COMMISSION IMPLEMENTING REGULATION (EU) No 1035/2011
of 17 October 2011
laying down common requirements for the provision of air navigation services and amending Regulations (EC) No 482/2008 and (EU) No 691/2010
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky (the service provision Regulation) (1), and in particular Articles 4, 6 and 7 thereof,
Having regard to Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC (2), and in particular Article 8b(6) thereof,
Whereas:
(1)
Pursuant to Regulation (EC) No 216/2008, the Commission, assisted by the European Aviation Safety Agency (the Agency), is required to adopt implementing rules for the provision of air traffic management and air navigation services (ATM/ANS) throughout the Union. Article 8b(6) of that Regulation requires those implementing rules to be based on the regulations adopted under Article 5(3) of Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) (3).
(2)
The provision of air navigation services within the Union should be subject to certification by Member States or the Agency. Air navigation service providers which comply with the common requirements should be granted a certificate in accordance with Article 7 of Regulation (EC) No 550/2004 and Article 8b(2) of Regulation (EC) No 216/2008.
(3)
The application of the common requirements laid down pursuant to Article 6 of Regulation (EC) No 550/2004 and Article 8b of Regulation (EC) No 216/2008 should be 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 13 of Regulation (EC) No 549/2004. The common requirements should not cover military operations and training, as provided for in Article 1(2) of Regulation (EC) No 549/2004 and Article 1(2) of Regulation (EC) No 216/2008.
(4)
The definition of common requirements for the provision of air navigation services should take due account of the legal status of air navigation service providers in the Member States. Furthermore, when an organisation pursues activities other than the provision of air navigation services, the common requirements should not apply to such other activities or to resources allocated to activities outside the provision of air navigation services, unless provision is made to the contrary.
(5)
The application of the common requirements to air navigation service providers should be proportionate to the risks linked with the specific features of each activity such as the number and/or the nature and characteristics of processed movements. Should certain air navigation service providers elect not to avail themselves of the opportunity to provide cross-border services within the single European sky, a competent authority should be entitled to allow those providers to comply commensurately with, respectively, certain general requirements for the provision of air navigation services and certain specific requirements for the provision of air traffic services. Consequently, the conditions attached to the certificate should reflect the nature and the scope of the derogation.
(6)
In order to ensure the proper functioning of the certification scheme, Member States should provide the Commission and the Agency with all relevant information on the derogations granted by their competent authority in the context of their annual reports.
(7)
The different types of air navigation service activities are not necessarily subject to the same requirements. It is therefore necessary to adjust common requirements to the special features of each type of activity.
(8)
The onus of proving compliance with the applicable common requirements should lie with the air navigation service provider, for the period of validity of the certificate and for all the services covered by it.
(9)
In order to ensure the effective application of the common requirements, a system of regular supervision and inspection of compliance with those common requirements and with the conditions specified in the certificate should be established. The competent authority should examine the suitability of a provider prior to issuing a certificate and should assess the ongoing compliance of the air navigation service providers it has certified on a yearly basis. Consequently, it should establish and update annually an indicative inspection programme covering all the providers it has certified, on the basis of an assessment of the risks. That programme should allow the inspection of all relevant parts of the air navigation service providers within a reasonable time frame. When assessing the compliance of designated providers of air traffic services and meteorological services, the competent authority should be entitled to check relevant requirements stemming from the international obligations on the Member State in question.
(10)
Peer reviews of national supervisory authorities could further a common approach to the supervision of air navigation service providers throughout the Union. The Commission, in cooperation with the Member States and the Agency, may arrange these peer reviews, which should be coordinated with the activities undertaken within the framework of Articles 24 and 54 of Regulation (EC) No 216/2008 and any other international monitoring and oversight programmes. This would avoid duplication of work. In order to allow the exchange of experience and best practice during a peer review, the experts should preferably be from a competent authority.
(11)
Eurocontrol has developed Safety Regulatory Requirements (ESARRs) which have been of the highest importance for the safe provision of air traffic services. In accordance with Regulation (EC) No 550/2004, the Commission should identify and adopt the relevant provisions of ESARRs in Union regulations. The ESARRs incorporated in Commission Regulation (EC) No 2096/2005 of 20 December 2005 laying down common requirements for the provision of air navigation services (4) form the basis of these implementing rules.
