COMMISSION IMPLEMENTING REGULATION (EU) 2019/123

of 24 January 2019

laying down detailed rules for the implementation of air traffic management (ATM) network functions and repealing Commission Regulation (EU) No 677/2011

(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 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation) (1), and in particular Articles 6(4) and 6(7) thereof,

Whereas:

(1) The network functions should be a service of general interest exercised for/within the context of the European air traffic management network (EATMN, hereafter referred to as ‘the network’). They should contribute to the sustainable development of the air transport system by ensuring the required level of performance, interoperability, compatibility and coordination of activities including those to ensure the optimal use of scarce resources.

(2) The design of the European route network, the management of the network capacity and air traffic flows and the coordination of scarce resources, as provided for in Regulation (EC) No 551/2004, should be without prejudice to Member States’ sovereignty over their airspace and to their responsibilities relating to public order, public security and defence matters as provided for in Regulation (EC) No 549/2004 of the European Parliament and of the Council (2).

(3) The network should include all physical and operational components that determine the performance of aircraft, in particular their punctuality and flight efficiency, operated in the airspace within the International Civil Aviation Organisation (ICAO) EUR region where Member States are responsible for the provision of air traffic services.

(4) The European route network should be designed to improve the efficiency of the routings from a gate-to-gate perspective in all phases of flight taking particular account of flight efficiency and environmental aspects.

(5) Operational actions to develop efficient airspace structures and manage the available capacity are required to ensure the continuous improvement of the network operations in the single European sky and contribute to the Europe-wide performance targets. Those operational actions should allow for efficient use of airspace and ensure that airspace users can operate preferred trajectories.

(6) The Air Traffic Flow Management (ATFM) function is an integral part of the network functions with a view to optimising available capacity in the use of airspace. Therefore, this function should be further detailed, taking due account of Commission Regulation (EU) No 255/2010 (3).

(7) Regulation (EC) No 551/2004 provides for the adoption of detailed implementing rules to coordinate and harmonise the processes and procedures to enhance the efficiency of aeronautical frequency management. The detailed implementing rules would also need to provide for a central function to coordinate the early identification and resolution of frequency needs to support the design and operation of the network.

(8) The ICAO’s work in route design, air traffic flow management, frequency and radar transponder codes management should be used as a basis when optimising the development and operation of the network.

(9) The Member States should comply with their obligations towards ICAO on route design, air traffic flow management, frequency and radar transponder codes management and should implement them more effectively for the network. The Network Manager should provide coordination and support in that area.

(10) The implementation of the Air Traffic Flow Management (ATFM) function should be without prejudice to Council Regulation (EEC) No 95/93 (4). Airports that are entry and exit points to the network are key contributors to the overall network performance. For that reason, that function should liaise with airport operators acting as ground coordinators to optimise capacity on the ground. This would improve the overall network capacity. Furthermore, procedures to increase consistency between airport slots and flight plans should be established to optimise the available capacity of the network, including airports.

(11) The allocation of radio spectrum takes place in the context of the International Telecommunication Union (ITU). The Member States have a responsibility to communicate their civil aviation requirements to the ITU and to subsequently use the frequency band allocated to general air traffic in an optimal manner. Decision No 676/2002/EC of the European Parliament and of the Council (5) sets out a policy and legal framework for that area.

(12) ICAO has developed guidance material relevant for the radar transponder codes, including the Mode S interrogator codes, as well as the radio frequency functions. It also operates a system of registering frequency assignments for general air traffic purposes in the ICAO European region. This is currently facilitated by Eurocontrol, acting as Network Manager.

(13) The events linked to the shooting down of flight MH 17 in the airspace of Ukraine on 17 July 2014 and the terrorist attack at Brussels airport on 22 March 2016 have demonstrated the need of having a central entity that can contribute to the coordination of mitigating measures at local, regional and network level to secure a timely response to future crisis situations affecting aviation.

(14) A Network Manager should act as an impartial and competent body to perform the tasks necessary to execute the network functions provided for in Regulation (EC) No 551/2004 in an effective manner and with appropriate resources. The applicant for Network Manager should give evidence on the means and resources it plans to ensure in order to meet the requirements imposed on that body. The Network Manager should be represented by a manager from the body appointed to act as Network Manager.

