COMMISSION IMPLEMENTING REGULATION (EU) 2019/317

of 11 February 2019

laying down a performance and charging scheme in the single European sky and repealing Implementing Regulations (EU) No 390/2013 and (EU) No 391/2013

(Text with EEA relevance)

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 (the framework Regulation) (1) and in particular Article 11(6) thereof,

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 (2), and in particular Article 15(4) thereof,

Whereas:

(1) The performance scheme referred to in Article 11 of Regulation (EC) No 549/2004 should improve the performance of air navigation services and network functions in the single European sky.

(2) The charging scheme for air navigation services referred to in Article 15 of Regulation (EC) No 550/2004 is instrumental to the successful implementation of the performance scheme and should therefore complement it. The charging scheme should contribute to greater transparency in the determination, imposition and enforcement of charges to airspace users and should contribute to the cost efficiency of providing air navigation services and to efficiency of flights, while maintaining an optimum safety level. The charging scheme should be consistent with the Eurocontrol's charging system for en route charges and with Article 15 of the 1944 Chicago Convention on International Civil Aviation (the ‘Chicago Convention’).

(3) In the interest of clarity, and in order to provide for an adapted regulatory framework for the third reference period of the performance scheme, it is necessary to revise the implementing rules governing the performance and charging schemes contained in Commission Implementing Regulation (EU) No 390/2013 (3) and Commission Implementing Regulation (EU) No 391/2013 (4) and to consolidate these provisions in a single Implementing Regulation.

(4) In accordance with Article 11(1) of Regulation (EC) No 549/2004, the performance scheme should cover air navigations services and network functions referred to in Article 6 of Regulation (EC) No 551/2004 of the European Parliament and of the Council (5). Therefore, this Regulation should apply to the Network Manager appointed in accordance with Article 4(3) of Commission Implementing Regulation (EU) 2019/123 (6).

(5) The performance and charging schemes should enhance the performance of air navigation services through a gate-to-gate approach covering both en route and terminal air navigation services. They should foster long-term improvements in the performance of air navigation services, as reflected in the European ATM Master Plan (7) while having due regard to the overriding safety objectives. The performance scheme should contribute to the reduction of greenhouse gas emissions from aviation and should allow optimum use of airspace, taking into account air traffic flows in the European airspace.

(6) A Performance Review Body upon Commission's request may give independent advice to the Commission in all areas that affect the performance of air navigation services and network functions in the Union.

(7) National supervisory authorities should be able to obtain from all relevant parties, including air navigation service providers under their supervision, relevant data necessary for the purpose of ensuring the proper implementation and oversight of this Regulation at a local level. Air navigation service providers should facilitate inspections and surveys carried out by the national supervisory authorities for the purpose of monitoring the implementation of the performance and charging schemes.

(8) The Network Manager should provide relevant inputs to target setting at Union, national and functional airspace block levels, and should support the achievement of performance targets through measures and processes provided in the Network Operations Plan.

(9) In implementing the performance scheme, the Commission and Member States should coordinate with the European Union Aviation Safety Agency in order to ensure that safety aspects are properly addressed, in line with the safety objectives and requirements stemming from Regulation (EU) 2018/1139 of the European Parliament and of the Council (8).

(10) The duration of a reference period for the performance scheme should be such as to provide the certainty required to implement multi-annual capital expenditure programmes in order to achieve the expected return on investments in the form of performance improvements, while still allowing accuracy of forecasting.

(11) Key performance indicators should be defined in the key performance areas of safety, environment, capacity and cost-efficiency. These key performance indicators should be used for the purpose of setting achievable, sustainable, realistic and time-bound performance targets at Union level, national level or functional airspace block level. The key performance indicators should cover both en route and terminal air navigation services, as well as network functions, in order to improve the overall performance of the network.

(12) Union-wide performance targets should be set by the Commission, taking account of the level of performance achieved in the previous reference period or periods and of relevant inputs provided by the Performance Review Body, the Network Manager and the national supervisory authorities. The inputs from national supervisory authorities should include in particular initial cost and information about traffic forecasts for the reference period concerned. The Commission should substantiate Union-wide performance targets with a description of underlying assumptions and rationales. Drafting of the Union-wide performance targets should be subject to stakeholder consultation.

(13) Member States should be able to decide on whether their respective performance plans are established at national level or at the level of functional airspace blocks, taking account of local circumstances.

(14) National supervisory authorities should be responsible for the development of national or functional airspace block performance plans, including binding performance targets, based on key performance indicators applied at national level or at the level of functional airspace block. The national or functional airspace block performance plans should include initiatives to support cross-border cooperation between air navigation service providers, irrespective of their geographical scope.

(15) Performance plans should provide full transparency on the determined costs of new and existing investments in respect of the purchase, development or leasing of fixed assets. Major investments should be detailed and justified, as well as consistent with SESAR deployment and with expected performance gains.

(16) Consultations should take place at national or functional airspace block level in order to ensure that the views of stakeholders are taken into account in the establishment of performance plans and targets contained therein.

(17) Given the strong links between the different key performance areas, the interdependencies between performance targets should be duly taken into account for the purposes of target setting, having regard to the overriding safety objectives.

(18) Performance targets should be subject to incentives with a view to encouraging better performance, including the application of a traffic risk sharing mechanism in respect of the key performance area of cost-efficiency. Incentive schemes should be effective and should set parameters in a non-discriminatory and transparent manner for the purpose of rewarding or penalising actual performance in relation to the adopted performance targets. The safety key performance area should not be subject to any incentives due to its overriding nature. Member States should ensure that the implementation of incentive schemes does not adversely impact planned and ongoing investments aimed at delivering the adequate capacity and flight efficiency to users.

(19) Member States should adopt draft performance plans and submit them to the Commission for the Commission's assessment and review. In this respect, the Commission should first verify whether the performance plans are complete. If the plans are complete, the Commission should assess whether the proposed performance targets contained in the performance plans are consistent with the Union-wide performance targets. If the required consistency cannot be established, the Commission should request Member States to revise their performance plans and targets, or to take corrective measures.

(20) Member States should adopt and publish the final versions of their respective performance plans only after the Commission has found that the national performance targets or performance targets set at the level of functional airspace blocks (‘FAB performance targets’) contained therein are consistent with the Union-wide targets.

(21) The targets set in the draft performance plans should apply during the procedures for the assessment from the start of the reference period and, where appropriate, during the revision of performance targets set at national or functional airspace block level. Upon the adoption of the final performance plans, the performance targets in the key performance area of cost-efficiency should apply retroactively through an adjustment of unit rates in order to ensure that airspace users benefit from performance improvements from the start of the reference period.

(22) Member States should request permission from the Commission if they want to revise one or several performance targets during a reference period. Such a request can be made where alert thresholds are reached, or where the Member State demonstrates that the initial data, assumptions and rationales, including on investments, underpinning the performance targets are to a significant and lasting extent no longer accurate due to circumstances that were unforeseeable at the time of the adoption of the performance plan. The Commission should authorise the Member State concerned to proceed with the intended revision only if it is necessary and proportionate in light of the aforementioned circumstances, and where the revised performance targets ensure that consistency with the Union-wide performance targets is maintained.

(23) The introduction of new technologies and business models to stimulate integrated service provision should lead to significant cost reductions to the benefit of users over time but can lead to initial restructuring costs. If a Member State demonstrates that restructuring measures bring a net benefit to users, it should also be able to request a revision of local cost-efficiency targets in order to recover the associated restructuring costs through a revision of the determined costs contained in their performance plans, subject to the Commission's authorisation.

(24) The Commission should review the Union-wide performance targets during the reference period to determine whether they remain adequate. The Commission should consider a revision of Union-wide performance targets where it is demonstrated during a reference period that these targets are no longer adequate in light of changed circumstances, and that the revision of targets is necessary and proportionate. A revision of Union-wide targets during a reference period should trigger the start of a new reference period, including the establishment of associated performance plans and performance targets set at national or functional airspace block level.

(25) Network functions should also be subject to performance targets and should contribute to the achievement of the Union-wide performance targets. For this purpose the Network Manager should prepare the Network Performance Plan which should be verified and adopted by the Commission.

(26) An effective operational partnership and cooperative decision making between the principal stakeholders, such as air navigation service providers, functional airspace blocks, airports, civil and military airspace users and the Network Manager is of key importance for the achievement of performance targets of network functions.

(27) The determined costs of air navigation services should be financed by charges imposed on airspace users. These charges should be levied in charging zones established for en route and terminal air navigation services. Member States should ensure that the geographical scope of these charging zones is clearly defined and that the charging zones are consistent with the provision of air navigation services. It may be necessary to modify a terminal charging zone during a reference period due to changes in the operation of airports.

(28) A cost base for charges, which comprises the determined costs of eligible air navigation services and facilities, should be established for each charging zone. Member States should also be allowed to include in these cost bases the determined costs incurred by their national supervisory authorities as well as other State costs related to the provision of air navigation services.

