Commission Implementing Regulation (EU) 2019/317 of 11 February 2019 laying down a performance and charging scheme in the single European sky and repealing Implementing Regulations (EU) No 390/2013 and (EU) No 391/2013 (Text with EEA relevance.)

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

This Regulation applies to:

(a) the air navigation service providers referred to in Article 2(5) of Regulation (EC) No 549/2004;

(b) the body nominated by the Commission to perform the tasks necessary for the execution of the network functions (the ‘Network Manager’) in accordance with Article 6(2) of Regulation (EC) No 551/2004 and appointed in accordance with Article 4 of Implementing Regulation (EU) 2019/123.

This Regulation also applies, for the purpose of target setting and performance monitoring on cost-efficiency, to the authorities or entities incurring eligible costs to be recovered through user charges, as specified in point (b) of Article 15(2) of Regulation (EC) No 550/2004 and in the third subparagraph of Article 22(1) of this Regulation.

Member States may decide to apply the provisions of this Regulation also to:

(a) air navigation services and network functions provided in airspace under their responsibility within other ICAO regions than the ICAO EUR region, without prejudice to the rights and duties of Member States under the 1944 Chicago Convention on international civil aviation (the ‘Chicago Convention’);

(b) providers of air navigation services having the permission to provide air navigation services without certification, in accordance with Article 7(5) of Regulation (EC) No 550/2004.

Member States shall ensure that the duration of those decisions corresponds to the duration of a reference period. They shall not amend or withdraw those decisions during a reference period.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘actual cost’ means a cost actually incurred in a calendar year for the provision of air navigation services which are subject to certified accounts or, in the absence of such certified accounts, subject to a final audit;

(2) ‘air traffic services unit’ or ‘ATS unit’ means a unit, either civil or military, responsible for providing air traffic services in a given airspace;

(3) ‘airport coordinator’ means the natural or legal person appointed by a Member State to carry out the coordination duties at coordinated airports set out in Article 4 of Council Regulation (EEC) No 95/93 (¹);

(4) ‘airport operator’ means any legal or natural person who operates one or more aerodromes;

(5) ‘airspace user’ means the operator of the aircraft at the time when the flight is performed or, if the identity of the operator is not known, the owner of the aircraft, unless it can be proved that another person was the operator at that time;

(6) ‘airspace users' representative’ means any legal person or entity representing the interests of one or several categories of airspace users;

(7) ‘area control centre’ means a unit providing air traffic services to controlled flights in its area of responsibility.

(8) ‘en route charging zone’ means a volume of airspace that extends from the ground up to, and including, upper airspace, where en route air navigation services are provided and for which a single cost base and a single unit rate are established;

(9) ‘exceptional event’ means circumstances under which ATM capacity is abnormally reduced so that the level of air traffic flow management (‘ATFM’) delays is abnormally high, as a result of a planned limitation induced through operational or technical change, major adverse weather circumstances, the unavailability of large airspace parts either through natural or political reasons, or industrial action, and the activation of the European Aviation Crisis Coordination Cell (‘EACCC’) by the Network Manager;

(10) ‘IFR air transport movements per year’ means the sum of take-offs and landings performed under IFR, calculated as the yearly average over the three calendar years preceding the year in which the draft performance plan was to be submitted in accordance with Article 12;

(11) ‘forecast inflation index’ means the annual inflation index based on the third year before the start of a reference period and computed by using the latest available inflation forecast of average Consumer Price Index percentage change published by the International Monetary Fund for the Member State concerned at the time of drafting the performance plan. In case the percentage change published by the International Monetary Fund for a given year is negative, a zero value shall be used.

(12) ‘actual inflation index’ means the annual actual inflation index based on the third year before the start of a reference period and computed by using the actual inflation rate published by the Commission in the Eurostat Harmonised Index of Consumer Price for the State concerned in April of year n+1. In case the percentage change published by the Commission for a given year is negative, a zero value shall be used.

(13) ‘major investment’ means the acquisition, development, replacement, upgrade, or leasing of fixed assets representing a total value over the whole lifetime of the assets greater than EUR 5 million in real terms;

(14) ‘national authority’ means a regulatory or supervisory authority established by one or more Member States at national or functional airspace block level;

(15) ‘new and existing investment’ means the acquisition, development, replacement, upgrade or leasing of fixed assets where depreciation costs, cost of capital, or in the case of leasing, operating costs, for that investment are incurred during the reference period covered by the performance plan;

(16) ‘reference period’ means the period of validity and application of the Union-wide performance targets, as set out in point (d) of Article 11(3) of Regulation (EC) No 549/2004 and Article 7 of this Regulation;

(17) ‘reference value’ means the value computed by the Network Manager of en route ATFM delay for each Member State and each functional airspace block for the purpose of ensuring that the Union-wide en route ATFM delay target is met;

