COMMISSION DECISION (EU) 2022/2255

of 24 October 2022

on the initiation of the detailed examination of certain performance targets contained in the revised draft performance plan for the third reference period submitted at functional airspace block level by Belgium, Germany, France, Luxembourg, and the Netherlands pursuant to Regulation (EC) No 549/2004 of the European Parliament and of the Council

(notified under document C(2022) 7438)

(Only the Dutch, French and German texts are authentic)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 (1) (the framework Regulation), and in particular Article 11(3) point (c), second paragraphs, thereof,

Having regard to 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 (2), and in particular Article 15(1) and (3) thereof,

Whereas:

GENERAL CONSIDERATIONS

(1) Pursuant to Article 10 of Implementing Regulation (EU) 2019/317, Member States are to draw up, either at national level or at the level of functional airspace blocks (‘FABs’), binding performance targets for each reference period of the performance scheme for air navigation services and network functions. Those performance targets have to be consistent with the Union-wide targets adopted by the Commission for the reference period concerned.

(2) Union-wide performance targets for the third reference period (‘RP3’) were originally set out in Commission Implementing Decision (EU) 2019/903 (3). As those Union-wide performance targets and the draft RP3 performance plans subsequently submitted in October 2019 by Member States were drawn up before the outbreak of the COVID-19 pandemic in March 2020, they did not take account of the considerable reduction in air traffic due to the measures taken by the Member States and third countries to contain the pandemic.

(3) In response to the impact of the COVID-19 pandemic on the provision of air navigation services, exceptional measures for RP3, which derogate from the provisions of Implementing Regulation (EU) 2019/317, were set out in Commission Implementing Regulation (EU) 2020/1627 (4). The Commission adopted, on 2 June 2021, Implementing Decision (EU) 2021/891 (5) setting revised Union-wide performance targets for RP3. On this basis, Member States submitted to the Commission, in October 2021, draft performance plans containing revised local performance targets for RP3.

(4) Commission Implementing Decision (EU) 2022/728 (6) on the inconsistency of certain performance targets contained in the draft national and functional airspace block performance plans was addressed to Belgium, Germany, Greece, France, Cyprus, Latvia, Luxembourg, Malta, the Netherlands, Romania, and Sweden.

(5) In respect of the draft performance plan for RP3 established at functional airspace block level by Belgium, Germany, France, Luxembourg, and the Netherlands (‘draft FABEC performance plan’), the Commission found that the cost-efficiency performance targets for the Belgium-Luxembourg en route charging zone are not consistent with the Union-wide performance targets and issued recommendations for the revision of those targets.

(6) In response to Russia’s war of aggression against Ukraine, which started on 24 February 2022, the Union has imposed restrictive measures which prohibit Russian air carriers, any Russian-registered aircraft and any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body, from landing in and taking off from, or overflying the territory of the Union. Those restrictive measures and the counter-measures adopted by Russia have led to changes in air traffic in European airspace. Certain Member States have been severely affected by a significant reduction in the number of overflights in the airspace under their responsibility. However, at Union-wide level, the observed impact of those measures on the number of flights has been limited, which is in contrast with the sharp reduction of air traffic across Europe that resulted from the outbreak of the COVID-19 pandemic.

(7) Belgium, Germany, France, Luxembourg, and the Netherlands submitted, on 13 July 2022, a revised draft FABEC performance plan for RP3 for assessment by the Commission.

(8) The performance review body, assisting the Commission in the implementation of the performance scheme pursuant to Article 11(2) of Regulation (EC) No 549/2004, has submitted to the Commission a report containing its advice on the assessment of the revised draft FABEC performance plan.

(9) In accordance with Article 15(1) of Implementing Regulation (EU) 2019/317, the Commission has assessed the consistency of the local performance targets contained in the revised draft FABEC performance plan on the basis of the assessment criteria laid down in point 1 of Annex IV to that Implementing Regulation, and taking account of local circumstances. In respect of each key performance area and the related performance targets, the Commission has complemented its assessment by reviewing the elements set out in point 2 of Annex IV to that Implementing Regulation.

(10) The Eurocontrol STATFOR base traffic forecast published in June 2022 takes account of the changed circumstances referred to in recital (6). Based on that forecast, the Commission notes that Belgium, Germany, France, Luxembourg, and the Netherlands are not foreseen to experience major changes in air traffic flows over RP3 as a result of Russia’s war in Ukraine. Therefore, those changed circumstances do not directly impact the performance targets contained in the revised draft FABEC performance plan or the assessment of those targets in respect of their consistency with the Union-wide performance targets.