(29) The determined costs for en route and terminal charges should be established prior to the start of each reference period, as part of the performance plans. These determined costs shall be specified for each calendar year of the reference period concerned. National supervisory authorities should verify that the established determined costs only comprise cost items that are eligible under the performance and charging scheme.

(30) The determined costs included in a cost base for en route or terminal air navigation services should include staff costs, operating costs other than staff costs, depreciation costs, cost of capital, and exceptional costs. Actual costs incurred should be annually reported in accordance with the same categorisation in order to ensure consistency and transparency.

(31) National supervisory authorities should, before the start of each reference period, define the criteria used to allocate costs between en route and terminal services and inform the Commission accordingly. Those criteria should ensure the transparent setting of determined costs and guarantee that there are no cross-subsidies between en route and terminal services.

(32) Member States should annually calculate the unit rates for their en route and terminal charging zones. In calculating the unit rate, Member States should ensure that services or facilities funded through public funds including Union assistance programmes such as the Trans-European transport network, the Connecting Europe Facility and the Cohesion Fund, are not charged to airspace users. In calculating the unit rates, Member States should be allowed to adjust their determined costs for inflation.

(33) The performance and charging scheme should provide for a traffic risk sharing mechanism to incentivise the provision of services. National supervisory authorities should be allowed to adjust the values of the traffic risk sharing parameters as defined in this Regulation in order to take account of local circumstances and to better incentivise the provision of air navigation services. That adjustment should be done after consultation of air navigation service providers and airspace users. However, those adjustments should not reduce the risk exposure of the air navigation service provider or providers concerned in comparison with the default mechanism set out in this Regulation.

(34) Air navigation service providers should bear the cost risk with regard to differences between determined and actual costs, except for a limited number of cost items subject to specific requirements.

(35) Air navigation service providers should not be allowed to generate financial surpluses as a result of the cancellation or postponement of new and existing investments during a reference period. Air navigation service providers should be able to annually adjust the planned major investments during a reference period, subject to a detailed justification and provided that the requested changes are approved by the national supervisory authority concerned. Where the actual costs of new and existing investments exceed the corresponding determined costs over a reference period, national supervisory authorities should be responsible for verifying the detailed justifications provided by air navigation service providers and for authorising any subsequent recovery of additional costs from airspace users. Any material difference in those costs should not be charged to users, unless the national supervisory authority has established that the additional costs were exclusively due to new and existing investments required for operational changes consistent with the implementation of the European ATM Master Plan and in particular SESAR common projects.

(36) Unforeseeable changes in applicable legal provisions or financial conditions may lead, during a reference period, to significant deviations of actual pension costs from the determined pension costs set out in the performance plans. Subject to scrutiny by the national supervisory authority, those cost differences should be passed on to airspace users through unit rate adjustments.

(37) Member States should set annually a unit rate for each charging zone. Member States should be able to set their unit rates collectively, in particular when charging zones extend across the airspace of more than one Member State or when they are parties to a joint route charges system. The Commission should verify that the unit rates submitted by Member States comply with the provisions on unit rate calculation of this Regulation.

(38) The charging scheme should ensure complete and transparent information on the cost bases for charges, actual costs and unit rates. Before the start of a reference period, Member States should consult air navigation service providers, airspace users' representatives, and, where relevant, airport operators and airport coordinators on the planned determined costs, planned investments, service unit forecasts and the charging policy for the reference period concerned. During the reference period, Member States should ensure that these stakeholders are annually consulted on the intended unit rates and on the actual costs incurred in connection with the provision of air navigation services. Member States should make complete and adequate information available to all the consulted entities for the purpose of the consultations.

(39) Member States should be able to decide to modulate air navigation charges to provide incentives to equip aircraft with systems included in the SESAR common projects. Member States should be able to further modulate charges, taking into account the level of congestion of the network in a specific area or on a specific route at specific times, to increase the efficiency of air navigation services and to promote their optimised use.

(40) Member States should be able to collect en route charges collectively through a single charge per flight within a joint route charges system, in order to improve the efficiency of the charging scheme and to reduce the administrative and accounting workload.

(41) Enforcement measures should be provided for in order to ensure the prompt and full payment of air navigation charges by airspace users.

(42) Air navigation charges for any specific flight should be calculated, in respect of each charging zone, as a product of applicable unit rate and the number of service units. The level of charges imposed, in particular on light aircraft, should not discourage the use of facilities and services necessary for safety or the introduction of new techniques and procedures. Member States should cover the costs for the services that air navigation service providers have provided to flights exempted from air navigation charges.

(43) Member States should have the possibility, where there is no historical evidence of operational issues, to apply a simplified charging scheme in order to incentivise air navigation service providers and to reduce the administrative burden for the air navigation service providers and national supervisory authorities concerned.

(44) Where terminal air navigation services or communication, navigation and surveillance services, meteorological services for air navigation and aeronautical information services (‘CNS, MET and AIS’) or ATM data services are provided under market conditions, Member States should be allowed to exempt those services from certain provisions pertaining to the charging scheme and from target setting on cost-efficiency. Member States should be able to establish such market conditions during a reference period.

(45) The provision of adequate data and information by national supervisory authorities, air navigation service providers, airport operators, airport coordinators, airspace users and the Network Manager, is essential for the purpose of performance target setting and monitoring at Union-wide level and at national or functional airspace block level.

(46) The national supervisory authorities should regularly monitor the progress made in achieving the performance targets contained in the performance plans. Where the targets are not met, the Member State or national supervisory authority concerned should apply the appropriate measures that they have defined in order to address the situation.

(47) The Commission should monitor the performance of air navigation services and network functions, and regularly assess the achievement of performance targets. The Commission should present the results of that monitoring annually to the Single Sky Committee.

(48) Without prejudice to confidentiality requirements pertaining to market conditions, the essential information and final reports required under this Regulation should be made publicly available in order to guarantee adequate transparency and enable the proper consultation of stakeholders.

(49) Implementing Regulation (EU) No 390/2013 and Implementing Regulation (EU) No 391/2013 should be repealed with effect from 1 January 2020, but should continue to apply beyond that date in respect of obligations related to the second reference period.

(50) This Regulation should apply in respect of the third reference period and to the subsequent reference periods. In order to allow for the adoption of Union-wide targets and the preparation and adoption of performance plans before the beginning of the third reference period, this Regulation should apply with immediate effect from the date of its entry into force.

(51) The measures provided for in this Regulation are in accordance with the opinion of the Single Sky Committee,

HAS ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1 Subject matter and scope 1. This Regulation lays down the measures for the functioning of the performance and charging schemes for air navigation services and network functions. 2. This Regulation applies to the provision of air navigation services and network functions for general air traffic within the International Civil Aviation Organization (‘ICAO’) European (‘EUR’) region, where Member States are responsible for the provision of air navigation services. This Regulation applies to: (a) the air navigation service providers referred to in Article 2(5) of Regulation (EC) No 549/2004; (b) the body nominated by the Commission to perform the tasks necessary for the execution of the network functions (the ‘Network Manager’) in accordance with Article 6(2) of Regulation (EC) No 551/2004 and appointed in accordance with Article 4 of Implementing Regulation (EU) 2019/123. This Regulation also applies, for the purpose of target setting and performance monitoring on cost-efficiency, to the authorities or entities incurring eligible costs to be recovered through user charges, as specified in point (b) of Article 15(2) of Regulation (EC) No 550/2004 and in the third subparagraph of Article 22(1) of this Regulation. 3. This Regulation applies to terminal air navigation services provided at airports located within the territories of the Member States with 80 000 instrument flight rules (‘IFR’) air transport movements or more per year. 4. Member States may decide to apply the provisions of this Regulation also to terminal air navigation services provided at other airports located within their respective territories than the ones referred to in paragraph 3. 5. Member States may decide to apply the provisions of this Regulation also to: (a) air navigation services and network functions provided in airspace under their responsibility within other ICAO regions than the ICAO EUR region, without prejudice to the rights and duties of Member States under the 1944 Chicago Convention on international civil aviation (the ‘Chicago Convention’); (b) providers of air navigation services having the permission to provide air navigation services without certification, in accordance with Article 7(5) of Regulation (EC) No 550/2004. 6. Member States shall, without delay, inform the Commission of any decision taken pursuant to paragraph 4 or 5. Member States shall ensure that the duration of those decisions corresponds to the duration of a reference period. They shall not amend or withdraw those decisions during a reference period. 7. This Regulation shall apply to the third reference period as set out in Article 7 and to the subsequent reference periods.