(18) ‘restructuring costs’ means significant one-time costs incurred by air navigation service providers in the process of restructuring for introducing new technologies, procedures or business models to stimulate integrated service provision, compensating employees, closing air traffic control centres, shifting activities to new locations, writing off assets or acquiring strategic participations in other air navigation service providers;

(19) ‘runway incursion’ means any occurrence at an aerodrome involving the incorrect presence of an aircraft, vehicle or person on the protected area of a surface designated for the landing and take-off of aircraft;

(20) ‘separation minima infringement’ means a situation in which prescribed separation minima were not maintained between aircraft;

(21) ‘terminal charging zone’ means an airport or a group of airports, located within the territories of a Member State, where terminal air navigation services are provided and for which a single cost base and a single unit rate are established.

CHAPTER II

TASKS AND RESPONSIBILITIES

Article 3

Assistance by the Performance Review Body

Where necessary for carrying out the tasks of the Commission related to the detailed functioning of the performance scheme, the Commission may request assistance from the Performance Review Body as regards the following:

(a) the collection, examination, validation and dissemination of relevant data for the performance of air navigation services and network functions;

(b) the selection or adaptation of key performance areas;

(c) the definition of key performance indicators and indicators for monitoring;

(d) the setting of Union-wide performance target ranges, and the setting and the revision of Union-wide performance targets;

(e) the establishment of the baseline values, alert thresholds, and comparator groups referred to in Article 9(4);

(f) the assessment of the consistency of draft national performance targets or performance targets set at the level of functional airspace blocks (‘FAB performance targets’) with the Union-wide performance targets in accordance with Article 14 and Article 15 and the review of draft performance plans in accordance with Article 14(1) and Article 15(1);

(g) the verification of the completeness of the draft performance plans in accordance with Article 13;

(h) the verification, in accordance with Article 19, of the draft Network Performance Plan as referred in Article 10(5) of this Regulation;

(i) the assessment of revised performance targets and of the corrective measures adopted by Member States pursuant to Article 15(5);

(j) the monitoring of the performance of air navigation services, including investment and capital expenditure, at Union level, at national level and at the level of functional airspace blocks;

(k) the monitoring of the performance of the network functions in accordance with Article 37(2);

(l) the assessment, in accordance with Article 37(3), of the information received from the national supervisory authorities in relation to the performance plans, for the purpose of monitoring the performance of the European ATM network;

(m) the assessment of the achievement of the performance targets during the reference period;

(n) the maintenance and support in the coordination of a stakeholder consultation calendar concerning performance plans and the consultation requirements referred to in Article 24(2) and (3) and in Article 30.

Article 4

Provision of information and facilitation of monitoring by air navigation service providers

Where necessary for carrying out the tasks of the national supervisory authorities related to the detailed functioning of the performance scheme, the air navigation service providers shall, upon request and without delay, provide to those authorities the following:

(a) information about local conditions relevant to the setting of national performance targets or performance targets set at the level of functional airspace block;

(b) data for establishing the return on equity rate for air navigation charges;

(c) information about planned investments in the five years following the date of the request, showing the profile of planned expenditure for new and existing investments during and beyond the reference period and how major investments contribute to performance in each key performance area;

(d) their business plan referred to in point ATM/ANS.OR.D.005 of Annex III of Commission Implementing Regulation (EU) 2017/373 (²);

(e) information required for the application of Article 28(3);

(f) data on cost bases and information on the allocation of costs among en route and terminal air navigation services, as well as data on revenues from commercial activities and the data on public funds received.

Article 5

Assistance by the Network Manager

The Network Manager shall carry out the following tasks related to the detailed functioning of the performance scheme:

(a) support the Commission by providing relevant input for the establishment of Union-wide performance targets before the start of a reference period and for the monitoring of the achievement of those targets during the reference period, including by drawing the Commission's attention, without undue delay, to any circumstances where performance targets are not met or risk not being met or where significant and persistent drops in operational performance are observed;

(b) upon request of the Commission, support the national supervisory authorities by providing relevant input for the preparation of the performance plans and by informing the national supervisory authority concerned, without undue delay, of any circumstances where national performance targets or FAB performance targets are not met or risk not being met or where significant and persistent drops in operational performance are observed;

(c) support the air navigation service providers in reaching national performance targets or FAB performance targets through, in particular, the development and implementation of the Network Operations Plan referred to in Article 9 of Implementing Regulation (EU) 2019/123.

Article 6

Coordination with the European Union Aviation Safety Agency

Pursuant to Article 13a of Regulation (EC) No 549/2004 and in accordance with point (h) of Article 75(2) and Article 93(b) of Regulation (EU) 2018/1139, the Commission and the Member States shall coordinate with the European Union Aviation Safety Agency to ensure that:

(a) safety aspects are properly addressed, including the setting, revision and implementation of key performance indicators and Union-wide performance targets in the key performance area of safety;

(b) the key performance indicators and the performance targets in the key performance area of safety are consistent with the European Plan for Aviation Safety referred to in Article 6 of Regulation (EU) 2018/1139.

