Explanatory Memorandum to COM(2013)409 - Amendment of Regulation (EC) No 216/2008 in the field of aerodromes, air traffic management and air navigation services

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2013)409 - Amendment of Regulation (EC) No 216/2008 in the field of aerodromes, air traffic management and air navigation services.
source COM(2013)409 EN
date 11-06-2013
1. CONTEXT OF THE PROPOSAL

The development of the European Aviation Safety Agency (EASA)[1] framework, set out in particular in Regulation EC No 216/2008, is intertwined with the development of the Single European Sky initiative. The Single European Sky (SES) initiative aims to improve the overall efficiency of the way in which European airspace is organised and managed through a reform of the industry providing air navigation services (ANS). Its development has involved two comprehensive legislative packages – SES I and SES II composed of four regulations, i.e. Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004[2], and also includes a comprehensive project to modernise equipment and systems for air navigation services under the SESAR title[3].

In 2009, Regulation (EC) No 1108/2009 extended the competences of EASA to include air traffic management and air navigation services (ATM/ANS). Whilst this also implied the incorporation of various ATM/ANS technical regulation elements into the scope of EASA, the corresponding changes to the four SES Regulations were not completed simultaneously. Instead the European Parliament and the Council preferred to leave the corresponding and existing competencies in the four abovementioned SES Regulations intact to ensure that there would be no gaps during the move from the old legal framework to the new one and also to support the idea that the new EASA-based framework should be built on existing SES principles.

The legislators addressed this overlap in the Regulations by inserting a new Article 65a into Regulation (EC) No 216/2008. This article requires the Commission to propose amendments to the four SES Regulations to take into account the requirements of Regulation (EC) No 216/2008.

Secondly, there is a more general mismatch between the approach used for all other sectors of aviation (airworthiness, crew licensing, air operations etc.) in the EASA framework and air traffic management (ATM/ANS). Generally speaking the approach is that all technical regulations are concentrated within the scope of EASA to meet the objectives of Article 2 of Regulation (EC) No 216/2008 and economic regulation is carried out by the Commission. However in ATM/ANS (i.e. SES) the picture is more mixed, with technical regulations stemming from various sources i. It would therefore be beneficial to ensure a harmonised approach to this important regulatory area, so that all consultations are conducted with the same thoroughness, all rules fit in the same structure and serve the same objectives, making life easier for those responsible for applying the rules and finally to ensure that the impending wave of technological innovations stemming from the SESAR initiative can be implemented in a co-ordinated manner in both airborne and ground equipage and procedures.

This regulatory initiative aims to fulfil the requirement of article 65a, by deleting the overlaps between the SES and EASA Regulations and simplifying and clarifying the border line between EASA and SES legal frameworks. In doing so, the amendment also supports the political objective of ensuring clarity of tasks between the Commission, EASA and the Eurocontrol organisation so that , the Commission focuses on economic and technical regulation, with EASA acting as its agent on technical regulation drafting and oversight, while Eurocontrol will focus on operational tasks, in particular built around the Network Manager concept[5].

As well as deleting SES provisions as part of the SES recast, some minor adaptations are also required to Regulation (EC) No 216/2008, because previously the text of this Regulation relied on the terminology of some SES provisions – in particular in the area of interoperability – and hence the same terminology needs to be introduced in Regulation (EC) No 216/2008, now that it is being repealed from the four SES Regulations..

Contents

1.

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS



DG MOVE has prepared an impact assessment (IA) to support legislative proposals for improving the efficiency, safety and competitiveness of the Single European Sky. The amendments to Regulation (EC) No 216/2008 in this package however intend to address issues that were left over from a previous amendment through Regulation (EC) No 1108/2009, notably Article 65a, These amendments, were covered by the 2008 impact assessment leading up to the approval of Regulation (EC) No 1108/2009.

Although there has not been any specific consultation on the EASA-related amendments, there was a three-month public consultation was held between September and December 2012 on the DG MOVE website on the DG MOVE website between September and December 2012 concerning the SES changes. In addition, two high-level events – a conference in Limassol and a hearing in Brussels – have been organised and numerous bilateral meetings have taken place with all affected stakeholders. The issue of EASA's role was also raised during these events and stakeholders expressed the need to ensure a more co-ordinated drafting of technical rules.

2.

