Regulation (EU) 2024/2803 of the European Parliament and of the Council of 23 October 2024 on the implementation of the Single European Sky (recast) (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1) Regulation (EC) No 549/2004 of the European Parliament and of the Council (3), Regulation (EC) No 550/2004 of the European Parliament and of the Council (4) and Regulation (EC) No 551/2004 of the European Parliament and of the Council (5) have been substantially amended. Since further amendments are to be made, those Regulations should be recast in the interests of clarity.

(2) The adoption by the European Parliament and the Council of the first package of the Single European Sky legislation, namely, Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004, and (EC) No 552/2004 of the European Parliament and of the Council (6), laid down a firm legal basis for a seamless, interoperable and safe air traffic management (ATM) system. The adoption of the second package, namely, Regulation (EC) No 1070/2009 of the European Parliament and of the Council (7), further strengthened the Single European Sky initiative by introducing the concepts of ‘performance scheme’ and ‘Network Manager’ to further improve the performance of the European ATM network. Regulation (EC) No 552/2004 has been repealed by Regulation (EU) 2018/1139 of the European Parliament and of the Council (8), as the rules necessary for interoperability of ATM systems, constituents and procedures have been incorporated in Regulation (EU) 2018/1139.

(3) In order to take into account the changes introduced in Regulation (EU) 2018/1139, it is necessary to align this Regulation with that Regulation and to amend the latter.

(4) Detailed rules on the use of airspace, operational provisions regarding services and procedures in air navigation and rules and procedures for the design of airspace structures are regulated under Regulation (EU) 2018/1139, whereas the classification of airspace should be regulated under this Regulation.

(5) In Article 1 of the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 (the ‘Chicago Convention’), the Contracting States recognise that ‘every State has complete and exclusive sovereignty over the airspace above its territory’. It is within the framework of such sovereignty that the Member States of the Union, subject to applicable international conventions, exercise the powers of a public authority when controlling air traffic.

(6) This Regulation should not affect Member States rights and responsibilities under the Chicago Convention.

(7) Implementation of the common transport policy requires an efficient air transport system allowing the safe, regular and sustainable operation of air transport services, optimising the use of airspace and capacity, contributing to aviation sustainability and facilitating the free movement of goods, persons and services.

(8) The simultaneous pursuit of the goals of augmentation of air traffic safety standards and improvement of the overall performance of ATM and air navigation services (ANS) for general air traffic in Europe requires that the human factor be taken into account. Therefore, the Member States should uphold ‘just culture’ principles. The opinions and recommendations of the Commission Expert Group on the Human dimension of the Single European Sky established by Commission Decision (EU) 2023/2109 (9) should be considered and taken into account.

(9) Improvements in the climate and environmental performance of ATM also contribute to the achievement of the objectives contained in the Paris Agreement, in Regulation (EU) 2021/1119 of the European Parliament and of the Council (10), in Council conclusions on the Commission’s Sustainable and Smart Mobility Strategy and in the Digital Agenda for Europe, in particular through the reduction of aviation emissions.

(10) A more efficient use of airspace, allowing for more options in terms of optimal flight trajectories, would lead to increased fuel efficiency and reduced emissions. Various climate and environmental elements should also be taken into account when optimising flight trajectories and flight profiles, in order to reduce emissions and air pollutants. A methodology on how to take into account those various elements and their interdependencies should be developed, in particular when designing performance indicators.

(11) Airspace is a common resource for all categories of users that needs to be used flexibly by all of them, ensuring fairness and transparency while taking into account the security and defence needs of Member States and their commitments within international organisations.

(12) In 2004, Member States adopted a general statement on military issues related to the Single European Sky (11), which they have reiterated. According to that statement, Member States should, in particular, enhance civil-military cooperation and, if and to the extent deemed necessary by all Member States concerned, facilitate cooperation between their armed forces in all matters of air traffic management.

(13) Decisions relating to the content, scope or carrying out of military operations and training do not fall within the sphere of competence of the Union under Article 100(2) of the Treaty on the Functioning of the European Union.

