Regulation (EC) No 552/2004 of the European Parliament and of the Council
of 10 March 2004
on the interoperability of the European Air Traffic Management network
(the interoperability Regulation)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Economic and Social Committee(2),
Having regard to the opinion of the Committee of the Regions(3),
Acting in accordance with the procedure laid down in Article 251 of the Treaty(4), in the light of the joint text approved by the Conciliation Committee on 11 December 2003,
Whereas:
(1) In order to create the Single European Sky, measures should be adopted in relation to systems, constituents and associated procedures with the objective of ensuring the interoperability of the European air traffic management network (EATMN) consistent with the provision of air navigation services as provided for in 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)(5) and the organisation and use of airspace as provided for in Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2003 on the organisation and use of the airspace in the Single European Sky (the airspace Regulation)(6).
(2) The report of the High Level Group on the Single European Sky has confirmed the need to establish technical regulation on the basis of the "new approach" in accordance with the Council resolution of 7 May 1985 on a new approach to technical harmonisation and standards(7) where essential requirements, rules and standards are complementary and consistent.
(3) Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 (the framework Regulation)(8) lays down the framework for the creation of the Single European Sky.
(4) The report of the High Level Group has confirmed that even though progress has been achieved during the last few years towards seamless operation of the EATMN, the situation still remains unsatisfactory, with a low level of integration between national air traffic management systems and a slow pace in the introduction of new concepts of operation and technology necessary to deliver the additional required capacity.
(5) Enhancing the level of integration at Community level would result in better efficiency and lower costs for system procurement and maintenance and in improved operational coordination.
(6) The predominance of national technical specifications used in procurement has led to fragmentation of the systems market and does not facilitate industrial cooperation at Community level; as a result, industry is particularly affected since it needs to considerably adapt its products for each national market; these practices render development and implementation of new technology unnecessarily difficult and slow down the introduction of new operational concepts that are required to increase capacity.
(7) It is therefore in the interest of all those involved in air traffic management to develop a new partnership approach allowing the balanced involvement of all parties and stimulating creativity and the sharing of knowledge, experience and risks; such partnership should aim at defining, in cooperation with industry, a coherent set of Community specifications that can fulfil the widest possible range of needs.
(8) The internal market is a Community objective and therefore measures taken under this Regulation should contribute to its progressive development in this sector.
(9) It is therefore appropriate to define essential requirements which should apply to the European air traffic management network, its systems, constituents and associated procedures.
(10) Implementing rules for interoperability should be drawn up for systems whenever necessary to complement or further refine the essential requirements; those rules should also be drawn up where necessary to facilitate the coordinated introduction of new, agreed and validated concepts of operation or technologies; compliance with those rules should be permanently maintained; those rules should rely on rules and standards developed by international organisations such as Eurocontrol or ICAO.
(11) The development and adoption of Community specifications concerning EATMN, its systems and constituents and associated procedures is an appropriate means of defining the technical and operational conditions necessary to meet the essential requirements and relevant implementing rules for interoperability; compliance with published Community specifications, which remains voluntary, creates a presumption of conformity with the essential requirements and the relevant implementing rules for interoperability.
(12) Community specifications should be established by the European standardisation bodies in conjunction with the European Organisation for Civil Aviation Equipment (Eurocae) and by Eurocontrol, in accordance with general Community standardisation procedures.
(13) The procedures governing the assessment of conformity or suitability for use of constituents should be based on the use of the modules covered by Council Decision 93/465/EEC of 22 July 1993 concerning the modules for the various phases of the conformity assessment procedures and the rules for the affixing and use of the CE conformity marking, which are intended to be used in the technical harmonisation directives(9); as far as necessary, these modules should be expanded to cover specific requirements of the industries concerned.
(14) The market concerned is of small size and consists of systems and constituents used almost exclusively for air traffic management purposes and not intended for the general public; it would be therefore excessive to affix the CE mark to constituents as, on the basis of the assessment of conformity and/or suitability for use, the manufacturer's declaration of conformity is sufficient; that should not affect the obligation on manufacturers to affix the CE mark to certain constituents in order to certify their compliance with other Community legislation relating to them.
