COMMISSION REGULATION (EC) No 2096/2005
of 20 December 2005
laying down common requirements for the provision of air navigation services
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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 and 6 thereof,
Whereas:
(1)
Pursuant to Regulation (EC) No 550/2004, the Commission is required to establish common requirements for the provision of air navigation services throughout the Community. A Regulation providing direct application is the most suitable instrument for this purpose.
(2)
The provision of air navigation services within the Community should be subject to certification by Member States. Air navigation service providers which comply with the common requirements should receive a certificate in accordance with Article 7 of Regulation (EC) No 550/2004. Those air navigation service providers which may operate without a certificate should endeavour to ensure maximum compliance with the common requirements as far as their legal status allows.
(3)
The application of the common requirements to be laid down pursuant to Article 6 of Regulation (EC) No 550/2004 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 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) (2). The common requirements should not cover military operations and training within the scope of Article 1(2) of Regulation (EC) No 549/2004.
(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 to be laid down pursuant to Article 6 of Regulation (EC) No 550/2004 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 common requirements to air navigation service providers should be proportionate to the risks linked with the specific features of each service 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 and thereby waive the right to mutual recognition within the single European sky, a national supervisory 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 with all relevant information on the derogations granted by their national supervisory authority in the context of their annual reports.
(7)
The different types of air navigation services are not necessarily subject to the same requirements. It is therefore necessary to adjust common requirements to the special features of each type of service.
(8)
The onus of proving compliance should lie with the air navigation service providers, for the period of validity of the certificate and for all the services covered.
(9)
In order to ensure the effective application of 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 national supervisory 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. The 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 national supervisory authority should be entitled to check relevant requirements stemming from international obligations on the Member State in question.
(10)
Peer reviews of national supervisory authorities should further a common approach to the supervision of air navigation service providers throughout the Community. The Commission, in cooperation with the Member States, should arrange these peer reviews, which should be co-ordinated with the activities undertaken within the framework of Eurocontrol's ESARR Implementation Monitoring and Support programme (ESIMS) and the Universal Safety Oversight Audit Programme (USOAP) run by the International Civil Aviation Organisation (ICAO). This will avoid duplication of work. In order to allow the exchange of experience and best practice during a peer review, the national experts should preferably originate from a national supervisory authority or a recognised organisation.
(11)
Eurocontrol has developed Safety Regulatory Requirements (ESARRs) which are 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 ESARR 3 on the use of safety management systems by air traffic management (ATM) service providers, ESARR 4 on risk assessment and mitigation in ATM and ESARR 5 on ATM services' personnel, requirements for engineering and technical personnel undertaking operational safety related tasks. Pursuant to Article 5 of Regulation (EC) No 550/2004, the Commission has presented a proposal for a directive of the European Parliament and of the Council on a Community Air Traffic Controller Licence (3) which covers the provisions of ESARR 5 for air traffic controllers. It is therefore not appropriate to repeat these provisions in this Regulation. However, provisions should be included to require a national supervisory authority to check whether the personnel of a provider of air traffic services, in particular air traffic controllers, is properly licensed, if so required.
(12)
It is similarly not appropriate to repeat the ESARR 2 provisions on reporting and assessment of safety occurrences in ATM, which are covered by Council Directive 94/56/EC of 21 November 1994 establishing the fundamental principles governing the investigation of civil accidents and incidents (4) and by Directive 2003/42/EC of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation (5). However, new provisions on safety occurrences should be introduced to require a national supervisory authority to check whether a provider of air traffic services, and also a provider of communication, navigation or surveillance services, meet the arrangements required to cover the reporting and assessment of such occurrences. The relevant provisions of ESARR 1 on safety oversight in ATM, and of ESARR 6 on software in ATM systems, should be identified and adopted by way of separate Community acts.
(13)
It should be recognised in particular that, first, safety management is that function of air traffic 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 will maximise safety benefits in a visible and traceable way. The Commission should update and specify further the safety requirements applying to air traffic services, in order to ensure the highest possible level of safety without prejudice to such future role as may be defined for the European Aviation Safety Agency in this area.