CHAPTER III

PERFORMANCE TARGET SETTING

Article 7

Duration of the reference periods

Article 8

Key performance indicators and indicators for monitoring

Article 9

Union-wide performance targets

The Commission shall consult the stakeholders referred to in Article 10(3) of Regulation (EC) No 549/2004, other relevant persons and organisations and, regarding safety aspects, the European Union Aviation Safety Agency on those indicative target ranges.

For this purpose, the Commission shall:

(a) take account of the relevant inputs from the Performance Review Body, the Network Manager and the national supervisory authorities;

(b) use en route traffic forecasts, expressed in terms of IFR movements and in service units and based on the latest available Eurocontrol's Statistics and Forecast Service (‘STATFOR’) base forecast;

(c) substantiate each Union-wide performance target with a description of the underlying assumptions and rationale for that target, including the use made of inputs referred to in point (a) of this paragraph, the outcome of the consultation referred to in paragraph 2 and other relevant factual data.

Together with the adoption of the Union-wide performance targets, the Commission shall establish:

(a) a Union-wide ‘baseline value for determined costs’ and a Union-wide ‘baseline value for the determined unit cost’, for the purpose of setting targets in the key performance area of cost-efficiency for the key performance indicator referred to in point 4.1 of Section 1 of Annex I. Those baseline values shall be calculated in respect to the year preceding the start of the reference period. The baseline value for determined costs shall be estimated by using the actual costs available for the preceding reference period and adjusted to take account of latest available cost estimates, traffic variations and their relation to costs. The baseline value for the determined unit cost shall be derived by dividing the baseline value for the determined costs with the traffic forecast expressed in service units for the year preceding the start of the reference period;

(b) alert thresholds beyond which Member States may request a revision of the performance targets contained in performance plans, in accordance with point (a)(i) of Article 18(1). Those alert thresholds shall be based on the following parameters: (i) the deviation of the actual traffic from the traffic forecast over a given calendar year, expressed as a percentage of IFR movements; (ii) the deviation of the actual traffic from the traffic forecast over a given calendar year, expressed as a percentage of service units; (iii) the variation of the reference values as a result of the seasonal updates of the Network Operations Plan pursuant to point (a) of Article 9(4) and Article 9(8) of Implementing Regulation (EU) 2019/123 in comparison to the reference values from the latest version of the Network Operations Plan available at the time of drawing up the performance plan. This variation shall be expressed as a percentage of variation or as a fraction of minutes of en route ATFM delay, depending on the magnitude of the references values;

(c) the comparator groups of air navigation service providers with a similar operational and economic environment, for the purposes of assessing performance targets in the key performance area of cost-efficiency.

Article 10

Performance plans

The performance plans shall be drawn up in accordance with the template set out in Annex II and shall include:

(a) binding national performance targets or binding FAB performance targets, set on the basis of the key performance indicators referred to in Article 8(2), including a ‘baseline value for determined costs’ and a ‘baseline value for the determined unit cost’ for each charging zone, for the purpose of setting targets in the key performance area of cost-efficiency. Those baseline values shall be calculated in respect to the year preceding the start of the reference period. The baseline value for determined costs shall be estimated by using the actual costs available for the preceding reference period and shall be adjusted to take account of latest available cost estimates, traffic variations and their relation to costs. The baseline value for the determined unit costs shall be derived by dividing the baseline value for the determined costs with the latest available traffic forecast expressed in service units for the year preceding the start of the reference period;

(b) determined costs for en route and terminal air navigation services set in accordance with points (a) and (b) of Article 15(2) of Regulation (EC) No 550/2004 and with this Regulation;

(c) the incentive schemes established in accordance with Article 11, specifying the parameters of the incentive schemes, the modulation mechanism of pivot values referred to in Article 11(3) where applicable, as well as measures aimed at achieving the objectives of those incentive schemes;

(d) a description of the main measures aimed at achieving performance targets;

(e) a confirmation that it is consistent with the scope of this Regulation pursuant to Article 1 of this Regulation and Article 7 of Regulation (EC) No 549/2004;

(f) en route traffic forecasts, expressed in terms of IFR movements and in service units and based on Eurocontrol's STATFOR base forecast;

(g) terminal traffic forecasts, expressed in terms of IFR movements and in service units, based on Eurocontrol's STATFOR base forecast;

(h) a description of initiatives to support cross-border coordination and the provision of cross-border services which are beneficial to the operational performance or cost-efficiency, or both;

(i) information about: (i) major investments; (ii) change management plans for the entry into service of major airspace changes or for ATM system improvements, aimed at minimising any negative impact on the network performance.