Provision of services by air navigation service providers
1. 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.
2. 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.
3. 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.
4. 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.
Designation of air traffic service providers
1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
Relations between air navigation service providers
1. 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.
2. 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.
Designation of MET providers
1. 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.
2. Member States shall inform the Commission and other Member States without delay of any decision taken on the basis of this Article.
Conditions regarding the provision of CNS, AIS, ADS, MET and of air traffic services for approach and aerodrome control
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
Provision of common information services
1. 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.
2. 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.
3. 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.
4. 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).
5. 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.
6. 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.
Establishment and role of the Performance Review Board
1. 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.
2. 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.
3. 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.
4. 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.
Composition of the PRB
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
Independence of the PRB
1. 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.
2. 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.
Procedures and functioning of the PRB
1. 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.
2. 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.
3. 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.
4. The PRB shall work on the basis of an annual work programme established by the PRB in line with the Commission’s priorities. That work programme shall fully respect the role of the PRB laid out in Article 13(2) and include all activities, within the available budget, necessary to assist the Commission in respect to the tasks of the Commission referred to in Article 13(2), including in order to allow the Commission to respect the required timeframes to implement its tasks. The PRB shall adopt the work programme after consulting the Commission. The PRB shall provide an annual report for publication by the Commission. The annual work programme and the annual report shall be provided by the Commission to the Member States. The annual report shall cover all activities of the PRB and contain information on the costs of the PRB.
5. The Commission shall grant access to the PRB to all relevant information for the execution of its advisory role.
6. The Commission shall monitor the functioning of the PRB and its compliance with this Regulation and regularly inform the Member States on the progress of PRB work.
Secretariat of the PRB
1. The Commission shall provide the secretariat of the PRB, including the necessary analytical, administrative and technical support, taking into account the needs indicated by the PRB.
2. The main task of the secretariat shall be to contribute to the independent execution of the tasks of the PRB. For the purpose of preparing the content and orientations of the opinions, recommendations, reports and guidance material of the PRB, the secretariat shall provide its support to the PRB without taking any directives except from the PRB in order to enable it to fulfil its role. The secretariat shall be adequately resourced for the performance of its tasks.
National Supervisory Authorities Cooperation Board
1. The National Supervisory Authorities Cooperation Board is hereby established.
2. The National Supervisory Authorities Cooperation Board shall:
(a)
exchange information about the work of national supervisory authorities and decision-making principles, best practices and procedures with regard to the implementation of the Regulation;
(b)
provide recommendations to the PRB on the guidance material and reports to be issued by it;
(c)
provide recommendations to the PRB for complementary items in the annual work programme of the PRB.
3. The National Supervisory Authorities Cooperation Board shall be composed of a representative and an alternate from the national supervisory authority of each Member State, both of whom shall be nominated by the national supervisory authority. The National Supervisory Authorities Cooperation Board shall elect a Chairperson and a Deputy-Chairperson from among its members. The National Supervisory Authorities Cooperation Board shall adopt its decisions by simple majority of its members. The Commission may attend the meetings of the National Supervisory Authorities Cooperation Board, without voting rights. The PRB may be invited to those meetings, on an ad hoc basis, without voting rights. Third countries may be invited to those meetings, on an ad hoc basis, without voting rights subject to the consensual agreement of the members of the National Supervisory Authorities Cooperation Board.
4. The Secretariat referred to in Article 17 shall provide the necessary administrative and technical support to the National Supervisory Authorities Cooperation Board.
Financing of the PRB
The costs related to the Performance Review Board, the secretariat and the National Supervisory Authorities Cooperation Board shall be financed from the budget of the Union.
Implementing acts on the PRB
The Commission shall adopt implementing acts laying down detailed rules for the implementation of Articles 13 to 19, including on:
(a)
the tasks and the functioning of the PRB;
(b)
the selection procedure of the members of the PRB, including the Chair;
(c)
rules preventing conflicts of interest and preserving the independence of the PRB.
Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
Performance scheme
1. To improve the performance of air navigation services and network management in the Single European Sky, a performance scheme for air navigation services and network management shall apply in accordance with this Article and Articles 22 to 28.
