LegalizeRegulation (EU) 2024/2803 of the European Parliament and of the Council of 23 October 2024 on the implementation of the Single European Sky (recast) (Text with EEA relevance)
REGULATION (EU) 2024/2803 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 October 2024 on the implementation of the Single European Sky (recast) (Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee (1),
After consulting the Committee of the Regions,
Acting in accordance with the ordinary legislative procedure (2),
Whereas:
(1) Regulation (EC) No 549/2004 of the European Parliament and of the Council (3), Regulation (EC) No 550/2004 of the European Parliament and of the Council (4) and Regulation (EC) No 551/2004 of the European Parliament and of the Council (5) have been substantially amended. Since further amendments are to be made, those Regulations should be recast in the interests of clarity.
(2) The adoption by the European Parliament and the Council of the first package of the Single European Sky legislation, namely, Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004, and (EC) No 552/2004 of the European Parliament and of the Council (6), laid down a firm legal basis for a seamless, interoperable and safe air traffic management (ATM) system. The adoption of the second package, namely, Regulation (EC) No 1070/2009 of the European Parliament and of the Council (7), further strengthened the Single European Sky initiative by introducing the concepts of ‘performance scheme’ and ‘Network Manager’ to further improve the performance of the European ATM network. Regulation (EC) No 552/2004 has been repealed by Regulation (EU) 2018/1139 of the European Parliament and of the Council (8), as the rules necessary for interoperability of ATM systems, constituents and procedures have been incorporated in Regulation (EU) 2018/1139.
(3) In order to take into account the changes introduced in Regulation (EU) 2018/1139, it is necessary to align this Regulation with that Regulation and to amend the latter.
(4) Detailed rules on the use of airspace, operational provisions regarding services and procedures in air navigation and rules and procedures for the design of airspace structures are regulated under Regulation (EU) 2018/1139, whereas the classification of airspace should be regulated under this Regulation.
(5) In Article 1 of the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 (the ‘Chicago Convention’), the Contracting States recognise that ‘every State has complete and exclusive sovereignty over the airspace above its territory’. It is within the framework of such sovereignty that the Member States of the Union, subject to applicable international conventions, exercise the powers of a public authority when controlling air traffic.
(6) This Regulation should not affect Member States rights and responsibilities under the Chicago Convention.
(7) Implementation of the common transport policy requires an efficient air transport system allowing the safe, regular and sustainable operation of air transport services, optimising the use of airspace and capacity, contributing to aviation sustainability and facilitating the free movement of goods, persons and services.
(8) The simultaneous pursuit of the goals of augmentation of air traffic safety standards and improvement of the overall performance of ATM and air navigation services (ANS) for general air traffic in Europe requires that the human factor be taken into account. Therefore, the Member States should uphold ‘just culture’ principles. The opinions and recommendations of the Commission Expert Group on the Human dimension of the Single European Sky established by Commission Decision (EU) 2023/2109 (9) should be considered and taken into account.
(9) Improvements in the climate and environmental performance of ATM also contribute to the achievement of the objectives contained in the Paris Agreement, in Regulation (EU) 2021/1119 of the European Parliament and of the Council (10), in Council conclusions on the Commission’s Sustainable and Smart Mobility Strategy and in the Digital Agenda for Europe, in particular through the reduction of aviation emissions.
(10) A more efficient use of airspace, allowing for more options in terms of optimal flight trajectories, would lead to increased fuel efficiency and reduced emissions. Various climate and environmental elements should also be taken into account when optimising flight trajectories and flight profiles, in order to reduce emissions and air pollutants. A methodology on how to take into account those various elements and their interdependencies should be developed, in particular when designing performance indicators.
(11) Airspace is a common resource for all categories of users that needs to be used flexibly by all of them, ensuring fairness and transparency while taking into account the security and defence needs of Member States and their commitments within international organisations.
(12) In 2004, Member States adopted a general statement on military issues related to the Single European Sky (11), which they have reiterated. According to that statement, Member States should, in particular, enhance civil-military cooperation and, if and to the extent deemed necessary by all Member States concerned, facilitate cooperation between their armed forces in all matters of air traffic management.
(13) Decisions relating to the content, scope or carrying out of military operations and training do not fall within the sphere of competence of the Union under Article 100(2) of the Treaty on the Functioning of the European Union.
(14) Article 9a of Regulation (EC) No 550/2004 provided for the establishment by Member States of functional airspace blocks with a view to enhancing cooperation between air navigation service providers in order to improve performance and create synergies, and regulated such airspace blocks. Member States may maintain the cooperation and coordination within such formerly established airspace blocks with the view to fostering the performance of the air traffic management network within the Single European Sky, in particular by submitting joint performance plans, provided in particular that this does not affect the efficient implementation of this Regulation.
(15) Member States should nominate a national supervisory authority in order to assume the tasks assigned to such authority under this Regulation. To ensure consistent and sound oversight of service provision across Europe, the national supervisory authorities should be guaranteed sufficient independence and resources. In particular, the financing of those authorities should guarantee their independence and should allow them to operate in accordance with the principles of fairness, transparency, non-discrimination and proportionality. This should not prevent a national supervisory authority from being joined with another regulatory authority, such as the national competent authority or the national competition authority, if the joint authority fulfils the independence requirements and provided that the decisions related to the tasks conferred on the national supervisory authority under this Regulation are taken independently from other tasks conferred on the joint authority.
(16) Appropriate procedures for appointing the staff of national supervisory authorities should contribute to guaranteeing the independence of those authorities. Staff of national supervisory authorities should act independently, in particular by avoiding conflicts of interest between air navigation service provision and the execution of their tasks. The rules regarding conflicts of interest for staff and persons who take decisions exercising the powers defined in this Regulation should also prevent possible conflicts of interest arising from their active assignment to a national supervisory authority in connection with a new position in a regulated entity for the time immediately following the end of their assignment to that national supervisory authority.
(17) Procedures should be put in place to ensure the cooperation and exchange of information between the national supervisory authority and the national competent authority with the view to ensuring the proper application of this Regulation.
(18) Requirements for the granting of a certification regarding financial robustness, liability, insurance cover and ownership and organisational structure have a strong link to the safety and security requirements for the provision of services and to the operational and technical oversight to be carried out by a national competent authority. In respect of certification, oversight, and enforcement activities relating to the requirements regarding financial robustness, liability, insurance cover, ownership and organisational structure listed in point 7 of Annex VIII to Regulation (EU) 2018/1139, Member States should arrange their administrative processes in accordance with their national arrangements to ensure proper and efficient execution of the tasks of both national competent and supervisory authorities.
(19) National supervisory authorities have a key role to play in the implementation of the Single European Sky and they should therefore cooperate with each other in order to enable the exchange of information on their work and decision making principles, best practices and procedures as well as with regard to the application of this Regulation and to develop a common approach, including through enhanced cooperation at regional level. This cooperation should take place on a regular basis in the context of the National Supervisory Authorities Cooperation Board.
(20) Cooperation between air navigation service providers is an important tool for improving the overall performance of the European ATM system and should be encouraged.
(21) An air navigation service provider should be able to offer services in the Union under non-discriminatory conditions where it holds a certificate or a declaration pursuant to Article 41 of Regulation (EU) 2018/1139.
(22) In accordance with Article 2(5) of Regulation (EU) 2018/1139 and subject to the conditions set out therein, Member States should be able to allow the provision of air navigation services referred to in Article 2(3), point (c) of Regulation (EU) 2018/1139 under their responsibility by the military without certification where the military offers such services primarily to aircraft movements other than general air traffic. In such cases, the Member State concerned should inform the Commission and the other Member States of its decision.
(23) This Regulation does not require the certification of signals provided by Global Navigation Satellite Systems (GNSS).