Article 2 Definitions For the purposes of this Regulation, the following definitions apply: (1) ‘actual cost’ means a cost actually incurred in a calendar year for the provision of air navigation services which are subject to certified accounts or, in the absence of such certified accounts, subject to a final audit; (2) ‘air traffic services unit’ or ‘ATS unit’ means a unit, either civil or military, responsible for providing air traffic services in a given airspace; (3) ‘airport coordinator’ means the natural or legal person appointed by a Member State to carry out the coordination duties at coordinated airports set out in Article 4 of Council Regulation (EEC) No 95/93 (9); (4) ‘airport operator’ means any legal or natural person who operates one or more aerodromes; (5) ‘airspace user’ means the operator of the aircraft at the time when the flight is performed or, if the identity of the operator is not known, the owner of the aircraft, unless it can be proved that another person was the operator at that time; (6) ‘airspace users' representative’ means any legal person or entity representing the interests of one or several categories of airspace users; (7) ‘area control centre’ means a unit providing air traffic services to controlled flights in its area of responsibility. (8) ‘en route charging zone’ means a volume of airspace that extends from the ground up to, and including, upper airspace, where en route air navigation services are provided and for which a single cost base and a single unit rate are established; (9) ‘exceptional event’ means circumstances under which ATM capacity is abnormally reduced so that the level of air traffic flow management (‘ATFM’) delays is abnormally high, as a result of a planned limitation induced through operational or technical change, major adverse weather circumstances, the unavailability of large airspace parts either through natural or political reasons, or industrial action, and the activation of the European Aviation Crisis Coordination Cell (‘EACCC’) by the Network Manager; (10) ‘IFR air transport movements per year’ means the sum of take-offs and landings performed under IFR, calculated as the yearly average over the three calendar years preceding the year in which the draft performance plan was to be submitted in accordance with Article 12; (11) ‘forecast inflation index’ means the annual inflation index based on the third year before the start of a reference period and computed by using the latest available inflation forecast of average Consumer Price Index percentage change published by the International Monetary Fund for the Member State concerned at the time of drafting the performance plan. In case the percentage change published by the International Monetary Fund for a given year is negative, a zero value shall be used. (12) ‘actual inflation index’ means the annual actual inflation index based on the third year before the start of a reference period and computed by using the actual inflation rate published by the Commission in the Eurostat Harmonised Index of Consumer Price for the State concerned in April of year n+1. In case the percentage change published by the Commission for a given year is negative, a zero value shall be used. (13) ‘major investment’ means the acquisition, development, replacement, upgrade, or leasing of fixed assets representing a total value over the whole lifetime of the assets greater than EUR 5 million in real terms; (14) ‘national authority’ means a regulatory or supervisory authority established by one or more Member States at national or functional airspace block level; (15) ‘new and existing investment’ means the acquisition, development, replacement, upgrade or leasing of fixed assets where depreciation costs, cost of capital, or in the case of leasing, operating costs, for that investment are incurred during the reference period covered by the performance plan; (16) ‘reference period’ means the period of validity and application of the Union-wide performance targets, as set out in point (d) of Article 11(3) of Regulation (EC) No 549/2004 and Article 7 of this Regulation; (17) ‘reference value’ means the value computed by the Network Manager of en route ATFM delay for each Member State and each functional airspace block for the purpose of ensuring that the Union-wide en route ATFM delay target is met; (18) ‘restructuring costs’ means significant one-time costs incurred by air navigation service providers in the process of restructuring for introducing new technologies, procedures or business models to stimulate integrated service provision, compensating employees, closing air traffic control centres, shifting activities to new locations, writing off assets or acquiring strategic participations in other air navigation service providers; (19) ‘runway incursion’ means any occurrence at an aerodrome involving the incorrect presence of an aircraft, vehicle or person on the protected area of a surface designated for the landing and take-off of aircraft; (20) ‘separation minima infringement’ means a situation in which prescribed separation minima were not maintained between aircraft; (21) ‘terminal charging zone’ means an airport or a group of airports, located within the territories of a Member State, where terminal air navigation services are provided and for which a single cost base and a single unit rate are established.

CHAPTER II

TASKS AND RESPONSIBILITIES

Article 3 Assistance by the Performance Review Body Where necessary for carrying out the tasks of the Commission related to the detailed functioning of the performance scheme, the Commission may request assistance from the Performance Review Body as regards the following: (a) the collection, examination, validation and dissemination of relevant data for the performance of air navigation services and network functions; (b) the selection or adaptation of key performance areas; (c) the definition of key performance indicators and indicators for monitoring; (d) the setting of Union-wide performance target ranges, and the setting and the revision of Union-wide performance targets; (e) the establishment of the baseline values, alert thresholds, and comparator groups referred to in Article 9(4); (f) the assessment of the consistency of draft national performance targets or performance targets set at the level of functional airspace blocks (‘FAB performance targets’) with the Union-wide performance targets in accordance with Article 14 and Article 15 and the review of draft performance plans in accordance with Article 14(1) and Article 15(1); (g) the verification of the completeness of the draft performance plans in accordance with Article 13; (h) the verification, in accordance with Article 19, of the draft Network Performance Plan as referred in Article 10(5) of this Regulation; (i) the assessment of revised performance targets and of the corrective measures adopted by Member States pursuant to Article 15(5); (j) the monitoring of the performance of air navigation services, including investment and capital expenditure, at Union level, at national level and at the level of functional airspace blocks; (k) the monitoring of the performance of the network functions in accordance with Article 37(2); (l) the assessment, in accordance with Article 37(3), of the information received from the national supervisory authorities in relation to the performance plans, for the purpose of monitoring the performance of the European ATM network; (m) the assessment of the achievement of the performance targets during the reference period; (n) the maintenance and support in the coordination of a stakeholder consultation calendar concerning performance plans and the consultation requirements referred to in Article 24(2) and (3) and in Article 30.

Article 4 Provision of information and facilitation of monitoring by air navigation service providers 1. Where necessary for carrying out the tasks of the national supervisory authorities related to the detailed functioning of the performance scheme, the air navigation service providers shall, upon request and without delay, provide to those authorities the following: (a) information about local conditions relevant to the setting of national performance targets or performance targets set at the level of functional airspace block; (b) data for establishing the return on equity rate for air navigation charges; (c) information about planned investments in the five years following the date of the request, showing the profile of planned expenditure for new and existing investments during and beyond the reference period and how major investments contribute to performance in each key performance area; (d) their business plan referred to in point ATM/ANS.OR.D.005 of Annex III of Commission Implementing Regulation (EU) 2017/373 (10); (e) information required for the application of Article 28(3); (f) data on cost bases and information on the allocation of costs among en route and terminal air navigation services, as well as data on revenues from commercial activities and the data on public funds received. 2. Air navigation service providers shall facilitate the activities necessary for the purposes of the monitoring referred to in Article 37(1) carried out by or on behalf of the competent national supervisory authority in accordance with the national law of the Member State of the authority concerned, in particular by providing relevant documents, data, information and oral explanations upon request and, where the national law of that Member State so permits and in accordance with that national law, by giving access to relevant premises, land or vehicles.

Article 5 Assistance by the Network Manager The Network Manager shall carry out the following tasks related to the detailed functioning of the performance scheme: (a) support the Commission by providing relevant input for the establishment of Union-wide performance targets before the start of a reference period and for the monitoring of the achievement of those targets during the reference period, including by drawing the Commission's attention, without undue delay, to any circumstances where performance targets are not met or risk not being met or where significant and persistent drops in operational performance are observed; (b) upon request of the Commission, support the national supervisory authorities by providing relevant input for the preparation of the performance plans and by informing the national supervisory authority concerned, without undue delay, of any circumstances where national performance targets or FAB performance targets are not met or risk not being met or where significant and persistent drops in operational performance are observed; (c) support the air navigation service providers in reaching national performance targets or FAB performance targets through, in particular, the development and implementation of the Network Operations Plan referred to in Article 9 of Implementing Regulation (EU) 2019/123.

Article 6 Coordination with the European Union Aviation Safety Agency Pursuant to Article 13a of Regulation (EC) No 549/2004 and in accordance with point (h) of Article 75(2) and Article 93(b) of Regulation (EU) 2018/1139, the Commission and the Member States shall coordinate with the European Union Aviation Safety Agency to ensure that: (a) safety aspects are properly addressed, including the setting, revision and implementation of key performance indicators and Union-wide performance targets in the key performance area of safety; (b) the key performance indicators and the performance targets in the key performance area of safety are consistent with the European Plan for Aviation Safety referred to in Article 6 of Regulation (EU) 2018/1139.

CHAPTER III

PERFORMANCE TARGET SETTING

Article 7 Duration of the reference periods 1. The third reference period shall cover the calendar years 2020 to 2024 inclusive. 2. Subsequent reference periods shall each cover five calendar years. 3. The duration of the reference periods specified in paragraphs 1 and 2 shall be without prejudice to Article 10(6).

Article 8 Key performance indicators and indicators for monitoring 1. The key performance indicators and the indicators for monitoring the performance of air navigation services at Union level for each key performance area shall be those established in Section 1 of Annex I. 2. The key performance indicators and the indicators for monitoring the performance of air navigation services at national level or at the level of functional airspace blocks shall be those established in Section 2 of Annex I. 3. The key performance indicators and the indicators for monitoring the performance of the network functions shall be those established in Section 3 of Annex I. 4. Member States may establish key performance indicators and indicators for monitoring in addition to those referred to in paragraph 2 as regards, in particular, civil-military or meteorological aspects.

