Union-wide performance target ranges, and the setting and the revision of Union-wide performance targets;

(e) the establishment of the baseline values, alert thresholds, and comparator groups referred to in Article 9(4);

(f) the assessment of the consistency of draft national performance targets or performance targets set at the level of functional airspace blocks (‘FAB performance targets’) with the Union-wide performance targets in accordance with Article 14 and Article 15 and the review of draft performance plans in accordance with Article 14(1) and Article 15(1);

(g) the verification of the completeness of the draft performance plans in accordance with Article 13;

(h) the verification, in accordance with Article 19, of the draft Network Performance Plan as referred in Article 10(5) of this Regulation;

(i) the assessment of revised performance targets and of the corrective measures adopted by Member States pursuant to Article 15(5);

(j) the monitoring of the performance of air navigation services, including investment and capital expenditure, at Union level, at national level and at the level of functional airspace blocks;

(k) the monitoring of the performance of the network functions in accordance with Article 37(2);

(l) the assessment, in accordance with Article 37(3), of the information received from the national supervisory authorities in relation to the performance plans, for the purpose of monitoring the performance of the European ATM network;

(m) the assessment of the achievement of the performance targets during the reference period;

(n) the maintenance and support in the coordination of a stakeholder consultation calendar concerning performance plans and the consultation requirements referred to in Article 24(2) and (3) and in Article 30.

Article 4

Provision of information and facilitation of monitoring by air navigation service providers

Where necessary for carrying out the tasks of the national supervisory authorities related to the detailed functioning of the performance scheme, the air navigation service providers shall, upon request and without delay, provide to those authorities the following:

(a) information about local conditions relevant to the setting of national performance targets or performance targets set at the level of functional airspace block;

(b) data for establishing the return on equity rate for air navigation charges;

(c) information about planned investments in the five years following the date of the request, showing the profile of planned expenditure for new and existing investments during and beyond the reference period and how major investments contribute to performance in each key performance area;

(d) their business plan referred to in point ATM/ANS.OR.D.005 of Annex III of Commission Implementing Regulation (EU) 2017/373 (²);

(e) information required for the application of Article 28(3);

(f) data on cost bases and information on the allocation of costs among en route and terminal air navigation services, as well as data on revenues from commercial activities and the data on public funds received.

Article 5

Assistance by the Network Manager

The Network Manager shall carry out the following tasks related to the detailed functioning of the performance scheme:

(a) support the Commission by providing relevant input for the establishment of Union-wide performance targets before the start of a reference period and for the monitoring of the achievement of those targets during the reference period, including by drawing the Commission's attention, without undue delay, to any circumstances where performance targets are not met or risk not being met or where significant and persistent drops in operational performance are observed;

(b) upon request of the Commission, support the national supervisory authorities by providing relevant input for the preparation of the performance plans and by informing the national supervisory authority concerned, without undue delay, of any circumstances where national performance targets or FAB performance targets are not met or risk not being met or where significant and persistent drops in operational performance are observed;

(c) support the air navigation service providers in reaching national performance targets or FAB performance targets through, in particular, the development and implementation of the Network Operations Plan referred to in Article 9 of Implementing Regulation (EU) 2019/123.

Article 6

Coordination with the European Union Aviation Safety Agency

Pursuant to Article 13a of Regulation (EC) No 549/2004 and in accordance with point (h) of Article 75(2) and Article 93(b) of Regulation (EU) 2018/1139, the Commission and the Member States shall coordinate with the European Union Aviation Safety Agency to ensure that:

(a) safety aspects are properly addressed, including the setting, revision and implementation of key performance indicators and Union-wide performance targets in the key performance area of safety;

(b) the key performance indicators and the performance targets in the key performance area of safety are consistent with the European Plan for Aviation Safety referred to in Article 6 of Regulation (EU) 2018/1139.

CHAPTER III

PERFORMANCE TARGET SETTING

Article 7

Duration of the reference periods

Article 8

Key performance indicators and indicators for monitoring

Article 9

Union-wide performance targets

The Commission shall consult the stakeholders referred to in Article 10(3) of Regulation (EC) No 549/2004, other relevant persons and organisations and, regarding safety aspects, the European Union Aviation Safety Agency on those indicative target ranges.

For this purpose, the Commission shall:

(a) take account of the relevant inputs from the Performance Review Body, the Network Manager and the national supervisory authorities;

(b) use en route traffic forecasts, expressed in terms of IFR movements and in service units and based on the latest available Eurocontrol's Statistics and Forecast Service (‘STATFOR’) base forecast;

(c) substantiate each Union-wide performance target with a description of the underlying assumptions and rationale for that target, including the use made of inputs referred to in point (a) of this paragraph, the outcome of the consultation referred to in paragraph 2 and other relevant factual data.

Together with the adoption of the Union-wide performance targets, the Commission shall establish:

(a) a Union-wide ‘baseline value for determined costs’ and a Union-wide ‘baseline value for the determined unit cost’, for the purpose of setting targets in the key performance area of cost-efficiency for the key performance indicator referred to in point 4.1 of Section 1 of Annex I. Those baseline values shall be calculated in respect to the year preceding the start of the reference period. The baseline value for determined costs shall be estimated by using the actual costs available for the preceding reference period and adjusted to take account of latest available cost estimates, traffic variations and their relation to costs. The baseline value for the determined unit cost shall be derived by dividing the baseline value for the determined costs with the traffic forecast expressed in service units for the year preceding the start of the reference period;

(b) alert thresholds beyond which Member States may request a revision of the performance targets contained in performance plans, in accordance with point (a)(i) of Article 18(1). Those alert thresholds shall be based on the following parameters: (i) the deviation of the actual traffic from the traffic forecast over a given calendar year, expressed as a percentage of IFR movements; (ii) the deviation of the actual traffic from the traffic forecast over a given calendar year, expressed as a percentage of service units; (iii) the variation of the reference values as a result of the seasonal updates of the Network Operations Plan pursuant to point (a) of Article 9(4) and Article 9(8) of Implementing Regulation (EU) 2019/123 in comparison to the reference values from the latest version of the Network Operations Plan available at the time of drawing up the performance plan. This variation shall be expressed as a percentage of variation or as a fraction of minutes of en route ATFM delay, depending on the magnitude of the references values;

(c) the comparator groups of air navigation service providers with a similar operational and economic environment, for the purposes of assessing performance targets in the key performance area of cost-efficiency.

Article 10

Performance plans

The performance plans shall be drawn up in accordance with the template set out in Annex II and shall include:

(a) binding national performance targets or binding FAB performance targets, set on the basis of the key performance indicators referred to in Article 8(2), including a ‘baseline value for determined costs’ and a ‘baseline value for the determined unit cost’ for each charging zone, for the purpose of setting targets in the key performance area of cost-efficiency. Those baseline values shall be calculated in respect to the year preceding the start of the reference period. The baseline value for determined costs shall be estimated by using the actual costs available for the preceding reference period and shall be adjusted to take account of latest available cost estimates, traffic variations and their relation to costs. The baseline value for the determined unit costs shall be derived by dividing the baseline value for the determined costs with the latest available traffic forecast expressed in service units for the year preceding the start of the reference period;

(b) determined costs for en route and terminal air navigation services set in accordance with points (a) and (b) of Article 15(2) of Regulation (EC) No 550/2004 and with this Regulation;

(c) the incentive schemes established in accordance with Article 11, specifying the parameters of the incentive schemes, the modulation mechanism of pivot values referred to in Article 11(3) where applicable, as well as measures aimed at achieving the objectives of those incentive schemes;

(d) a description of the main measures aimed at achieving performance targets;

(e) a confirmation that it is consistent with the scope of this Regulation pursuant to Article 1 of this Regulation and Article 7 of Regulation (EC) No 549/2004;

(f) en route traffic forecasts, expressed in terms of IFR movements and in service units and based on Eurocontrol's STATFOR base forecast;

(g) terminal traffic forecasts, expressed in terms of IFR movements and in service units, based on Eurocontrol's STATFOR base forecast;

(h) a description of initiatives to support cross-border coordination and the provision of cross-border services which are beneficial to the operational performance or cost-efficiency, or both;

(i) information about: (i) major investments; (ii) change management plans for the entry into service of major airspace changes or for ATM system improvements, aimed at minimising any negative impact on the network performance.