(14) Article 9a of Regulation (EC) No 550/2004 provided for the establishment by Member States of functional airspace blocks with a view to enhancing cooperation between air navigation service providers in order to improve performance and create synergies, and regulated such airspace blocks. Member States may maintain the cooperation and coordination within such formerly established airspace blocks with the view to fostering the performance of the air traffic management network within the Single European Sky, in particular by submitting joint performance plans, provided in particular that this does not affect the efficient implementation of this Regulation.

(15) Member States should nominate a national supervisory authority in order to assume the tasks assigned to such authority under this Regulation. To ensure consistent and sound oversight of service provision across Europe, the national supervisory authorities should be guaranteed sufficient independence and resources. In particular, the financing of those authorities should guarantee their independence and should allow them to operate in accordance with the principles of fairness, transparency, non-discrimination and proportionality. This should not prevent a national supervisory authority from being joined with another regulatory authority, such as the national competent authority or the national competition authority, if the joint authority fulfils the independence requirements and provided that the decisions related to the tasks conferred on the national supervisory authority under this Regulation are taken independently from other tasks conferred on the joint authority.

(16) Appropriate procedures for appointing the staff of national supervisory authorities should contribute to guaranteeing the independence of those authorities. Staff of national supervisory authorities should act independently, in particular by avoiding conflicts of interest between air navigation service provision and the execution of their tasks. The rules regarding conflicts of interest for staff and persons who take decisions exercising the powers defined in this Regulation should also prevent possible conflicts of interest arising from their active assignment to a national supervisory authority in connection with a new position in a regulated entity for the time immediately following the end of their assignment to that national supervisory authority.

(17) Procedures should be put in place to ensure the cooperation and exchange of information between the national supervisory authority and the national competent authority with the view to ensuring the proper application of this Regulation.

(18) Requirements for the granting of a certification regarding financial robustness, liability, insurance cover and ownership and organisational structure have a strong link to the safety and security requirements for the provision of services and to the operational and technical oversight to be carried out by a national competent authority. In respect of certification, oversight, and enforcement activities relating to the requirements regarding financial robustness, liability, insurance cover, ownership and organisational structure listed in point 7 of Annex VIII to Regulation (EU) 2018/1139, Member States should arrange their administrative processes in accordance with their national arrangements to ensure proper and efficient execution of the tasks of both national competent and supervisory authorities.

(19) National supervisory authorities have a key role to play in the implementation of the Single European Sky and they should therefore cooperate with each other in order to enable the exchange of information on their work and decision making principles, best practices and procedures as well as with regard to the application of this Regulation and to develop a common approach, including through enhanced cooperation at regional level. This cooperation should take place on a regular basis in the context of the National Supervisory Authorities Cooperation Board.

(20) Cooperation between air navigation service providers is an important tool for improving the overall performance of the European ATM system and should be encouraged.

(21) An air navigation service provider should be able to offer services in the Union under non-discriminatory conditions where it holds a certificate or a declaration pursuant to Article 41 of Regulation (EU) 2018/1139.

(22) In accordance with Article 2(5) of Regulation (EU) 2018/1139 and subject to the conditions set out therein, Member States should be able to allow the provision of air navigation services referred to in Article 2(3), point (c) of Regulation (EU) 2018/1139 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 should inform the Commission and the other Member States of its decision.

(23) This Regulation does not require the certification of signals provided by Global Navigation Satellite Systems (GNSS).

(24) There should be no discrimination between airspace users regarding the provision of equivalent air navigation services.

(25) Air traffic services should be provided on an exclusive basis. Providers of such services should be subject to designation and public interest requirements. In that respect, it should be taken into account that the provision of air traffic services which are connected with the exercise of the powers of a public authority and are not of an economic nature is not subject to the application of Treaty rules on competition.

(26) The designation process should take into account the need for service continuity and long-term investment planning by air traffic service providers. Notwithstanding the above, the fast-evolving context of air navigation requires that monitoring of the rights and obligations of designated air traffic service providers is performed to ensure that those rights and obligations remain fully applicable and that those obligations are fulfilled. Where Member States consider it necessary to launch a new designation process in the context of their monitoring, they should be able to designate the same air traffic service provider, in accordance with national law.

(27) Member States should ensure that the designation of an air traffic service provider is not prevented by their national law on the grounds in particular that the service provider concerned has its principal place of business in another Member State or is owned by nationals of that Member State where the application of such national law entails an unjustified restriction of the freedom to provide services or the freedom of establishment, which should be assessed on a case-by-case basis in the light of all relevant circumstances.