Article 9 Union-wide performance targets 1. At the latest 19 months before the start of a reference period, the national supervisory authorities shall provide to the Commission initial cost data and information about traffic forecasts referred to in point (f) of Article 10(2) related to the upcoming reference period, as inputs for the setting of Union-wide performance targets. 2. At the latest 15 months before the start of a reference period, the Commission shall publish indicative target ranges for the Union-wide performance targets, consisting of the annual minimum and maximum values within which the Commission intends to set the Union-wide performance targets. The Commission shall consult the stakeholders referred to in Article 10(3) of Regulation (EC) No 549/2004, other relevant persons and organisations and, regarding safety aspects, the European Union Aviation Safety Agency on those indicative target ranges. 3. At the latest seven months before the start of a reference period, the Commission shall adopt in accordance with point (a) of Article 11(3) of Regulation (EC) No 549/2004 the Union-wide performance targets for the key performance indicators referred to in Article 8(1). For this purpose, the Commission shall: (a) take account of the relevant inputs from the Performance Review Body, the Network Manager and the national supervisory authorities; (b) use en route traffic forecasts, expressed in terms of IFR movements and in service units and based on the latest available Eurocontrol's Statistics and Forecast Service (‘STATFOR’) base forecast; (c) substantiate each Union-wide performance target with a description of the underlying assumptions and rationale for that target, including the use made of inputs referred to in point (a) of this paragraph, the outcome of the consultation referred to in paragraph 2 and other relevant factual data. 4. Together with the adoption of the Union-wide performance targets, the Commission shall establish: (a) a Union-wide ‘baseline value for determined costs’ and a Union-wide ‘baseline value for the determined unit cost’, for the purpose of setting targets in the key performance area of cost-efficiency for the key performance indicator referred to in point 4.1 of Section 1 of Annex I. Those baseline values shall be calculated in respect to the year preceding the start of the reference period. The baseline value for determined costs shall be estimated by using the actual costs available for the preceding reference period and adjusted to take account of latest available cost estimates, traffic variations and their relation to costs. The baseline value for the determined unit cost shall be derived by dividing the baseline value for the determined costs with the traffic forecast expressed in service units for the year preceding the start of the reference period; (b) alert thresholds beyond which Member States may request a revision of the performance targets contained in performance plans, in accordance with point (a)(i) of Article 18(1). Those alert thresholds shall be based on the following parameters: (i) the deviation of the actual traffic from the traffic forecast over a given calendar year, expressed as a percentage of IFR movements; (ii) the deviation of the actual traffic from the traffic forecast over a given calendar year, expressed as a percentage of service units; (iii) the variation of the reference values as a result of the seasonal updates of the Network Operations Plan pursuant to point (a) of Article 9(4) and Article 9(8) of Implementing Regulation (EU) 2019/123 in comparison to the reference values from the latest version of the Network Operations Plan available at the time of drawing up the performance plan. This variation shall be expressed as a percentage of variation or as a fraction of minutes of en route ATFM delay, depending on the magnitude of the references values; (c) the comparator groups of air navigation service providers with a similar operational and economic environment, for the purposes of assessing performance targets in the key performance area of cost-efficiency.

Article 10 Performance plans 1. National supervisory authorities shall draw up performance plans, either at national level or at the level of functional airspace blocks. 2. The performance plans shall be drawn up in accordance with the template set out in Annex II and shall include: (a) binding national performance targets or binding FAB performance targets, set on the basis of the key performance indicators referred to in Article 8(2), including a ‘baseline value for determined costs’ and a ‘baseline value for the determined unit cost’ for each charging zone, for the purpose of setting targets in the key performance area of cost-efficiency. Those baseline values shall be calculated in respect to the year preceding the start of the reference period. The baseline value for determined costs shall be estimated by using the actual costs available for the preceding reference period and shall be adjusted to take account of latest available cost estimates, traffic variations and their relation to costs. The baseline value for the determined unit costs shall be derived by dividing the baseline value for the determined costs with the latest available traffic forecast expressed in service units for the year preceding the start of the reference period; (b) determined costs for en route and terminal air navigation services set in accordance with points (a) and (b) of Article 15(2) of Regulation (EC) No 550/2004 and with this Regulation; (c) the incentive schemes established in accordance with Article 11, specifying the parameters of the incentive schemes, the modulation mechanism of pivot values referred to in Article 11(3) where applicable, as well as measures aimed at achieving the objectives of those incentive schemes; (d) a description of the main measures aimed at achieving performance targets; (e) a confirmation that it is consistent with the scope of this Regulation pursuant to Article 1 of this Regulation and Article 7 of Regulation (EC) No 549/2004; (f) en route traffic forecasts, expressed in terms of IFR movements and in service units and based on Eurocontrol's STATFOR base forecast; (g) terminal traffic forecasts, expressed in terms of IFR movements and in service units, based on Eurocontrol's STATFOR base forecast; (h) a description of initiatives to support cross-border coordination and the provision of cross-border services which are beneficial to the operational performance or cost-efficiency, or both; (i) information about: (i) major investments; (ii) change management plans for the entry into service of major airspace changes or for ATM system improvements, aimed at minimising any negative impact on the network performance. However, as regards point (f) and (g), national supervisory authorities may decide to use other en route and terminal traffic forecasts than those based on Eurocontrol's STATFOR base forecast. In that case, they shall consult the airspace users' representatives and air navigation service providers concerned and set out the reasons for using the other forecasts in the performance plan. Any differences with the Eurocontrol's STATFOR base forecast shall be related to specific local factors not sufficiently addressed by Eurocontrol's STATFOR base forecast. The same forecasts shall be used for all key performance areas. 3. The performance plans may contain additional performance targets set on the basis of the key performance indicators referred to in Article 8(4). Those targets shall support the achievement of the performance targets referred to in Article 9(3) and in point (a) of paragraph 2 of this Article. 4. In accordance with Article 10(1) and point (b) of Article 11(3) of Regulation (EC) No 549/2004, national supervisory authorities shall consult air navigation service providers, airspace users' representatives and, where relevant, airport operators and airport coordinators on the draft performance plans, including on the performance targets and incentive schemes contained therein. 5. The Network Manager shall draw up the Network Performance Plan. The Network Performance Plan shall be drawn up in accordance with the template set out in Annex III and shall set out: (a) the value added of the Network Manager in support to the activities of Member States, functional airspace blocks, air navigation service providers and civil and military airspace users towards achieving capacity and environment targets, and set out the contribution of the network functions towards achieving the Union-wide performance targets; (b) the performance targets and objectives for the Network Manager and for each network function and the measures aimed at achieving those targets. 6. Where as provided in the fourth subparagraph of point (c) of Article 11(3) of Regulation (EC) No 549/2004 the Commission has revised the Union-wide performance targets, Member States shall revise their performance plans and include revised performance targets in accordance with this Regulation.