(24) There should be no discrimination between airspace users regarding the provision of equivalent air navigation services.
(25) Air traffic services should be provided on an exclusive basis. Providers of such services should be subject to designation and public interest requirements. In that respect, it should be taken into account that the provision of air traffic services which are connected with the exercise of the powers of a public authority and are not of an economic nature is not subject to the application of Treaty rules on competition.
(26) The designation process should take into account the need for service continuity and long-term investment planning by air traffic service providers. Notwithstanding the above, the fast-evolving context of air navigation requires that monitoring of the rights and obligations of designated air traffic service providers is performed to ensure that those rights and obligations remain fully applicable and that those obligations are fulfilled. Where Member States consider it necessary to launch a new designation process in the context of their monitoring, they should be able to designate the same air traffic service provider, in accordance with national law.
(27) Member States should ensure that the designation of an air traffic service provider is not prevented by their national law on the grounds in particular that the service provider concerned has its principal place of business in another Member State or is owned by nationals of that Member State where the application of such national law entails an unjustified restriction of the freedom to provide services or the freedom of establishment, which should be assessed on a case-by-case basis in the light of all relevant circumstances.
(28) Air traffic service providers may procure communication, navigation and surveillance services (CNS), aeronautical information services (AIS), air traffic data services (ADS), or meteorological services (MET) in cases where Member States have not designated a MET provider, under market conditions, or under other forms of agreements where Directives 2014/24/EU (12) and 2014/25/EU (13) of the European Parliament and of the Council do not apply, taking into account specific situations such as lack of solutions available on the market and considerations relating to the public interest. Member States may allow airport operators or a group of airport operators to procure terminal air traffic services for aerodrome control or air traffic services for approach control under market conditions.
(29) Where air traffic services for aerodrome control and approach control are procured, they should not be subject to performance target setting set out in this Regulation. The service providers should nevertheless provide data on the performance of the air navigation services. Where air traffic services for aerodrome control and approach control are procured, technical requirements in the tender specifications should include requirements on service quality.
(30) Air navigation service providers should keep separate accounts for each air navigation service as they would be required to do if these services were carried out by separate undertakings with a view to avoiding discrimination, cross-subsidisation and distortion of competition.
(31) Where applicable, the procurement of air navigation services should be carried out in accordance with Directive 2014/24/EU, Directive 2014/25/EU, and with the principles of equal treatment, non-discrimination and transparency as well as with the applicable provisions of the Treaty, in particular the Treaty rules on the freedom to provide services and the freedom of establishment. The tender procedures for the procurement of services should be designed so as to enable the effective participation of competing providers in these procedures, including through regular reopening of competition.
(32) The traffic management of unmanned aircraft requires the availability of common information services (CIS). When CIS are provided by a single CIS provider designated by the Member State in respect of a specific U-space airspace, the prices of CIS should be regulated in order to contain the costs of such traffic management. Prices of CIS should therefore be based on cost and a reasonable mark-up for profit, and should be subject to approval by national supervisory authorities. Where CIS are not provided by a single CIS provider, the individual CIS should be provided for free. To enable the provision of the service, access to relevant operational data should be granted to CIS providers on fair, reasonable and non-discriminatory terms.
(33) Availability of relevant operational data with respect to general air traffic is essential for enabling the flexible provision of air traffic data services, on cross-border and on Union-wide bases. Therefore, such data should be made available to relevant stakeholders including to entities having a proven interest in considering the provision of air navigation services, on fair, reasonable, and non-discriminatory terms. Accuracy of information including on airspace status and on specific air traffic situations and timely distribution of this information to civil and military controllers has a direct impact on the safety and efficiency of operations, including the environmental efficiency of flights. Timely access to up-to-date information on airspace status is essential for all parties wishing to take advantage of airspace structures made available when filing or re-filing their flight plans.
(34) The performance and charging schemes should not apply to terminal air navigation services provided at airports with less than 80 000 air transport movements per year performed using instrument flight rules (IFR). The setting of performance targets for such services would have little added value as such targets would, in most cases, be close to zero. Moreover, submitting those services to the performance and charging schemes set up by this Regulation would lead to a disproportionate administrative and financial burden compared to the expected benefits in terms of performance improvement and better service quality. However, Member States may decide that such terminal air navigation services are subject to the performance and charging schemes.
(35) Militaries which provide air navigation services primarily to aircraft movements other than general air traffic, including their financing, should not be subject to the performance and charging schemes set up by this Regulation. Therefore, the costs of their services should not be regarded as determined costs under this Regulation. However, Member States may decide to apply those schemes to militaries which provide such services. The performance and charging schemes should apply to militaries which provide air navigation services primarily to general air traffic.
(36) The performance and charging schemes should ensure efficient, sustainable and continuous operation of the European ATM system and are also intended to make air navigation services provided under conditions other than market conditions more cost-efficient and to promote better service quality. To this end, they should include relevant and appropriate incentives. In view of this objective, the performance scheme should not cover services supplied under market conditions. The performance scheme should cover all air navigation services which a designated air traffic service provider provides or procures from other service providers, including when that service provider provides air navigation services and air traffic services.
(37) Member States may develop joint performance plans for air navigation services with the aim of improving the level of performance of air traffic management beyond the level which would be achievable on an individual Member State’s basis, covering at least the duration of the reference period; Member States should include in those joint plans at least one joint target and initiatives on cross-border cooperation, while considering the added value of setting other joint targets, conducting joint procurement and establishing joint governance.
(38) When adopting implementing acts to set out incentive schemes, the Commission should define the applicability of such schemes to situations where air navigation service providers go beyond or do not comply with the relevant binding performance targets for air navigation services during the reference period. Without prejudice to the measures that are to be implemented by the air traffic service provider to mitigate the impact of such events, the applicability criteria should take due consideration of unforeseeable and significant events outside the air traffic service provider’s control. In order to promote better service quality, those performance and charging schemes should include relevant and appropriate incentives. Financial incentives should be set with a view to encouraging better air navigation service performance in a balanced manner by rewarding or penalising actual performance in relation to binding performance targets.
(39) Revenues from charges imposed on airspace users could result in financial surpluses or losses for air navigation service providers due to the application of the incentive schemes and the risk-sharing mechanisms.
(40) A Performance Review Board (PRB) should be established to advise and assist the Commission in the implementation of the performance and charging schemes. The set up of the PRB should guarantee that its tasks are carried out with the required expertise and independence from public or private interests, and is able to rely on dedicated resources. The PRB should replace and succeed to the Performance Review Body established under Article 11(2) of Regulation (EC) No 549/2004.
(41) The PRB should be supported by a secretariat provided by the Commission. For the purpose of preparing the content and orientations of the opinions, recommendations, reports and guidance material of the PRB, the secretariat should act without taking any directives except from the PRB itself in order to enable the PRB to fulfil its advisory role and to ensure the PRB independence. The main task of the secretariat should be to contribute to the independent execution of the tasks of the PRB.
(42) The staff of the secretariat is subject to the rules on professional secrecy and on conflict of interest included in the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (14), which ensure their independence. The selection process and eligibility criteria should be detailed in an implementing act, which should not include the appointment of specific PRB members or make that appointment subject to approval of Member States in any way.
(43) Given the cross-border and network elements inherent in the provision of air navigation services, en route performance should be assessed against Union-wide performance targets.
(44) The national targets for the provision of terminal air navigation services should drive improvements in the performance of those services over time and enable a gate-to-gate approach for the regulation of air navigation services.
(45) The Member States, the national supervisory authorities and the Commission should have clearly defined tasks in the performance and charging schemes, with respect in particular to the preparation of the performance plans, to the approval of those plans and to the monitoring of performance of air navigation service providers.