(15) The putting into service of air traffic management systems should be subject to verification of compliance with the essential requirements and relevant implementing rules for interoperability; use of Community specifications creates a presumption of conformity with the essential requirements and relevant implementing rules for interoperability.
(16) The full application of this Regulation should be accomplished by means of a transitional strategy designed to attain the objectives of this Regulation while not creating unjustified cost-benefit barriers to preservation of the existing infrastructure.
(17) Within the framework of the relevant Community legislation, due account should be taken of the need to ensure:
- harmonised conditions with regard to the availability and efficient use of radio spectrum necessary for the implementation of the Single European Sky, including electromagnetic compatibility aspects,
- protection of the safety-of-life services from harmful interference,
- efficient andappropriate use of frequencies allocated to and managed exclusively by the aviation sector.
(18) Council Directive 93/65/EEC of 19 July 1993 on the definition and use of compatible technical specifications for the procurement of air traffic management equipment and systems(10) is limited to obligations of awarding entities; this Regulation is more comprehensive in that it addresses obligations of all actors, including air navigation service providers, airspace users, industry and airports, and provides both for rules applicable to all and for the adoption of Community specifications which, while being voluntary, creates a presumption of conformity with the essential requirements. Therefore, Directive 93/65/EEC, Commission Directive 97/15/EC of 25 March 1997 adopting Eurocontrol standards and amending Council Directive 93/65/EEC on the definition and use of compatible technical specifications for the procurement of air-traffic-management equipment and systems(11) and Commission Regulations (EC) No 2082/2000 of 6 September 2000 adopting Eurocontrol standards and amending Directive 97/15/EC(12) and (EC) No 980/2002 of 4 June 2002 amending Regulation (EC) No 2082/2000 should be repealed after a transitional period.
(19) For reasons of legal certainty it is important to ensure that the substance of certain provisions of Community legislation adopted on the basis of Directive 93/65/EEC remains in force unchanged. The adoption under this Regulation of the implementing rules corresponding to such provisions will necessitate a certain amount of time,
HAVE ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PROVISIONS
Article 1
Objective and scope
1. Within the scope of the framework Regulation, this Regulation concerns the interoperability of the EATMN.
2. This Regulation shall apply to the systems, their constituents and associated procedures identified in Annex I.
3. The objective of this Regulation is to achieve interoperability between the different systems, constituents and associated procedures of the EATMN, taking due account of the relevant international rules. This Regulation aims also at ensuring the coordinated and rapid introduction of new agreed and validated concepts of operations or technology in air traffic management.
CHAPTER II
ESSENTIAL REQUIREMENTS, IMPLEMENTING RULES FOR INTEROPERABILITY AND COMMUNITY SPECIFICATIONS
Article 2
Essential requirements
The EATMN, its systems and their constituents and associated procedures shall meet essential requirements. The essential requirements are set out in Annex II.
Article 3
Implementing rules for interoperability
1. Implementing rules for interoperability shall be drawn up whenever necessary to achieve in a coherent way the objectives of this Regulation.
2. Systems, constituents and associated procedures shall comply with the relevant implementing rules for interoperability throughout their lifecycle.
3. Implementing rules for interoperability shall in particular:
(a) determine any specific requirements that complement or refine the essential requirements, in particular in terms of safety, seamless operation and performance; and/or
(b) describe, where appropriate, any specific requirements that complement or refine the essential requirements, in particular regarding the coordinated introduction of new, agreed and validated concepts of operation or technologies; and/or
(c) determine the constituents when dealing with systems; and/or
(d) describe the specific conformity assessment procedures involving, where appropriate, notified bodies as referred to in Article 8, based on the modules defined in Decision 93/465/EEC to be used to assess either the conformity or the suitability for use of constituents as well as the verification of systems; and/or
(e) specify the conditions of implementation including, where appropriate, the date by which all relevant stakeholders are required to comply with them.