(14)
Air navigation service providers should operate in compliance with the relevant ICAO standards. With a view to facilitating the cross-border provision of services, the Member States and the Commission, acting in close cooperation with Eurocontrol, 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 in particular with a view to developing common rules of the air.
(15)
Different national arrangements as to liability should not prevent an air navigation service provider from entering into agreements on the cross-border provision of services, once they have set up arrangements to cover losses for damages arising from liabilities under the applicable law. The method employed should follow national legal requirements. 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 providers.
(16)
While ESARR 4 defines a maximum tolerable probability for ATM directly contributing to accidents in the ECAC (European Civil Aviation Conference) region, maximum tolerable probabilities for all severity classes have not yet been established. The Member States and the Commission, acting together with Eurocontrol, should complete and update these probabilities and develop mechanisms to apply them in different circumstances.
(17)
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 do not apply to:
(a)
activities other than the provision of air navigation services by a provider;
(b)
resources allocated to activities outside the provision of air navigation services.
This Regulation identifies and adopts the mandatory provisions of the following Eurocontrol Safety Regulatory Requirements (ESARRs) which are relevant for the certification of air navigation service providers:
(a)
ESARR 3 on the use of safety management systems by air traffic management (ATM) service providers, issued on 17 July 2000;
(b)
ESARR 4 on risk assessment and mitigation in ATM, issued on 5 April 2001;
(c)
ESARR 5 on ATM services' personnel, requirements for engineering and technical personnel undertaking operational safety related tasks, issued on 11 April 2002.
Article 2
Definitions
1. For the purposes of this Regulation the definitions established by Regulation (EC) No 549/2004 shall apply.
2. In addition to the definitions referred to in paragraph 1 the following definitions shall apply:
(a)
‘aerial work’ shall mean 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;
(b)
‘commercial air transport’ shall mean any aircraft operation involving the transport of passengers, cargo or mail for remuneration or hire;
(c)
‘functional system’ shall mean a combination of systems, procedures and human resources organised to perform a function within the context of ATM;
(d)
‘general aviation’ shall mean any civil aircraft operation other than commercial air transport or aerial work;
(e)
‘national supervisory authority’ shall mean the body or bodies nominated or established by Member States as their national authority pursuant to Article 4 of Regulation (EC) No 549/2004;
(f)
‘hazard’ shall mean any condition, event, or circumstance which could induce an accident;
(g)
‘operating organisation’ shall mean an organisation responsible for the provision of engineering and technical services supporting air traffic, communication, navigation or surveillance services;
(h)
‘risk’ shall mean the combination of the overall probability, or frequency of occurrence of a harmful effect induced by a hazard and the severity of that effect;
(i)
‘safety assurance’ shall mean all planned and systematic actions necessary to afford adequate confidence that a product, a service, an organisation or a functional system achieves acceptable or tolerable safety;
(j)
‘safety objective’ shall mean a qualitative or quantitative statement that defines the maximum frequency or probability at which a hazard can be expected to occur;
(k)
‘safety requirement’ shall mean 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;
(l)
‘services’ shall mean either an air navigation service or a bundle of air navigation services.
3. ‘Air navigation service provider’ shall be understood to include an organisation having applied for a certificate to provide such services.
Article 3
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, air navigation service providers shall comply with the general common requirements set out in Annex I as well as with the specific additional requirements set out in Annexes II to V to this Regulation according to the type of service they provide, subject to the derogations under Article 4.
2. A national supervisory authority shall verify an air navigation service provider's compliance with the common requirements before issuing a certificate to that provider.
3. An air navigation service provider shall comply with the common requirements no later than the time at which the certificate is issued pursuant to Article 7 of Regulation (EC) No 550/2004.
Article 4
Derogations
1. By way of derogation from the provisions of Article 3(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.
In order to make such an application, 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)
general aviation;
(b)
aerial work;
(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 criteria, a national supervisory authority may accept analogous figures or forecasts in relation to the ceilings defined in the third and fourth subparagraphs.
When presenting such an application, an air navigation service provider shall submit to the national supervisory authority, simultaneously, the relevant evidence regarding the qualifying criteria.