(46) The key performance area of climate and environment should address the impact of aviation on the climate and environment that can be influenced by air navigation service providers, in particular the CO2 emissions. Performance plans should contain for each reference period en route performance targets consistent with Union-wide performance targets in the key performance areas of climate and environment, capacity and cost-efficiency, as well as terminal performance targets in the key performance areas of capacity and cost-efficiency. At the date of adoption of this Regulation, existing available data do not allow for the establishment, in the key performance area of climate and environment, of key performance indicators for terminal air navigation services which are valid, reliable, measurable and allow for measuring impacts in that area which can be directly influenced by the air navigation service providers. Therefore, Member States should be obliged to include in performance plans binding targets for terminal air navigation services in the key performance area of climate and environment only after the Commission has been able to set, in an implementing act, the key performance indicators meeting those conditions. The setting of binding performance targets for terminal air navigation services included in the performance plan should take into account local circumstances, in particular local environmental policy requirements.
(47) The performance of the network functions should be subject to criteria specific to them, having regard to the peculiar nature of these functions. Those network functions should be subject to performance targets in the key performance areas of climate and environment, capacity and cost-efficiency.
(48) The charging scheme set up by this Regulation should be consistent amongst others with Article 15 of the Chicago Convention. That scheme should be without prejudice to the possibility for Member States to finance the provision of air navigation services covered by this Regulation through public funds, insofar as it is in line with Treaty rules on competition where applicable.
(49) The charging scheme should be based on the principle that airspace users should pay for the costs incurred in respect of services and functions for the benefit of airspace users which are not covered otherwise. The costs incurred in relation to the provision of air navigation services by Member States’ national authorities, including the national competent authorities and the national supervisory authorities as well as Eurocontrol and the Network Manager could be included in the determined costs eligible to be charged to airspace users. The charges should encourage safe, efficient, effective and sustainable provision of air navigation services with a view to achieving a high level of safety and cost-efficiency and meeting the performance targets and they should support the reduction of the environmental impact of aviation.
(50) Costs stemming from the Eurocontrol International Convention relating to Cooperation for the Safety of Air Navigation of 13 December 1960, as last amended, could be included in the determined costs given that all activities covered by that Convention at the time of adoption of this Regulation are considered as related to air navigation services.
(51) The Commission should carry out a feasibility study on the impact of the modulation of charges on air traffic, service provision, administrative costs and on stakeholders, as well as on the contribution of that modulation to the achievement of the Single European Sky objectives. Based on that study, the Commission should determine whether to adopt an implementing act to ensure the uniform application of modulation of charges to encourage airspace users to support improvements in climate and environmental performance, in particular through the use of the most fuel-efficient available routing, increased use of alternative clean propulsion technologies, including sustainable alternative fuels, while maintaining an optimum safety level. Even if the Commission does not adopt such an implementing act, Member States should have the right to modulate charges to encourage air traffic service providers and airspace users to support improvements in service quality such as increased capacity, reduced delays and sustainable development.
(52) In the event of a network crisis, such as a geopolitical conflict, a health crisis or a natural disaster, which prevents the issuing of reliable traffic forecasts, the Commission should be able to adopt transitional provisions including a temporary suspension or adaptation of the performance scheme until the network crisis ends and the new reliable forecasts are available.
(53) Without prejudice to the procedure laid down in Article 258 TFEU, the Commission should regularly review the compliance of Member States with this Regulation. When carrying out that review, the Commission should assess whether Member States ensure compliance by the air navigation service providers with their obligations.
(54) Provision should be made for the transparency of the accounts of air navigation service providers, as one means of preventing cross-subsidisation and ensuing distortions.
(55) ATM network functions should contribute to the sustainable development of the air transport system and support the achievement of Union-wide performance targets. They should lead towards the sustainable, efficient and environmentally optimal use of airspace and of scarce resources, reflect operational needs in the deployment of the European ATM network infrastructure and should provide support in the event of network crises.
(56) A number of network functions, such as air traffic flow management, need to be coordinated centrally by a single body in support of actions taken by Member States and the relevant operational stakeholders. Therefore, a number of tasks contributing to the execution of these functions should be carried out by a Network Manager, whose action should involve all operational stakeholders concerned. The specific tasks of the Network Manager should be laid down in this Regulation. The Network Manager should be appointed by the Commission.
(57) In 2011 and in 2019, the Commission appointed Eurocontrol as Network Manager. In order to ensure business continuity in the performance of the ATM network functions, that mandate could be renewed subject to the conditions laid down in this Regulation.
(58) In the event that the Network Manager resides in another entity, there should be functional and hierarchical separation as well as separate accounting, from that entity.
(59) Operational stakeholders which have to implement network functions at local and operational levels and Member States should be fully involved in the implementation of those functions and in the decision-making process. Accordingly, the Network Manager should take measures through cooperative decision-making based in particular on the consultation of operational stakeholders and Member States and on detailed working arrangements and processes for operation. In such a cooperative decision-making process, the parties should act to the maximum extent possible with a view to improving the functioning and performance of the network, including the achievement of Union-wide performance targets in the key performance area of climate and environment, and the interests of the network should prevail, without prejudice to security and defence needs, and that cooperative decision-making process should be such that issues are resolved and consensus found wherever possible. In the context of the cooperative decision-making process for the execution of the network functions, Member States should ensure adequate coordination at national level with the civil and military operational stakeholders. Moreover, to ensure the appropriate governance relating to the execution of the network functions, a Network Management Board, ensuring an appropriate representation of the interests of all the actors involved, in particular the operational stakeholders, in the implementation of those functions, should be set up. Without prejudice to the consultation of the Network Management Board on regulatory or strategic decisions such as the endorsement of the Network Strategy Plan, the measures adopted through cooperative decision-making and by the Network Management Board should be operational or technical in nature, ensuring the day-to-day operation of the network in accordance with the objectives of this Regulation.
(60) To enhance the customer focus of air traffic service providers, relevant stakeholders should be consulted in major operational decisions of the air traffic service providers.
(61) The provision of complete, high-quality and timely aeronautical information has a significant impact on safety and on facilitating access to Union airspace and the possibilities of moving within it. Therefore, access to those data should be facilitated through an appropriate information infrastructure.
(62) The safe and efficient use of airspace can only be achieved through close cooperation between civil and military airspace users, which in practice is mainly based on the concept of flexible use of airspace and effective civil-military coordination as established by the International Civil Aviation Organisation (ICAO). With a view to ensuring the uniform application of this concept, the Commission should be empowered to adopt implementing acts, within the limits of the common transport policy and without prejudice to Member States’ responsibilities for their airspace.
(63) The Single European Sky ATM Research (SESAR) project is aimed at enabling the safe, efficient and environmentally sustainable development of air transport by modernising the European and global ATM system. In order to contribute to its full effectiveness, proper coordination between the phases of the project should be ensured. The European ATM Master Plan should result from the SESAR definition phase, and should contribute to achieving the Union-wide performance targets. For the period 2022-2027, the European Commission and the SESAR Deployment and Infrastructure Partnership (SDIP) – a consortium comprising 20 major European airspace users, air navigation service providers and airport operators, and Eurocontrol as Network Manager – signed a long-term Framework Partnership Agreement, in order for the SDIP to carry out tasks related to the timely and synchronised implementation of common projects (Commission Implementing Regulation (EU) 2021/116 (15) ) and monitoring by coordinating and supporting the stakeholders concerned.
(64) The concept of common projects should aim at implementing, in a timely, coordinated and synchronised manner, the essential operational changes identified in the European ATM Master Plan which have a network-wide impact and have reached sufficient maturity for implementation. In particular, common projects should promote and accelerate the uptake of new digital technologies. The Commission should be charged with carrying out a cost-benefit analysis in respect of the funding of the implementation of common projects with a view to speeding up the deployment of the SESAR project.