2. This Article and Articles 22 to 28 shall not apply to terminal air navigation services provided at airports, located in the territory of the Member States to which the Treaty applies, with less than 80 000 IFR air transport movements per year. However, a Member State may decide that such terminal air navigation services are subject to those Articles.
3. The performance scheme shall be implemented over reference periods, which shall be a minimum of 3 years and a maximum of 5 years. The performance scheme shall include:
(a)
key performance areas of climate and environment, capacity and cost-efficiency;
(b)
Union-wide performance targets for en route air navigation services in the key performance areas mentioned in point (a) for each reference period;
(c)
performance plans including, for each reference period:
(i)
binding performance targets and where applicable, incentive schemes, for en route air navigation services, in the key performance areas mentioned in point (a);
(ii)
binding performance targets and where applicable, incentive schemes, for terminal air navigation services in the key performance areas of cost-efficiency and capacity; and
(iii)
where the Commission has adopted an implementing act setting key performance indicators for terminal air navigation services in the key performance area of climate and environment on the basis of Article 28, point (g), under the conditions set out therein, binding performance targets for terminal air navigation services in that key performance area of climate and environment and where applicable, incentive schemes;
(d)
periodic review and monitoring of performance in the key performance areas mentioned in point (a) and of relevant safety indicators defined in coordination with the Agency.
4. The performance scheme referred to in paragraphs 1 and 3 shall be based on:
(a)
the collection, validation, examination, evaluation and dissemination of relevant data related to the performance of air navigation services and network management from all relevant parties, including air navigation service providers, airspace users, airport operators, national supervisory authorities, national competent authorities, and other national authorities, the Agency, the Network Manager and Eurocontrol;
(b)
key performance indicators for target setting in the key performance areas referred to in paragraph 3, point (a) of this Article, without prejudice to paragraph 3, point (c)(iii) of this Article,and to Article 28, point (g);
(c)
indicators for monitoring performance in the key performance areas referred to in paragraph 3, point (a) and relevant safety indicators defined in coordination with the Agency;
(d)
a methodology to calculate breakdown values;
(e)
procedures for the establishment and revision of performance plans and of performance targets for air navigation services, and for the network management, as well as the templates, content and timetables of such plans;
(f)
the assessment of the draft performance plans and targets for air navigation services and network management;
(g)
monitoring of performance plans, including appropriate alert mechanisms for revision of performance plans and targets and for the revision of Union-wide performance targets in the course of a reference period;
(h)
benchmarking of air navigation service providers designated under Articles 8 and 10 where relevant;
(i)
incentive schemes including both financial positive incentives and disincentives;
(j)
risk-sharing mechanisms in respect of traffic and costs;
(k)
timetables for target setting, assessment of performance plans and targets, monitoring and benchmarking;
(l)
general principles established by the Commission on a proportional allocation of costs common to en route and terminal air navigation services between the two categories of services;
(m)
mechanisms to address unforeseeable and significant events which have a material impact on the implementation of the performance and charging schemes.
The financial positive incentives and disincentives referred to in point (i) shall be proportionate to the magnitude of the deviation of the achieved performance from the target. They shall take into account the impact on the network and the extent to which the air navigation service provider has reasonable means to mitigate the impact of external factors. The incentives and disincentives shall be set at a level effectively fostering the quality-of-service provision and shall not impair the ability of the air navigation service provider to comply with its obligations under Regulation (EU) 2018/1139, including on financial robustness.
In order to lay down the general principles referred to in point (l), the Commission shall review the existing national criteria to allocate costs common to en route and terminal air navigation services and shall consult national supervisory authorities and stakeholders. Based on this review, the Commission shall establish or, as appropriate, update those general principles no later than 12 months before the start of each reference period.
5. The setting of the performance targets included in the performance plans, the preparation and the assessment of draft performance plans and the monitoring and benchmarking of the performance of the air navigation services and network management shall take into account the impact of local circumstances as well as external factors that the air navigation service provider has no reasonable means to mitigate where appropriate.
The impact of local circumstances already taken into account in the setting of Union-wide performance targets, in accordance with Article 22(2), point (d), and in the setting of breakdown values established under Article 22(1) shall subsequently not be taken into account when assessing the consistency of the performance targets included in the draft performance plan with Union-wide performance targets in order to justify the deviation of those former targets from those latter targets. The impact of local circumstances already taken into account for setting the performance targets included in the draft performance plan shall subsequently not be taken into account when monitoring the achievement of those targets.