(12)
When adopting Regulation (EC) No 2096/2005, the Commission concluded that it was not appropriate to repeat the ESARR 2 provisions on reporting and assessment of safety occurrences in ATM, which are covered by Regulation (EU) No 996/2010 of the European Parliament and the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC (5) and by Directive 2003/42/EC of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation (6). However, new provisions on safety occurrences should be introduced in order to require a competent authority, as defined by this Regulation, to check whether providers of air traffic services, and also providers of communication, navigation or surveillance services, meet the arrangements required to cover the reporting and assessment of such occurrences.
(13)
It should be recognised in particular that, firstly, safety management is that function of air navigation services which ensures that all safety risks have been identified, assessed and satisfactorily mitigated, and that, secondly, a formal and systematic approach to safety management and management systems, towards a total system approach, will maximise safety benefits in a visible and traceable way. The Agency should further evaluate the safety requirements of this Regulation and integrate them into a common regulatory structure for civil aviation safety.
(14)
Until the Agency has drawn up the implementing measures transposing the relevant standards of the International Civil Aviation Organisation (ICAO) into Union implementing measures, acceptable means of compliance, certification specifications and guidance material, air navigation service providers should operate in compliance with the relevant ICAO standards. With a view to facilitating the cross-border provision of air navigation services, and until the finalisation of the work of the Agency to draw up the relevant measures transposing the ICAO standards, the Member States, the Commission and the Agency, acting in close cooperation with Eurocontrol where relevant, should work towards minimising the differences notified by Member States in the application of ICAO standards in the field of air navigation services in order to reach a common set of standards between Member States within the single European sky.
(15)
Different national arrangements as to liability should not prevent air navigation service providers from entering into agreements on the cross-border provision of services, once the air navigation service providers have set up arrangements to cover losses for damages arising from liabilities under the applicable law. The method employed should comply with the requirements of national law. Member States which allow the provision of air navigation services in all or part of the airspace under their responsibility without certification in accordance with Regulation (EC) No 550/2004 should cover the liabilities of those air navigation service providers.
(16)
The Agency should further evaluate the provisions of this Regulation, in particular those related to the safety assessment of changes to the provision of air navigation services by the certified organisation and engineering and technical personnel, and issue an opinion to adapt them towards a total system approach, taking into account the integration of these provisions into a future common regulatory structure for civil aviation safety and the experience gained by stakeholders and competent authorities in the field of safety oversight.
(17)
Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation) (7) requires that specific functions called network functions are to be set up to allow optimum use of airspace and scarce resources, while allowing users maximum access to airspace as well as the ability to operate preferred trajectories. As provided for in Regulation (EC) No 551/2004, Commission Regulation (EU) No 677/2011 of 7 July 2011 laying down detailed rules for the implementation of air traffic management (ATM) network functions and amending Regulation (EU) No 691/2010 (8) lays down the rights, obligations and responsibilities of the entity involved in the provision of those functions.
(18)
For the safe execution of certain network functions, the entity involved is subject to certain requirements. These requirements aim to ensure that the entity or organisation operates in a safe manner and they are laid down in Annex VI Regulation (EU) No 677/2011. These are organisation safety requirements which are very similar to the general requirements for the provision of air navigation services laid down in Annex I to this Regulation but adapted to the safety responsibilities of the network functions.
(19)
Regulation (EC) No 2096/2005 should therefore be repealed.
(20)
Commission Regulation (EC) No 482/2008 of 30 May 2008 establishing a software safety assurance system to be implemented by air navigation service providers and amending Annex II to Regulation (EC) No 2096/2005 (9) and Commission Regulation (EU) No 691/2010 of 29 July 2010 laying down a performance scheme for air navigation services and network functions and amending Regulation (EC) No 2096/2005 laying down common requirements for the provision of air navigation services (10) should be amended in order to be adapted to this Regulation.
(21)
The measures provided for in this Regulation are in accordance with the opinion of the Single Sky Committee established by Article 5 of Regulation (EC) No 549/2004,
HAS ADOPTED THIS REGULATION:
Article 1
Subject matter and scope
This Regulation lays down the common requirements for the provision of air navigation services.