(65) Compliance with the requirements for ATM systems and constituents established by Regulation (EU) 2018/1139 should ensure the interoperability of those systems and constituents for the benefit of the Single European Sky.
(66) In order to ensure uniform conditions for the implementation of this Regulation, in particular with regard to the PRB, the implementation of the performance and charging schemes, including on the setting of Union-wide performance targets and complementary baseline values, alert thresholds, breakdown values and benchmark groups, the setting of performance targets and the criteria and conditions for their assessment, the preparation, assessment, approval and revision of the performance plans, including joint performance plans, and performance targets, the monitoring of performance, including of performance of network functions, the allocation of costs between en route and terminal air navigation services, the setting of key performance indicators and indicators for monitoring, methodology for benchmarking, incentive schemes, rules on the modification of a terminal charging zone, rules for the provision of information on costs and charges, the content and establishment of the cost bases for charges and the setting of unit rates for air navigation services, incentive mechanisms and risk-sharing mechanisms, the modulation of charges, rules on the modalities of the provision of data by the national supervisory authorities to the Commission, a mechanism to address unforeseeable and significant events which have a material impact on the implementation of the performance and charging schemes, rules on the execution of the network functions, on the appointment of the Network Manager and the terms and conditions of such appointment, as well as the tasks and functioning of the Network Manager, on the Network Management Board, on cooperative decision-making process and the network governance mechanisms, requirements regarding the availability of operational data, application of the concept of flexible use of airspace, the establishment of common projects and the governance mechanisms applicable to them, as well as implementation of the ICAO airspace classification, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (16). Where the committee delivers no opinion, the Commission should not adopt the draft implementing act.
(67) The social and professional staff organisations should respectively be consulted on all proposed measures having significant social, technological and human dimension or performance related implications. At Union level, the Sectoral Dialogue Committee set up under Commission Decision 98/500/EC (17) and the Commission Expert Group on the Human dimension of the Single European Sky should also be consulted.
(68) The penalties provided for with respect to infringements of this Regulation should be effective, proportional and dissuasive, without reducing safety.
(69) This Regulation should not prevent the application by Member States of measures necessary to safeguard essential security or defence policy interests. Moreover, it does not affect the power of Member States to adopt provisions in relation to the organisation of their armed forces. That power may lead Member States to adopt measures to ensure that their armed forces have sufficient airspace for adequate education and training purposes. Provision should therefore be made for a safeguard clause to enable that power to be exercised.
(70) It is appropriate to integrate in Regulation (EU) 2018/1139 the requirements linked to certification of air navigation service providers that were previously laid down in Regulation (EC) No 550/2004, to allow for a simplified regulatory framework for certification and a single certification process. In particular, it is appropriate to provide that, in order to be certified, providers of air traffic management and air navigation services (ATM/ANS) should demonstrate sufficient financial robustness and obtain appropriate liability and insurance cover, comply with applicable requirements on ownership and organisational structure and manage security risks. The conditions that may be applied to the certificates issued should also be specified.
(71) Moreover, essential requirements applicable to ATM/ANS and air traffic controllers should be supplemented with respect to requirements applicable to air traffic data services.
(72) For the purpose of performing their tasks of certification, oversight and enforcement in relation to the essential requirements relating to financial robustness, liability, insurance cover, ownership and organisational structure, the competent authority should rely on the assessments made by the national supervisory authority, unless the national competent authority concerned is responsible for all tasks related to certification.
(73) Since Regulations (EC) No 549/2004, (EC) No 550/2004 and (EC) No 551/2004 are replaced and repealed by this Regulation, it is appropriate to update the references made in Regulation (EU) 2018/1139 to Regulations (EC) No 549/2004, (EC) No 550/2004 and (EC) No 551/2004.
(74) In order to ensure uniform conditions for the implementation of Regulation (EU) 2018/1139, in particular with regard to the conditions that may be applied to the providers of ATM/ANS’ certificates and concerning the rules and procedures for the assessment and oversight, by the national supervisory authority, of compliance of those providers with the essential requirements relating to financial robustness, liability, insurance cover, ownership and organisational structure, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.
(75) Regulation (EU) 2018/1139 should therefore be amended accordingly.
(76) Since the objective of this Regulation, namely the implementation of the Single European Sky, cannot be sufficiently achieved by the Member States but can rather, by reason of the transnational scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,
HAVE ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter and scope
This Regulation lays down rules for the creation and effective functioning of the Single European Sky in order to reinforce air traffic safety standards, to contribute to the sustainable development of the air transport system and to improve the overall performance of air traffic management and air navigation services for general air traffic in Europe, with a view to meeting the requirements of all airspace users. The Single European Sky shall comprise a coherent pan-European network, a progressively more integrated airspace, network management and air traffic management systems based on safety, efficiency, interoperability and technological modernisation, for the benefit of all airspace users, citizens and the environment.
The application of this Regulation is without prejudice to Member States’ sovereignty over their airspace and to the requirements of the Member States relating to public order, public security and defence matters, as set out in Article 55. This Regulation does not cover military operations and training. The coordination with military authorities shall be ensured to identify and address potential impacts of the application of this Regulation on military activities.
The application of this Regulation is without prejudice to the rights and duties of Member States under the 1944 Chicago Convention on International Civil Aviation (the Chicago Convention). In that context, this Regulation aims to assist, in the fields it covers, Member States to fulfil their obligations under the Chicago Convention by providing a basis for a common interpretation and uniform implementation of its provisions, and by ensuring that those provisions are duly taken into account in this Regulation and in the rules drawn up for its implementation.
This Regulation shall apply to the airspace within the ICAO EUR region where Member States are responsible for the provision of air traffic services. Member States may also apply this Regulation to airspace under their responsibility within other ICAO regions, on the condition that they inform the Commission and the other Member States thereof.