Article 11 Incentive schemes 1. The incentive schemes contained in the performance plans as adopted by the Member States shall: (a) set out incentives of financial nature for the achievement of the performance targets in the key performance areas of cost-efficiency and capacity in an effective and proportional manner; (b) apply during the entire period covered by the performance plan; (c) be non-discriminatory, transparent and effective; (d) apply to en route and terminal air navigation services. 2. The incentive schemes on performance targets in the key performance area of cost-efficiency shall be governed by Articles 27 and 28. 3. The incentive schemes on performance targets in the key performance area of capacity shall in addition to the principles set out in paragraph 1, meet the following principles: (a) they shall be proportionate to the level of ATFM delay and consist of financial advantages and financial disadvantages having material impact on revenue at risk; (b) they shall be set so that the maximum financial disadvantages are at least equal to the maximum financial advantages; The national supervisory authority shall define the maximum fixed percentages referred to in the second subparagraphs of points 2.1(a) and 2.2(a) of Annex XIII and in the second subparagraphs of points 2.1(b) and 2.2(b) of Annex XIII for the calculation of the financial advantages and disadvantages, subject to consultation of airspace users' representatives and of air navigation service providers concerned. In respect to the maximum fixed percentages referred to in the second subparagraphs of points 2.1(a) and 2.2(a) of Annex XIII for the calculation of the financial advantages, those percentages shall not exceed 2 %; (c) for the purpose of calculating the financial advantages or disadvantages, pivot values shall be used; The national supervisory authority shall decide, before the start of the reference period, whether those pivot values are to be based: (i) on the performance targets at national level, broken down at the level of each individual air navigation service provider; or (ii) on modulated performance targets at national level, broken down at the level of each individual air navigation service provider, set annually by the national supervisory authority for the following year in accordance with point 1 of Annex XIII and subject to consultation of airspace users' representatives and of air navigation service providers concerned. The modulation mechanism shall be defined in the performance plan and shall apply for each year of the reference period and shall not be changed during the reference period. The national supervisory authority shall inform the Commission about the pivot values annually; (d) there shall be a symmetric range around the pivot value set by the national supervisory authority, subject to consultation of airspace users' representatives and of air navigation service providers concerned, to ensure that minor variations in ATFM delay do not lead to any financial advantages or disadvantages; (e) where the actual average ATFM delay per flight in year n is lower than the pivot value set for year n and beyond the range referred to in point (d), this shall result in a financial advantage through an increase of the unit rate in year n+2 in accordance with point 2 of Annex XIII; (f) where the actual average ATFM delay per flight in year n is higher than the pivot value set for year n and beyond the range referred to in point (d), this shall result in a financial disadvantage through a reduction of the unit rate in year n+2 in accordance with point 2 of Annex XIII; (g) for the en route targets in the key performance area of capacity and where the performance plan is established at functional airspace block level, the following provisions shall apply, in additional to the principles referred to in points (a) to (f): (i) the national supervisory authorities concerned shall break down the FAB performance target referred to in point 3.1(a) of Section 2 of Annex I at the level of each individual air navigation service provider concerned, for the purpose of setting incentives at national level. The resulting values shall form the basis for pivot values referred to in point (c); (ii) the national supervisory authorities concerned shall apply the same incentive scheme, in a consistent manner to all air navigation service providers concerned; (iii) pivot values for the functional airspace block shall also be used in addition to pivot values at the level of each individual air navigation service provider referred to in point (i), and shall be based either: — on the performance targets at functional airspace block level, or — on modulated performance targets at functional airspace block level in accordance with point 1 of Annex XIII and subject to consultation of airspace users' representatives and of air navigation service providers concerned; (iv) by way of derogation from point (c), all national supervisory authorities concerned shall jointly decide on whether the pivot values at the level of each individual air navigation service provider and functional airspace block level are to be modulated or not. This decision shall apply in a uniform manner to all pivot values at the level of each individual air navigation service provider and functional airspace block level, for the entire duration of the reference period; (v) where performance targets at national and functional airspace block level are to be modulated, the same modulation mechanism shall apply to performance targets at national level and functional airspace block level; (vi) where the total en route ATFM delay per flight in year n at the functional airspace block level is higher than the pivot value set for year n referred to in point (iii) and beyond the range referred to in point (d) of paragraph 3, point (e) of paragraph 3 shall not apply and point (f) of paragraph 3 shall apply only to those air navigation service providers for which the actual ATFM delay per flight in year n is higher than the pivot value set for year n and beyond the range referred to in point (d); (vii) where the total en route ATFM delay per flight in year n at the functional airspace block level is lower than the pivot value set for year n referred to in point (iii) and beyond the range referred to in point (d) of paragraph 3, point (f) of paragraph 3 shall not apply and point (e) of paragraph 3 shall apply only to those air navigation service providers for which the actual ATFM delay per flight in year n is lower than the pivot value set for year n and beyond the range referred to in point (d). 4. The incentive schemes contained in the performance plans as adopted by the Member States may also set out incentives of financial nature for the achievement of the performance targets in the key performance area of environment or for the achievement of the additional performance targets referred to in Article 10(3) in line with points (b) and (c) of paragraph 1, provided that they are effective and proportional. Those incentive schemes should be applied in addition to and independently from the incentive schemes referred to in paragraphs 2 and 3. The aggregated financial advantage or financial disadvantage from those incentive schemes shall not exceed 2 % and 4 % of the determined costs of year n respectively.

CHAPTER IV

ADOPTION, ASSESSMENT AND REVISION OF PERFORMANCE PLANS

Article 12 Adoption and submission of draft performance plans Each Member State shall adopt a draft performance plan, as drawn up by the national supervisory authority or authorities concerned at national level or at the level of functional airspace blocks, and submit it to the Commission, at the latest three months before the start of the reference period to which it relates. Where the draft performance plan is drawn up at the level of functional airspace block, after all Member States concerned have adopted that plan, it shall be submitted to the Commission.

Article 13 Verification of completeness of draft performance plans 1. The Commission shall verify whether the draft performance plans submitted by Member States in accordance with Article 12 contain all the elements needed to assess compliance with the requirements listed in Article 10(2) and 10(4) and, where applicable, Article 10(3) and 10(5). 2. Where the Commission finds, after having carried out the verification referred to in paragraph 1, that one or several elements are missing, it shall, within one month from the date of receipt of the draft performance plan, request the Member State or Member States concerned to provide an updated draft performance plan, containing the missing element or elements. In that case, the Member State or Member States concerned shall submit the updated draft performance plan to the Commission without undue delay and in any event within three weeks from the date of the Commission's request. 3. The Commission shall start the assessment referred to in Article 14 of the draft performance plan upon the finding, after having carried out the verification referred to in paragraph 1, that the draft performance plan contains all required elements, or upon the receipt of the updated draft performance plan referred to in paragraph 2, as applicable.

Article 14 Assessment and revision of draft performance plans and targets 1. The Commission shall assess the consistency of the national performance targets or FAB performance targets contained in the draft performance plans with the Union-wide performance targets on the basis of the criteria laid down in point 1 of Annex IV, and taking into account local circumstances. The Commission may complement the assessment by reviewing the draft performance plans in respect to the elements specified in point 2 of Annex IV. 2. Where, based on the assessment referred to in paragraph 1, the Commission finds that the performance targets contained in a draft performance plan are consistent with the Union-wide performance targets, the Commission shall, within five months from the date of the reception of the draft performance plan or, where applicable, of the updated draft performance plan referred to in Article 13(2), adopt a decision notifying the Member State or Member States concerned thereof. 3. Where, based on the assessment referred to in paragraph 1, the Commission finds that one or more performance targets contained in a draft performance plan are not consistent with the Union-wide performance targets, the Commission shall, within five months from the date of reception of the draft performance plan or, where applicable, of the updated draft performance plan referred to in Article 13(2), adopt a decision setting out the recommendations referred to in the second subparagraph of point (c) of Article 11(3) of Regulation (EC) No 549/2004. In that case, the Member State or Member States concerned shall, within three months from the date of the adoption of the Commission's decision, revise the performance targets and take appropriate measures to revise the draft performance plan accordingly, taking into account the Commission's recommendations, and submit the revised draft performance plan to the Commission.

Article 15 Assessment of revised draft performance plans and targets and adoption of corrective measures 1. Upon receiving the revised draft performance plan submitted to it in accordance with Article 14(3), the Commission shall assess the revised draft performance plan and the consistency of the revised performance targets contained therein with the Union-wide performance targets, on the basis of the criteria laid down in point 1 of Annex IV, and taking into account local circumstances. The Commission may complement the assessment by reviewing the draft performance plans in respect to the elements specified in point 2 of Annex IV. 2. Where, based on the assessment referred to in paragraph 1, the Commission finds that the revised performance targets contained in the revised draft performance plan are consistent with the Union-wide performance targets, the Commission shall, within five months from the date of the reception of the revised draft performance plan, adopt a decision notifying the Member State or Member States concerned thereof. 3. Where, based on the assessment referred to in paragraph 1, the Commission finds that there are doubts about the consistency of the revised performance targets contained in the revised draft performance plan with the Union-wide performance targets, the Commission shall, within five months from the date of reception of the revised draft performance plan, initiate a detailed examination of those performance targets and the relevant local circumstances, requesting additional information from national supervisory authorities if necessary, and inform the Member State or Member States concerned thereof. 4. Where, after having carried out the detailed examination referred to in paragraph 3, the Commission finds that the revised performance targets contained in the revised draft performance plan are consistent with the Union-wide performance targets, the Commission shall, within five months from the date of the initiation of the detailed examination, adopt a decision notifying the Member State or Member States concerned thereof. 5. Where, having carried out the detailed examination referred to in paragraph 3, the Commission finds that the revised performance targets contained in the revised draft performance plan are not consistent with the Union-wide performance targets, the Commission shall, within five months from the date of the initiation of the detailed examination, adopt a decision setting out the corrective measures which the Member State or Member States concerned are to take, in accordance with the third subparagraph of point (c) of Article 11(3) of Regulation (EC) No 549/2004. 6. Where the Commission has adopted the decision referred to in paragraph 5, the Member State or Member States concerned shall, within three months from the date of the adoption of that decision, communicate to the Commission the measures that they have taken pursuant to that decision, as well as information demonstrating that those measures comply with that decision. 7. On the basis of the information communicated to it in accordance with paragraph 6, the Commission shall assess whether the measures taken by the Member State or Member States concerned are sufficient to ensure compliance with the decision referred to in paragraph 5, in accordance with the requirements of Regulation (EC) No 549/2004 and of this Regulation. Where the Commission finds that those measures are sufficient to ensure compliance with the decision referred to in paragraph 5, it shall notify the Member State or Member States concerned thereof. Where the Commission finds that those measures are not sufficient to ensure compliance with the decision referred to in paragraph 5, it shall notify the Member State or Member States concerned accordingly and shall take, where appropriate, action to address the non-compliance, including through actions provided for in Article 258 of the Treaty on the Functioning of the European Union.