(15) It is beneficial to have a single body to coordinate the various network functions in support of action taken at local and sub-regional level to develop and facilitate consistent short- and long-term network operational and strategic objectives in line with the performance objectives. However, network functions should be delivered by the operational stakeholders and the Network Manager and at Member State and functional airspace block level in accordance with the responsibilities set out in this Regulation.

(16) In 2017, the Commission reviewed the governance, financial arrangements, cost base and cost-efficiency of the network functions. One of the outcomes of this review was that the Network Manager should benefit from strengthened governance and greater management autonomy.

(17) The network functions should be provided in a cost-efficient manner, in particular avoiding any duplication of efforts.

(18) The duties and tasks of the Network Manager should be clearly set out with regard to the implementation of the network functions and the performance of the network. This should include any service or activity that needs to be performed centrally for the benefit of the operational stakeholders in accordance with working arrangements and processes for operations agreed with those stakeholders.

(19) The tasks entrusted to the Network Manager relating to the monitoring of the infrastructure and common network support services should be carried out taking full account of the opinions of Member States and operational stakeholders.

(20) The Network Manager should be involved in preparation of plans and operational actions relating to the execution of the network functions at national and sub-regional level when those plans and actions have an impact on the performance of the network.

(21) To ensure an adequate performance of the network, the Network Operations Plan should include operational actions and local reference values that take into account the evolving network conditions and aim at meeting Union wide performance targets. Furthermore, the Network Manager should identify operational constraints and bottlenecks and suggest appropriate action.

(22) Application of sound management principles is essential for continuous improvement of air traffic flow management in the Union, anticipating air traffic growth, and making best use of available capacity while reducing the environmental impact of air traffic flows. It is therefore necessary to establish a common framework for planning and implementing improvements to the performance of the network. To that end, a strategy plan and an operations plan should be drawn up at network level.

(23) The Network Manager and operational stakeholders should work in partnership in order to improve air traffic flow management and take remedial measures as appropriate. The Network Manager should in particular be able to introduce ATFM measures to make best use of available capacity and promote the best provision of that capacity by ATC sectors.

(24) The network functions should be without prejudice to Article 13 of Regulation (EC) No 549/2004 intended to safeguard essential security or defence policy interests. The network functions should also be without prejudice to the application of the flexible use of airspace as provided for in Article 7 of Regulation (EC) No 551/2004.

(25) There should be coordination between the network functions and the operations organised at the level of functional airspace blocks.

(26) Military operation effectiveness, civil-military cooperation and coordination are of utmost importance to achieving the required objectives. This Regulation should not cover decisions on the content, scope or performance of military operations and training under the operational air traffic regime. However, it is important to cover the interfaces between these operations and those covered by this Regulation in the interest of safety and mutual efficiency.

(27) It is necessary to ensure the timely and effective execution of network functions and support the Network Manager in performing its tasks by establishing an efficient framework for consultation of operational stakeholders and detailed working arrangements and processes for operations.

(28) Effective stakeholder consultations should take place at national, functional airspace block and network levels.

(29) To ensure the appropriate governance relating to the execution of the network functions, a Network Management Board should be set up.

(30) To ensure effective decision-making, the Network Management Board should have a limited number of members with operational and managerial responsibilities and extensive knowledge and expertise in the ATM field. Those members should ensure a balanced representation of the interests of all stakeholders. Air navigation service providers of associated countries contributing to the work of the Network Manager, through their representatives, should also be allowed to participate in the Network Management Board.

(31) The Network Management Board should be supported in its decision-making by a working group on operations composed of operational managers to provide it with the appropriate operational insight and advice.

(32) To ensure crisis management effectiveness at network level and support the European Aviation Crisis Coordination Cell in its tasks, a network of State focal points should be set up. The focal points should facilitate the involvement of national authorities and ensure close cooperation with the corresponding structures at Member State level in the event of crises.