6. The level of the performance targets referred to in paragraph 3, point (c)(iii) shall be set taking into account local circumstances, in particular local environmental policy requirements.
7. For the purpose of implementing the performance scheme established under this Regulation, account shall be taken of the fact that en route air navigation services, terminal air navigation services and network functions have different characteristics and shall therefore be treated accordingly, including, if necessary, for performance-measuring purposes.
Establishment of the Union-wide performance targets
1. In accordance with paragraphs 2 to 3 of this Article, the Commission shall adopt implementing acts setting the Union-wide performance targets for en route air navigation services, in the key performance areas referred to in Article 21(3), point (a), for each reference period, and define the duration of that period. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(3).
In conjunction with those Union-wide performance targets, the Commission may adopt implementing acts, setting complementary baseline values, alert thresholds, breakdown values and benchmark groups. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(3).
2. Union-wide performance targets referred to in paragraph 1 and performance targets for en route and terminal air navigation services defined by Member States at national level, referred to in Article 21(3), point (c), shall be defined on the basis of the following essential criteria:
(a)
they shall strive to achieve gradual improvements in respect of the climate and environmental, operational and economic performance of air navigation services;
(b)
they shall be realistic and achievable during the reference period concerned, enabling the efficient, sustainable and resilient provision of air navigation services whilst fostering longer term technological developments;
(c)
they shall take into account the economic and operational context of the reference period, including traffic forecast and operational data, as well as the interdependencies between the key performance areas referred to in Article 21(3), points (a) and (c), and the need to be aligned with the objectives of Regulation (EU) 2021/1119;
(d)
they shall take into account local circumstances of the Member States;
(e)
they shall take into account the safety indicators referred to in Article 21(3), point (d).
3. For the purposes of preparing its decisions on Union-wide performance targets and, if defined in application of Article 22(1), on complementary baseline values and breakdown values or benchmark groups, the Commission shall consult and collect any necessary inputs from national authorities, Eurocontrol, the Network Manager and operational stakeholders.
Performance plans and performance targets for air navigation services
1. Member States shall, for each reference period, adopt a draft performance plan, pursuant to this Article.
2. The air navigation service providers designated under Articles 8 and 10 shall, for each reference period and for the air navigation services they provide and, where applicable, procure from other providers, prepare inputs to the draft performance plan and submit them to the national supervisory authority.
The national supervisory authority may request that those inputs are in the form of a draft performance plan.
Such inputs shall be prepared by the air navigation service providers designated under Articles 8 and 10 after the setting of Union-wide performance targets, in due time to enable the national supervisory authority to comply with the time-limit set out in paragraph 5 of this Article.
3. Where they are designated in accordance with Article 10, MET service providers shall also provide inputs on their cost base to the national supervisory authority.
4. The inputs, provided by the air navigation service providers designated under Articles 8 and 10 under paragraphs 2 and 3 of this Article, regarding the allocation of costs included in the performance plans shall be based on the general principles referred to in Article 21(4), point (l).
5. The national supervisory authority shall review the information provided by each air navigation service provider designated under Articles 8 and 10, under paragraphs 2, 3 and 4 of this Article, and shall approve it, or shall make the necessary changes where appropriate. Subsequently, based on that information and, if appropriate, inputs from other national authorities, the national supervisory authority shall prepare a single national draft performance plan. That national draft performance plan shall be adopted by the Member State.
The draft performance plan shall be prepared by the national supervisory authority before the start of the reference period concerned.
6. National supervisory authorities shall ensure that the allocation of costs included in the draft performance plan complies with the general principles referred to in Article 21(4), point (l) when preparing the performance plans.
7. With the aim of improving the level of performance of air traffic management, several Member States may develop a joint performance plan for en route air navigation services and, as appropriate, for terminal air navigation services. This plan shall at least cover the duration of one reference period, include at least one joint performance target and involve cross-border cooperation. The cross-border cooperation may include joint procurement with a view to improving interoperability and joint governance in order to optimise the use of airspace.