Article 16 Adoption of performance plans Each Member State shall adopt and publish its performance plan in one of the following circumstances, as applicable: (a) after the Commission has adopted a decision in application of Article 14(2), Article 15(2) or Article 15(4); (b) after the Commission has adopted a decision pursuant to the second subparagraph of Article 15(7); (c) after the Commission has adopted a decision following a request of a Member State or Member States concerned to revise during the reference period performance targets pursuant to Article 18(1), provided that the performance plan is adjusted by the Member State concerned in respect of the revised performance targets.

Article 17 Performance targets or corrective measures adopted after the start of the reference period 1. Where, as a consequence of the time needed to complete the procedures referred to in Articles 14 and 15, Member States have not been able to adopt performance plans before the start of the reference period in accordance with Article 16, the performance targets contained in the most recent version of the draft performance plans shall apply on a provisional basis, until the performance plans are adopted. 2. In the situation referred to in paragraph 1, upon the adoption of the performance plans, the performance targets in the key performance area of cost-efficiency shall apply retroactively through an adjustment of the unit rates in accordance with Article 29(5).

Article 18 Revision of performance targets during a reference period 1. During the reference period Member States may revise one or more performance targets contained in the performance plans and adopt performance plans which are amended accordingly, only where both of the following conditions are met: (a) the Member State or Member States concerned consider that the intended revision is necessary and proportionate in light of the occurrence of one or more of the following situations: (i) at least one of the alert thresholds referred to in point (b) of Article 9(4) is reached and the national supervisory authority or authorities concerned have assessed the situation and have shown that the resulting effects of reaching the alert threshold or thresholds cannot be sufficiently mitigated unless the performance targets are revised; (ii) the initial data, assumptions and rationales, including on investments, on the basis of which the performance targets concerned were set are to a significant and lasting extent no longer accurate due to circumstances that were unforeseeable at the time of the adoption of the performance plan, and the national supervisory authority or authorities concerned have assessed the situation and have shown that the resulting effects cannot be sufficiently mitigated unless the performance targets are revised; (b) the Commission has, based on a reasoned request by the Member State or Member States concerned, decided that: (i) it agrees that the intended revision is necessary and proportionate in light of the occurrence of one or more of the following situations referred to in point (a); (ii) the intended revised performance targets are consistent with the Union-wide performance targets, having assessed those targets on the basis of the criteria laid down in point 1 of Annex IV. The Commission shall adopt the decision referred to in point (b) within seven months from the date of the submission of the complete request submitted by the Member State or Member States concerned. 2. Any revisions of performance targets adopted in application of this Article shall not apply retroactively.

Article 19 Approval of the Network Performance Plan 1. The Network Manager shall submit the draft Network Performance Plan to the Commission after its endorsement by the Network Management Board as referred to in point (o) of Article 18(1) of Implementing Regulation (EU) 2019/123 at the latest three months before the start of the reference period. 2. The Commission shall assess whether the draft Network Performance Plan meets the criteria laid down in Annex V. The Commission may request the Network Manager to submit a revision of that draft Network Performance Plan, where this is necessary to ensure compliance with criteria laid down in Annex V. 3. Where the Commission finds that the draft Network Performance Plan meets the criteria laid down in Annex V, it shall adopt the Network Performance Plan. 4. The Network Manager shall publish and implement the Network Performance Plan after its adoption by the Commission pursuant to paragraph 3. 5. Where, as a consequence of the time needed to complete the procedures referred to in paragraphs 2 and 3, the Network Performance Plan has not been adopted by the Commission before the start of the reference period, the most recent version of the draft Network Performance Plan endorsed by the Network Management Board shall apply on a provisional basis, until the Commission adopts the Network Performance Plan.

CHAPTER V

FINANCING OF AIR NAVIGATION SERVICES, ESTABLISHMENT OF CHARGING ZONES, ESTABLISHMENT OF COST BASES FOR CHARGES AND TRANSPARENCY

Article 20 Principles for the financing of air navigation services 1. The determined costs of en route air navigation services shall be financed by en route charges imposed on airspace users and, where Article 25(3) applies, by other revenue as referred to in that Article. 2. The determined costs of terminal air navigation services shall be financed by terminal charges imposed on airspace users and, where Article 25(3) applies, by other revenue referred to in that Article. 3. Revenues derived from en route charges or terminal charges shall not be used to finance commercial activities of air navigation service providers.

Article 21 Establishment of charging zones 1. Member States shall, in the airspace under their responsibility where air navigation services are provided to airspace users, establish one or more charging zones for the purposes of incurring en route charges (‘en route charging zone’) and one or more charging zones for the purposes of incurring terminal charges (‘terminal charging zone’). Member States shall consult the airspace users' representatives concerned prior to establishing or modifying those zones. Member States shall notify the Commission, and the Central Route Charges Office (‘CRCO’) of Eurocontrol where applicable, about the establishment or modification of those charging zones, at least seven months before the start of the reference period. 2. Member States shall ensure that the geographical scope of charging zones is clearly defined. The charging zones shall be consistent with the provision of air navigation services, and may include services provided by an air navigation service provider established in another Member State in relation to cross-border airspace. 3. Where air traffic services related to the approach and departure of aircraft are provided jointly for a group of airports, Member States may establish a specific terminal charging zone within the terminal area concerned. 4. Where Member States decide to establish en route charging zones or terminal charging zones which extend across the airspace for which more than one Member State is responsible, or where Member States decide to establish a common charging zone, the Member States concerned shall ensure consistent and uniform application of this Regulation to the provision of air navigation services in the airspace concerned. Member States shall, without delay, inform the Commission and the CRCO of Eurocontrol about any such decision. 5. Member States may modify or establish a new terminal charging zone during a reference period, provided that they: (a) consult the airspace users' representatives and air navigation service providers concerned prior to the modification; (b) notify, without undue delay, the Commission and the CRCO of Eurocontrol of the modification; (c) provide the Commission, without undue delay, with all of the following: (i) the relevant cost and traffic data adequately reflecting the situation before and after the modification; (ii) the comments of airspace users' representatives and air navigation service providers consulted in accordance with point (a); (iii) an assessment of the expected impact of the modification on the achievement of the national performance targets or FAB performance targets in the key performance area of cost-efficiency and on performance monitoring; (iv) an update of the performance plan with the relevant data. 6. Member States shall not modify an en route charging zone during a reference period.