(33) Considering Member States’ sovereignty over their airspace and their requirements relating to public order, public security and defence matters as well as their responsibilities as regards the network functions, Member States should be informed of and consulted on all measures having significant impact on the performance of the network. The Commission should make the best use of existing Committee meetings in order to take into account their views.

(34) The budget of the Network Manager should allow the Network Manager to meet the specific targets identified in the performance scheme and to implement its work programme. The budget should be separately identifiable from the rest of the budget of the body appointed to act as the Network Manager where that body carries out any other activity. The Network Management Board should confirm the consistency of the Network Manager’s budget with the Network Manager’s annual work programme.

(35) The Commission should ensure appropriate supervision of the Network Manager. That supervision should take into account the role of the European Union Aviation Safety Agency as competent authority for the certification and oversight of the Network Manager.

(36) Third countries that have an agreement with the Union should be involved in the establishment and implementation of the network functions in order to enhance the pan-European dimension of the single European sky.

(37) This Regulation takes due account of the experience gained from the execution of the network functions since 2011 and sets revised common rules for the execution of network functions. Commission Regulation (EC) No 677/2011 (6) should therefore be repealed.

(38) 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 detailed rules for the implementation of air traffic management network functions (network functions) in accordance with Article 6 of Regulation (EC) No 551/2004. It also lays down rules for managing network crises. 2. The network functions subject to this Regulation shall be the following: (a) the European Route Network Design (ERND); (b) the Air Traffic Flow Management (ATFM) as referred to in Article 6(7) of Regulation (EC) No 551/2004 and in Regulation (EU) No 255/2010; (c) as regards the coordination of scarce resources: (i) radio frequencies within aviation frequency bands used by general air traffic; (ii) the radar transponder codes. 3. For the purpose of implementing the network functions, this Regulation applies to Member States, the Network Manager, the European Union Aviation Safety Agency (the Agency), airspace users, air navigation service providers, airport operators, airport slot coordinators, at local, national or functional airspace block level. 4. This Regulation applies to the airspace within the ICAO EUR region where Member States are responsible for providing air traffic services within the meaning of Article 2(11) of Regulation (EC) No 549/2004. This Regulation may apply also to the airspace within the ICAO EUR, NAT, AFI and MID regions where third countries as referred to in Article 24(1) are responsible for providing air traffic services.