4. The preparation, adoption and review of implementing rules for interoperability shall take into account the estimated costs and benefits of technical solutions by means of which they may be complied with, with a view to defining the most viable solution, having due regard to the maintenance of an agreed high level of safety. An assessment of the costs and benefits of those solutions for all stakeholders concerned shall be attached to each draft implementing rule for interoperability.
5. Implementing rules for interoperability shall be established in accordance with the procedure under Article 8 of the framework Regulation.
Article 4
Community specifications
1. In pursuit of the objective of this Regulation, Community specifications may be established. Such specifications may be:
(a) European standards for systems or constituents, together with the relevant procedures, drawn up by the European standardisation bodies in cooperation with Eurocae, on a mandate from the Commission in accordance with Article 6(4) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations(13) and pursuant to the general guidelines on cooperation between the Commission and the standardisation bodies signed on 13 November 1984;
or
(b) specifications drawn up by Eurocontrol on matters of operational coordination between air navigation service providers, in response to a request from the Commission in accordance with the procedure referred to in Article 5(2) of the framework Regulation.
2. Compliance with the essential requirements and/or the implementing rules for interoperability shall be presumed for systems, together with the associated procedures, or constituents that meet the relevant Community specifications and whose reference numbers have been published in the Official Journal of the European Union.
3. The Commission shall publish the references to the European standards referred to in paragraph 1(a) in the Official Journal of the European Union.
4. The references to Eurocontrol specifications referred to in paragraph 1(b), shall be published by the Commission in the Official Journal of the European Union in accordance with the procedure referred to in Article 5(2) of the framework Regulation.
5. Where a Member State or the Commission considers that conformity with a published Community specification does not ensure compliance with the essential requirements and/or implementing rules for interoperability which the said Community specification is intended to cover, the procedure referred to in Article 5(2) of the framework Regulation shall apply.
6. In the case of shortcomings of published European standards, partial or total withdrawal of the standards concerned from the publications containing them, or amendments thereto, may be decided upon in accordance with the procedure referred to in Article 5(2) of the framework Regulation after consultation of the committee set up under Article 5 of Directive 98/34/EC.
7. In the case of shortcomings of published Eurocontrol specifications, partial or total withdrawal of the specifications concerned from the publications containing them, or amendment thereof, may be decided upon in accordance with the procedure referred to in Article 5(2) of the framework Regulation.
CHAPTER III
VERIFICATION OF COMPLIANCE
Article 5
EC declaration of conformity or suitability for use of constituents
1. Constituents shall be accompanied by an EC declaration of conformity or suitability for use. The elements of this declaration are set out in Annex III.
2. The manufacturer, or its authorised representative established in the Community, shall ensure and declare, by means of the EC declaration of conformity or suitability for use, that he has applied the provisions laid down in the essential requirements and in the relevant implementing rules for interoperability.
3. Compliance with the essential requirements and the relevant implementing rules for interoperability shall be presumed in relation to those constituents that are accompanied by the EC declaration of conformity or suitability for use.
4. The relevant implementing rules for interoperability shall identify, where appropriate, the tasks pertaining to the assessment of conformity or suitability for use of constituents to be carried out by the notified bodies referred to in Article 8.
Article 6
EC declaration of verification of systems
1. Systems shall be subject to an EC verification by the air navigation service provider in accordance with the relevant implementing rules for interoperability, in order to ensure that they meet the essential requirements of this Regulation and the implementing rules for interoperability, when integrated into the EATMN.
2. Before a system is put into service, the relevant air navigation service provider shall establish an EC declaration of verification, confirming compliance, and shall submit it to the national supervisory authority together with a technical file. The elements of this declaration and of the technical file are set out in Annex IV. The national supervisory authority may require any additional information necessary to supervise such compliance.
3. The relevant implementing rules for interoperability shall identify, where appropriate, the tasks pertaining to the verification of systems to be carried out by the notified bodies as referred to in Article 8.
4. The EC declaration of verification shall be without prejudice to any assessments that the national supervisory authority may need to carry out on grounds other than interoperability.