8. The draft performance plan referred to in paragraph 1 shall include relevant information, in particular traffic forecasts and operational data, provided by Eurocontrol and the Network Manager or, if appropriate and justified and after consultation with airspace users and air navigation service providers concerned, other traffic forecasts.
In preparing the draft performance plan, the national supervisory authority shall consult airspace users’ representatives and, where relevant, military authorities, airport operators, airport coordinators, as well as the national competent authority without prejudice to the national arrangements resulting from Article 4(5) of this Regulation. Compliance with Regulation (EU) 2018/1139 and with the delegated and implementing acts adopted on the basis thereof shall be verified.
9. The draft performance plan shall contain, as appropriate, performance targets for en route air navigation services in the key performance areas referred to in Article 21(3), point (a), consistent with the Union-wide performance targets, as well as performance targets for terminal air navigation services, in the key performance areas of cost-efficiency and capacity and, subject to the conditions set out in Article 21(3), point (c)(iii), in the key performance area of climate and environment. Draft performance plans shall include a description on how the general principles referred to in Article 21(4), point (l), for the allocation of such common costs are applied.
Draft performance plans shall take account of the European ATM Master Plan, the interdependencies between the key performance areas referred to in Article 21(3), point (a), and the local circumstances.
10. Without prejudice to Article 52(3), the adopted draft performance plans shall be made publicly available.
11. The adopted draft performance plans shall be submitted to the Commission for assessment and approval in accordance with Article 24.
Assessment of performance plans
1. The Commission shall assess the adopted draft performance plans referred to in Article 23, including the consistency of performance targets for en route air navigation services with Union-wide performance targets, in line with the criteria and conditions laid down in the implementing acts referred to in Article 28, point (b), and the allocation of common costs between en route and terminal air navigation services according to the general principles referred to in Article 21(4), point (l). The assessment of the consistency of performance targets for en route air navigation services with Union-wide performance targets shall take into consideration performance improvements over time. The Commission shall review the performance targets for terminal air navigation services in light of the elements specified in the implementing act referred to in Article 28, point (b).
2. When assessing the consistency of performance targets for en route air navigation services with the Union-wide performance targets, the Commission shall take due account of local circumstances and interdependencies between key performance areas referred to in Article 21(3), point (a).
The Commission may allow a deviation of performance targets for en route air navigation services from Union-wide performance targets with respect to a key performance area where deemed necessary and proportionate to ensure consistency of performance targets for those services with the Union-wide performance targets with respect to other key performance areas.
3. Where the Commission finds that the adopted draft performance plan meets the criteria and conditions referred to in Article 24(1) and laid down in the implementing acts referred to in Article 28, point (b), read in combination with paragraph 2 of this Article, it shall adopt an implementing act to approve it. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
4. Where the Commission finds that there are doubts whether an adopted draft performance plan meets those criteria and conditions, read in combination with paragraph 2 of this Article, it shall initiate a detailed examination of that draft performance plan, requesting additional information from the Member State concerned if necessary.
5. Where, having carried out the detailed examination, the Commission finds that the adopted draft performance plan meets those criteria and conditions read in combination with paragraph 2 of this Article, it shall adopt an implementing act to approve it. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
Where the Commission finds that the adopted draft performance plan does not meet those criteria and conditions, it shall adopt an implementing act in the form of a decision, requesting the Member State concerned to submit a revised draft performance plan which complies with those criteria and conditions, and, where relevant, setting out the corrective measures to be taken by that Member State. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 48(3).
The Member State concerned shall communicate to the Commission the measures that it has taken pursuant to that decision, as well as information demonstrating that those measures comply with that decision.
Where the Commission finds that those measures are sufficient to ensure compliance with its decision, it shall notify the Member State concerned thereof and adopt an implementing act to approve the draft performance plan. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
Where the Commission finds that those measures are not sufficient to ensure compliance with the decision, it shall notify the Member State concerned.
The Commission shall take, where appropriate, action to address the non-compliance, including through actions provided for in Article 258 of the Treaty on the Functioning of the European Union.
6. Draft performance plans approved by the Commission in accordance with this Article shall be adopted by the Member States concerned as definitive plans, and shall be made publicly available without prejudice to Article 52(3).