REASONS FOR INITIATING A DETAILED EXAMINATION

Performance targets giving rise to doubts

(11) The table below shows the initial RP3 en route cost-efficiency performance targets for the Belgium-Luxembourg charging zone, as contained in the draft FABEC performance plan submitted in 2021, and the corresponding revised performance targets contained in the revised draft FABEC performance plan submitted in July 2022. En route charging zone of Belgium-Luxembourg 2014 baseline value 2019 baseline value 2020-2021 2022 2023 2024 Initial en route cost-efficiency targets (contained in the draft FABEC performance plan submitted in 2021), expressed as determined en route unit cost (in real terms in 2017 prices) 73,13 EUR 83,28 EUR 189,52 EUR 113,26 EUR 108,51 EUR 103,82 EUR Revised en route cost-efficiency targets (contained in the revised draft FABEC performance plan), expressed as determined en route unit cost (in real terms in 2017 prices) 81,78 EUR 83,26 EUR 189,52 EUR 104,47 EUR 94,18 EUR 89,87 EUR

(12) The Commission notes that the performance targets for calendar years 2022, 2023 and 2024 have been revised downwards, whilst the baseline value for 2014 has been revised upwards. Furthermore, a minor technical adjustment, which is not of significance for the assessment of the performance targets, has been applied with regard to the baseline value for 2019.

(13) Belgium and Luxembourg have justified the proposed adjustment of the baseline value for 2014 mainly by the changes in the cost allocation methodology between en route and terminal services, which were introduced in RP3. A similar adjustment has been applied for the 2019 baseline value and was already included in the draft FABEC performance plan submitted in 2021.

(14) The Commission observes that the revision of cost-efficiency targets for the time period from 2022 to 2024 leads to an overall determined unit cost (‘DUC’) reduction of -11,6 % over those three calendar years and of -8,2 % over RP3 as a whole. Those DUC reductions result both from the updated traffic assumptions used in the revised draft performance plan and from the downward revision of the determined costs expressed in real terms in 2017 prices.

(15) The changes to the traffic forecast for calendar years 2022 to 2024 are presented in the table below. The Commission notes that the traffic forecast used in the revised draft performance plan is based on the Eurocontrol STATFOR June 2022 base traffic forecast. En route charging zone of Belgium-Luxembourg 2022 2023 2024 Initial traffic forecast (contained in the draft performance plan submitted in 2021), expressed in thousands of en route service units 2 066 2 226 2 387 Updated traffic forecast (contained in the revised draft performance plan), expressed in thousands of en route service units 2 108 2 445 2 542 Difference +2,0 % +9,8 % +6,5 %

(16) The revised determined costs for calendar years 2022 to 2024, expressed in real terms in 2017 prices, are shown in the table below. En route charging zone of Belgium-Luxembourg 2022 2023 2024 Initial determined costs in real terms in 2017 prices (contained in the draft performance plan submitted in 2021) 234 M EUR 242 M EUR 248 M EUR Revised determined costs in real terms in 2017 prices (contained in the revised draft performance plan) 220 M EUR 230 M EUR 228 M EUR Difference -5,9 % -4,7 % -7,8 %

(17) The Commission notes that inflation assumptions underlying the setting of determined costs have been revised significantly upwards, as outlined in the table below. En route charging zone of Belgium-Luxembourg 2022 2023 2024 Initial inflation index, with forecasted year-on-year change in inflation in parenthesis (data contained in the draft performance plan submitted in 2021) 107,7 (1,9 %) 109,7 (1,8 %) 111,6 (1,8 %) Revised inflation index, with year-on-year change in inflation in parenthesis (data contained in the revised draft performance plan) 115,6 (7,8 %) 119,6 (3,4 %) 121,8 (1,9 %)

(18) Due to the update of the inflation forecast, the revised determined costs in nominal terms for calendar years 2022 to 2024, which are displayed below, remain largely unchanged and are even increased by +2,9 % for calendar year 2023, despite being lower in real terms as presented in recital (16). En route charging zone of Belgium-Luxembourg 2022 2023 2024 Initial determined costs in nominal terms (contained in the draft performance plan submitted in 2021) 250 M EUR 262 M EUR 273 M EUR Revised determined costs in nominal terms (contained in the revised draft performance plan) 250 M EUR 269 M EUR 272 M EUR Difference +0,1 % +2,9 % -0,3 %

(19) The Commission further observes that the determined costs for 2024 include a one-off reduction amounting to approximately EUR 8,3M in nominal terms.