However, as regards point (f) and (g), national supervisory authorities may decide to use other en route and terminal traffic forecasts than those based on Eurocontrol's STATFOR base forecast. In that case, they shall consult the airspace users' representatives and air navigation service providers concerned and set out the reasons for using the other forecasts in the performance plan. Any differences with the Eurocontrol's STATFOR base forecast shall be related to specific local factors not sufficiently addressed by Eurocontrol's STATFOR base forecast. The same forecasts shall be used for all key performance areas.

The Network Manager shall draw up the Network Performance Plan. The Network Performance Plan shall be drawn up in accordance with the template set out in Annex III and shall set out:

(a) the value added of the Network Manager in support to the activities of Member States, functional airspace blocks, air navigation service providers and civil and military airspace users towards achieving capacity and environment targets, and set out the contribution of the network functions towards achieving the Union-wide performance targets;

(b) the performance targets and objectives for the Network Manager and for each network function and the measures aimed at achieving those targets.

Article 11

Incentive schemes

The incentive schemes contained in the performance plans as adopted by the Member States shall:

(a) set out incentives of financial nature for the achievement of the performance targets in the key performance areas of cost-efficiency and capacity in an effective and proportional manner;

(b) apply during the entire period covered by the performance plan;

(c) be non-discriminatory, transparent and effective;

(d) apply to en route and terminal air navigation services.

The incentive schemes on performance targets in the key performance area of capacity shall in addition to the principles set out in paragraph 1, meet the following principles:

(a) they shall be proportionate to the level of ATFM delay and consist of financial advantages and financial disadvantages having material impact on revenue at risk;

(b) they shall be set so that the maximum financial disadvantages are at least equal to the maximum financial advantages; The national supervisory authority shall define the maximum fixed percentages referred to in the second subparagraphs of points 2.1(a) and 2.2(a) of Annex XIII and in the second subparagraphs of points 2.1(b) and 2.2(b) of Annex XIII for the calculation of the financial advantages and disadvantages, subject to consultation of airspace users' representatives and of air navigation service providers concerned. In respect to the maximum fixed percentages referred to in the second subparagraphs of points 2.1(a) and 2.2(a) of Annex XIII for the calculation of the financial advantages, those percentages shall not exceed 2 %;

(c) for the purpose of calculating the financial advantages or disadvantages, pivot values shall be used; The national supervisory authority shall decide, before the start of the reference period, whether those pivot values are to be based: (i) on the performance targets at national level, broken down at the level of each individual air navigation service provider; or (ii) on modulated performance targets at national level, broken down at the level of each individual air navigation service provider, set annually by the national supervisory authority for the following year in accordance with point 1 of Annex XIII and subject to consultation of airspace users' representatives and of air navigation service providers concerned. The modulation mechanism shall be defined in the performance plan and shall apply for each year of the reference period and shall not be changed during the reference period. The national supervisory authority shall inform the Commission about the pivot values annually;

(d) there shall be a symmetric range around the pivot value set by the national supervisory authority, subject to consultation of airspace users' representatives and of air navigation service providers concerned, to ensure that minor variations in ATFM delay do not lead to any financial advantages or disadvantages;

(e) where the actual average ATFM delay per flight in year n is lower than the pivot value set for year n and beyond the range referred to in point (d), this shall result in a financial advantage through an increase of the unit rate in year n+2 in accordance with point 2 of Annex XIII;

(f) where the actual average ATFM delay per flight in year n is higher than the pivot value set for year n and beyond the range referred to in point (d), this shall result in a financial disadvantage through a reduction of the unit rate in year n+2 in accordance with point 2 of Annex XIII;

(g) for the en route targets in the key performance area of capacity and where the performance plan is established at functional airspace block level, the following provisions shall apply, in additional to the principles referred to in points (a) to (f): (i) the national supervisory authorities concerned shall break down the FAB performance target referred to in point 3.1(a) of Section 2 of Annex I at the level of each individual air navigation service provider concerned, for the purpose of setting incentives at national level. The resulting values shall form the basis for pivot values referred to in point (c); (ii) the national supervisory authorities concerned shall apply the same incentive scheme, in a consistent manner to all air navigation service providers concerned; (iii) pivot values for the functional airspace block shall also be used in addition to pivot values at the level of each individual air navigation service provider referred to in point (i), and shall be based either: — on the performance targets at functional airspace block level, or — on modulated performance targets at functional airspace block level in accordance with point 1 of Annex XIII and subject to consultation of airspace users' representatives and of air navigation service providers concerned; (iv) by way of derogation from point (c), all national supervisory authorities concerned shall jointly decide on whether the pivot values at the level of each individual air navigation service provider and functional airspace block level are to be modulated or not. This decision shall apply in a uniform manner to all pivot values at the level of each individual air navigation service provider and functional airspace block level, for the entire duration of the reference period; (v) where performance targets at national and functional airspace block level are to be modulated, the same modulation mechanism shall apply to performance targets at national level and functional airspace block level; (vi) where the total en route ATFM delay per flight in year n at the functional airspace block level is higher than the pivot value set for year n referred to in point (iii) and beyond the range referred to in point (d) of paragraph 3, point (e) of paragraph 3 shall not apply and point (f) of paragraph 3 shall apply only to those air navigation service providers for which the actual ATFM delay per flight in year n is higher than the pivot value set for year n and beyond the range referred to in point (d); (vii) where the total en route ATFM delay per flight in year n at the functional airspace block level is lower than the pivot value set for year n referred to in point (iii) and beyond the range referred to in point (d) of paragraph 3, point (f) of paragraph 3 shall not apply and point (e) of paragraph 3 shall apply only to those air navigation service providers for which the actual ATFM delay per flight in year n is lower than the pivot value set for year n and beyond the range referred to in point (d).

CHAPTER IV

ADOPTION, ASSESSMENT AND REVISION OF PERFORMANCE PLANS

Article 12

Adoption and submission of draft performance plans

Each Member State shall adopt a draft performance plan, as drawn up by the national supervisory authority or authorities concerned at national level or at the level of functional airspace blocks, and submit it to the Commission, at the latest three months before the start of the reference period to which it relates. Where the draft performance plan is drawn up at the level of functional airspace block, after all Member States concerned have adopted that plan, it shall be submitted to the Commission.

Article 13

Verification of completeness of draft performance plans

In that case, the Member State or Member States concerned shall submit the updated draft performance plan to the Commission without undue delay and in any event within three weeks from the date of the Commission's request.

Article 14

Assessment and revision of draft performance plans and targets

In that case, the Member State or Member States concerned shall, within three months from the date of the adoption of the Commission's decision, revise the performance targets and take appropriate measures to revise the draft performance plan accordingly, taking into account the Commission's recommendations, and submit the revised draft performance plan to the Commission.

Article 15

Assessment of revised draft performance plans and targets and adoption of corrective measures

Where the Commission finds that those measures are sufficient to ensure compliance with the decision referred to in paragraph 5, it shall notify the Member State or Member States concerned thereof.

Where the Commission finds that those measures are not sufficient to ensure compliance with the decision referred to in paragraph 5, it shall notify the Member State or Member States concerned accordingly and shall take, where appropriate, action to address the non-compliance, including through actions provided for in Article 258 of the Treaty on the Functioning of the European Union.