Performance monitoring
1. The national supervisory authority shall assess, in cooperation with the national competent authority without prejudice to the national arrangements resulting from Article 4(5), whether the air navigation services provided in the airspace under their responsibility meet the performance targets contained in the performance plans approved in accordance with Article 24 and whether those plans have been implemented correctly, and shall implement the incentives schemes referred to in Article 21(4), point (i).
2. The national supervisory authority shall issue regular reports on the monitoring of performance of air navigation services provided by the air navigation service providers designated under Articles 8 and 10 and make them available to the Commission. The results of those assessments shall be made publicly available without prejudice to Article 52(3).
The air navigation service providers designated under Articles 8 and 10 shall provide the information and data necessary for such monitoring to the national supervisory authority. This shall include information and data related to actual costs of the services provided and procured and related revenues.
3. To the extent that the air navigation service provider has reasonable means to mitigate the impact of external factors, where performance targets contained in the performance plans are not reached or the performance plan is not correctly implemented, the national supervisory authority shall require corrective measures to be implemented by the air navigation service providers concerned. Those corrective measures shall be adequate to improve the performance and proportionate, in particular considering interdependencies with safety and between performance areas, and the impact on the network.
Where corrective measures imposed are not properly applied, the Member State concerned shall take appropriate measures and inform the Commission. In the event of persisting underperformance, the Commission may take action in accordance with Article 34(2) and 34(3).
4. The Commission shall monitor the performance of the provision of air navigation services and network functions on the basis of the reports of national supervisory authorities and of analysis of data received and shall carry out regular assessments of the overall achievement of the Union-wide performance targets and present the results to the committee referred to in Article 48(1).
Network Performance Plan
1. The Network Manager shall, for each reference period, draw up, in accordance with the cooperative decision-making process referred to in Article 38(11), a draft Network Performance Plan.
The draft Network Performance Plan shall be drawn up after the setting of Union-wide performance targets and before the start of the reference period concerned. It shall contain performance targets in the key performance areas referred to in Article 21(3), point (a).
2. The draft Network Performance Plan shall be submitted to the Commission for assessment and adoption.
3. The Commission shall assess the draft Network Performance Plan based on the following essential criteria:
(a)
consideration of performance improvements over time, for the reference period covered by the performance plan, and for the timeframe comprising both the preceding reference period and the reference period covered by the performance plan as well as contribution towards Union-wide performance targets;
(b)
completeness and consistency of the draft Network Performance Plan in terms of data and supporting materials, including key assumptions applied and traffic forecasts.
4. Where the Commission finds that the draft Network Performance Plan is complete and shows adequate performance improvements, it shall adopt the draft Network Performance Plan as a definitive plan. Otherwise, the Commission shall request the Network Manager to submit a revised draft Network Performance Plan.
Revision of performance targets and performance plans during a reference period
1. Where, during a reference period, Union-wide performance targets are no longer adequate, in the light of significantly changed circumstances or safety considerations, and where the revision of one or several targets is necessary and proportionate, the Commission shall revise those Union-wide performance targets. Article 22 shall apply to such decision.
Where, following such revision, the performance targets contained in the performance plans adopted pursuant to Article 24(6) are no longer consistent with the Union-wide performance targets, the national supervisory authorities shall revise those plans with respect to the performance targets concerned. Articles 23, 24 and 25 shall apply to the revision of those plans. The consultation referred to in Article 23(8) may be limited, for the purpose of this subparagraph, to the performance targets and parts of the draft performance plans which are directly or indirectly affected by the revision.
Following the revision referred to in the first subparagraph, national supervisory authorities shall prepare new draft performance plans, to which Articles 23, 24 and 25 shall apply. The Network Manager shall draw up a new draft Network Performance Plan, to which Article 26 shall apply.
2. The decision on the revised Union-wide performance targets referred to in paragraph 1 shall include transitional provisions for the time period until the definitive revised performance plans become applicable. Revised Union-wide performance targets and transitional provisions shall not apply retroactively.