3. LEGAL ELEMENTS OF THE PROPOSAL 3.1. Scope (Article 1 of Regulation (EC) No 216/2008)


While traditionally the Union has had very limited competences in military matters, the dividing line in SES has traditionally been that if a service provider at an airport or at an en-route centre serves primarily (i.e. more than 50%) civilian traffic, that service provider should comply with the same rules that apply to other service providers. Military airspace users on the other hand have had the choice of either flying in accordance with the ICAO and SES rules (defined as General Air Traffic [GAT] rules). They could also opt out of these rules for operational purposes by declaring that the operation in question is performed as operational air traffic (OAT), in which case the SES rules do not apply to these users. Thus the division ensures the safety of civilian traffic, but retains the possibility of the military to operate per their own mission requirements. The adoption of Regulation (EC) No 1108/2009 resulted in a difference between SES and EASA rules, leading for example to a situation where under SES rules the same provider and its air traffic controllers had to be certified, while under EASA rules certification was not necessary. The current amendment realigns the scopes of the EASA Basic Regulation (EC) No 216/2008 and the SES Regulations (EC) Nos 549-552/2004 to avoid such inconsistencies, restoring the application of the rules to the intended concept, where the service provider falls under EU rules, if more than 50% of the traffic it serves flies under GAT rules.

3.

3.2. Objectives (Article 2)


The development and implementation of the ATM master plan (SESAR[6]) requires regulatory measures in a wide variety of aviation issues. Previously the coordination and alignment of rules (between air traffic management and airworthiness for example) has created problems as there has been no central coordinator ensuring consistency between the drafts prepared by different contributors. This problem does not exist in other fields than ATM/ANS as EASA prepares and co-ordinates the whole range of technical rules, while ATM/ANS has still been split between two frameworks. The amendment to Article 2 underlines that ATM/ANS should be treated in the same way as other sectors. More specifically, in supporting the Commission in the drafting of technical rules, EASA should adopt a balanced approach to regulating different activities based on their specific characteristics, acceptable safety levels and an identified risk hierarchy of users to ensure a comprehensive and coordinated development of aviation.

4.

3.3. Declarations (from Article 3 onwards throughout the Regulation)


Regulation (EC) No 1108/2009 introduced the possibility of self-declaration rather than certification, of certain flight information services. The text of Regulation (EC) No 216/2008 has been adapted throughout to take account of this possibility in the various places where certification is mentioned.

5.

3.4. Definitions (Article 3)


With a view to covering the repeals in the four SES Regulations (Regulations (EC) Nos 549-552/2004) as explained above, align the two frameworks and to clarify the text in Regulation (EC) No 216/2008, the definitions of 'qualified entity' and 'ATM/ANS' have been modified. Furthermore definitions of 'ATM Master Plan' and 'general air traffic' have been copied to this Regulation, from the SES Regulations.

6.

3.5. ATM/ANS (Article 8b)


Article 8b has been amended to align the wording with the proposal to repeal Regulation (EC) No 552/2004, thus ensuring that the existing principles and concepts of the interoperability Regulation (EC) No 552/2004 remain.

7.

3.6. Essential requirements (Annex Vb)


An error has been corrected in part (2)(c)(iv) to bring the text back in line with International Civil Aviation Organisation (ICAO) provisions as well as existing EU rules. This was an unintentional mistake in the drafting of Regulation (EC) No 1108/2009. It led to an unfeasible requirement for air traffic controllers to provide aircraft with obstacle clearance even when they were outside the aerodrome manoeuvring area.

Secondly, in parts (2)(g) and (2)(h) as well as part 3 some text has been inserted from Regulation (EC) No 552/2004 to highlight the fact that the approach used to regulate these matters will not be needlessly changed from what it is today. These additions do not change the scope, but further align the SES and EASA frameworks.

8.

3.7. Miscellaneous


A number of small typographical corrections have been made (in Article 7, for example) and some small editorial amendments have been made to rules (in Article 9, 19 and 33) where the text did not reflect the actual situation after previous amendments to the Regulation. Furthermore some small changes have been made throughout (for example in Article 52,59 and Annex Vb) to avoid any unintended changes to the principles agreed in SES since 2004.

The Regulation has also been aligned with the regime established by Articles 290 and 291 TFEU and Regulation (EC) No 182/2011, governing the use of implementing acts and delegated acts. Furthermore the core elements of agreed standard provisions for agencies' founding acts in accordance with the Commission Roadmap on implementation of the Joint Statement of the European Parliament, the Council of the EU and the European Commission on decentralised agencies, of July 2012, have been included. The latter agreement includes also standardisation of the names of EU Agencies, so that the name of EASA shall be modified to "European Union Agency for Aviation (EAA).

9.

4. OPTIONAL ELEMENTS


Since a separate explanatory memorandum has been drafted to accompany the proposed recast of the four SES Regulations Nos 549-552/2004, this document contains mainly the amendments required in the Regulation 216/2008 to ensure continuity of the current SES approach after the alignment of the four SES Regulations on accordance with Article 65a of Regulation (EC) No 216/2008