Article 2
Definitions
For the purposes of this Regulation, the following definitions shall apply:
(1) ‘aerodrome control service’ means an air traffic control (ATC) service for aerodrome traffic;
(2) ‘aeronautical information service’ or ‘AIS’ means a service, established within a defined area of coverage, responsible for the provision of aeronautical information and data necessary for the safety, regularity, and efficiency of air navigation;
(3) ‘Agency’ means the European Union Aviation Safety Agency established by Regulation (EU) 2018/1139;
(4) ‘air navigation service provider’ means a public or private entity providing one or more air navigation services for general air traffic;
(5) ‘air navigation services’ or ‘ANS’ means air traffic services; communication, navigation and surveillance services (CNS) including services which augment signals emitted by satellites of core constellations of GNSS for the purpose of air navigation; meteorological services for air navigation (MET); aeronautical information services (AIS); and air traffic data services (ADS);
(7) ‘air traffic data services’ or ‘ADS’ means services consisting in the collection, aggregation and integration of operational data from providers of surveillance services, from providers of MET and AIS and network functions and from other relevant entities generating operational data, and the provision of processed data for air traffic control and air traffic management purposes;
(8) ‘air traffic flow management’ or ‘ATFM’ means a function established with the objective of contributing to a safe, orderly and expeditious flow of air traffic covering the full trajectory by ensuring that ATC capacity is utilised to the maximum extent possible, and that the traffic volume is compatible with the capacities declared by the appropriate air traffic service providers;
(9) ‘air traffic management’ or ‘ATM’ means the aggregation of the airborne and ground-based functions and services, namely air traffic services, airspace management and air traffic flow management, including flight procedures design, required to ensure the safe and efficient movement of aircraft during all phases of operations;
(10) ‘air traffic services’ means the various flight information services, alerting services and air traffic advisory services, as well as ATC services, namely area, approach and aerodrome control services;
(11) ‘airspace block’ means an airspace of defined dimensions, in space and time, consisting of one or more airspace structures, within which air navigation services are provided;
(12) ‘airspace management’ means a planning and monitoring function with the primary objective of optimising the utilisation of available airspace by dynamic time-sharing and, at times, the segregation of airspace among various categories of airspace users on the basis of short-term needs;
(13) ‘airspace structure’ means a specific volume of airspace defined with a view to ensuring the safe and optimal operation of aircraft;
(14) ‘airspace users’ means operators of aircraft operated in accordance with general air traffic rules;
(15) ‘alerting service’ means a service provided to notify relevant organisations regarding aircraft in need of search and rescue aid, and to assist such organisations as required;
(16) ‘approach control service’ means an ATC service for arriving or departing controlled flights;
(17) ‘area control service’ means an ATC service for controlled flights in control areas;
(18) ‘baseline value’ means a value defined for the purpose of setting performance targets and estimated by using actual costs or actual unit costs during the year preceding the start of the relevant reference period;
(19) ‘benchmark group’ means a group of air traffic service providers with a similar operational and economic environment;
(20) ‘breakdown value’ means the value obtained, for a given air traffic service provider, by breaking down a Union-wide performance target to the level of one or more air traffic service providers and serving as a reference for assessing consistency of the performance target set in the draft performance plan with the Union-wide performance target;
(21) ‘certificate’ means a ‘certificate’ as defined in Article 3, point (12), of Regulation (EU) 2018/1139;
(22) ‘common information service’ or ‘CIS’ means a service consisting in the dissemination of static and dynamic data to enable the provision of U-space services for the management of traffic of unmanned aircraft;
(23) ‘U-space airspace’ means a UAS geographical zone designated by Member States, where UAS operations are only allowed to take place with the support of U-space services;
(24) ‘U-space service’ means a service relying on digital services and automation of functions designed to support safe, efficient and secure access to U-space airspace for a large number of UAS;
(25) ‘U-space service provider’ means any legal person providing U-space services;
(26) ‘communication services’ means aeronautical fixed and mobile services to enable ground-to-ground, air-to-ground and air-to-air communications for ATC purposes;
(27) ‘constituents’ means tangible objects, such as hardware, and intangible objects, such as software, upon which the interoperability of the European air traffic management network (EATMN) depends;
(28) ‘control area’ means a controlled airspace extending upwards from a specified limit above the earth;
(29) ‘cooperative decision-making’ means a process in which decisions are made based on interaction and consultation with the relevant Member State authorities, operational stakeholders and other actors, as appropriate, and aiming to achieve consensus;
(30) ‘cross-border services’ means air navigation services provided in one Member State by a service provider having its principal place of business in another Member State;
(31) ‘declaration’ means, for the purposes of air traffic management and air navigation services, a ‘declaration’ as defined in Article 3, point (10), of Regulation (EU) 2018/1139;
(32) ‘design of airspace structures’ means a process that ensures the development and implementation of advanced navigational capabilities and techniques, improved route networks and associated sectorisation, optimised airspace structures and capacity-enhancing ATM procedures;
(33) ‘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 is established;
(34) ‘Eurocontrol’ is the European Organisation for the Safety of Air Navigation set up by the International Convention of 13 December 1960 relating to Cooperation for the Safety of Air Navigation;
(35) ‘European air traffic management network’ (EATMN) means the collection of systems, referred to in point 3.1 of Annex VIII to Regulation (EU) 2018/1139, enabling air navigation services in the Union to be provided, including the interfaces at boundaries with third countries;
(36) ‘European ATM Master Plan’ means the plan endorsed by Council Decision 2009/320/EC (18), as subsequently amended;
(37) ‘flexible use of airspace’ means an airspace management concept, as described by ICAO, based on the fundamental principle that airspace should not be designated as either pure civil or military airspace, but should rather be considered as a continuum in which all user requirements have to be accommodated to the extent possible;
(38) ‘flight information service’ means a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights;
(39) ‘flight procedures design’ means all tasks relevant to the design of an instrument flight procedure;
(40) ‘general air traffic’ means all movements of civil aircraft, as well as all movements of state aircraft (including military, customs and police aircraft) when those movements are carried out in conformity with the procedures of the International Civil Aviation Organisation (ICAO) as established by the Chicago Convention;
(41) ‘Instrument flight rules’ or ‘IFR’ are rules which allow an aircraft which is equipped with suitable navigation equipment appropriate to the route to be flown in accordance with the applicable requirements on air operations;
(42) ‘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 is to be submitted;
(43) ‘interoperability’ means a set of functional, technical and operational properties required of the systems and constituents of the EATMN and of the procedures for its operation, in order to enable its safe, seamless and efficient operation;
(44) ‘meteorological services for air navigation’ or ‘MET’ means the facilities and services that provide meteorological forecasts, warnings, briefings and observations for air navigation purposes, as well as any other meteorological information and data provided by States for aeronautical use;
(45) ‘national competent authority’ means a national competent authority as defined in Article 3, point (34), of Regulation (EU) 2018/1139;
(46) ‘national supervisory authority’ means the national body or bodies entrusted by a Member State with the tasks under this Regulation;
(47) ‘navigation services’ means the facilities and services that provide aircraft with positioning and timing information;
(48) ‘network crisis’ means a state of inability to provide air traffic management or air navigation services at the required level, resulting in a major loss of network capacity; a major imbalance between network capacity and demand; or a major failure in the information flow in, or in the integrity of, one or several parts of the network following an unusual or unforeseen situation;
(49) ‘Network Manager’ means the entity entrusted with the tasks necessary to contribute to the execution, in accordance with Article 38, of the network functions referred to in Article 37;
(50) ‘Network Operations Plan’ or ‘NOP’ means a plan established through cooperative decision-making process to implement at operational level the objectives of the network functions, and to contribute to performance objectives;
(51) ‘Network Strategy Plan’ or ‘NSP’ means a plan established through cooperative decision-making process guiding the network’s long-term development;
(52) ‘operational air traffic’ means all flights, which do not comply with the provisions stated for general air traffic and for which rules and procedures have been specified by appropriate national authorities;
(53) ‘operational data’ means information concerning all phases of flight that is required for operational purposes by air navigation service providers, airspace users, airport operators and other actors involved;
(54) ‘operational stakeholders’ means the civil and military airspace users, civil and military air navigation service providers and airport operators;
(55) ‘performance plan’ means a plan aimed at improving the performance of air navigation services and network functions;
(56) ‘putting into service’ means the first operational use after the initial installation or upgrade of a system;
(57) ‘route network’ means a network of specified routes for channelling the flow of general air traffic as necessary for the provision of ATC services;
(58) ‘SESAR definition phase’ means the phase comprising the establishment and updating of the long-term vision of the SESAR project, of the related concept of operations enabling improvements at every stage of flight, of the required essential operational changes within the EATMN and of the required development and deployment priorities;
(59) ‘SESAR deployment phase’ means the successive phases of industrialisation and implementation, during which the following activities are conducted: standardisation, production and certification of ground and airborne equipment and processes necessary to implement SESAR solutions (industrialisation); and procurement, installation and putting into service of equipment and systems based on SESAR solutions, including associated operational procedures (implementation);
(60) ‘SESAR development phase’ means the phase during which research, development and validation activities aiming to deliver mature SESAR solutions are conducted;
(61) ‘SESAR project’ means the project to modernise air traffic management in Europe, aimed at providing the Union with a high performance, standardised and interoperable air traffic management infrastructure, and consisting in an innovation cycle that includes the SESAR definition phase, the SESAR development phase and the SESAR deployment phase;
(62) ‘SESAR solution’ means a deployable output of the SESAR development phase introducing new or improved standardised and interoperable operational procedures or technologies;
(63) ‘surveillance services’ means the facilities and services used to determine the respective positions of aircraft to allow safe separation;
(64) ‘system’ means the aggregation of airborne and ground-based constituents, as well as space-based equipment, that provides support for air navigation services for all phases of flight;
(65) ‘terminal charging zone’ means an airport or a group of airports located within the territories of a Member State or Member States, where terminal air navigation services are provided and for which a single cost base is established;
(66) ‘upgrade’ means any modification that changes the operational characteristics of a system;
(67) ‘utilisation of airspace structures’ means the way that airspace structures are operationally used, which is to be understood as different from airspace management as defined in point 12.