3. In the event of a network crisis, such as geopolitical conflicts, health crises or natural disaster, which prevents the issuing of reliable traffic forecasts, the transitional provisions adopted by the Commission in accordance with paragraph 2 may include the temporary suspension or adaptation of the performance scheme until the network crisis ends and the new reliable forecasts are available. In such a case, the Commission shall define the relating conditions, including necessary adaptations to applicable charges, in the decision referred to in paragraph 1.
4. Member States may, subject to the approval of the Commission, revise one or several performance targets, during a reference period where alert thresholds are reached, or where it is demonstrated that the initial data, assumptions and rationales underpinning the performance targets are to a significant and lasting extent no longer accurate due to circumstances that were unforeseeable at the time of the adoption of the performance plan. The Commission shall approve this revision if it concludes that the revision is necessary and proportionate and the revised performance targets are consistent with Union-wide performance targets.
In such a case, Member States shall revise the performance plans with respect to the targets concerned, in accordance with the procedures set out in Articles 23 and 24. The consultation referred to in Article 23(8) may be limited, for the purpose of this paragraph, to the performance targets and parts of the performance plans which are directly or indirectly affected by the revision.
Implementation of the performance scheme
For the implementation of the performance scheme, the Commission shall adopt implementing acts laying down detailed requirements and procedures in respect of Article 21(4) and Articles 22 to 27, in particular as regards:
(a)
the preparation, development, assessment, approval and revision of performance plans;
(b)
the setting of performance targets, the criteria and conditions for their assessment, including for assessing the consistency of targets for en route air navigation services with Union-wide performance targets, and a methodology to define breakdown values;
(c)
general principles for the allocation of common costs between en route and terminal air navigation services, as referred to in Article 21(4), point (l);
(d)
the monitoring of performance plans, of the performance of network functions, alert mechanisms for revision of performance plans and targets and for the revision of Union-wide performance targets during the course of a reference period and issuance of corrective measures as referred to in Articles 21(4), 23, 24, 25 and 27;
(e)
the timetables for all procedures;
(f)
a mechanism to address events, referred to in Article 21(4), point (m);
(g)
the setting of key performance indicators and indicators for monitoring. The Commission is empowered to set key performance indicators for terminal air navigation services in the key performance area of climate and environment once it is possible to establish indicators which are valid, reliable and measurable. Those indicators shall as a minimum be capable of demonstrating and measuring the impacts in that area which can be directly influenced by the air navigation service providers;
(h)
methodology for benchmarking;
(i)
the incentive schemes;
(j)
conditions for the establishment of the joint performance plans.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(3).
Principles for the charging scheme
1. Without prejudice to the possibility for Member States to finance the provision of air navigation services covered in this Article through public funds insofar as it is in line with Treaty rules on competition where applicable, charges for air navigation services shall be determined, imposed and enforced on airspace users.
The charging scheme set up under this Article and Articles 30 to 32 shall be consistent with Article 15 of the Chicago Convention. For en route charges, the charging scheme set up under this Regulation and the implementing acts referred to in Article 33 and Eurocontrol’s charging system for en route charges shall be consistent.
2. Articles 29 to 36 shall not apply to terminal air navigation services provided at airports, located in the territory of the Member States to which the Treaty applies, with less than 80 000 IFR air transport movements per year. However, a Member State may decide that such terminal air navigation services are subject to those Articles.
3. Charges shall be based on the costs of air navigation service providers designated under Articles 8 and 10 incurred in respect of services and functions for the benefit of airspace users over fixed reference periods as defined in Article 21(3). Those costs may include a reasonable return on assets.
4. Charges shall encourage the safe, efficient, effective and sustainable provision of air navigation services with a view to achieving a high level of safety and cost-efficiency whilst reducing the environmental impact of aviation.
5. Revenues received by an air navigation service provider designated under Articles 8 and 10 from charges imposed on airspace users in accordance with this Article shall not be used to finance services which that air navigation service provider provides under market conditions in accordance with Article 11 or to finance any other commercial activity performed by that provider.
6. Financial data on determined costs, actual costs and related revenues of designated air navigation service providers shall be reported to national supervisory authorities. For the purpose of enabling the Commission to carry out its tasks under this Regulation, national supervisory authorities shall report those data to the Commission in accordance with the modalities defined in the implementing act referred to in Article 33. Financial data on determined costs, actual costs and related revenues shall be made available to airspace users, and shall be published in accordance with Article 52(3).