However, unless Annex I or II makes provision to the contrary, those common requirements shall not apply to:
(a)
activities other than the provision of air navigation services by a provider of such services;
(b)
resources allocated to activities outside the provision of air navigation services.
Article 2
Definitions
For the purposes of this Regulation, the definitions in Article 2 of Regulation (EC) No 549/2004 and Article 3 of Regulation (EC) No 216/2008 apply. However, the definition of ‘certificate’ in Article 2(15) of Regulation (EC) No 549/2004 does not apply.
The following definitions also apply:
(1)
‘aerial work’ means an aircraft operation in which an aircraft is used for specialised services such as agriculture, construction, photography, surveying, observation and patrol, search and rescue or aerial advertisement;
(2)
‘commercial air transport’ means any aircraft operation involving the transport of passengers, cargo or mail for remuneration or hire;
(3)
‘functional system’ means a combination of systems, procedures and human resources organised to perform a function within the context of ATM;
(4)
‘general aviation’ means any civil aircraft operation other than aerial work or commercial air transport;
(5)
‘national supervisory authority’ means the body or bodies nominated or established by Member States as their national supervisory authority pursuant to Article 4(1) of Regulation (EC) No 549/2004;
(6)
‘hazard’ means any condition, event, or circumstance which could induce an accident;
(7)
‘organisation’ means an entity providing air navigation services;
(8)
‘operating organisation’ means an organisation responsible for the provision of engineering and technical services supporting air traffic, communication, navigation or surveillance services;
(9)
‘risk’ means the combination of the overall probability, or frequency of occurrence of a harmful effect induced by a hazard and the severity of that effect;
(10)
‘safety assurance’ means all planned and systematic actions necessary to provide adequate confidence that a product, a service, an organisation or a functional system achieves acceptable or tolerable safety;
(11)
‘safety objective’ means a qualitative or quantitative statement that defines the maximum frequency or probability at which a hazard can be expected to occur;
(12)
‘safety requirement’ means a risk-mitigation means, defined from the risk-mitigation strategy that achieves a particular safety objective, including organisational, operational, procedural, functional, performance, and interoperability requirements or environment characteristics;
(13)
‘services’ means either an air navigation service or a bundle of such services;
(14)
‘pan-European air navigation service’ means an air navigation service which is designed and established for users within most or all Member States and which may also extend beyond the airspace of the territory to which the Treaty applies.
(15)
‘air navigation service provider’ means any public or private entity providing ANS for general air traffic, including an organisation having applied for a certificate to provide such services.
Article 3
Competent authority for certification
1. For the purpose of this Regulation, the competent authority for the certification of air navigation service providers shall be:
(a)
for organisations having their principal place of operation and, if any, their registered office located in a Member State, the national supervisory authority nominated or established by that Member State;
(b)
for organisations providing air navigation services in the airspace of the territory to which the Treaty applies and having their principal place of operation and, if any, their registered office located outside the territory subject to the provisions of the Treaty, the Agency;
(c)
for organisations providing pan-European air navigation services in the airspace of the territory to which the Treaty applies, the Agency.
2. The competent authority for safety oversight shall be the authority determined in accordance with Article 3 of Commission Implementing Regulation (EU) No 1034/2011 (11).
Article 4
Granting of certificates
1. In order to obtain the certificate necessary to provide air navigation services, and without prejudice to Article 7(5) of Regulation (EC) No 550/2004, organisations shall comply with:
(a)
the general requirements for the provision of air navigation services set out in Annex I;
(b)
the additional specific requirements set out in Annexes II to V according to the type of service they provide.
2. A competent authority shall verify an organisation’s compliance with the common requirements before issuing a certificate to it.
3. An organisation shall comply with the common requirements no later than at the time at which the certificate is issued pursuant to:
(a)
Article 7 of Regulation (EC) No 550/2004;
(b)
Article 8b(2) and Article 22a(b) and (c) of Regulation (EC) No 216/2008.
Article 5
Derogations
1. By way of derogation from Article 4(1), certain air navigation service providers may elect not to avail themselves of the opportunity to provide cross-border services and may waive the right to mutual recognition within the single European sky.
They may, in those circumstances, apply for a certificate which is limited to the airspace under the responsibility of the Member State referred to in Article 7(2) of Regulation (EC) No 550/2004.