Article 22 Establishment of the cost base for charges 1. The cost base for en route and terminal charges shall consist of the determined costs related to the provision of air navigation services in the charging zone concerned. Determined costs stemming from new ATM systems and major overhauls of existing ATM systems shall only be included in the cost base where those systems are consistent with the implementation of the European ATM Master Plan, and, in particular, with the common projects referred to in Article 15a(3) of Regulation (EC) No 550/2004. Member States may decide to include in the cost base the following determined costs incurred in relation to the provision of air navigation services, in accordance with the second sentence of point (b) of Article 15(2) of Regulation (EC) No 550/2004: (a) determined costs incurred by competent authorities; (b) determined costs incurred by the qualified entities referred to in Article 3 of Regulation (EC) No 550/2004; (c) determined costs stemming from the Eurocontrol International Convention relating to cooperation for the safety of air navigation of 13 December 1960 as last amended. 2. Without prejudice to Article 18, the determined costs included in the cost bases for en route and terminal charges shall be set prior to the start of each reference period as part of the performance plan in real terms and specified for each calendar year of that period in real terms and in nominal terms, with the exception of the determined costs referred to in the third subparagraph of paragraph 1 and the determined costs referred to in points (c) and (d) of paragraph 4, which shall be set in nominal terms where historical cost accounting is applied. 3. Determined costs included in the cost bases for en route and terminal charges shall be calculated in national currency. Where a common charging zone with a single unit rate has been established, the Member States concerned shall ensure conversion of determined costs into a single currency, which may be the euro or another national currency of one of the Member States concerned to ensure a transparent calculation of the single unit rate in application of Article 25(4). 4. The determined costs included in the cost bases for en route and terminal charges shall consist of: (a) staff costs; (b) operating costs other than staff costs; (c) depreciation costs; (d) cost of capital; (e) exceptional costs; As regards point (a), staff costs shall include gross remuneration, overtime payments, and employers' contributions to social security schemes, as well as pension costs and costs of other benefits. Pension costs shall be calculated using prudent assumptions based on the applicable pension scheme or on national law, as appropriate. Those assumptions shall be specified in the performance plan. As regards point (b), operating costs other than staff costs shall include costs incurred for the purchase of goods and services used to provide air navigation services, including outsourced services, material, energy, utilities, rental of buildings, equipment and facilities, maintenance, insurance costs and travel expenses. As regards point (c), depreciation costs shall include costs related to the total fixed assets in operation for the purpose of providing air navigation services. The value of fixed assets shall be depreciated in accordance with their expected operating life, using the straight-line method applied to the costs of the assets being depreciated. Historical or current cost accounting shall be applied for the calculation of the depreciation. The methodology used to calculate depreciation costs shall not be altered during the duration of the depreciation and shall be consistent with the cost of capital applied, that is to say nominal cost of capital for historical cost accounting and real cost of capital for current cost accounting. Where current cost accounting is applied, the cost of capital shall not include inflation and the equivalent historical cost accounting figures shall also be provided to allow for comparison and assessment. As regards point (d), the cost of capital shall be equal to the product of the following elements: (i) the sum of the average net book value of fixed assets in operation or under construction and possible adjustments to total assets determined by the national supervisory authority and used by the air navigation service provider and of the average value of the net current assets, excluding interest-bearing accounts, that are required for the purposes of providing air navigation services; (ii) the weighted average of the interest rate on debts and of the return on equity. For air navigation service providers without any equity capital, the weighted average shall be calculated on the basis of a return applied to the difference between the total of the assets referred to in point (i) and the debts. For the purpose of establishing the cost of capital, the factors to which weight is to be given shall be based on the proportion of financing through either debt or equity. The interest rate on debts shall be equal to the weighted average interest rate on debts of the air navigation service provider. The return on equity shall be that provided in the performance plan for the reference period and shall be based on the financial risk incurred by the air navigation service provider. Where air navigation service providers incur costs from leasing fixed assets, those costs shall not be included in the calculation of cost of capital. As regards point (e), exceptional costs shall consist of non-recurring costs relating to the provision of air navigation services, including any non-recoverable taxes and customs duties. 5. The determined costs shall be allocated in a transparent way to the charging zones in respect of which they are incurred. Determined costs that are incurred in respect of several charging zones shall be allocated in a proportional way, on the basis of a transparent methodology. To this end, national supervisory authorities shall lay down, before the start of each reference period, the criteria used to allocate determined costs to charging zones, including in respect of points (b) and (c) of this paragraph, and the criteria to allocate the determined costs between en route and terminal services, and shall include this information in the performance plan in accordance with point 3.3(d) of Annex II. The determined costs included in the cost bases for terminal charging zones shall cover the cost of the following services: (a) aerodrome control services or aerodrome flight information services which include air traffic advisory services and alerting services; (b) air traffic services related to the approach and departure of aircraft within a certain distance of an airport which shall be defined on the basis of operational requirements; (c) the proportional part of the air navigation services common to en route and terminal services. 6. The determined costs incurred for flights exempted in accordance with Article 31(3) to (5) shall be composed of: (a) the determined costs of exempted VFR flights, calculated through a marginal cost methodology; (b) the determined costs of exempted IFR flights, calculated as the product of the following elements: (i) the determined costs incurred for IFR flights, which shall consist of the total determined costs less the determined costs of VFR flights; (ii) the ratio of the number of exempted service units to the total number of service units which shall consist of the service units in respect of IFR flights and, where they are not exempted, of VFR flights. The determined costs of exempted VFR flights shall be separated from the determined costs incurred for IFR flights for the purpose of calculating the unit rate. 7. The national supervisory authorities shall verify, in respect of each charging zone, that the cost bases for en route and terminal charges comply with the requirements of Article 15(2) of Regulation (EC) No 550/2004 and with this Article. For this purpose, the national supervisory authorities shall examine the relevant accounting documents, including any asset book and other material relevant to the establishment of the cost base for charges.

Article 23 Actual costs The provisions of Article 22 shall apply mutatis mutandis to the establishment of actual costs.

Article 24 Transparency of costs 1. Member States shall establish cost bases for charges for each charging zone in a transparent manner. 2. At the latest four months before the start of the reference period, Member States shall, in a coordinated manner, consult air navigation service providers, airspace users' representatives, and, where relevant, airport operators and airport coordinators on the intended establishment of the determined costs included in the cost base for en route and terminal charges, new and existing investments, service unit forecasts and charging policy for the reference period concerned. Member States shall also do so during a reference period, where they intend to request a revision of performance targets in the key performance area of cost-efficiency in accordance with Article 18(1). Member States shall provide the reporting tables and the information required in Annexes VII and IX to the entities invited to the consultation at least three weeks before the consultation. 3. During the reference period, Member States shall on an annual basis, in a coordinated manner, and in accordance with point 1 of Annex XII, consult air navigation service providers, airspace users' representatives, and, where relevant, airport operators and airport coordinators on the actual costs incurred during the previous year and the difference between the actual costs and the determined costs contained in the performance plan. Member States shall provide the reporting table and information required in Annex VII to the entities invited to the consultation at least three weeks before the consultation. 4. Member States shall provide the information referred to in the last subparagraph of paragraphs 2 and 3 to the Commission at the date when it is provided to the consulted parties. Member States shall also inform the Commission about the outcome of the consultation.

CHAPTER VI

CALCULATION OF UNIT RATES AND CHARGES

Article 25 Calculation of unit rates 1. Member States shall calculate the en route and terminal unit rates before the start of each year of the reference period. 2. Those rates shall be calculated by dividing the forecast number of total en route or terminal service units for the relevant year, calculated in accordance with points 1 and 2 of Annex VIII respectively, into the algebraic sum of the following elements: (a) the determined costs, expressed in nominal terms, for the relevant year as set in the performance plan; (b) the adjustments for inflation in accordance with Article 26; (c) the adjustments resulting from the application of the traffic risk sharing mechanism in accordance with Article 27(2) to (5); (d) the adjustments resulting from the application of the cost risk sharing mechanism in accordance with Article 28(4) to (6); (e) the adjustments resulting from the application of the financial incentive schemes in accordance with Article 11(3) and (4); (f) the adjustments resulting from the modulation of air navigation charges in accordance with Article 32; (g) the adjustments resulting from traffic variations, in accordance with Article 27(8); (h) the adjustments resulting from traffic variations, in accordance with Article 27(9); (i) a deduction of other revenue, in accordance with paragraph 3 of this Article; (j) cross-financing between en route charging zones, or between terminal charging zones, in accordance with point (e) of Article 15(2) of Regulation (EC) No 550/2004; (k) adjustments for differences in revenue resulting from the temporary application of the unit rate in accordance with Article 29(5); (l) adjustments relating to previous reference periods. 3. For the purpose of point (i) of paragraph 2, the following revenues of air navigation service providers obtained in year n shall be deducted from the determined costs as ‘other revenue’: (a) public funds obtained from public authorities, including financial support from Union assistance programmes; (b) revenue obtained from commercial activities, where the Member State or Member States concerned have decided that those revenues are to be deducted; (c) with regard to terminal air navigation services, revenue obtained from contracts or agreements concluded between air navigation service providers and airport operators, where the Member State or Member States concerned have decided that those revenues are to be deducted. As regards point (a), public funds covering staff costs and other operating costs shall be deducted from the determined costs no later than in year n+2. Public funds covering depreciation costs shall be deducted from the determined costs in accordance with the depreciation schedule of the financed asset (duration and annuity). A Member State may decide not to deduct from determined costs an amount related to the administrative costs incurred for the reporting on the funding agreement if these administrative costs are not included in the cost base for charges. Equally, a Member State may decide not to deduct from determined costs public funds received to cover costs not known at the time of drafting the performance plan and therefore not included in the cost base for charges. Airspace users shall not be charged for the costs covered by public funds. As regards points (b) and (c), the revenue referred to in those points shall be deducted from the determined costs no later than in year n+2. 4. Unit rates shall be calculated in national currency. Where Member States decide to establish a common charging zone in accordance with Article 21(4), the unit rate shall be calculated in a single currency, which may be the euro or another national currency of one of the Member States concerned. The Member States concerned shall notify the Commission and the CRCO of Eurocontrol of the applicable currency.

Article 26 Inflation adjustment For each year of the reference period, the determined costs included in the cost bases for en route and terminal charges of year n expressed in nominal terms shall be adjusted on the basis of the difference in percentage between the actual inflation index and the forecast inflation index for that year n and included as an adjustment for the calculation of the unit rate for year n+2. The determined costs referred to in the third subparagraph of Article 22(1), and the determined costs referred to in points (c) and (d) of Article 22(4) where historical cost accounting is applied, shall not be subject to any inflation adjustment.