Article 16

Adoption of performance plans

Each Member State shall adopt and publish its performance plan in one of the following circumstances, as applicable:

(a) after the Commission has adopted a decision in application of Article 14(2), Article 15(2) or Article 15(4);

(b) after the Commission has adopted a decision pursuant to the second subparagraph of Article 15(7);

(c) after the Commission has adopted a decision following a request of a Member State or Member States concerned to revise during the reference period performance targets pursuant to Article 18(1), provided that the performance plan is adjusted by the Member State concerned in respect of the revised performance targets.

Article 17

Performance targets or corrective measures adopted after the start of the reference period

Article 18

Revision of performance targets during a reference period

During the reference period Member States may revise one or more performance targets contained in the performance plans and adopt performance plans which are amended accordingly, only where both of the following conditions are met:

(a) the Member State or Member States concerned consider that the intended revision is necessary and proportionate in light of the occurrence of one or more of the following situations: (i) at least one of the alert thresholds referred to in point (b) of Article 9(4) is reached and the national supervisory authority or authorities concerned have assessed the situation and have shown that the resulting effects of reaching the alert threshold or thresholds cannot be sufficiently mitigated unless the performance targets are revised; (ii) the initial data, assumptions and rationales, including on investments, on the basis of which the performance targets concerned were set are to a significant and lasting extent no longer accurate due to circumstances that were unforeseeable at the time of the adoption of the performance plan, and the national supervisory authority or authorities concerned have assessed the situation and have shown that the resulting effects cannot be sufficiently mitigated unless the performance targets are revised;

(b) the Commission has, based on a reasoned request by the Member State or Member States concerned, decided that: (i) it agrees that the intended revision is necessary and proportionate in light of the occurrence of one or more of the following situations referred to in point (a); (ii) the intended revised performance targets are consistent with the Union-wide performance targets, having assessed those targets on the basis of the criteria laid down in point 1 of Annex IV.

The Commission shall adopt the decision referred to in point (b) within seven months from the date of the submission of the complete request submitted by the Member State or Member States concerned.

Article 19

Approval of the Network Performance Plan

The Commission may request the Network Manager to submit a revision of that draft Network Performance Plan, where this is necessary to ensure compliance with criteria laid down in Annex V.

CHAPTER V

FINANCING OF AIR NAVIGATION SERVICES, ESTABLISHMENT OF CHARGING ZONES, ESTABLISHMENT OF COST BASES FOR CHARGES AND TRANSPARENCY

Article 20

Principles for the financing of air navigation services

Article 21

Establishment of charging zones

Member States shall consult the airspace users' representatives concerned prior to establishing or modifying those zones.

Member States shall notify the Commission, and the Central Route Charges Office (‘CRCO’) of Eurocontrol where applicable, about the establishment or modification of those charging zones, at least seven months before the start of the reference period.

Member States shall, without delay, inform the Commission and the CRCO of Eurocontrol about any such decision.

Member States may modify or establish a new terminal charging zone during a reference period, provided that they:

(a) consult the airspace users' representatives and air navigation service providers concerned prior to the modification;

(b) notify, without undue delay, the Commission and the CRCO of Eurocontrol of the modification;

(c) provide the Commission, without undue delay, with all of the following: (i) the relevant cost and traffic data adequately reflecting the situation before and after the modification; (ii) the comments of airspace users' representatives and air navigation service providers consulted in accordance with point (a); (iii) an assessment of the expected impact of the modification on the achievement of the national performance targets or FAB performance targets in the key performance area of cost-efficiency and on performance monitoring; (iv) an update of the performance plan with the relevant data.

Article 22

Establishment of the cost base for charges

Determined costs stemming from new ATM systems and major overhauls of existing ATM systems shall only be included in the cost base where those systems are consistent with the implementation of the European ATM Master Plan, and, in particular, with the common projects referred to in Article 15a(3) of Regulation (EC) No 550/2004.

Member States may decide to include in the cost base the following determined costs incurred in relation to the provision of air navigation services, in accordance with the second sentence of point (b) of Article 15(2) of Regulation (EC) No 550/2004:

(a) determined costs incurred by competent authorities;

(b) determined costs incurred by the qualified entities referred to in Article 3 of Regulation (EC) No 550/2004;

(c) determined costs stemming from the Eurocontrol International Convention relating to cooperation for the safety of air navigation of 13 December 1960 as last amended.

The determined costs included in the cost bases for en route and terminal charges shall consist of:

(a) staff costs;

(b) operating costs other than staff costs;

(c) depreciation costs;

(d) cost of capital;

(e) exceptional costs;

As regards point (a), staff costs shall include gross remuneration, overtime payments, and employers' contributions to social security schemes, as well as pension costs and costs of other benefits. Pension costs shall be calculated using prudent assumptions based on the applicable pension scheme or on national law, as appropriate. Those assumptions shall be specified in the performance plan.

As regards point (b), operating costs other than staff costs shall include costs incurred for the purchase of goods and services used to provide air navigation services, including outsourced services, material, energy, utilities, rental of buildings, equipment and facilities, maintenance, insurance costs and travel expenses.

As regards point (c), depreciation costs shall include costs related to the total fixed assets in operation for the purpose of providing air navigation services. The value of fixed assets shall be depreciated in accordance with their expected operating life, using the straight-line method applied to the costs of the assets being depreciated. Historical or current cost accounting shall be applied for the calculation of the depreciation. The methodology used to calculate depreciation costs shall not be altered during the duration of the depreciation and shall be consistent with the cost of capital applied, that is to say nominal cost of capital for historical cost accounting and real cost of capital for current cost accounting. Where current cost accounting is applied, the cost of capital shall not include inflation and the equivalent historical cost accounting figures shall also be provided to allow for comparison and assessment.

As regards point (d), the cost of capital shall be equal to the product of the following elements:

(i) the sum of the average net book value of fixed assets in operation or under construction and possible adjustments to total assets determined by the national supervisory authority and used by the air navigation service provider and of the average value of the net current assets, excluding interest-bearing accounts, that are required for the purposes of providing air navigation services;

(ii) the weighted average of the interest rate on debts and of the return on equity. For air navigation service providers without any equity capital, the weighted average shall be calculated on the basis of a return applied to the difference between the total of the assets referred to in point (i) and the debts.

For the purpose of establishing the cost of capital, the factors to which weight is to be given shall be based on the proportion of financing through either debt or equity. The interest rate on debts shall be equal to the weighted average interest rate on debts of the air navigation service provider. The return on equity shall be that provided in the performance plan for the reference period and shall be based on the financial risk incurred by the air navigation service provider.

Where air navigation service providers incur costs from leasing fixed assets, those costs shall not be included in the calculation of cost of capital.

As regards point (e), exceptional costs shall consist of non-recurring costs relating to the provision of air navigation services, including any non-recoverable taxes and customs duties.

To this end, national supervisory authorities shall lay down, before the start of each reference period, the criteria used to allocate determined costs to charging zones, including in respect of points (b) and (c) of this paragraph, and the criteria to allocate the determined costs between en route and terminal services, and shall include this information in the performance plan in accordance with point 3.3(d) of Annex II.

The determined costs included in the cost bases for terminal charging zones shall cover the cost of the following services:

(a) aerodrome control services or aerodrome flight information services which include air traffic advisory services and alerting services;

(b) air traffic services related to the approach and departure of aircraft within a certain distance of an airport which shall be defined on the basis of operational requirements;

(c) the proportional part of the air navigation services common to en route and terminal services.

The determined costs incurred for flights exempted in accordance with Article 31(3) to (5) shall be composed of:

(a) the determined costs of exempted VFR flights, calculated through a marginal cost methodology;

(b) the determined costs of exempted IFR flights, calculated as the product of the following elements: (i) the determined costs incurred for IFR flights, which shall consist of the total determined costs less the determined costs of VFR flights; (ii) the ratio of the number of exempted service units to the total number of service units which shall consist of the service units in respect of IFR flights and, where they are not exempted, of VFR flights.