Cost bases for charges
1. The cost bases for charges for air navigation services shall consist of the determined costs, as established in the performance plans adopted in accordance with Article 24(6), related to the provision of those services in the en route charging zone and terminal charging zone concerned.
2. The determined costs referred to in paragraph 1 shall include the costs of relevant facilities and services, cost of capital and depreciation of assets, as well as the costs of maintenance, operation, management and administration, including staff costs.
3. The determined costs referred to in paragraph 1 shall also include the following costs:
(a)
costs related to the oversight of air navigation services incurred by national supervisory authorities, national competent authorities, and other national authorities entrusted by Member States to carry out tasks in relation to this Regulation and Regulation 2018/1139, where the Member State so decides;
(b)
costs incurred by the air navigation service providers designated under Articles 8 and 10, in relation to the provision of air navigation services and the network functions;
(c)
costs stemming from the Eurocontrol International Convention relating to cooperation for the safety of air navigation of 13 December 1960 as last amended, where the Member State so decides.
4. Determined costs shall not include the costs of penalties imposed by Member States in accordance with Article 53.
5. Costs that pertain to both en route air navigation services and terminal air navigation services shall be allocated in compliance with the general principles referred to in Article 21(4), point (l). Cross-subsidy between en route air navigation services and terminal air navigation services shall not be allowed. Cross-subsidy shall be allowed between different air navigation services within either one of those two categories only when justified for objective reasons, subject to transparent identification in accordance with Article 36(3).
6. Air navigation service providers designated under Articles 8 and 10 shall provide details of their cost base to the national supervisory authority. To this end, costs shall be broken down by distinguishing staff costs, operating costs other than staff costs, depreciation costs, cost of capital, exceptional costs and costs referred to in Article 30(3). For the purpose of enabling the Commission to carry out its tasks under this Regulation, the national supervisory authority shall provide this information to the Commission in accordance with the modalities defined in the implementing act referred to in Article 33.
Charging zone and unit rates
1. Unit rates shall be set per calendar year and for each charging zone, on the basis of the determined costs and the traffic forecasts established in the performance plans as well as applicable adjustments deriving from previous years and other revenues, in particular public funds, including financial support from Union assistance programmes.
2. Without prejudice to Article 30(5), Member States shall define, before the start of a reference period, the charging zones for air navigation services and shall identify the air traffic service providers falling under the scope of each charging zone. The Commission shall adopt an implementing act to define the conditions under which Member States may modify or establish a new terminal charging zone during a reference period. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 48(3).
3. Unit rates shall be set by the Member States, and be subject to verification by the Commission that they comply with Article 29, Article 30 and with this Article.
Where the Commission finds that a unit rate does not fulfil those requirements, the unit rate shall be reviewed accordingly by the Member State concerned, and amended so as to fulfil those requirements.
Unit rates shall be published.
4. Member States may define common charging zones and, in such cases, shall set common unit rates for those charging zones.
Establishment of charges
1. Charges shall be levied on airspace users for the provision of air navigation services, under non-discriminatory conditions, taking into account the relative productive capacities of the different aircraft types concerned. When imposing charges on different airspace users for the use of the same service, no distinction shall be made in relation to the nationality or category of the user.
2. The en route charge for air navigation services for a given flight in a given en route charging zone shall be calculated on the basis of the unit rate established for that en route charging zone and the en route service units for that flight.
3. The terminal charge for air navigation services for a given flight in a given terminal charging zone shall be calculated on the basis of the unit rate established for that terminal charging zone and the terminal service units for that flight. For the purpose of calculating the terminal charge, the approach and departure of a flight shall count as a single flight.
4. Certain airspace users or flights, especially those using or operated with light aircraft and state aircraft, may be exempted from air navigation charges, provided that the cost of such exemption is covered by other resources and is not passed on to other airspace users.
5. The Commission shall, in consultation with the Member States, air traffic service providers and airspace users, conduct a study on the contribution of the modulation of charges to the achievement of the objectives of the Single European Sky, defined in Article 1(1) of this Regulation, and of Regulation (EU) 2021/1119. This study shall also assess the feasability of that modulation and its impact on air traffic, service provision, administrative costs and stakeholders.