(20) The Commission notes that three air navigation service providers, namely skeyes, MUAC and ANA Luxembourg, are included in the scope of the Belgium-Luxembourg en route charging zone. With regard to the costs of service provision in the charging zone, 62 % of the determined costs of 2024 are incurred by skeyes, whilst MUAC represents 35 % of the cost base for that same year. Only 3 % of the total costs of service provision in the charging zone are allocated to ANA Luxembourg, and those costs are exclusively incurred for the provision of approach services in the airspace around Luxembourg airport.

Findings

(21) The Commission has assessed the consistency of the revised cost-efficiency targets proposed for the Belgium-Luxembourg en route charging zone based on the criteria laid down in points 1.4(a), (b) and (c) of Annex IV to Implementing Regulation (EU) 2019/317.

(22) Concerning the criterion laid down in point 1.4(a) of Annex IV to Implementing Regulation (EU) 2019/317, the Commission observes that the en route DUC trend at charging zone level of +1,9 % over RP3 underperforms the Union-wide trend of +1,0 % over the same period. The Commission notes that this constitutes an improvement from the DUC trend of +5,7 % calculated on the basis of the draft FABEC performance plan submitted in 2021.

(23) Concerning the criterion laid down in point 1.4(b) of Annex IV to Implementing Regulation (EU) 2019/317, the Commission observes that the long-term en route DUC trend at charging zone level over the second reference period (‘RP2’) and RP3 of +1,1 % underperforms the long-term Union-wide trend of -1,3 % over the same period. The Commission notes that this constitutes an improvement from the long-term DUC trend of +4,0 % calculated on the basis of the draft FABEC performance plan submitted in 2021. With reference to recital (13), this improvement is partially due to the adjustment of the baseline value for 2014 for the charging zone.

(24) Concerning the criterion laid down in point 1.4(c) of Annex IV to Implementing Regulation (EU) 2019/317, the Commission observes that the baseline value for the DUC of EUR 83,26 of Belgium and Luxembourg in EUR2017 is 13,2 % higher than the average baseline value of 73,53 EUR2017 of the relevant comparator group. The Commission notes that the difference becomes even larger during RP3, as the en route DUC of Belgium and Luxembourg for 2024 is higher by 29,8 % than the average of the comparator group.

(25) Furthermore, it is necessary to examine whether the deviations observed in recitals (22) to (24) above from the criteria set out in points 1.4(a), 1.4(b) and 1.4(c) of Annex IV to Implementing Regulation (EU) 2019/317 may be deemed necessary and proportionate under point 1.4(d) of that Annex, provided that the observed deviations from the Union-wide DUC trend and from the long-term Union-wide DUC trend are exclusively due to additional determined costs related to measures necessary to achieve the performance targets in the key performance area of capacity or to restructuring measures within the meaning of Article 2(18) of Implementing Regulation (EU) 2019/317.

(26) The Commission notes that the difference estimated by the performance review body between the RP3 determined en route costs reported by Belgium and Luxembourg in the revised draft FABEC performance plan and the determined costs that would be required to meet the RP3 Union-wide DUC trend is approximately EUR 8,2 M in EUR2017, whilst a corresponding estimated deviation from the long-term Union-wide trend amounts to approximately EUR 43,7 M in EUR2017.

(27) Similarly as in the draft FABEC performance plan submitted in 2021, Belgium and Luxembourg continue to contend that airspace complexity is one of the key drivers behind the deviation of the revised draft performance plan from the Union-wide DUC trends. The revised draft FABEC performance plan continues to highlight that the complexity of the Belgium-Luxembourg airspace constitutes a factor increasing the relative workload of air traffic controllers and thus weighting negatively on air traffic controller productivity and on the en route cost base.

(28) However, the Commission notes that Belgium and Luxembourg have not demonstrated, in the revised draft FABEC performance plan, that the complexity of the provision of air navigation services in the charging zone would have increased compared to RP2 or that additional costs would be incurred in RP3 because of a change in the complexity of operations.

(29) In respect of the criterion set out in point 1.4(d)(i) of Annex IV to Implementing Regulation (EU) 2019/317, the Commission notes that Belgium and Luxembourg refer in the revised draft FABEC performance plan to additional determined costs incurred over RP3 by the en route air navigation service providers skeyes and MUAC in relation to measures to increase capacity.

(30) The Commission observes that seven capacity-related measures for skeyes and MUAC are substantiated in the revised draft FABEC performance plan as a justification for the observed deviation from the Union-wide cost-efficiency trends. Four of those measures were already detailed in the draft FABEC performance plan submitted in 2021, whilst three additional measures specific to MUAC have been included.

(31) Regarding skeyes, the revised draft FABEC performance plan outlines measures aimed at maintaining appropriate levels of air traffic controller (ATCO) capacity in order to address the ageing of the air traffic controller workforce and the consequent high number of retirements expected during RP3 and the fourth reference period (‘RP4’).