The determined costs of exempted VFR flights shall be separated from the determined costs incurred for IFR flights for the purpose of calculating the unit rate.

Article 23

Actual costs

The provisions of Article 22 shall apply mutatis mutandis to the establishment of actual costs.

Article 24

Transparency of costs

Member States shall also do so during a reference period, where they intend to request a revision of performance targets in the key performance area of cost-efficiency in accordance with Article 18(1).

Member States shall provide the reporting tables and the information required in Annexes VII and IX to the entities invited to the consultation at least three weeks before the consultation.

Member States shall provide the reporting table and information required in Annex VII to the entities invited to the consultation at least three weeks before the consultation.

CHAPTER VI

CALCULATION OF UNIT RATES AND CHARGES

Article 25

Calculation of unit rates

Those rates shall be calculated by dividing the forecast number of total en route or terminal service units for the relevant year, calculated in accordance with points 1 and 2 of Annex VIII respectively, into the algebraic sum of the following elements:

(a) the determined costs, expressed in nominal terms, for the relevant year as set in the performance plan;

(b) the adjustments for inflation in accordance with Article 26;

(c) the adjustments resulting from the application of the traffic risk sharing mechanism in accordance with Article 27(2) to (5);

(d) the adjustments resulting from the application of the cost risk sharing mechanism in accordance with Article 28(4) to (6);

(e) the adjustments resulting from the application of the financial incentive schemes in accordance with Article 11(3) and (4);

(f) the adjustments resulting from the modulation of air navigation charges in accordance with Article 32;

(g) the adjustments resulting from traffic variations, in accordance with Article 27(8);

(h) the adjustments resulting from traffic variations, in accordance with Article 27(9);

(i) a deduction of other revenue, in accordance with paragraph 3 of this Article;

(j) cross-financing between en route charging zones, or between terminal charging zones, in accordance with point (e) of Article 15(2) of Regulation (EC) No 550/2004;

(k) adjustments for differences in revenue resulting from the temporary application of the unit rate in accordance with Article 29(5);

(l) adjustments relating to previous reference periods.

For the purpose of point (i) of paragraph 2, the following revenues of air navigation service providers obtained in year n shall be deducted from the determined costs as ‘other revenue’:

(a) public funds obtained from public authorities, including financial support from Union assistance programmes;

(b) revenue obtained from commercial activities, where the Member State or Member States concerned have decided that those revenues are to be deducted;

(c) with regard to terminal air navigation services, revenue obtained from contracts or agreements concluded between air navigation service providers and airport operators, where the Member State or Member States concerned have decided that those revenues are to be deducted.

As regards point (a), public funds covering staff costs and other operating costs shall be deducted from the determined costs no later than in year n+2. Public funds covering depreciation costs shall be deducted from the determined costs in accordance with the depreciation schedule of the financed asset (duration and annuity). A Member State may decide not to deduct from determined costs an amount related to the administrative costs incurred for the reporting on the funding agreement if these administrative costs are not included in the cost base for charges. Equally, a Member State may decide not to deduct from determined costs public funds received to cover costs not known at the time of drafting the performance plan and therefore not included in the cost base for charges. Airspace users shall not be charged for the costs covered by public funds.

As regards points (b) and (c), the revenue referred to in those points shall be deducted from the determined costs no later than in year n+2.

Where Member States decide to establish a common charging zone in accordance with Article 21(4), the unit rate shall be calculated in a single currency, which may be the euro or another national currency of one of the Member States concerned. The Member States concerned shall notify the Commission and the CRCO of Eurocontrol of the applicable currency.

Article 26

Inflation adjustment

For each year of the reference period, the determined costs included in the cost bases for en route and terminal charges of year n expressed in nominal terms shall be adjusted on the basis of the difference in percentage between the actual inflation index and the forecast inflation index for that year n and included as an adjustment for the calculation of the unit rate for year n+2.

The determined costs referred to in the third subparagraph of Article 22(1), and the determined costs referred to in points (c) and (d) of Article 22(4) where historical cost accounting is applied, shall not be subject to any inflation adjustment.

Article 27

Traffic risk sharing mechanism

Where, over a given year n, the actual number of service units falls below the service unit forecast included in the performance plan for that year n by more than 2 %, 70 % of the resulting revenue loss incurred by the air navigation service provider or providers concerned in excess of 2 % of the difference between the actual service units and that forecast shall be recovered from airspace users, through adjustments of the unit rates in year n+2.

Where, over a given year n, the actual number of service units exceeds 110 % of the service unit forecast included in the performance plan for that year n, the additional revenue obtained by the air navigation service provider or providers concerned in excess of 10 % of the difference between the actual service units and that forecast shall be passed on in full, to airspace users, through adjustments of the unit rates in year n+2.

National supervisory authorities may adapt the values of the parameters of the traffic risk sharing mechanism laid out in paragraphs 2 and 3. When adapting those values, the national supervisory authorities shall:

(a) consult on the intended values the airspace users' representatives and air navigation service providers concerned;

(b) ensure that the resulting risk exposure of the air navigation service providers is not lower than the maximum revenue at risk under the mechanism laid out in paragraphs 2 and 3;

(c) consider the variation of costs of capacity provision by the air navigation service provider concerned due to variation in traffic.

The following determined costs shall not be subject to the provisions of paragraphs 2 to 5:

(a) the determined costs established in accordance with the third subparagraph of Article 22(1);

(b) the determined costs for meteorological services.

Article 28

Cost risk sharing mechanism

The differences referred to in paragraph 1 shall be shared as follows:

(a) where, over the whole reference period, actual costs fall below the determined costs, the air navigation service provider or the Member State concerned shall retain in full the resulting difference;

(b) where, over the whole reference period, actual costs exceed the determined costs, the air navigation service provider or Member State concerned shall cover in full the resulting difference.

Paragraph 2 does not apply if the differences between determined costs and actual costs result from at least one of the following changes:

(a) unforeseen changes in costs of new and existing investments;

(b) unforeseen changes in costs referred to in the third subparagraph of Article 22(1);

(c) unforeseen and significant changes in pension costs established in accordance with Article 22(4) resulting from unforeseeable changes in national pensions law, pensions accounting law or unforeseeable changes in financial market conditions, on the condition that such changes in pension costs are outside the control of the air navigation service provider and, in the case of cost increases, that the air navigation service provider has taken reasonable measures to manage cost increases during the reference period;

(d) unforeseen and significant changes in costs resulting from unforeseeable changes in interest rates on loans that finance costs arising from the provision of air navigation services, on the condition that such changes in costs are outside the control of the air navigation service provider and, in the case of cost increases, that the air navigation service provider has taken reasonable measures to manage cost increases during the reference period;

(e) unforeseen and significant changes in costs resulting from unforeseeable changes in national taxation law or other unforeseeable new cost items not covered in the performance plan but required by law.

The determined costs relating to the costs referred to in this paragraph shall be identified and categorised in the performance plan, in accordance with point 3.3(h) of Annex II.

The differences between determined and actual costs referred to in this paragraph shall be identified and explained annually in accordance with Annex VII and Annex IX.

In respect of the unforeseen changes in costs referred to in point (a) of paragraph 3, the differences between determined costs and actual costs shall be shared as follows:

(a) where, over a calendar year or over the whole reference period, actual costs fall below the determined costs, the air navigation service provider or the Member State concerned shall reimburse the resulting difference to airspace users, through a reduction of the unit rate in year n+2 or in the following reference period, unless, based on a detailed justification of the air navigation service provider, the national supervisory authority decides, after consultation with airspace users' representatives, that the air navigation service provider shall not reimburse a part of the resulting difference;

(b) where, over a calendar year or over the whole reference period, actual costs exceed the determined costs by not more than 5 %, Member States may decide that the resulting difference is recovered from airspace users by the air navigation service provider or the Member State concerned, through an increase of the unit rate in year n+2 or in the following reference period, subject to the approval by the national supervisory authority of a detailed justification provided by the air navigation service provider in particular as regards the need to increase capacity and after consultation with airspace users' representatives.