2. In order to make an application as referred to in paragraph 1, a provider of air traffic services shall provide services or plan to provide them only with respect to one or more of the following categories:
(a)
aerial work;
(b)
general aviation;
(c)
commercial air transport limited to aircraft with less than 10 tonnes of maximum take-off mass or less than 20 passenger seats;
(d)
commercial air transport with less than 10 000 movements per year, regardless of the maximum take-off mass and the number of passenger seats; ‘movements’ being counted as the sum of take-offs and landings and calculated as an average over the previous three years.
In order to make such an application, an air navigation service provider other than a provider of air traffic services shall have a gross annual turnover of EUR 1 000 000 or less in relation to the services it provides or plans to provide.
Where, owing to objective practical reasons, an air navigation service provider is unable to provide evidence that it meets those qualifying criteria, the competent authority may accept analogous figures or forecasts in relation to the ceilings defined in the first and the second subparagraphs.
When submitting such an application, the air navigation service provider shall submit to the competent authority, at the same time the relevant evidence regarding the qualifying criteria.
3. The competent authority may grant specific derogations to applicants who fulfil the qualifying criteria of paragraph 1, commensurately with their contribution to ATM in the airspace under the responsibility of the Member State concerned.
Those derogations may relate only to the requirements set out in Annex I.
However, no derogation shall be granted for the following requirements:
(a)
technical and operational competence and capability (point 1);
(b)
safety management (point 3.1);
(c)
human resources (point 5);
(d)
open and transparent provision of air navigation services (point 8.1).
4. In addition to the derogations provided for in paragraph 3, the competent authority may grant derogations to applicants who provide aerodrome flight information services by operating regularly not more than one working position at any aerodrome. It shall do so commensurately with the applicants’ contribution to ATM in the airspace under the responsibility of the Member State concerned.
Those derogations may relate only to the following requirements of point 3 of Annex II:
(a)
safety management responsibility and external services and supplies (point 3.1.2(b) and (e));
(b)
safety surveys (point 3.1.3(a));
(c)
safety requirements for risk assessment and mitigation with regard to changes (point 3.2).
5. No derogations shall be granted from the requirements in Annexes III, IV or V.
6. In accordance with Annex II of Regulation (EC) No 550/2004, the competent authority shall:
(a)
specify the nature and the scope of the derogation in the conditions attached to the certificate by indicating its legal basis;
(b)
limit the validity of the certificate in time, where considered necessary for oversight purposes;
(c)
monitor whether the air navigation service providers continue to qualify for the derogation.
Article 6
Demonstration of compliance
1. Organisations shall provide all the relevant evidence to demonstrate compliance with the applicable common requirements at the request of the competent authority. Organisations may make full use of existing data.
2. A certified organisation shall notify the competent authority of planned changes to its provision of air navigation services which may affect its compliance with the applicable common requirements or with the conditions attached to the certificate, where applicable.
3. Where a certified organisation no longer complies with the applicable common requirements or, where applicable, with the conditions attached to the certificate, the competent authority shall, within one month of the date of discovering the non-compliance, require the organisation to take corrective action.
That decision shall immediately be notified to the relevant organisation.
The competent authority shall check that the corrective action has been implemented before notifying its approval to the relevant organisation.
Where the competent authority considers that corrective action has not been properly implemented within the timetable agreed with the organisation, it shall take appropriate enforcement measures as provided for in Article 7(7) of Regulation (EC) No 550/2004 and Article 10, Article 22a(d), and Articles 25 and 68 of Regulation (EC) No 216/2008, while taking into account the need to ensure the continuity of air navigation services.
Article 7
Facilitation of compliance monitoring
Organisations shall facilitate inspections and surveys by the competent authority or by a qualified entity acting on the latter’s behalf, including site visits and visits without prior notice.
The authorised persons shall be empowered to perform the following acts:
(a)
to examine the relevant records, data, procedures and any other material relevant to the provision of air navigation services;
(b)
to take copies of or extracts from such records, data, procedures and other material;
(c)
to ask for an oral explanation on site;
(d)
to enter relevant premises, lands or means of transport.
Such inspections and surveys, when conducted by a competent authority or by a qualified entity acting on their behalf, shall be carried out in compliance with the legal provisions of the Member State in which they are to be undertaken.