6. The result of the study referred to in paragraph 5 of this Article will provide the essential information for the Commission to determine whether to adopt an implementing act in accordance with Article 48(3), to ensure the uniform application of modulation of en route charges to encourage airspace users to support improvements in climate and environmental performance such as 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.
7. The modulation referred to in paragraph 6 shall consist of financial advantages or disadvantages and shall be revenue neutral for air traffic service providers.
8. In addition to the modulation of charges referred to in paragraph 6, charges may be modulated by Member States to encourage air traffic service providers and airspace users to support improvements in service quality such as increased capacity, reduced delays and sustainable development.
Implementation of the charging scheme
For the implementation of the charging scheme, the Commission shall adopt implementing acts, laying down detailed requirements and procedures in respect of Articles 29 to 32 in particular regarding the cost bases and determined costs, the setting of unit rates, risk-sharing mechanisms and the modulation of charges, and the modalities of the provision of data by the national supervisory authorities to the Commission. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(3).
Review of compliance with the performance and charging schemes
1. The Commission shall regularly review compliance of Member States with Articles 21 to 27 and 29 to 32 and the implementing acts referred to in Articles 28 and 33. When carrying out that review, the Commission shall assess whether Member States ensure, in line with their duty of sincere cooperation, compliance by the air navigation service providers with their obligations under those Articles. The Commission shall act in consultation with the PRB and with national supervisory authorities.
2. Where the Commission has indications of non-compliance with the provisions referred to in paragraph 1, it may initiate an investigation. It shall conclude the investigation within four months, after having heard the Member State, and the national supervisory authority concerned.
3. Without prejudice to Article 52(1), the Commission shall share the results of the investigation with the Member State and, where appropriate, the air navigation service providers designated under Articles 8 and 10 concerned and the Commission may issue an opinion on whether Articles 21 to 27 and 29 to 32 and the implementing acts referred to in Articles 28 and 33 have been complied with by that Member State. It shall notify this opinion to the Member State concerned.
Application of the performance and charging schemes to the military
1. Articles 21 to 34 shall not apply to militaries which provide air navigation services primarily to aircraft movements other than general air traffic.
However, Member States may decide to apply those Articles to militaries which provide air navigation services primarily to aircraft movements other than general air traffic.
Where the provisions of Articles 21 to 34 do not apply to militaries which provide air navigation services, the costs of the related services shall not be part of the determined costs referred to in Article 30(1).
2. Articles 21 to 34 shall apply to militaries which provide air navigation services primarily to general air traffic with respect to the services provided to general air traffic.
Transparency of accounts of air navigation service providers
1. Air navigation service providers, independently of their system of ownership or legal structures, shall annually draw up and publish their financial accounts. These accounts shall comply with the international accounting standards adopted by the Union.
Where, owing to the legal status of the air navigation service provider, full compliance with the international accounting standards is not possible, the provider shall achieve such compliance to the maximum possible extent. Air navigation service providers shall publish an annual report and regularly undergo an independent audit for the accounts referred to in this paragraph.
2. National supervisory authorities shall have the right to access the accounts of the air navigation service providers under their supervision. Member States may decide to grant access to these accounts to national supervisory authorities of other Member States. Where necessary to enable the Commission to carry out its tasks under this Regulation, national supervisory authorities shall provide this information to the Commission.
3. Air navigation service providers shall, in their internal accounting, 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. An air navigation service provider shall also keep separate accounts for each activity where:
(a)
it provides air navigation services procured in accordance with Article 11(1) and 11(2) and air navigation services not covered by that provision;
(b)
it provides air navigation services and carries out other activities, of whatever kind, including CIS;
(c)
it provides air navigation services in the Union and in third countries.
The determined and actual costs deriving from air navigation services shall be broken down into costs categories in accordance with Article 30(6) and they shall be made publicly available, without prejudice to Article 52(3).
4. The financial data reported in accordance with Article 29(6) and other information relevant for the calculation of unit rates shall be audited or verified by the national supervisory authority or an entity independent of the air navigation service provider concerned and approved by the national supervisory authority. The conclusions of that audit shall be made publicly available without prejudice to Article 52(3).
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