Where, during the reference period, air navigation service providers intend to add, cancel or replace major investments with respect to information on major investments identified in the performance plan in accordance with point 2.2(b) of Annex II, these changes shall be approved by the national supervisory authority, after consultation of airspace users' representatives.

In respect of the unforeseen changes in costs referred to in point (b) of paragraph 3, the differences between determined costs and actual costs shall be shared as follows:

(a) where, over a calendar year, actual costs fall below the determined costs established for that calendar year, Member States shall reimburse the resulting difference to airspace users through a reduction of the unit rate in year n+2;

(b) where, over a calendar year, actual costs exceed the determined costs established for that calendar year, Member States shall recover the resulting difference from airspace users through an increase of the unit rate in year n+2.

In respect of the unforeseen changes in costs referred to in points (c), (d) and (e) of paragraph 3, the differences between determined costs and actual costs shall be shared as follows:

(a) where, over a calendar year or over the whole reference period, actual costs fall below the determined costs, the air navigation service provider or the Member State concerned shall reimburse the resulting difference to airspace users through a reduction of the unit rate in year n+2, in the following reference period or in the following two reference periods if the amounts to be recovered impact the unit rate in a disproportionate manner;

(b) where, over a calendar year or over the whole reference period, actual costs exceed the determined costs, Member States may decide that the resulting difference is recovered from airspace users by the air navigation service provider or the Member State concerned, through an increase of the unit rate in year n+2, in the following reference period or in the following two reference periods if the amounts to be recovered impact the unit rate in a disproportionate manner.

National supervisory authorities shall also include in the report which is due by 1 September of the year following the final year of the reference period the balance over the whole reference period in respect of the unforeseen changes in the costs referred to in points (a), (c), (d) and (e) of paragraph 3.

Article 29

Setting unit rates for charging zones

Member States shall set a unit rate for year n for each charging zone in line with the following requirements:

(a) national supervisory authorities shall submit, on behalf of their respective Member State, the calculated unit rate to the Commission and to the CRCO of Eurocontrol by 1 June of year n-1. This submission shall include the reporting tables and additional information set out in Annex VII and Annex IX;

(b) before 1 November of year n-1, if needed, national supervisory authorities shall update the calculated unit rate referred to in point (a), following consultation with airspace users. They shall submit this calculated updated unit rate, on behalf of their respective Member State, to the Commission and the CRCO of Eurocontrol, at the latest by 1 November of year n-1;

(c) Member States shall set the unit rate for year n at the latest by 20 December of year n-1 and inform the Commission and the CRCO of Eurocontrol of that rate.

Where the Commission finds that a unit rate does not comply with the requirements set out in Article 25(2), it shall notify the Member State concerned and invite it to submit a revised unit rate.

Where the Commission finds that the revised unit rate are calculated in compliance with the requirements set out in Article 25(2), it shall notify the Member State concerned accordingly.

Where, as a consequence of the time needed to complete the procedure referred to in paragraph 3, a unit rate for year n is revised after the start of the year to which it relates and such revision causes a difference in revenues, the unit rate shall be adjusted as follows:

(a) a first adjustment of the unit rate in the year following the revision of the unit rate, and

(b) a final adjustment of the unit rate two years after that year.

Where a performance plan is adopted after the start of the reference period, any difference in revenue due to the application of the unit rate or unit rates calculated on the basis of the draft performance plan, instead of the unit rate or unit rates calculated on the basis of the adopted performance plan, shall result in a first adjustment of the unit rate in the year following the adoption of the performance plan and a final adjustment of the unit rate two years after that year. The provisions of Articles 27 and 28 shall be applied on the basis of the adopted performance plan and shall apply retroactively as from the first day of the reference period.

Where a performance plan is revised during the reference period in accordance with Article 18, any difference in revenue due to the application of the unit rate or unit rates calculated on the basis of the adopted performance plan, instead of the unit rate or unit rates calculated on the basis of the adopted revised performance plan, shall result in a first adjustment of the unit rate in the year following the adoption of the revised performance plan and a final adjustment of the unit rate two years after that year. The provisions of Articles 27 and 28 shall be applied on the basis of the adopted revised performance plan and shall apply retroactively as from the first day of the year to which the revised performance plan applies.

Article 30

Transparency of unit rates

Member States shall provide the reporting tables and the information required in Annex IX to the consulted parties at least three weeks before the consultation.

Article 31

Calculation of charges

For the purpose of calculating the terminal charge, the approach and departure of a flight shall count as a single flight. The unit to be counted shall be either the arriving or the departing flight.

Member States shall exempt the following flights from en route charges:

(a) flights performed by aircraft with a maximum authorised take-off weight which is less than two metric tons;

(b) mixed VFR/IFR flights in the charging zones where they are performed exclusively under VFR and where an en route charge is not levied for VFR flights;

(c) flights performed exclusively for the purpose of transport, on official mission, of reigning Monarchs and their immediate family, heads of state, heads of government and government ministers, where it is substantiated by the appropriate status indicator or remark on the flight plan that the flight is performed exclusively for that purpose;

(d) search and rescue flights authorised by the appropriate competent body.

Member States may exempt the following flights from en route charges:

(a) military flights performed by aircraft of a Member State or any third country;

(b) training flights performed solely within the airspace of the Member State concerned and exclusively for the purpose of obtaining a licence, or a rating in the case of cockpit flight crew, where it is substantiated by an appropriate remark on the flight plan that the flight is performed exclusively for that purpose;

(c) flights performed exclusively for the purpose of checking or testing equipment used or intended to be used as ground aids to air navigation, excluding positioning flights by the aircraft concerned;

(d) flights terminating at the airport from which the aircraft has taken off and during which no intermediate landing has been made;

(e) VFR flights;

(f) humanitarian flights authorised by the appropriate competent body;

(g) customs and police flights.

Article 32

Modulation of air navigation charges

Member States may, on a non-discriminatory and transparent basis, modulate air navigation charges for airspace users to:

(a) optimise the use of air navigation services;

(b) reduce the environmental impact of flying;

(c) reduce the level of congestion of the network in a specific area or on a specific route at specific times.

(d) accelerate the deployment of SESAR ATM capabilities in anticipation of the time period set out in the common projects referred to in Article 15a(3) of Regulation (EC) No 550/2004, in particular with a view to giving incentives to equip aircraft with systems included in those common projects.

Member States shall ensure that modulation of charges in respect of points (a) to (c) of this paragraph does not result in any overall change in annual revenue for the air navigation service provider compared to the situation where charges would not have been modulated. Over- or under recoveries shall result in an adjustment of the unit rate in year n+2.

Before the application of the modulation of charges, Member States shall consult airspace users' representatives and air navigation service providers concerned on such intended modulation.

Article 33

Collection of charges

CHAPTER VII

SPECIAL PROVISIONS

Article 34

Simplified charging scheme

Subject to the conditions set out in paragraph 2, Member States may decide to establish and apply a simplified charging scheme for the duration of an entire reference period in respect of:

(a) one or more en route and one or more terminal charging zones;

(b) one or more air navigation service providers providing services in the charging zone or zones referred to in point (a).

Member States may decide to establish and apply a simplified charging scheme referred to in paragraph 1 only if all of the following conditions are met:

(a) a Commission decision adopted pursuant to Article 14(2), Article 15(2) or Article 15(4) confirms that the performance targets set by the Member State in the draft performance plan referred to in Article 12 are consistent with the Union-wide performance targets;

(b) the performance targets in the key performance areas of safety, capacity and environment have been met in the three years preceding the adoption of the draft performance plan referred to in Article 12;

(c) the performance plan includes an incentive scheme on capacity targets as required in Article 11;

(d) the air navigation service providers concerned and the airspace users concerned have been consulted on the intended decision and airspace users representing at least 65 % of the IFR flights operated in the airspace where the Member State or Members States concerned are responsible for the provision of air navigation services agree with the intended decision.