Article 2 Definitions For the purposes of this Regulation, the definitions in Article 2 of Regulation (EC) No 549/2004, Article 2 of Commission Regulation (EU) No 255/2010 and Article 2 of Commission Regulation (EC) No 2150/2005 (7) shall apply. The following definitions shall also apply: (1) ‘scarce resources’ means the supply of means used for ATM to function effectively and which are limited in availability and are coordinated centrally by the Network Manager to ensure the performance of the European Air Traffic Management Network (the network); (2) ‘aviation frequency band’ means an entry in the Radio Regulations Table of Frequency Allocations of the International Telecommunication Union of a given frequency band in which frequency assignments are made for the general air traffic; (3) ‘airport operator’ means the body which in conjunction with other activities or otherwise, has the task under national laws or regulations of administering and managing the airport facilities and coordinating and controlling the activities of the various operators present at the airport or within the airport system concerned; (4) ‘airport slot coordinator’ means a qualified natural or legal person appointed in accordance with Article 4(1) of Regulation (EEC) No 95/93; (5) ‘operational stakeholders’ means the civil and military airspace users, civil and military air navigation service providers and airport operators which operate in the airspace referred to in Article 1(4); (6) ‘Network Manager’ means the body entrusted with the tasks necessary for the execution of the functions referred to in Article 6 of Regulation (EC) No 551/2004; (7) ‘associated countries’ means third countries that are members of Eurocontrol other than those who participate in the work of the Network Manager in accordance with Article 24(1); (8) ‘performance scheme’ means the regulatory framework to improve the performance of air navigation services and network functions in the single European sky as referred to in Article 11 of Regulation (EC) No 549/2004; (9) ‘cooperative decision-making’ means a process in which decisions are made based on interaction and consultation with Member States, operational stakeholders and other actors as appropriate, in accordance with Articles 15 to 17; (10) ‘Performance Review Body’ means the independent group of experts on the performance of air navigation services and network functions in the single European sky set up by Commission Implementing Decision (EU) 2016/2296 (8); (11) ‘Network Management Board’ means the board established by this Regulation that monitors and steers the execution of the network functions including the performance of the tasks of the Network Manager in accordance with Article 18; (12) ‘operational action’ means the action, at local, national, FAB or network level, as determined in the Network Operations Plan, through cooperative decision making between operational stakeholders and the Network Manager; (13) ‘network crisis’ means a state of inability to provide air navigation service at the required level, resulting in a major loss of network capacity, or a major imbalance between network capacity and demand, or a major failure in the information flow in one or several parts of the network following an unusual and unforeseen situation; (14) ‘civil-military cooperation’ means the interaction between civil and military authorities and components of ATM referred to in Article 3(1) necessary to ensure safe, efficient and harmonious use of the airspace; (15) ‘conditional route (CDR)’ means an ATS route that is only available for flight planning and used under specified conditions; (16) ‘European representative bodies’ means any legal person or entity representing the interests of one or several categories of operational stakeholders at the European level; (17) ‘State focal point’ means, in the context of crisis management, the persons in the Member States liaising with relevant national crisis management structures and organisations and the European Aviation Crisis Coordination Cell; (18) ‘impact on the network’ means, in the context of the radio frequency function set out in Annex III, a situation where a radio frequency assignment will degrade, obstruct or interrupt the functioning of one or more radio frequency assignments of the network or will counter the optimal use of aviation frequency bands within the scope of this Regulation; (19) ‘airspace design’ means a process that ensures the development and implementation of advanced navigational capabilities and techniques, improved route networks and associated sectorisation, optimised airspace structures and capacity-enhancing ATM procedures; (20) ‘airspace utilisation’ means the way that airspace is operationally used; (21) ‘free route airspace’ means a specific airspace within which airspace users can freely plan their routes between an entry point and an exit point without reference to the ATS route network; (22) ‘air traffic control sector’ (‘ATC sector’) means a defined volume of airspace for which a team of controllers has ATC responsibility at any given time; (23) ‘user required route’ means the required routing that is declared by the aircraft operators at the airspace design stage to meet their needs; (24) ‘sector configuration’ means a scheme combining airspace sectors with a view to ensuring that the operational requirements are best met and airspace availability is optimised; (25) ‘air traffic service route (ATS route)’ means a specified part of the airspace structure designed for channelling the flow of traffic as necessary for the provision of air traffic services; (26) ‘frequency assignment’ means authorisation given by a Member State to use a radio frequency or radio frequency channel under specified conditions.

Article 3 Components of the network 1. For the purpose of this Regulation, the network shall include the airports, the airspace structures and interfaces that connect them, and the infrastructure and operational capabilities of the EATMN that together serve the civil and military airspace users. 2. Operational stakeholders and the Network Manager, within the limits of their respective responsibilities, shall plan, design, operate and monitor the network components referred to in paragraph 1 in accordance with the Network Strategy Plan and the Network Operations Plan, specified in Articles 8 and 9 respectively, with a view to improve network efficiency, interoperability and connectivity and the achievement of the local and Union-wide performance targets as set out in the performance scheme.