(32) Such measures include in particular the recruitment and training of new air traffic controllers in order to replace the planned retirements and deliver the capacity required by the forecasted traffic. Furthermore, skeyes is reported to incur significant costs in relation to the ‘DISPO-scheme’ which, in accordance with Belgian law (7), requires air traffic controllers to be withdrawn from duty five years before their retirement date. During those five years, they are eligible for pre-retirement and receive an allowance equaling between 75 % and 85 % of their last salary. According to the information provided in the draft performance plan, air traffic controllers are currently placed in DISPO at the age of 56 and this age limit is due to be raised to 57 from 2025 onwards. The Commission notes that no mitigation measures have been presented by Belgium in order to limit the considerable and growing financial impact of the DISPO scheme on the RP3 cost base.

(33) The Commission further observes that the total costs presented in the revised draft performance plan in respect of the measures outlined in recitals (31) and (32) have been re-evaluated for calendar years 2022 to 2024, leading to an increase of 22,4 % in 2022, of 49,0 % in 2023 and of 36,8 % in 2024.

(34) Furthermore, the revised draft FABEC performance plan refers to additional costs that skeyes will incur in respect of the replacement of its air traffic management (‘ATM’) system with a single, integrated and harmonized airspace management system with MUAC and the Belgian Defense, which aims to support the integration of civil and military ATM services and to enhance capacity and operational efficiencies. The Commission observes that the costs associated with that measure are estimated to be lower than indicated in the draft FABEC performance plan submitted in 2021, by -9,5 % in 2023 and by -11,9 % in 2024.

(35) In respect of MUAC, Belgium and Luxembourg report, similarly as in the draft FABEC performance submitted in 2021, that the collective agreement concluded in 2019 constitutes a measure for the achievement of capacity targets because it aims, in essence, to increase the availability of ATCOs in order to meet traffic demand. The flexibility provisions introduced into the agreement are accompanied by an increase of salary scales by nearly 11 %, which impacts the cost base over the whole reference period. The Commission observes that the costs presented in the revised draft FABEC performance plan in respect of this measure have been revised for calendar years 2022-2024, leading to an increase of 7,4 % in 2022, of 9,0 % in 2023 and of 9,2 % in 2024.

(36) Due to the magnitude of the changes in the costs referred to in recitals (33), (34) and (35), the Commission considers that Belgium and Luxembourg should further explain and detail the assumptions underlying the calculation of those costs.

(37) The revised draft FABEC performance plan reiterates that the achievement of capacity targets by MUAC requires an enhanced post-operations analysis process, related tools and ‘business intelligence facilities’ enabling the further optimization of the planning of daily operations. Belgium and Luxembourg indicate that this set of measures, named the ‘PABI’ project, is foreseen to provide a ‘slight amount of additional capacity’ and to result in some ATFM delay reductions by avoiding unnecessary operational restrictions for airspace users (referred to as ‘over-regulation’). The estimated costs of this project remain unchanged from the draft FABEC performance plan submitted in 2021. The Commission considers that the contribution of the PABI initiative to the achievement of local capacity targets should be further substantiated in order to evaluate whether the related additional costs can be determined as necessary and proportionate for deviating from Union-wide cost-efficiency trends.

(38) Furthermore, the revised draft performance plan includes three additional measures by MUAC which are regarded by Belgium and Luxembourg to generate additional costs necessary for the achievement of capacity targets. Those measures comprise the ab-initio training of air traffic controllers, the employment of additional air traffic controllers for the Brussels sector of MUAC and a new manpower planning system.

(39) Having regard to the evaluation made by the performance review body, the additional total costs reported by Belgium and Luxembourg in respect of the capacity-enhancement measures referred to in recitals (30) to (38) are significantly lower than the deviation from the long-term Union-wide DUC trend observed in recitals (23) and (26). Therefore, even if one were to accept that all of those measures are necessary and proportionate in view of achieving the local capacity targets, it is clear that the deviation from the long-term DUC trend exceeds in monetary terms the additional costs associated with those measures. That deviation is hence not exclusively due to additional determined costs related to measures necessary to achieve the performance targets in the key performance area of capacity.

(40) Therefore, the criterion set out in point 1.4(d)(i) of Annex IV to Implementing Regulation (EU) 2019/317 is not fulfilled in respect of Belgium and Luxembourg.

(41) In respect of the criterion set out in point 1.4(d)(ii) of Annex IV to Implementing Regulation (EU) 2019/317, it suffices to mention that Belgium and Luxembourg have not presented in the revised draft performance plan any restructuring measures which would justify a deviation from the Union-wide DUC trend or from the Union-wide long-term DUC trend. Therefore, the criterion set out in point 1.4(d)(ii) is not fulfilled in respect of Belgium and Luxembourg.