If Member States decide to establish and apply a simplified charging scheme pursuant to paragraph 2, they shall not apply:

(a) the traffic risk sharing mechanism referred to in Article 11(2) and Article 27. By not applying the traffic risk sharing mechanism, the traffic risk is therefore borne in full by the air navigation service provider;

(b) the provisions of Article 28(4) to (6) related to the cost risk sharing mechanism;

(c) the over or under recoveries resulting from the modulation of air navigation charges pursuant to Article 32.

Any carry-over from the years preceding the reference period to which the simplified charging scheme is applied, shall still be taken into account in the calculation of unit rates.

Article 35

Terminal air navigation services and CNS, MET and AIS services and ATM data services subject to market conditions

Where a Member State or Member States decide to apply paragraph 1, for the upcoming reference period or, as the case may be, for the remaining duration of the reference period and in respect of the services concerned they shall not:

(a) apply cost-efficiency targets, including the setting of determined costs, for the key performance indicators referred to in point 4.1 of Section 2 of Annex I;

(b) apply traffic risk sharing and cost sharing mechanisms in accordance with Articles 27 and 28;

(c) set financial incentives in the key performance areas of capacity and environment in accordance with Article 11;

(d) calculate terminal charges in accordance with Article 31(2);

(e) set terminal unit rates in accordance with Article 29;

(f) be subject to the consultation requirements specified in Article 24(3).

Points (d) to (f) apply only to terminal air navigation services.

Where, during a reference period, a Member State decides to apply paragraph 1, it shall also revise its performance plan in accordance with Article 18(1) in respect of the services concerned.

A Member State shall decide to apply paragraph 1 only after having completed all of the following steps:

(a) its national supervisory authority has found, on the basis of a detailed assessment in accordance with the conditions laid down in Annex X, that the provision of the services concerned is subject to market conditions;

(b) it has consulted the airspace users' representatives concerned on the intended decision and on that assessment, and has taken account of their comments where appropriate;

(c) it has made its intended decision and that assessment publicly available;

(d) it has submitted its intended decision and that assessment to the Commission and received the agreement of the Commission.

As regards point (d), the Member State shall submit the assessment no later than 12 months before the start of a reference period or, in the event of an assessment during the reference period, without undue delay upon having completed the assessment. The Commission shall notify the Member State concerned whether it agrees that the assessment has been carried out in accordance with the conditions laid down in Annex X. The Commission shall do so without undue delay. Where necessary, the Commission shall request additional information from the Member State concerned, which that Member State shall provide without undue delay.

If the national supervisory authority finds that those conditions are no longer met, the Member State shall, without undue delay, revoke its decision, after having completed the steps set out in points (b) to (d) of paragraph 3.

Upon that revocation, the Member State shall, for the upcoming reference period or, as the case may be, for the remaining duration of the reference period, not apply the exemptions listed in the first subparagraph of paragraph 2 in respect of the services concerned. If the revocation occurs during the reference period, the Member State concerned shall also revise its performance plan in accordance with Article 18(1).

CHAPTER VIII

PROVISION OF INFORMATION, MONITORING, AND PUBLICATION OF INFORMATION

Article 36

Provision of information

With respect to airspace users, this Article shall only apply to those users which operate more than 35 000 flights per year in European airspace, calculated as the average over the previous three years.

Article 37

Monitoring and reporting

If a national supervisory authority finds that those targets are not met, or risk not being met, it shall immediately inform the Commission thereof. Without undue delay, the Member State or the national supervisory authority concerned shall, in order to rectify the situation and achieve the targets set in the performance plan, apply the appropriate measures they have defined, taking into consideration the remedial measures referred to in Article 10(2) of Implementing Regulation (EU) 2019/123. They shall communicate those appropriate measures to the Commission without undue delay.

Not later than 1 June of each year, the national supervisory authorities shall report to the Commission on the results of the monitoring referred to in the first subparagraph in the preceding year.

If the Commission finds that the performance targets contained in the Network Performance Plan are not met or risk not being met, it shall request the Network Manager to define appropriate measures in order to rectify the situation and achieve those targets. The Network Manager shall communicate those measures to the Commission without undue delay.

Article 38

Publication

Member States shall make publicly available, in particular by electronic means, the following information:

(a) any decisions which they have taken pursuant to Article 1(4) and (5);

(b) any decisions which they have taken pursuant to point (c) of Article 35(3);

(c) their draft performance plans referred to in Article 12;

(d) their adopted performance plans referred to in Article 16;

(e) their reporting tables referred to in Articles 24, 29 and 30.

The Network Manager shall make publicly available, in particular by electronic means, the following information:

(a) the draft Network Performance Plan referred to in Article 19(1);

(b) the adopted Network Performance Plan referred to in Article 19(3).

CHAPTER IX

FINAL PROVISIONS

Article 39

Reasoning and appeal of national decisions

Member States shall ensure that decisions taken by their competent national authorities pursuant to this Regulation are duly reasoned and are subject to effective judicial appeal in accordance with national law.

Article 40

Repeal

Implementing Regulations (EU) No 390/2013 and (EU) No 391/2013 are repealed with effect from 1 January 2020. However, those Regulations shall continue to apply for the purposes of the implementation of the performance and charging schemes pertaining to the second reference period.

Article 41

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I

SECTION 1

KPIs for Union-wide target setting and indicators for monitoring at Union level

1. SAFETY

The minimum level of the effectiveness of safety management to be achieved by air navigation service providers certified to provide air traffic services. This KPI measures the level of implementation of the following safety management objectives:

(a) safety policy and objectives;

(b) safety risk management;

(c) safety assurance;

(d) safety promotion;

(e) safety culture.

(a) The rate of runway incursions at Union level with a safety impact calculated in accordance with point 1.2(a) of Section 2;

(b) the rate of separation minima infringements at Union level with a safety impact calculated in accordance with point 1.2(b) of Section 2.

2. ENVIRONMENT

This KPI measures the average horizontal en route flight efficiency of the actual trajectory, calculated as follows:

(a) the comparison between the length of the en route part of the actual trajectory derived from surveillance data and the achieved distance, summed over IFR flights within or traversing the European airspace as defined in Article 1;

(b) ‘en route part’ refers to the distance flown outside a circle of 40 NM around the airports;

(c) where a flight departs from or arrives at an airport outside the European airspace, the entry or exit points of the European airspace are used for the calculation of this indicator as the origin or destination respectively, rather than the departure or destination airport;

(d) where a flight departs from and arrives at an airport inside the European airspace and crosses non-European airspace, only the part inside the European airspace is used for the calculation of this indicator;

(e) ‘achieved distance’ is a function of the position of the entry and exit points of the flight into and out of each portion of airspace for all parts of the trajectory. Achieved distance represents the contribution that those points make to the great circle distance between origin and destination of the flight;

(f) the indicator is calculated for the whole calendar year and for each year of the reference period, as an average. When calculating this average, the ten highest daily values and the ten lowest daily values are excluded from the calculation.

(a) The average horizontal en route flight efficiency of the last filed flight plan trajectory, calculated as follows: (i) the difference between the length of the en route part of the last filed flight plan trajectory and the corresponding portion of the great circle distance, summed over all IFR flights within or traversing the European airspace; (ii) ‘en route part’ refers to the distance flown outside a circle of 40 NM around the airports; (iii) where a flight departs from or arrives at an airport outside the European airspace, the entry or exit points of the European airspace are used for the calculation of this indicator as the origin or destination respectively, rather than the departure or destination airport; (iv) where a flight departs from and arrives at an airport inside the European airspace and crosses non-European airspace, only the part inside the European airspace is used for the calculation of this indicator; (v) the indicator is calculated for the whole calendar year and for each year of the reference period, as an average. When calculating this average, the ten highest daily values and the ten lowest daily values are excluded from the calculation.