CHAPTER II

ORGANISATION AND MANAGEMENT OF NETWORK FUNCTIONS

Article 4 Appointment of the Network Manager and duties of the Network Manager following its appointment 1. The appointment of the Network Manager shall take the form of a Commission Decision adopted in accordance with Article 5(2) of Regulation (EC) No 549/2004. That Decision shall include the terms and conditions of the appointment, including the financing of the Network Manager. 2. The period of appointment of the Network Manager shall last at least two reference periods of the performance scheme as set out in Article 8 of Commission Implementing Regulation (EU) No 390/2013 (9). 3. A body shall only be appointed as Network Manager if it meets the following conditions: (a) it has demonstrated its competence and ability to perform the tasks set out in Article 7; (b) it has described the main objectives it plans to achieve during the appointment period, as well as how it will ensure a good quality of its services to operational stakeholders; (c) it has described the approach and the means it plans to use and it has described how it plans to perform the tasks of the Network Manager; (d) if it also performs activities other than those relevant to the execution of the network functions, it has demonstrated that those other activities will be carried out independently from the Network Manager’s tasks set out in Article 7. 4. The Network Manager, once appointed, shall: (a) be certified by the Agency in accordance with Commission Implementing Regulation (EU) 2017/373 (10); (b) maintain the operational and technical expertise necessary to perform the tasks set out in Article 7 in an independent, impartial and cost-effective manner; (c) act in accordance with the provisions on governance and consultation set out in Chapters III and V; (d) avoid conflicts of interest; (e) comply with the relevant Union legislation while performing its tasks; (f) manage sensitive data securely; (g) be represented by a manager who shall be responsible and accountable for the performance of the Network Manager’s tasks and for managing its human and financial resources. 5. The Commission shall regularly monitor the work of the Network Manager and shall assess the Network Manager’s compliance with the conditions referred to in paragraph 3 and 4 of this Article and the tasks set out in Article 7.

Article 5 Assessment The Commission shall, at the latest after each reference period of the performance scheme, assess whether the network functions have been executed effectively and whether the Network Manager performs its tasks in an effective manner, in accordance with Article 4(4).

Article 6 Conditions of withdrawal 1. The following conditions shall justify withdrawal of the appointment of the Network Manager by the Commission: (a) failure to comply with the requirements referred to in Article 4 and in the Commission Decision appointing the Network Manager; (b) major and persistent failure to meet its performance targets. 2. The Network Manager shall establish and implement appropriate measures to ensure service continuity in the execution of the network functions in the event of withdrawal of the appointment until another body is appointed to act as Network Manager.

