Nomination, establishment and requirements regarding national supervisory authorities
1. 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.
2. The national supervisory authority shall exercise its powers impartially, independently and transparently and shall be organised, staffed, managed and financed accordingly.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
Tasks of the national supervisory authorities
1. 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;
2. 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.
3. 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.
Cooperation between national supervisory authorities
1. 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.
2. 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.
3. 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.
4. 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).
5. 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.
6. Agreements referred to in this Article shall be notified by the Member States concerned to the Commission.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