(28) Air traffic service providers may procure communication, navigation and surveillance services (CNS), aeronautical information services (AIS), air traffic data services (ADS), or meteorological services (MET) in cases where Member States have not designated a MET provider, under market conditions, or under other forms of agreements where Directives 2014/24/EU (12) and 2014/25/EU (13) of the European Parliament and of the Council do not apply, taking into account specific situations such as lack of solutions available on the market and considerations relating to the public interest. Member States may allow airport operators or a group of airport operators to procure terminal air traffic services for aerodrome control or air traffic services for approach control under market conditions.

(29) Where air traffic services for aerodrome control and approach control are procured, they should not be subject to performance target setting set out in this Regulation. The service providers should nevertheless provide data on the performance of the air navigation services. Where air traffic services for aerodrome control and approach control are procured, technical requirements in the tender specifications should include requirements on service quality.

(30) Air navigation service providers should 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.

(31) Where applicable, the procurement of air navigation services should be carried out in accordance with Directive 2014/24/EU, Directive 2014/25/EU, and with the principles of equal treatment, non-discrimination and transparency as well as with the applicable provisions of the Treaty, in particular the Treaty rules on the freedom to provide services and the freedom of establishment. The tender procedures for the procurement of services should be designed so as to enable the effective participation of competing providers in these procedures, including through regular reopening of competition.

(32) The traffic management of unmanned aircraft requires the availability of common information services (CIS). When CIS are provided by a single CIS provider designated by the Member State in respect of a specific U-space airspace, the prices of CIS should be regulated in order to contain the costs of such traffic management. Prices of CIS should therefore be based on cost and a reasonable mark-up for profit, and should be subject to approval by national supervisory authorities. Where CIS are not provided by a single CIS provider, the individual CIS should be provided for free. To enable the provision of the service, access to relevant operational data should be granted to CIS providers on fair, reasonable and non-discriminatory terms.

(33) Availability of relevant operational data with respect to general air traffic is essential for enabling the flexible provision of air traffic data services, on cross-border and on Union-wide bases. Therefore, such data should be made available to relevant stakeholders including to entities having a proven interest in considering the provision of air navigation services, on fair, reasonable, and non-discriminatory terms. Accuracy of information including on airspace status and on specific air traffic situations and timely distribution of this information to civil and military controllers has a direct impact on the safety and efficiency of operations, including the environmental efficiency of flights. Timely access to up-to-date information on airspace status is essential for all parties wishing to take advantage of airspace structures made available when filing or re-filing their flight plans.

(34) The performance and charging schemes should not apply to terminal air navigation services provided at airports with less than 80 000 air transport movements per year performed using instrument flight rules (IFR). The setting of performance targets for such services would have little added value as such targets would, in most cases, be close to zero. Moreover, submitting those services to the performance and charging schemes set up by this Regulation would lead to a disproportionate administrative and financial burden compared to the expected benefits in terms of performance improvement and better service quality. However, Member States may decide that such terminal air navigation services are subject to the performance and charging schemes.

(35) Militaries which provide air navigation services primarily to aircraft movements other than general air traffic, including their financing, should not be subject to the performance and charging schemes set up by this Regulation. Therefore, the costs of their services should not be regarded as determined costs under this Regulation. However, Member States may decide to apply those schemes to militaries which provide such services. The performance and charging schemes should apply to militaries which provide air navigation services primarily to general air traffic.

(36) The performance and charging schemes should ensure efficient, sustainable and continuous operation of the European ATM system and are also intended to make air navigation services provided under conditions other than market conditions more cost-efficient and to promote better service quality. To this end, they should include relevant and appropriate incentives. In view of this objective, the performance scheme should not cover services supplied under market conditions. The performance scheme should cover all air navigation services which a designated air traffic service provider provides or procures from other service providers, including when that service provider provides air navigation services and air traffic services.

(37) Member States may develop joint performance plans for air navigation services with the aim of improving the level of performance of air traffic management beyond the level which would be achievable on an individual Member State’s basis, covering at least the duration of the reference period; Member States should include in those joint plans at least one joint target and initiatives on cross-border cooperation, while considering the added value of setting other joint targets, conducting joint procurement and establishing joint governance.