Article 8
Ongoing compliance
The competent authority shall, on the basis of the evidence at its disposal, monitor annually the ongoing compliance of the organisations which it has certified.
To that end, the competent authority shall establish and update annually an indicative inspection programme which covers all the providers it has certified and which is based on an assessment of the risks associated with the different operations constituting the air navigation services provided. It shall consult the organisation concerned as well as any other competent authority concerned, if appropriate, before establishing such a programme.
The programme shall indicate the envisaged interval of the inspections of the different sites.
Article 9
Safety regulation of engineering and technical personnel
With regard to the provision of air traffic, communication, navigation or surveillance services, the competent authority or any other authority designated by a Member State to fulfil this task shall:
(a)
issue appropriate safety rules for engineering and technical personnel who undertake operational safety-related tasks;
(b)
ensure adequate and appropriate safety oversight of the engineering and technical personnel assigned by any operating organisation to undertake operational safety-related tasks;
(c)
on reasonable grounds and after due enquiry, take appropriate action in respect of the operating organisation and/or its technical and engineering personnel who do not comply with the requirements of point 3.3 of Annex II;
(d)
verify that appropriate methods are in place to ensure that third parties assigned to operational safety-related tasks comply with the requirements of point 3.3 of Annex II.
Article 10
Peer review procedure
1. The Commission, acting in cooperation with the Member States and the Agency may arrange peer reviews of national supervisory authorities in accordance with paragraphs 2 to 6.
2. A peer review shall be carried out by a team of national experts and, where appropriate, observers from the Agency.
A team shall be comprised of experts coming from at least three different Member States and the Agency.
Experts shall not participate in peer reviews in the Member State where they are employed.
The Commission shall establish and maintain a pool of national experts, designated by Member States, which shall cover all aspects of the common requirements as listed in Article 6 of Regulation (EC) No 550/2004.
3. Not less than three months before a peer review, the Commission shall inform the Member State and the national supervisory authority concerned of the peer review, the date on which it is scheduled to take place and the identity of the experts taking part in it.
The Member State whose national supervisory authority is subject to review shall approve the team of experts before it may carry out the review.
4. Within a period of three months from the date of the review, the review team shall draw up, by consensus, a report which may contain recommendations.
The Commission shall convene a meeting with the Agency, the experts and the national supervisory authority to discuss that report.
5. The Commission shall forward the report to the Member State concerned.
The Member State may, within three months from the date of receipt of the report, present its observations.
Those observations shall include, where relevant, the measures which the Member State has taken or intends to take to respond to the review within a given timescale.
Unless otherwise agreed with the Member State concerned, the report and the follow-up shall not be published.
6. The Commission shall inform the Member States through the Single Sky Committee of the main findings of these reviews on an annual basis.
Article 11
Transitional provisions
1. Air navigation service providers holding a certificate issued in accordance with Regulation (EC) No 2096/2005 on the date of entry into force of this Regulation shall be deemed to hold a certificate issued in accordance with this Regulation.
2. Applicants for an air navigation service providers’ certificate which submitted their application before the date of entry into force of this Regulation and were not already issued with a certificate on that date shall show compliance with the provisions of this Regulation before the certificate is issued.
3. Where organisations, for which the competent authority will be the Agency in accordance with Article 3, have applied to a national supervisory authority of a Member State for the issue of a certificate before the date entry into force of this Regulation, the national supervisory authority shall finalise the certification process in coordination with the Agency and transfer the file to the Agency upon the issue of the certificate.
Article 12
Repeal
Regulation (EC) No 2096/2005 is repealed.
Article 13
Amendment to Regulation (EC) No 482/2008
Regulation (EC) No 482/2008 is amended as follows:
(1)
in Article 4(5), the reference to ‘Regulation (EC) No 2096/2005’ is replaced by a reference to ‘Commission Implementing Regulation (EU) No 1035/2011 (12).
(2)
Article 6 is deleted;
(3)
in Annex I, in points 1 and 2, the reference to ‘Regulation (EC) No 2096/2005’ is replaced by a reference to ‘Implementing Regulation (EU) No 1035/2011’.
Article 14
Amendment to Regulation (EU) No 691/2010
In Regulation (EU) No 691/2010, Article 25 is deleted.
Article 15
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 October 2011.