Article 3
Functional airspace blocks
Member States may maintain the cooperation and coordination within the airspace of functional airspace blocks formerly established under Article 9a of Regulation (EC) No 550/2004 with the view to fostering the performance of the air traffic management network within the Single European Sky, in particular by submitting joint performance plans in accordance with Article 23(7) of this Regulation, provided that this does not affect the efficient implementation of this Regulation and that costs related to functional airspace blocks are reported separately, as part of the data to be provided under the charging scheme set out in Articles 29 to 36 of this Regulation.
CHAPTER II
NATIONAL SUPERVISORY AUTHORITIES
Article 4
Nomination, establishment and requirements regarding national supervisory authorities
Member States shall, jointly or individually, nominate or establish a body or bodies as their national supervisory authority to assume the tasks assigned to such an authority by this Regulation.
The national supervisory authority shall exercise its powers impartially, independently and transparently and shall be organised, staffed, managed and financed accordingly.
Without prejudice to paragraph 1, national supervisory authorities shall be independent from any air navigation service providers, in organisational, hierarchical and decision-making terms, and shall be either legally or functionally distinct from air navigation service providers. In addition, air navigation service providers shall have no decision-making power over the allocation of the budgets of national supervisory authorities. Provided that such independence is guaranteed, a national supervisory authority may be part of the same national ministry or administration as an air navigation service provider.
Where a national supervisory authority is not legally distinct from an air navigation service provider, the Member State concerned shall inform the Commission on the measures it has taken to ensure that the national supervisory authority meets the requirements of paragraph 3 and shall document how its independence is achieved, showing the effectiveness of such independence. To this end, where the national supervisory authority and the air navigation service provider are part of the same administration, the national supervisory authority shall not seek or take instructions from a hierarchical level of that administration having authority over the air navigation service provider, in so far as their tasks under Article 5 and related decisions are concerned.
A national supervisory authority may be joined with another regulatory authority, such as a national competent authority or national competition authority as referred to in Article 11 of Council Regulation (EC) No 1/2003 (19), provided that the decisions related to the tasks conferred on the national supervisory authority under this Regulation are taken independently from other tasks conferred on the joint authority. In that case, the joint authority shall fulfil the independence requirements set out in this Article.
The national supervisory authority shall be represented in matters related to the tasks set out in Article 5 of this Regulation in a manner that ensures the independence of its decisions.
Without prejudice to national law regarding the recruitment of public servants, Member States shall ensure that the staff of their national supervisory authorities, including temporary staff, is recruited through clear and transparent recruitment processes, which ensures their independence and shall ensure that the staff of national supervisory authorities is selected on the basis of specific qualifications, including appropriate competence and relevant experience, or is subject to appropriate training, for the effective performance of the tasks set out in Article 5.
Member States shall lay down rules to avoid conflicts of interest for staff, including persons who take decisions exercising the powers set out in Chapter III of this Regulation, so that the national supervisory authorities can carry out the tasks set out in Article 5 independently.
Without prejudice to Article 30(3), Member States shall ensure that national supervisory authorities have the necessary financial resources and capabilities to carry out the tasks set out in Article 5 in an efficient and timely manner.
Member States shall notify the Commission of the names and addresses of their national supervisory authorities, and of changes thereto, and of the measures taken to ensure compliance with this Article.
Article 5
Tasks of the national supervisory authorities
A national supervisory authority shall carry out the tasks assigned to it under this Regulation and under Regulation (EU) 2018/1139 and the implementing acts adopted on the basis thereof. In particular, a national supervisory authority shall:
(a) assess and oversee the fulfilment of requirements regarding financial robustness, liability, insurance cover, ownership and organisational structure referred to in point 7 of Annex VIII to Regulation (EU) 2018/1139 and of the requirements set out in the implementing acts referred to in Article 43 of that Regulation;
(b) verify compliance with, and the fulfilment of national security and defence requirements by the service providers referred to in Article 8(2), point (b) and Article 11(6), point (d), unless this task is assigned to another authority by the Member State; where a Member State decides to assign this task to another authority, it shall inform the Commission;
(c) without prejudice to Directive 2014/25/EU and Directive 2014/24/EU, contribute when relevant and as appropriate to the correct application of procurement requirements in accordance with Article 11 of this Regulation;
(d) assess and approve price setting for the provision of CIS, in accordance with Article 12;
(e) implement and monitor the performance and charging schemes in accordance with and within the limits of their tasks under Articles 21 to 27 and 29 to 32 and with the implementing acts referred to in Articles 28 and 33;
(f) oversee the application of this Regulation with regard to the transparency of the accounts of air navigation service providers in accordance with Article 36.
For the purposes of point (a), a Member State may decide to attribute the assessment and oversight of the compliance by the air navigation service provider with the requirements set out in that point to its national competent authority and, in such a case, shall ensure that that national competent authority disposes of sufficient resources and expertise to execute those tasks and shall inform the Commission thereof;
Each national supervisory authority shall, in cooperation with the national competent authority, and without prejudice to Article 4(5), conduct the necessary monitoring activities, including, as appropriate, inspections and audits, to identify possible non-compliance by entities subject to its oversight under this Regulation with the requirements set out in this Regulation and the implementing acts adopted on the basis thereof.
Without prejudice to Article 5(1), second subparagraph, of this Regulation, the national supervisory authority shall provide the national competent authority with its assessment of the compliance by the air navigation service provider with the requirements listed in point 7 of Annex VIII to Regulation (EU) 2018/1139 regarding financial robustness, liability, insurance cover, ownership and organisational structure. That assessment shall, where appropriate, include a recommendation for amending, limiting, suspending or revoking the certificate pursuant to Article 41 of Regulation (EU) 2018/1139.
In the event of non-compliance by entities subject to their oversight under this Regulation with other requirements set out in this Regulation, the national supervisory authority shall enforce the necessary corrective measures.
The air navigation service providers, airport operators and the CIS providers concerned shall comply with any enforcement measures taken by the national supervisory authorities in that context.
Member States shall ensure that the decisions taken by national supervisory authorities pursuant to this Article are subject to the right of appeal, in accordance with national legislation.
Article 6
Cooperation between national supervisory authorities
The national supervisory authorities shall exchange, in the framework of the National Supervisory Authorities Cooperation Board referred to in Article 18, information relevant for other national supervisory authorities, in particular information relating to their work and decision-making process, best practices and procedures in the application of this Regulation.
The national supervisory authorities shall cooperate, where appropriate, through working arrangements, for the purposes of mutual assistance in their tasks laid down in Article 5 and the handling of investigations and surveys.
In the case of cross-border provision of air navigation services in airspaces falling under the responsibility of two or more Member States, the Member States concerned shall ensure that the necessary agreements for the supervision of those services are concluded. The national supervisory authorities concerned shall facilitate the provision of those cross-border services by air navigation service providers and may establish appropriate working arrangements or oversight plans specifying the implementation of their cooperation.