(b) The average horizontal en route flight efficiency of the shortest constrained trajectory, calculated as follows: (i) the difference between the length of the en route part of the shortest constrained route available for flight planning, as calculated by the path finding algorithms and flight plan validation systems of the Network Manager, and the corresponding portion of the great circle distance summed over all IFR flights within or traversing the European airspace; (ii) this indicator considers the airspace restrictions on days with and without military activities published in the Route Availability Document (RAD) issued by the Network Manager and the actual status of conditional routes at the time of the last filed flight plan; (iii) ‘en route part’ refers to the part outside a circle of 40 NM around the airports; (iv) where a flight departs from or arrives at an airport outside the European airspace, the entry or exit points of the European airspace are used for the calculation of this indicator as the origin or destination respectively, rather than the departure or destination airport; (v) where a flight departs from and arrives at an airport inside the European airspace and crosses a non-European airspace, only the part inside the European airspace is used for the calculation of this indicator; (vi) the indicator is calculated for the whole calendar year and for each year of the reference period, as an average. When calculating this average, the ten highest daily values and the ten lowest daily values are excluded from the calculation.

(c) The vertical flight efficiency of the actual trajectory between the top of climb and the top of descent, calculated as follows: (i) this indicator is the percentage of the length of the actual trajectory flown within 1 000  ft below, or at any altitude above the planned flight level from the last filed flight plan, summed over all IFR flights within or traversing European airspace (ii) the indicator is calculated as a percentage for the whole calendar year and for each year of the reference period.

(d) The effective use of reserved or segregated airspace calculated as the ratio of the finally used time for segregation or reservation from general air traffic to the initially allocated time for the activity requiring segregation or reservation. The indicator is calculated for all airspace allocations notified to the Network Manager.

(e) The rate of planning through available airspace structures, including reserved or segregated airspace, for general air traffic calculated as the percentage of aircraft filing flight plans via such airspace structures to the number of aircraft that could have planned through those airspace structures. The indicator is calculated for all airspace allocations notified to the Network Manager.

(f) The rate of using available airspace structures, including reserved or segregated airspace, by general air traffic calculated as the percentage of aircraft flying via such airspace structures to the number of aircraft that could have planned through these airspace structures. The indicator is calculated for all airspace allocations notified to the Network Manager.

3. CAPACITY

The average minutes, of en route ATFM delay per flight attributable to air navigation services, calculated as follows:

(a) the en route ATFM delay is the delay calculated by the Network Manager, expressed as the difference between the estimated take-off time and the calculated take-off time allocated by the Network Manager;

(b) for the purposes of this indicator: ‘estimated take-off time’ means the forecast of time when the aircraft will become airborne calculated by the Network Manager and based on the last estimated off-block time, or target off-block time for those airports covered by airport collaborative decision-making procedures, plus the estimated taxi-out time calculated by the Network Manager; ‘calculated take-off time’ means the time allocated by the Network Manager on the day of operation, as a result of tactical slot allocation, at which a flight is expected to become airborne; ‘estimated taxi-out time’ means the estimated time between off-block and take-off. This estimate includes any delay buffer time at the holding point or remote de-icing prior to take-off;

(c) this indicator covers all IFR flights and all ATFM delay causes, excluding exceptional events;

(d) this indicator is calculated for the whole calendar year and for each year of the reference period.

(a) The average time, expressed in minutes, of arrival ATFM delay per flight attributable to terminal and airport air navigation services and caused by landing restrictions at the destination airport, calculated as follows: (i) the average generated arrival ATFM delay per inbound IFR flight; (ii) this indicator includes all IFR flights landing at the destination airport and covers all arrival ATFM delay causes, excluding exceptional events; (iii) this indicator is calculated for the whole calendar year and for each year of the reference period.

(b) The percentage of flights with en route ATFM delay greater than 15 minutes, calculated as below: (i) en route ATFM delay calculated in accordance with point 3.1(a); (ii) this indicator covers all IFR flights and all ATFM delay causes, excluding exceptional events; (iii) this indicator is calculated for the whole calendar year and for each year of the reference period.

(c) The average time, expressed in minutes, of all cause-departure delay per flight, calculated as follows: (i) the average delay attributable to: — delays due to airline operations, — en route ATFM delay reported by airspace users, — reactionary (knock-on) delay, — airport operations delay, including ATFM airport delay reported by airspace users caused by regulation based on traffic volume which has a reference location classified as Aerodrome Zone or Aerodrome; (ii) covering all IFR flights and is calculated for the whole calendar year and for each year of the reference period.

4. COST-EFFICIENCY

The year-on-year change of the average Union-wide ‘determined unit cost’ (DUC) for en route air navigation services, calculated as follows:

(a) a percentage, reflecting the year-on-year variation of the average Union-wide DUC for en route air navigation services, starting from the baseline value referred to in Article 9(4), point (a);

(b) calculated for the whole calendar year and for each year of the reference period;

(c) the average Union-wide DUC for en route air navigation services is the ratio between the en route determined costs and the en route forecast traffic, expressed in en route service units, expected during each year of the reference period at Union level, as contained in the Commission’s assumptions for establishing the Union-wide performance targets in accordance with Article 9(3);

(d) the average Union-wide DUC for en route air navigation services is calculated in euro and in real terms.

The actual unit cost incurred by users separately for en route and terminal air navigation services at Union level, calculated as follows:

(a) the weighted average of the sum of the DUC for each Member State for air navigation services and of the adjustments in accordance with Article 25(2) stemming from that year;

(b) expressed in euro and in nominal terms;

(c) calculated for the whole calendar year and for each year of the reference period.

SECTION 2

KPIs for target setting at local level and indicators for monitoring at local level

1. SAFETY

The level of the effectiveness of safety management in accordance with point 1.1 of Section 1.

For the purposes of this indicator, ‘local’ means at the level of air navigation service providers.

(a) The rate of runway incursions at airports located in a Member State, calculated as the total number of runway incursions with a safety impact that occurred at those airports divided by the total number of instrument flight rules (IFR) and visual flight rules (VFR) movements at those airports.

(b) The rate of separation minima infringements within the airspace of all controlling air traffic services units in a Member State, calculated as the total number of separation minima infringements with a safety impact that occurred in that airspace divided by the total number of controlled flight hours within that airspace.

(c) The rate of runway incursions at an airport calculated as the total number of runway incursions with any contribution from air traffic services or communication, navigation and surveillance (CNS) services with a safety impact that occurred at that airport divided by the total number of IFR and VFR movements at that airport.

(d) The rate of separation minima infringements within the airspace where the air navigation service provider provides air traffic services, calculated as the total number of separation minima infringements with any contribution from air traffic services, or CNS services with a safety impact divided by the total number of controlled flight hours within that airspace.

The indicators for monitoring referred to in this point shall be calculated for the whole calendar year and for each year of the reference period.

For the purposes of the indicators set out in points (a) and (c), ‘local’ means at airport level. For the purposes of the indicator set out in point (b), ‘local’ means at national level. For the purposes of the indicator set out in point (d), ‘local’ means the level of air navigation service providers.