Article 7 Tasks of the Network Manager 1. The Network Manager shall support the execution of the network functions and, for this purpose, it shall: (a) establish and keep up-to-date the Network Strategy Plan specified in Article 8, in line with the performance scheme and the ATM Master Plan, taking into account the relevant ICAO European air navigation plan and related documents; (b) establish the Network Operations Plan specified in Article 9 to implement the Network Strategy Plan, covering the calendar years of the reference period and the annual, seasonal, weekly and daily periods; (c) develop, organise and provide an integrated European Route Network Design function as set out in Annex I; (d) coordinate the air traffic flow and capacity management and, through the central unit for ATFM, coordinate and execute ATFM measures as set out in Annex II; (e) provide the central function for the coordination of radio frequencies as required by points (a) and (b) of Article 6(4) of Regulation (EC) No 551/2004 and as set out in Annex III, including a central register to record all radio frequency assignment data; (f) coordinate the radar transponder codes allocation processes as set out in Annex IV; (g) organise the management and operation of the network functions; (h) coordinate and support the management of network crises in accordance with Articles 19 and 21; and call upon the EACCC, after consultation of the Commission; (i) ensure coordination, relating to the network functions, with ICAO regions other than the ICAO EUR region and countries that do not participate in the work of the Network Manager; (j) establish, keep up-to-date and execute the Network Manager’s multiannual work programme and associated budget; (k) develop and implement an alert or alarm system to provide the Commission with data based on the analysis of flight plans so that it can monitor compliance with operating bans imposed on air carriers under Regulation (EC) No 2111/2005 of the European Parliament and of the Council (11) or with other safety and security measures, or with both; (l) provide support requested by ICAO for tasks related to the execution of the network functions within the ICAO EUR region, subject to the conclusion of cooperative arrangements with ICAO. 2. The Network Manager shall also contribute to the continuous improvement of network operations in the single European sky and the overall performance of the network, especially regarding the implementation of the performance scheme. In particular, the Network Manager shall: (a) ensure that the Network Strategy Plan and the Network Operations Plan contribute to the achievement of the Union-wide targets and associated local performance targets and monitor the implementation of the plans; (b) prepare a Network Performance Plan in accordance with the performance scheme and implement it after it is approved by the Commission; (c) initiate, support and coordinate cooperation between operational stakeholders in the development and implementation of operational actions to ensure efficient use of available airspace and capacity and reduce network delays; (d) identify in the Network Operations Plan all initiatives supporting the development of cross-border coordination and the provision of cross-border air traffic management and air navigation services, highlighting those on which the delivery of the Network Performance Plan is particularly dependent; (e) identify operational safety hazards at network level in cooperation with operational stakeholders and assess the associated network safety risk and report them to the Agency; (f) provide the operational stakeholders and the relevant authorities of the Member States and the Commission with information on traffic forecast, and operational performance analysis in the context of the implementation of the performance scheme; (g) support operational stakeholders in preparing and implementing transition plans for the entry into service of major airspace or ATM system improvements; (h) develop procedures for ATFM delay attribution through cooperative decision-making and organise a post operations adjustment process involving air navigation service providers, airports and national supervisory authorities to address issues that relate to ATFM delay measurement, classification and attribution; (i) support operational stakeholders in the implementation of a flexible use of airspace in accordance with Regulation (EC) No 2150/2005. 3. To fulfil the tasks referred to in paragraphs 1 and 2, the Network Manager shall: (a) ensure that tools, processes and consistent data are available to support the cooperative decision-making process at network level and that such data are shared. Such data shall include, in particular, flight plan processing, European data management systems and aeronautical information relevant to the execution of network functions as well as an electronic integrated briefing portal with access to interested stakeholders subject to Article 3a of Regulation (EC) No 551/2004; (b) provide a consolidated and coordinated approach to all planning and operational activities of the network, including monitoring and improvement of the overall network performance in order to improve network efficiency, interoperability and connectivity; (c) contribute to amendments to the ICAO documents relating to the network functions following Union processes; (d) support operational stakeholders in executing their obligations that are placed on them, in deploying air traffic management or air navigation services (ATM/ANS) systems and procedures in accordance with the ATM Master Plan, in particular the common projects set up in accordance with Commission Implementing Regulation (EU) No 409/2013 (12); (e) assist the Commission and the deployment manager as referred to in Article 9 of Implementing Regulation (EU) No 409/2013, in setting up, adopting and implementing the common projects in accordance with Article 5 of that regulation; (f) enter into cooperative arrangements with the deployment manager in accordance with point (a) of Article 9(7) and Article 12(2) of Implementing Regulation (EU) No 409/2013; (g) monitor the performance of the infrastructure relevant for the execution of the network functions, i.e.: (i) the coverage of ground-based navigation systems in support of the implementation and operation of navigation applications; (ii) the coverage of space-based navigation systems in support of the implementation and operation of navigation applications on the basis of the information provided by: (a) the Galileo Reference Centre (GRC) for the core constellations of the Global Navigation Satellite Systems (GNSS); (b) the European Geostationary Navigation Overlay Service (EGNOS) Service Provider for the EGNOS system; (iii) surveillance interrogators and avionics; (iv) datalink communications; (v) airborne collision avoidance systems (ACAS); (vi) airborne altimetry; (h) develop, organise and provide common network support services related to the network functions that are required by operational stakeholders and which are performed in a central manner for the benefit of the network operational performance and cost-efficiency reasons, i.e.: (i) the ATM messaging centre; (ii) the network addresses management service. (i) support entities entrusted with investigating civil aviation accidents and incidents or with analysing occurrences, as provided for in Regulation (EU) No 996/2010 of the European Parliament and of the Council (13), when they request such assistance; (j) exchange operational data with operational stakeholders in accordance with Article 13 of Regulation (EC) No 550/2004; (k) collect, consolidate and analyse all data identified in Annexes I to VI and provide this data to the Commission, the Agency and the Performance Review Body as requested. 4. The Network Manager shall respond to ad hoc requests from the Commission, the Member States or the Agency for information, advice, analysis or other similar ancillary tasks linked to the various functions.

Article 8 Network Strategy Plan 1. The Network Manager shall establish and keep up-to-date the Network Strategy Plan, in consistency with the ATM Master Plan and through cooperative decision-making. The Network Strategy Plan shall guide the network’s long-term development and be aligned with the reference periods of the performance scheme and cover the period of appointment of the Network Manager. 2. The Network Strategy Plan shall be established on the basis of the template set out in Annex V. It shall be endorsed by the Network Management Board and approved by the Commission after consultation of Member States. 3. The Network Strategy Plan shall aim to achieve the performance targets for network functions provided for in the performance scheme. 4. The Network Strategy Plan shall be updated at least 12 months before the beginning of each reference period.