CONCLUSIONS

(42) On the grounds of the findings set out in recitals (11) to (41), the Commission considers, at this stage of the assessment of the revised draft FABEC performance plan, that doubts remain as to the consistency of the cost-efficiency performance targets proposed for the Belgium-Luxembourg en route charging zone.

(43) Accordingly, the Commission notes that the recommendations set out in Article 3 of Implementing Decision (EU) 2022/728 with regard to those performance targets have not been adequately addressed in the revised draft FABEC performance plan.

(44) In particular, the Commission observes that the revised cost-efficiency performance targets proposed for the Belgium-Luxembourg charging zone are consistent neither with the RP3 Union-wide DUC trend, nor with the long-term Union-wide DUC trend. The Commission also observes that the determined costs for the charging zone have not been reduced to a sufficient extent in view of ensuring consistency with the Union-wide performance targets.

(45) In addition, the Commission did not find, based on the elements and justifications provided in the revised draft FABEC performance plan, that the significant deviation from the long-term Union-wide DUC trend could be exclusively attributed to additional costs incurred for the achievement of the local capacity performance targets.

(46) Furthermore, the Commission notes that the revised draft FABEC performance plan does not set out major structural measures which would mitigate the planned cost increases over RP3 and contribute to cost-efficiency over the medium and long term.

(47) The Commission has therefore decided to initiate the detailed examination set out in Article 15(3) of Implementing Regulation (EU) 2019/317 in respect of the cost-efficiency performance targets for the Belgium-Luxembourg en route charging zone,

HAS ADOPTED THIS DECISION:

Article 1 The following cost-efficiency performance targets proposed for the Belgium-Luxembourg en route charging zone, contained in the revised draft RP3 performance plan established at functional airspace block level by Belgium, Germany, France, Luxembourg, and the Netherlands give rise to doubts in respect of their consistency with the Union-wide performance targets: KEY PERFORMANCE AREA OF COST-EFFICIENCY Determined unit cost of en route air navigation services En route charging zone of Belgium-Luxembourg 2014 baseline value 2019 baseline value 2020 -2021 2022 2023 2024 Revised draft en route cost-efficiency targets, expressed as determined en route unit cost (in real terms in 2017 prices) 81,78 EUR 83,26 EUR 189,52 EUR 104,47 EUR 94,18 EUR 89,87 EUR

Article 2 1. The detailed examination procedure set out in Article 15(3) of Implementing Regulation (EU) 2019/317 is hereby initiated with regard to the cost-efficiency performance targets referred to in Article 1. 2. In order to support the further assessment of the performance targets referred to in Article 1, Belgium, Germany, France, Luxembourg, and the Netherlands shall provide, upon request by the Commission, relevant additional data and information with regard to the elements set out in the Annex to this Decision.

Article 3 This Decision is addressed to the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg, and the Kingdom of the Netherlands.

Done at Brussels, 24 October 2022. For the Commission Adina-Ioana VĂLEAN Member of the Commission

(1) OJ L 96, 31.3.2004, p. 1.

(2) OJ L 56, 25.2.2019, p. 1.

(3) Commission Implementing Decision (EU) 2019/903 of 29 May 2019 setting the Union-wide performance targets for the air traffic management network for the third reference period starting on 1 January 2020 and ending on 31 December 2024 (OJ L 144, 3.6.2019, p. 49).

(4) Commission Implementing Regulation (EU) 2020/1627 of 3 November 2020 on exceptional measures for the third reference period (2020-2024) of the single European sky performance and charging scheme due to COVID-19 pandemic (OJ L 366, 4.11.2020, p. 7).

(5) Commission Implementing Decision (EU) 2021/891 of 2 June 2021 setting revised Union-wide performance targets for the air traffic management network for the third reference period (2020-2024) and repealing Implementing Decision (EU) 2019/903 (OJ L 195, 3.6.2021, p. 3).

(6) Commission Implementing Decision (EU) 2022/728 of 13 April 2022 on the inconsistency of certain performance targets contained in the draft national and functional airspace block performance plans submitted by Belgium, Germany, Greece, France, Cyprus, Latvia, Luxembourg, Malta, the Netherlands, Romania, and Sweden pursuant to Regulation (EC) No 549/2004 of the European Parliament and of the Council with the Union-wide performance targets for the third reference period and setting out recommendations for the revision of those targets (OJ L 135, 12.5.2022, p. 4).

(7) Royal Decree of 23 April 2017.