Article 27 Traffic risk sharing mechanism 1. In respect of the incentive schemes referred to in Article 11(2), a traffic risk sharing mechanism shall be applied. Under that mechanism, the risk of revenue changes due to deviations from the service unit forecast set out in the performance plan shall be shared between air navigation service providers and airspace users, in accordance with the provisions of this Article. 2. Where, over a given year n, the actual number of service units deviates from the forecast included in the performance plan for that year n by no more than 2 %, the resulting additional revenue or the resulting revenue loss shall be borne in full by the air navigation service provider or providers concerned. 3. Where, over a given year n, the actual number of service units exceeds the service unit forecast included in the performance plan for that year n by more than 2 %, 70 % of the resulting additional revenue obtained by the air navigation service provider or providers concerned in excess of 2 % of the difference between the actual service units and that forecast shall be passed on to airspace users through adjustments of the unit rates in year n+2. Where, over a given year n, the actual number of service units falls below the service unit forecast included in the performance plan for that year n by more than 2 %, 70 % of the resulting revenue loss incurred by the air navigation service provider or providers concerned in excess of 2 % of the difference between the actual service units and that forecast shall be recovered from airspace users, through adjustments of the unit rates in year n+2. 4. Where, over a given year n, the actual number of service units is lower than 90 % of the service unit forecast included in the performance plan for that year n, the amount of the revenue loss incurred by the air navigation service provider or providers concerned in excess of 10 % of the difference between the actual service units and that forecast shall be recovered in full, from airspace users, through adjustments of the unit rates in year n+2. Where, over a given year n, the actual number of service units exceeds 110 % of the service unit forecast included in the performance plan for that year n, the additional revenue obtained by the air navigation service provider or providers concerned in excess of 10 % of the difference between the actual service units and that forecast shall be passed on in full, to airspace users, through adjustments of the unit rates in year n+2. 5. National supervisory authorities may adapt the values of the parameters of the traffic risk sharing mechanism laid out in paragraphs 2 and 3. When adapting those values, the national supervisory authorities shall: (a) consult on the intended values the airspace users' representatives and air navigation service providers concerned; (b) ensure that the resulting risk exposure of the air navigation service providers is not lower than the maximum revenue at risk under the mechanism laid out in paragraphs 2 and 3; (c) consider the variation of costs of capacity provision by the air navigation service provider concerned due to variation in traffic. 6. The following determined costs shall not be subject to the provisions of paragraphs 2 to 5: (a) the determined costs established in accordance with the third subparagraph of Article 22(1); (b) the determined costs for meteorological services. 7. Member States may exempt from the application of paragraphs 2 to 5 the determined costs of providers of air navigation services which have received permission to provide air navigation services without certification, in accordance with Article 7(5) of Regulation (EC) No 550/2004. 8. In respect of the determined costs referred to in paragraph 6 and, if applicable, in paragraph 7, any additional revenue in year n due to differences between actual service units and the service unit forecast included in the performance plan for that year shall be passed on to airspace users, and any revenue loss shall be recovered from airspace users, through an adjustment of the unit rate in year n+2. 9. The adjustments to the unit rates referred to in points (b), (c), (d), (e), (f), (g), (h), (i), (j), (k) and (l) of Article 25(2) shall not be subject to the provisions of paragraphs 2 to 5. In respect of the adjustments referred to in points (b), (c), (d), (e), (f), (g), (i), (j) and (k) of Article 25(2), any additional revenue in year n due to differences between actual service units and the service unit forecast included in the performance plan for that year shall be passed on to airspace users, and any revenue loss shall be recovered from airspace users through an adjustment of the unit rate in year n+2.

Article 28 Cost risk sharing mechanism 1. In respect of the incentive schemes referred to in Article 11(2), a cost risk sharing mechanism shall be applied. Under that mechanism, differences between determined costs included in the performance plan and actual costs shall be shared between air navigation service providers and airspace users, in accordance with the provisions of this Article. 2. The differences referred to in paragraph 1 shall be shared as follows: (a) where, over the whole reference period, actual costs fall below the determined costs, the air navigation service provider or the Member State concerned shall retain in full the resulting difference; (b) where, over the whole reference period, actual costs exceed the determined costs, the air navigation service provider or Member State concerned shall cover in full the resulting difference. 3. Paragraph 2 does not apply if the differences between determined costs and actual costs result from at least one of the following changes: (a) unforeseen changes in costs of new and existing investments; (b) unforeseen changes in costs referred to in the third subparagraph of Article 22(1); (c) unforeseen and significant changes in pension costs established in accordance with Article 22(4) resulting from unforeseeable changes in national pensions law, pensions accounting law or unforeseeable changes in financial market conditions, on the condition that such changes in pension costs are outside the control of the air navigation service provider and, in the case of cost increases, that the air navigation service provider has taken reasonable measures to manage cost increases during the reference period; (d) unforeseen and significant changes in costs resulting from unforeseeable changes in interest rates on loans that finance costs arising from the provision of air navigation services, on the condition that such changes in costs are outside the control of the air navigation service provider and, in the case of cost increases, that the air navigation service provider has taken reasonable measures to manage cost increases during the reference period; (e) unforeseen and significant changes in costs resulting from unforeseeable changes in national taxation law or other unforeseeable new cost items not covered in the performance plan but required by law. The determined costs relating to the costs referred to in this paragraph shall be identified and categorised in the performance plan, in accordance with point 3.3(h) of Annex II. The differences between determined and actual costs referred to in this paragraph shall be identified and explained annually in accordance with Annex VII and Annex IX. 4. In respect of the unforeseen changes in costs referred to in point (a) of paragraph 3, the differences between determined costs and actual costs shall be shared as follows: (a) where, over a calendar year or over the whole reference period, actual costs fall below the determined costs, the air navigation service provider or the Member State concerned shall reimburse the resulting difference to airspace users, through a reduction of the unit rate in year n+2 or in the following reference period, unless, based on a detailed justification of the air navigation service provider, the national supervisory authority decides, after consultation with airspace users' representatives, that the air navigation service provider shall not reimburse a part of the resulting difference; (b) where, over a calendar year or over the whole reference period, actual costs exceed the determined costs by not more than 5 %, Member States may decide that the resulting difference is recovered from airspace users by the air navigation service provider or the Member State concerned, through an increase of the unit rate in year n+2 or in the following reference period, subject to the approval by the national supervisory authority of a detailed justification provided by the air navigation service provider in particular as regards the need to increase capacity and after consultation with airspace users' representatives. Where, during the reference period, air navigation service providers intend to add, cancel or replace major investments with respect to information on major investments identified in the performance plan in accordance with point 2.2(b) of Annex II, these changes shall be approved by the national supervisory authority, after consultation of airspace users' representatives. 5. In respect of the unforeseen changes in costs referred to in point (b) of paragraph 3, the differences between determined costs and actual costs shall be shared as follows: (a) where, over a calendar year, actual costs fall below the determined costs established for that calendar year, Member States shall reimburse the resulting difference to airspace users through a reduction of the unit rate in year n+2; (b) where, over a calendar year, actual costs exceed the determined costs established for that calendar year, Member States shall recover the resulting difference from airspace users through an increase of the unit rate in year n+2. 6. In respect of the unforeseen changes in costs referred to in points (c), (d) and (e) of paragraph 3, the differences between determined costs and actual costs shall be shared as follows: (a) where, over a calendar year or over the whole reference period, actual costs fall below the determined costs, the air navigation service provider or the Member State concerned shall reimburse the resulting difference to airspace users through a reduction of the unit rate in year n+2, in the following reference period or in the following two reference periods if the amounts to be recovered impact the unit rate in a disproportionate manner; (b) where, over a calendar year or over the whole reference period, actual costs exceed the determined costs, Member States may decide that the resulting difference is recovered from airspace users by the air navigation service provider or the Member State concerned, through an increase of the unit rate in year n+2, in the following reference period or in the following two reference periods if the amounts to be recovered impact the unit rate in a disproportionate manner. 7. National supervisory authorities shall verify annually whether air navigation service providers apply correctly the provisions of this Article. National supervisory authorities shall draw up a report by 1 September of year n+1 on the changes in costs referred to in paragraph 3 which occurred in year n. The report shall be subject to consultation of airspace users' representatives.. National supervisory authorities shall also include in the report which is due by 1 September of the year following the final year of the reference period the balance over the whole reference period in respect of the unforeseen changes in the costs referred to in points (a), (c), (d) and (e) of paragraph 3.

Article 29 Setting unit rates for charging zones 1. Member States shall set a unit rate for each charging zone on an annual basis in accordance with Article 25. Without prejudice to paragraph 3, unit rates shall not be modified in the course of a year. 2. Member States shall set a unit rate for year n for each charging zone in line with the following requirements: (a) national supervisory authorities shall submit, on behalf of their respective Member State, the calculated unit rate to the Commission and to the CRCO of Eurocontrol by 1 June of year n-1. This submission shall include the reporting tables and additional information set out in Annex VII and Annex IX; (b) before 1 November of year n-1, if needed, national supervisory authorities shall update the calculated unit rate referred to in point (a), following consultation with airspace users. They shall submit this calculated updated unit rate, on behalf of their respective Member State, to the Commission and the CRCO of Eurocontrol, at the latest by 1 November of year n-1; (c) Member States shall set the unit rate for year n at the latest by 20 December of year n-1 and inform the Commission and the CRCO of Eurocontrol of that rate. 3. The Commission shall verify that the unit rates referred to in paragraph 2 are calculated in compliance with the requirements set out in Article 25(2). Where the Commission finds that a unit rate does not comply with the requirements set out in Article 25(2), it shall notify the Member State concerned and invite it to submit a revised unit rate. Where the Commission finds that the revised unit rate are calculated in compliance with the requirements set out in Article 25(2), it shall notify the Member State concerned accordingly. 4. Where, as a consequence of the time needed to comp