Article 9 Network Operations Plan 1. The Network Manager shall establish a detailed Network Operations Plan, in cooperation with operational stakeholders to implement the Network Strategy Plan at operational level in the short and medium term through cooperative decision-making. 2. The Network Operations Plan shall cover the calendar years of the reference period and of the annual periods, including operational actions contained therein. 3. The Network Operations Plan shall contain the information set out in Annex VI. The Network Operations Plan shall be approved by the Network Management Board. 4. The Network Operations Plan shall include, in particular: (a) network operational performance requirements and local reference values of ATFM delay for the purpose of contributing to the achievement of the Union-wide performance targets; (b) operational actions that contribute to the achievement of the Union-wide performance targets and local performance targets in the performance scheme covering the calendar years of the reference period and the annual, seasonal, weekly and daily periods considering the latest traffic forecast and its evolution. 5. The Network Operations Plan shall encompass operational actions concerning all network functions and military requirements, if these requirements are provided by Members States. Those operational actions shall be determined through cooperative decision-making and their mutual consistency shall be assessed by the Network Manager. 6. If the Network Manager identifies operational constraints and bottlenecks preventing achievement of the Union-wide and local performance targets, it shall suggest additional operational actions. Such actions shall be determined through cooperative decision-making. 7. Air navigation service providers and airport operators shall ensure that their plans are aligned with the Network Operations Plan and implement the operational actions referred to in point (b) of paragraph 4. 8. The Network Manager shall update the Network Operations Plan as necessary and at least every six months.

Article 10 Remedial measures 1. If the levels of performance agreed through cooperative decision-making are not achieved, or if the operational actions referred to in paragraph 4(b) of Article 9 are not implemented, the Network Manager shall, as part of the execution of its tasks and without prejudice to the responsibilities of the Member States, propose remedial measures to be taken by operational stakeholders. In doing so, it shall first consult the operational stakeholders affected by those measures, secondly submit the proposal for remedial measures to the working group on operations referred to in Article 18(2) for discussion and lastly obtain the approval of the proposal for remedial measures by the Network Management Board. The operational stakeholders affected by those measures shall implement them or inform the Network Management Board of the reasons for not implementing them. 2. The Network Manager shall inform Member States and the national supervisory authority responsible for the oversight of the operational stakeholder concerned by the remedial measures about the content of the measure and about any aspect related to changes in operational performance. 3. Member States shall inform without undue delay the Commission and the Network Manager where their responsibilities prevent the remedial measures from being implemented or when their implementation leads to inconsistencies with the performance plans. 4. The Network Manager shall establish and keep up to date a register of the operational actions and remedial measures that operational stakeholders have not implemented, including the reasons that prevent their implementation and thereof inform the Commission.

Article 11 Relations with operational stakeholders 1. To monitor and improve the overall performance of the network, the Network Manager shall conclude appropriate working arrangements with the operational stakeholders in accordance with Article 17. 2. The Network Manager and operational stakeholders shall coordinate the development and deployment of the tools and systems necessary for the execution of network functions to meet the requirements of Article 3(2). 3. The operational stakeholders shall ensure that the operational actions implemented at local or functional airspace block level are compatible with those determined through cooperative decision-making. 4. The operational stakeholders shall provide the Network Manager with the relevant data listed in Annexes I to VI, complying with time periods and requirements determined through cooperative decision-making.

Article 12 Relations with Member States 1. In the execution of its tasks, the Network Manager shall take due account of the responsibilities of the Member States relating to their sovereignty over their airspace and public order, public security and defence matters. 2. Member States shall remain responsible for the detailed development, approval and establishment of the airspace structures for the airspace under their responsibility. 3. When Member States’ authorities are involved in operational issues related to the network functions, in particular the coordination of scarce resources referred to in point (c) of Article 1(2), the Network Manager shall consult them within the cooperative decision-making process and they shall implement the results determined in this process at national level.