In the case of cross-border provision of air navigation services in an airspace falling under the responsibility of another Member State, the agreements referred to in paragraph 3 shall provide for the mutual recognition of the discharge, by each of the Member States or their authorities, of the tasks set out in this Regulation and of the results of the discharge of these tasks. They shall also specify which national supervisory authority shall be in charge of the tasks set out in Article 5(1).
Where permitted by national law and with a view to regional cooperation, national supervisory authorities may also conclude agreements on the division of responsibilities regarding the supervisory tasks.
Agreements referred to in this Article shall be notified by the Member States concerned to the Commission.
CHAPTER III
SERVICE PROVISION
Article 7
Provision of services by air navigation service providers
Without prejudice to Articles 8, 10 and 11(6) of this Regulation, an entity that complies with the requirements set out in Articles 40 and 41 of Regulation (EU) 2018/1139 and in the implementing and delegated acts referred to in Articles 43 and 47 respectively of that Regulation shall be entitled to provide within the Union air navigation services for airspace users, under non-discriminatory conditions.
Without prejudice to the national arrangements resulting from Article 4(5) and to Article 5(1), second subparagraph, of this Regulation, the national supervisory authorities of the Member State whose national competent authority is responsible for the certification referred to in Article 41 of Regulation 2018/1139, pursuant to Article 62 of that Regulation, shall be responsible for the tasks set out in this Article in respect of assessing compliance with the essential requirements regarding financial robustness, liability, insurance cover, ownership and organisational structure listed in point 7 of Annex VIII to Regulation (EU) 2018/1139.
Without prejudice to the national arrangements resulting from Article 4(5) and to Article 5(1), second subparagraph, of this Regulation, with a view to establishing whether an entity complies with the essential requirements regarding financial robustness, liability, insurance cover, ownership and organisational structure listed in point 7 of Annex VIII to Regulation (EU) 2018/1139 and with the requirements set out in the implementing acts referred to in Article 43 of that Regulation, national supervisory authorities shall:
(a) assess the compliance of applicants for certification, in accordance with Article 41(2) of Regulation (EU) 2018/1139, with the essential requirements regarding financial robustness, liability, insurance cover, ownership and organisational structure listed in point 7 of Annex VIII of that Regulation and with the requirements set out in the implementing acts referred to in Article 43 of that Regulation and provide its assessment to the competent authority referred to in Article 62 of that Regulation;
(b) pursuant to Article 5(2) of this Regulation, perform the oversight of holders of a certificate issued in accordance with Article 41 of Regulation (EU) 2018/1139, with respect to the compliance with the essential requirements regarding financial robustness, liability, insurance cover, ownership and organisational structure listed in point 7 of Annex VIII to that Regulation and with the requirements set out in the implementing acts referred to in Article 43 of that Regulation.
Notwithstanding paragraph 1 of this Article and subject to the conditions set out in Article 2(5) of Regulation (EU) 2018/1139, Member States may allow the provision of air navigation services referred to in Article 2(3), point (c), of Regulation (EU) 2018/1139 in all or part of the airspace under their responsibility by the military without certification where the military offers such services primarily to aircraft movements other than general air traffic. In such cases, the Member State concerned shall inform the Commission and the other Member States of its decision.
Article 8
Designation of air traffic service providers
Member States shall ensure the provision of air traffic services on an exclusive basis within specific airspace blocks in respect of the airspace under their responsibility. For this purpose, Member States shall individually or collectively, designate one or more air traffic service providers. Member States shall have discretionary powers in designating air traffic service providers on condition that such air traffic service providers fulfil the requirements laid down in this Article without prejudice to Article 11(3).
Air traffic service providers shall fulfil the following cumulative conditions:
(a) hold a certificate pursuant to Article 41 of Regulation (EU) 2018/1139 or a valid declaration pursuant to Article 41(5) of Regulation (EU) 2018/1139, without prejudice to Article 7(4) of this Regulation;
(b) comply with the national security and defence requirements;
(c) have their principal place of business located in the territory of a Member State; and
(d) be owned more than 50 % by Member States or nationals of Member States and effectively controlled by them, whether directly or indirectly through one or more intermediate undertakings, except where otherwise provided for in an agreement with a third country to which the Union is a party.
By way of derogation from points (c) and (d), a Member State may designate an air traffic service provider having its principal place of business in a third country or which does not comply with the ownership and control conditions set out in point (d) to provide air traffic services in a limited part of the airspace for which that Member State is responsible where that part of the airspace borders airspace under the responsibility of that third country.
The designation of an air traffic service provider shall not be subject to any condition requiring that provider to:
(a) be owned directly or through a majority holding by the designating Member State or its nationals;
(b) have its principal place of operation or registered office in the territory of the designating Member State; or
(c) use only facilities in the designating Member State,
where the application of such condition entails a restriction of the freedom to provide services or the freedom of establishment which is not justified in the light of a legitimate objective of general interest, such as public policy, public security or safety, and is not proportionate to that objective.
Where relevant, Member States shall specify the rights and obligations to be met by the air traffic service providers designated in accordance with this Article. Those obligations may include conditions for the timely supply of relevant information enabling all aircraft movements to be identified in the airspace under their responsibility.
Member States shall assess the rights and obligations referred to in paragraph 4 and compliance with the obligations stemming from this Regulation and from Regulation (EU) 2018/1139 periodically, or whenever they identify relevant changes in the provision of the services, and, if deemed necessary, shall take appropriate decisions regarding the designation of the air traffic service providers concerned, without prejudice to service continuity.
Member States shall inform the Commission and other Member States without delay of any decision taken on the basis of this Article regarding the designation of an air traffic service provider within specific airspace blocks in respect of the airspace under their responsibility.
Article 9
Relations between air navigation service providers
Without prejudice to Article 7(4) of this Regulation, air navigation service providers may avail themselves of the services of other service providers that are certified or that declared their capability in accordance with Article 41 of Regulation (EU) 2018/1139. Such cooperation shall be made in accordance with Article 11 of this Regulation where applicable.
For air traffic service providers designated in accordance with Article 8 and MET providers designated in accordance with Article 10, such cooperation shall be subject to the authorisation of the Member States concerned.
For the purpose of paragraph 1, air navigation service providers shall formalise their working relationships by means of written agreements or equivalent legal arrangements, setting out the specific duties, including any financial settlements applicable, and the functions assumed by each provider. Those agreements or arrangements shall be notified to the national supervisory authority and the national competent authority concerned.
Article 10
Designation of MET providers
Member States may designate, individually or collectively, a MET provider on an exclusive basis in all or part of the airspace under their responsibility, taking into account safety considerations.
Member States shall inform the Commission and other Member States without delay of any decision taken on the basis of this Article.
Article 11
Conditions regarding the provision of CNS, AIS, ADS, MET and of air traffic services for approach and aerodrome control
Without prejudice to Directive 2014/24/EU of the European Parliament and of the Council (20) and Directive 2014/25/EU of the European Parliament and of the Council (21), where applicable, designated air traffic service providers may decide to procure CNS, AIS or ADS, or MET services in cases where Member States have not designated a MET provider in accordance with Article 10, under market conditions, including by means of public procurements, or other forms of agreements in cases those Directives do not apply, taking into account specific situations such as lack of solutions available on the market and considerations relating to the public interest.
Member States may allow airport operators or a group of airport operators to procure air traffic services for aerodrome control and/or air traffic services for approach control under market conditions. To this end, Member States may require from the airport operators a proper justification that this will enable quality of service gains to be made for the benefit of airspace users, while maintaining the required level of safety.
Where the procurement referred to in paragraph 2 is allowed, the relevant airport operator or a group of airport operators shall ensure that the technical requirements in the tender specifications include requirements on service quality. Member States shall designate the service provider selected as a result of the procurement referred to in this paragraph.