Article 7
Safeguards
1. Where the national supervisory authority ascertains that:
(a) a constituent accompanied by an EC declaration of conformity or suitability for use, or
(b) a system accompanied by the EC declaration of verification,
does not comply with the essential requirements and/or relevant implementing rules for interoperability, it shall, with due regard to the need to ensure safety and continuity of operations, take all measures necessary to restrict the area of application of the constituent or the system concerned or to prohibit its use by the entities under the responsibility of the authority.
2. The Member State concerned shall immediately inform the Commission of any such measures, indicating its reasons and, in particular, whether in its opinion non-compliance with the essential requirements is due to:
(a) failure to meet the essential requirements;
(b) incorrect application of the implementing rules for interoperability and/or Community specifications;
(c) shortcomings in the implementing rules for interoperability and/or Community specifications.
3. As soon as possible, the Commission shall consult the parties concerned. After such consultation, the Commission shall inform the Member State of its findings and of its opinion as to whether the measures taken by the national supervisory authority are justified.
4. Where the Commission establishes that the measures taken by the national supervisory authority are not justified, it shall request the Member State concerned to ensure that they are withdrawn without delay. It shall forthwith so inform the manufacturer or its authorised representative established in the Community.
5. Where the Commission establishes that non-compliance with the essential requirements is due to incorrect application of the implementing rules for interoperability and/or the Community specifications, the Member State concerned shall take appropriate measures against the originator of the declaration of conformity or suitability for use or the EC declaration of verification and shall inform the Commission and the other Member States thereof.
6. Where the Commission establishes that non-compliance with the essential requirements is due to shortcomings in the Community specifications, the procedures referred to in Article 4(6) or (7) shall apply.
Article 8
Notified bodies
1. Member States shall notify the Commission and the other Member States of the bodies they have appointed to carry out tasks pertaining to the assessment of conformity or suitability for use referred to in Article 5, and/or the verification referred to in Article 6, indicating each body's area of responsibility and its identification number obtained from the Commission. The Commission shall publish in the Official Journal of the European Union the list of bodies, their identification numbers and areas of responsibility, and shall keep the list updated.
2. Member States shall apply the criteria provided for in Annex V for the assessment of the bodies to be notified. Bodies meeting the assessment criteria provided for in the relevant European standards shall be deemed to meet the said criteria.
3. Member States shall withdraw notification of a notified body which no longer meets the criteria provided for in Annex V. It shall forthwith inform the Commission and the other Member States thereof.
4. Without prejudice to the requirements referred to in paragraphs 1, 2 and 3, Member States may decide to appoint organisations recognised in conformity with Article 3 of the service provision Regulation as notified bodies.
CHAPTER IV
FINAL PROVISIONS
Article 9
Revision of Annexes
In case of any technical or operational developments, adjustments may be made to Annexes I and II in accordance with the procedure referred to in Article 5(3) of the framework Regulation.
Article 10
Transitional arrangements
1. Starting from 20 October 2005, the essential requirements shall apply to the putting into service of systems and constituents of the EATMN, if not otherwise specified by the relevant implementing rules for interoperability.
2. Compliance with the essential requirements shall be required for all systems and constituents of the EATMN currently in operation by 20 April 2011, if not otherwise specified by the relevant implementing rules for interoperability.
3. Where systems of the EATMN have been ordered or binding contracts to that effect have been signed
- before the date of entry into force of this Regulation, or, where appropriate,
- before the date of entry into force of one or more relevant implementing rules for interoperability,
so that compliance with the essential requirements and/or the relevant implementing rules for interoperability cannot be guaranteed within the time limit mentioned in paragraph 1, the Member State concerned shall communicate to the Commission detailed information on the essential requirements and/or implementing rules for interoperability where uncertainty of compliance has been identified.
The Commission shall enter into consultation with the parties concerned, after which it shall take a decision in accordance with the procedure referred to in Article 5(3) of the framework Regulation.
Article 11
Repeal
Directives 93/65/EEC and 97/15/EC and Regulations (EC) Nos 2082/2000 and 980/2002 shall be repealed on 20 October 2005.
Article 12
Entry into force
This Regulation shall enter into force on the twentieth day following that of 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 Strasbourg, 10 March 2004.