2. A national supervisory authority may grant specific derogations to applicants who fulfil the criteria of paragraph 1, commensurately with their contribution to air traffic management in the airspace under the responsibility of the Member State.
Those derogations may relate only to the requirements of Annex I, subject to the following exceptions:
(a)
part 1 technical and operational competence and capability;
(b)
part 3.1 safety management;
(c)
part 5 human resources;
(d)
part 8.1 open and transparent provision of services.
3. In addition to the derogations referred to in paragraph 2, a national supervisory 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 air traffic management in the airspace under the responsibility of the Member State.
Those derogations may relate only to the following requirements of Annex II, part 3:
(a)
safety management responsibility as well as external services and supplies (under part 3.1.2);
(b)
safety surveys (under part 3.1.3);
(c)
safety requirements for risk assessment and mitigation with regard to changes (part 3.2).
4. No derogations shall be granted from the requirements contained in Annexes III, IV or V.
5. In conformity with Annex II of Regulation (EC) No 550/2004, a national supervisory 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; and
(c)
monitor whether the air navigation service providers continue to qualify for the derogation.
Article 5
Demonstration of compliance
1. The air navigation service provider shall provide all the relevant evidence to demonstrate compliance with the applicable common requirements at the request of the national supervisory authority. The air navigation service provider may make full use of existing data.
2. A certified air navigation service provider shall notify the national supervisory authority of planned changes to its provision of services which may affect its compliance with the applicable common requirements or with the conditions attached to the certificate.
3. A certified provider of air traffic services shall notify the national supervisory authority of planned safety related changes to the provision of air traffic services.
4. Where a certified air navigation service provider does not comply any longer with the applicable common requirements or with the conditions attached to the certificate, the competent national supervisory authority shall take a decision within a time period not exceeding one month. By this decision, the national supervisory authority shall require the air navigation service provider to take corrective action.
The decision shall immediately be notified to the relevant air navigation service provider.
The national supervisory authority shall check that the corrective action has been implemented before notifying its approval to the relevant air navigation service provider. Where the national supervisory authority considers that corrective action has not been properly implemented within the agreed timetable, it shall take appropriate enforcement measures in accordance with Article 7(7) of Regulation (EC) No 550/2004 and Article 9 of Regulation (EC) No 549/2004 while taking into account the need to ensure the continuity of services.
Article 6
Facilitation of compliance monitoring
In accordance with Article 2(2) of Regulation (EC) No 550/2004, air navigation service providers shall facilitate inspections and surveys by the national supervisory authority or by a recognised organisation 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 shall be carried out in compliance with the legal provisions of the Member State in which they are to be undertaken.
Article 7
Ongoing compliance
The national supervisory authority shall, on the basis of the evidence at its disposal, monitor annually the ongoing compliance of the air navigation service providers which it has certified.
To this end, the national supervisory authority shall establish and update annually an indicative inspection programme covering all the providers it has certified and based on an assessment of the risks associated with the different operations constituting the services provided. It shall consult the air navigation service providers concerned as well as any other national supervisory authority concerned, if appropriate, before establishing such a programme.
The programme shall indicate the envisaged interval of the inspections of the different sites.
Article 8
Safety regulation of engineering and technical personnel
With regard to the provision of air traffic, communication, navigation or surveillance services, the national supervisory 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 meet the provisions of Annex II, part 3.3;
(d)
verify that appropriate methods are in place to ensure that third parties assigned to operational safety-related tasks meet the provisions of Annex II, part 3.3.
Article 9
Peer review procedure
1. The Commission, acting in cooperation with the Member States shall 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. A team shall be comprised of experts coming from at least three different Member States. 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 can carry out the review.
4. Within a period of three months following the review, the review team shall draw up, by consensus, a report which may contain recommendations. The Commission shall convene a meeting with the experts and the national supervisory authority to discuss the report.
5. The Commission shall forward the report to the Member State concerned. The latter may, within three months of receipt, present its observations; those observations shall include, where relevant, the measures which it has taken or intends to take to respond to the review within a given timescale.
Unless otherwise agreed with the Member State concerned, the review 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 10
Entry into force
This Regulation shall enter into force on the third 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, 20 December 2005.