Where air navigation services are procured under market conditions, procurement procedures for the provision of air navigation services shall be carried out in accordance with the principles of equal treatment, non-discrimination and transparency as well as of the applicable provisions of the Treaty and in accordance with Directives 2014/24/EU and 2014/25/EU, where applicable.
Member States shall take all necessary measures to ensure that the provision of en route air traffic services respects the requirement concerning the separation of accounts referred to in Article 36(3).
In addition, where the air navigation service provider intends to participate in procurement procedures for the provision of air navigation services in accordance with paragraphs 1 and 2, the relevant Member State shall take appropriate measures to avoid cross-subsidisation with other air navigation services.
A provider of CNS, AIS, ADS, MET or air traffic services for aerodrome control or for approach control may only be selected and, if appropriate, designated to provide services in a Member State as a result of a procurement pursuant to paragraphs 1, 2 or 3, on the condition that it complies with the following cumulative conditions:
(a) holds a certificate pursuant to Article 41 of Regulation (EU) 2018/1139 or a valid declaration pursuant to Article 41(5) of Regulation (EU) 2018/1139, without prejudice to Article 7(4) of this Regulation;
(b) has its principal place of business located in the territory of a Member State;
(c) be more than 50 % owned by Member States or nationals of Member States and effectively controlled by them, whether directly or indirectly through one or more intermediate undertakings, except as provided for in an agreement with a third country to which the Union is a party; and
(d) complies with national security and defence requirements.
By way of derogation from this paragraph, a provider of global satellite services that was granted a certificate pursuant to Article 41 of Regulation (EU) 2018/1139 to provide services within the Union prior to the entry into force of this Regulation may be selected to provide services in the Union even if it does not comply with the conditions set out in points (b) and (c).
Articles 23, 24, 25 and 27 and the implementing rules relating to those Articles referred to in Article 28 shall not apply to the air traffic service providers designated as a result of a procurement procedure conducted in accordance with paragraphs 2 and 3 of this Article. The air traffic service providers concerned shall provide data on the performance of air navigation services in the key performance areas referred to in Article 21(3), point (a) and in safety area to the national supervisory authority. The national supervisory authority shall provide this information to the Commission without delay.
Without prejudice to Directive 2014/25/EU or 2014/24/EU, the first time that an air traffic service for approach or aerodrome control is procured at a given airport in accordance with paragraph 2 of this Article, and when essential conditions would require a change of tender specifications, Member States shall ensure the verification of the technical requirements on service quality included in the tender specifications for the specific service concerned.
Article 12
Provision of common information services
Where CIS are provided, the data disseminated shall present the integrity and quality necessary to enable the safe and secure provision of services for the management of traffic of unmanned aircraft in a way that enables the shared use of the airspace together with manned aircraft.
The CIS provider shall fulfil the following cumulative requirements:
(a) comply with the national security and defence requirements;
(b) have its principal place of business located in the territory of a Member State; and
(c) be more than 50 % owned by Member States or nationals of Member States and effectively controlled by them, whether directly or indirectly through one or more intermediate undertakings, except where otherwise provided for in an agreement with a third country to which the Union is a party.
Where CIS are provided by a single CIS provider designated by the Member State in respect of a specific U-space airspace, the price for these services shall be based on the fixed and variable costs of providing the service concerned and may, in addition, include a mark-up reflecting an appropriate risk-return trade-off. Where CIS are not provided by a single CIS provider, the individual CIS shall be provided for free.
The costs on the basis of which the price for CIS is set shall be set out in an account separate from the accounts for any other activities of the service provider concerned and shall be accessible by the national supervisory authority concerned. Those costs shall be made publicly available without prejudice to Article 52(3).
The price set by the CIS provider shall be subject to assessment and approval by the national supervisory authority concerned. The price of such services shall be made publicly available.
Data necessary for the operation of unmanned aircraft in the U-Space airspace shall be made available on a non-discriminatory basis, without prejudice to national security, public order and defence policy interests, by air navigation service providers. CIS providers and U-Space service providers shall use those data only for operational purposes of the services they provide.
Prices for access to such data shall be based on the additional costs of making the data available and the cost for generating the data, where the latter costs are not covered under Article 30 and unless other financial resources are used by Member States to cover such costs.
Article 13
Establishment and role of the Performance Review Board
An independent and impartial advisory Performance Review Board (PRB) is hereby established. The PRB shall be represented by its chair and supported by a secretariat.
The role of the PRB shall be to assist the Commission to carry out the tasks of the Commission related to the detailed functioning of the performance and charging schemes laid down in Articles 21 to 27 and in Articles 29 to 32, respectively, as well as under Article 34, and in the implementing acts referred to in Articles 28 and 33. For this purpose, the PRB shall provide opinions, recommendations, guidance material and reports to the Commission, in line with the priorities defined by the Commission.
The PRB shall issue guidance material to support national supervisory authorities, and, upon request, assist those authorities for the implementation of the performance and charging schemes.
The opinions, recommendations, reports and guidance material adopted or provided by the PRB shall not be binding. The PRB shall have a purely advisory role. It shall have no regulatory function or other decision-making power except for the adoption of its opinions, recommendations, guidance material and reports.
Article 14
Composition of the PRB
The PRB shall be composed of seven members, including its chair. Members of the PRB shall be Union nationals or nationals of third countries with which the Union has concluded an agreement under which those countries apply the relevant rules of Union law in the field of air traffic management and the performance and charging schemes. The non-renewable term of office of PRB members shall be 5 years.
The members of the PRB, including the Chair, shall be appointed on the basis of merit and of skills and experience relevant to air traffic management, air navigation services or the economic regulation of network industries, in accordance with the selection and eligibility criteria defined in the implementing act adopted in accordance with Article 20. The appointment process for such members shall ensure a balanced representation of competence and expertise as well as of gender and geographical origin.
The Commission shall, following a public call for expression of interest, establish the list of candidates to be members, and the Chair, of the PRB who comply with the conditions set out in paragraph 2.
The members and the Chair of the PRB shall be appointed by the Commission from that list, after consulting the Member States and following a selection procedure established on the basis of Article 20.
The Commission may establish a reserve list on the basis of the list referred to in paragraph 3, first subparagraph.
A member who is no longer capable of contributing effectively to the work of the PRB, who resigns or who no longer complies with the conditions set out in this Article shall be replaced by a person from the reserve list, appointed in accordance with the procedure referred to in paragraph 3, second subparagraph, for the remainder of the term of office of that member.
The Commission shall inform the Member States of the results of the calls for applications and of the lists referred to in paragraphs 3 and 4.
Article 15
Independence of the PRB
Without prejudice to Article 16(6), Members of the PRB shall not seek or take instructions from any government, institution, person or body. The PRB shall be fully independent when adopting its opinions, recommendations, reports and guidance materials.
Members of the PRB shall be impartial and act independently of any external influence and in the public interest.
For this purpose, they shall demonstrate independence and absence of conflicts of interest and shall be subject to the obligation of professional secrecy, in accordance with the rules laid down in the implementing act adopted in accordance with Article 20.
Article 16
Procedures and functioning of the PRB
The PRB shall decide by a simple majority of its members, while aiming to achieve consensus. Each member, including the chair, shall have one vote.
The PRB shall adopt its own rules of procedure and set up its working arrangements, in line with the Commission’s internal rules for expert groups.
The Commission may attend, without the right to vote, the meetings of the PRB, with the exception of the final deliberations of the PRB for the adoption of its opinions, recommendations, reports and guidance material. The relevant stakeholders referred to in Article 49(3) may be invited, without the right to vote, to the meetings of the PRB, with the exception of the final deliberations of the PRB for the adoption of its opinions, recommendations, reports and guidance material, on an ad hoc basis.
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