2. ENVIRONMENT

The average horizontal en route flight efficiency of the actual trajectory, calculated as follows:

(a) the comparison between the length of the en route part of the actual trajectory derived from surveillance data and the achieved distance, summed over IFR flights within or traversing the local airspace;

(b) ‘en route part’ refers to the distance flown outside a circle of 40NM around the origin and destination airports;

(c) where a flight departs from or arrives at an airport outside the local airspace, the entry or exit points of the local airspace are used for the calculation of this indicator;

(d) where a flight departs from and arrives at an airport inside the local airspace and crosses a non-local airspace, only the part inside the local airspace is used for the calculation of this indicator;

(e) ‘achieved distance’ is a function of the position of the entry and exit points of the flight into and out of the local airspace. Achieved distance represents the contribution that those points make to the great circle distance between origin and destination of the flight;

(f) for the purposes of this indicator, ‘local’ means at national level or at the level of functional airspace blocks, depending on the level at which the performance plan is established;

(g) the indicator is calculated for the whole calendar year and for each year of the reference period, as an average. When calculating this average, the ten highest daily values and the ten lowest daily values are excluded from the calculation.

(a) The average horizontal en route flight efficiency of the last filed flight plan trajectory, calculated at local level as follows: (i) the difference between the length of the en route part of the last filed flight plan trajectory and the corresponding portion of the great circle distance, summed over all IFR flights within or traversing the local airspace; (ii) ‘en route part’ refers to the distance flown outside a circle of 40 NM around the airports; (iii) where a flight departs from or arrives at an airport outside the local airspace, the entry or exit points of the local airspace are used for the calculation of this indicator; (iv) where a flight departs from and arrives at an airport inside the local airspace and crosses a non-local airspace, only the part inside the local airspace is used for the calculation of this indicator; (v) calculated for the whole calendar year and for each year of the reference period, as an average. When calculating this average, the ten highest daily values and the ten lowest daily values are excluded from the calculation.

(b) The average horizontal en route flight efficiency of the shortest constrained trajectory, calculated at local level as follows: (i) the difference between the length of the en route part of the shortest constrained route available for flight planning, as calculated by the path finding algorithms and flight plan validation systems of the Network Manager, and the achieved distance summed over all IFR flights within or traversing the local airspace; (ii) this indicator considers the airspace restrictions published in the Route Availability Document issued by the Network Manager and the actual status of conditional routes at the time of the last filed flight plan; (iii) ‘en route part’ refers to the part outside a circle of 40NM around the origin and destination airports; (iv) where a flight departs from or arrives at an airport outside the local airspace, the entry or exit points of the local airspace are used for the calculation of this indicator; (v) where a flight departs from and arrives at an airport inside the local airspace and crosses a non-local airspace, only the part inside the local airspace is used for the calculation of this indicator; (vi) ‘achieved distance’ is a function of the position of the entry and exit points of the flight into and out of the local airspace. Achieved distance represents the contribution that those points make to the great circle distance between origin and destination of the flight; (vii) calculated for the whole calendar year and for each year of the reference period, as an average. When calculating this average, the ten highest daily values and the ten lowest daily values are excluded from the calculation.

(c) The vertical flight efficiency of the actual trajectory between the top of climb and the top of descent, calculated as follows: (i) this indicator is the percentage of the length of the actual trajectory flown within 1 000  ft below, or at any altitude above the planned flight level from the last filed flight plan, summed over all IFR flights within or traversing the local airspace. (ii) the indicator is calculated as a percentage for the whole calendar year and for each year of the reference period.

(d) The additional time in the taxi-out phase, calculated at local level as follows: (i) the difference between the actual taxi-out time and the reference taxi-out time; (ii) the reference taxi-out time represents the optimal transit time required to taxi-out without holding; (iii) expressed in minutes per departure, calculated for the whole calendar year and for each year of the reference period.

(e) The additional time in the taxi-in phase, calculated at local level as follows: (i) the difference between the actual taxi-in time and the reference taxi-in time; (ii) the reference taxi-in time represents the optimal transit time required to taxi-in without holding; (iii) expressed in minutes per arrival, calculated for the whole calendar year and for each year of the reference period.

(f) The additional time in terminal airspace, calculated at local level as follows: (i) the difference between the Arrival Sequencing and Metering Area (ASMA) transit time and the reference time based on ASMA transit times; (ii) the reference ASMA time represents the transit time required to execute the approach without holding or vectoring; (iii) expressed in minutes per arrival calculated for the whole calendar year and for each year of the reference period; (iv) the ASMA is defined as a cylinder with a radius of 40 NM around the arrival airport.

(g) The vertical flight efficiency of the descent, calculated at local level as follows: (i) the duration of level flight from the top of descent to landing of all arriving IFR flights; (ii) expressed as the average duration of level flight in seconds per arrival; (iii) calculated for the whole calendar year and for each year of the reference period.

(h) The vertical flight efficiency of the climb, calculated at local level as follows: (i) the duration of level flight from take-off to the top of climb of all departing IFR flights; (ii) expressed as the average duration of level flight in seconds per departure; (iii) calculated for the whole calendar year and for each year of the reference period.

(i) The effective use of reserved or segregated local airspace, calculated in accordance with point 2.2(d) of Section 1.

(j) The rate of planning via available local airspace structures, calculated in accordance with point 2.2(e) of Section 1.

(k) The rate of using available local airspace structures, calculated in accordance with point 2.2(f) of Section 1.

For the purposes of the indicators set out in points (a), (b), and (c), ‘local’ means at national level or at the level of functional airspace blocks depending on the level at which the performance plan is established, including cases of delegation of the responsibility for the provision of air traffic services as a result of collaborative cross-border arrangements.

For the purposes of the indicators set out in points (d), (e) and (f), ‘local’ means at airport level with a minimum of 80 000 IFR air transport movements per year.

For the purposes of the indicators set out in points (g) and (h), ‘local’ means at airport level.

For the purposes of the indicators set out in points (i), (j) and (k), ‘local’ means at national level with a breakdown at the level of area control centres’ area of responsibility, including cases of delegation of the responsibility for the provision of air traffic services as a result of collaborative cross-border arrangements.

3. CAPACITY

(a) The average time, expressed in minutes, of en route ATFM delay per flight attributable to air navigation services, calculated as follows: (i) the en route ATFM delay, calculated in accordance with point 3.1 of Section 1; (ii) this indicator covers all IFR flights traversing the local airspace and all ATFM delay causes, excluding exceptional events; it also covers IFR flights traversing other airspaces, when delay corrections are applied as a result of the post-operations delay adjustment process coordinated by the Network Manager through which operational stakeholders notify the Network Manager of issues that relate to ATFM delay measurement, classification and assignment; (iii) calculated for the whole calendar year and for each year of the reference period; (iv) for monitoring, the values calculated for this indicator are broken down at national level in case the performance plan is established at functional airspace block level, including cases of delegation of the responsibility for the provision of air traffic services as a result of collaborative cross-border arrangements.

(b) The average time, expressed in minutes, of arrival ATFM delay per flight attributable to terminal and airport air navigation services, calculated at local level as follows: (i) the average arrival delay at the destination airport caused by ATFM regulations per inbound IFR flight; (ii) cover all IFR flights landing at the destination airport and all ATFM delay causes, excluding exceptional events; (iii) calculated for the whole calendar year and for each year of the reference period; (iv) for monitoring, the values calculated for this indicator are broken down at airport level.

For the purposes of the indicator set out in point (a), ‘local’ means at national level or at the level of functional airspace blocks depending on the level at which the performance plan is established. For the purposes of the indicator set out in point (b), ‘local’ means at national level.

(a) The percentage of IFR flights adhering to their ATFM departure slots at local level calculated for the whole calendar year and for each year of the reference period.

(b) The average time, expressed in minutes, of air traffic control pre-departure delay per flight caused by take-off restrictions at the departure airport, calculated at local level as follows: (i) the average air traffic control pre-departure delay per outbound IFR flight; (ii) include all IFR flights taking off at the departure airport and cover delays in start-up caused by air traffic control constraints when the aircraft is ready to leave the departure stand; (iii) this indicator is calculated for the whole calendar year and for each year of the reference period.

(c) The average time, expressed in minutes, of departure delay from all causes per flight, calculated at local level in accordance with point 3.2(c) of Section 1.