Article 13 Relations with functional airspace blocks 1. The Network Manager shall closely cooperate and coordinate with air navigation service providers at the level of functional airspace blocks, in particular as regards strategic planning and tactical daily flow and capacity management. 2. The Network Manager shall establish, in close cooperation with air navigation service providers at the level of the functional airspace blocks, harmonised processes, procedures and interfaces to facilitate operational connectivity between functional airspace blocks. 3. Member States cooperating in a functional airspace block shall endeavour to formulate consolidated views on the strategic issues of the network functions referred to in Article 21(2). 4. Air navigation service providers cooperating in a functional airspace block shall endeavour to formulate consolidated views to support cooperative decision-making.

Article 14 Civil-military cooperation 1. Member States shall ensure appropriate involvement of national military authorities in all activities related to the execution of network functions. 2. Member States shall ensure appropriate representation of the military air navigation service providers and military airspace users in the consultation process and working arrangements established by the Network Manager. 3. The Network Manager shall ensure that appropriate arrangements are in place to allow and support its coordination with national military authorities and other relevant military bodies, including the European Defence Agency (EDA). The scope of that coordination shall cover all aspects related to the execution of the network functions that have an impact on military activities. 4. The ERND and ATFM functions shall be executed without prejudice to the airspace reservations or restrictions for exclusive or specific use by the Member States. The Network Manager shall encourage and coordinate the availability of conditional routes through those volumes and shall facilitate accommodation of military requirements and crisis management responses.

CHAPTER III

GOVERNANCE OF NETWORK FUNCTIONS

Article 15 Cooperative decision-making 1. Member States and operational stakeholders shall execute network functions with the support of the Network Manager through cooperative decision-making that includes the following elements: (a) the consultation process provided for in Article 16; (b) detailed working arrangements and processes for operations provided for in Article 17. 2. The Network Manager shall assist the Network Management Board in adopting measures related to the governance of the network functions provided for in Article 18. 3. When the Network Manager’s actions are disputed by one or several operational stakeholder(s), the Network Manager shall refer the matter to the Network Management Board for resolution.

Article 16 Consultation process 1. The Network Manager shall establish a process for the appropriate and regular consultation of the interested parties referred to in Article 1(3). 2. The consultation shall cover the detailed working arrangements and processes for operations provided for in Article 17, the Network Strategy Plan, the Network Operations Plan and the Network Performance Plan, as well as progress in the implementation of the plans, reports to the Commission and on operational issues. 3. The Network Manager shall adjust the consultation process to the needs of the individual network functions. In order to ensure that regulatory issues can be addressed, Member States’ authorities shall be involved when required. 4. Where operational stakeholders claim that their views on a specific issue were not duly considered, the issue shall first be referred to the Network Manager for further consideration. Where the issue cannot be resolved in that manner, it shall be referred to the Network Management Board for resolution.

Article 17 Working arrangements and processes for operations 1. The Network Manager shall establish detailed working arrangements with operational stakeholders, Member States, third countries as referred to in Article 24(1), and associated countries as appropriate, and processes for operations to address planning and operational aspects related to the execution of network functions, taking into account in particular the specific features and requirements of the individual network functions as specified in Annexes I to IV. 2. The Network Manager shall ensure that the detailed working arrangements and processes for operations contain rules for notification of the remedial measures resulting from cooperative decision-making addressed to the interested parties referred to in Article 1(3). 3. Those detailed working arrangements and processes for operations shall comply with the requirements on the separation of service provision from regulatory issues provided for in Article 4(2) of Regulation (EC) No 549/2004.

Article 18 Network Management Board 1. The Network Management Board shall be responsible for: (a) endorsing the draft Network Strategy Plan; (b) approving the Network Operations Plans; (c) approving the proposals for remedial measures referred to in Article 10; (d) approving the specifications for the consultation processes as well as the detailed working arrangements and processes for operations for the network functions referred to in Articles 15 and 17 and the post operations adjustment process referred to in Article 7(2)(h); (e) approving the Rules of Procedure of the European Aviation Crisis Coordination Cell provided for in Article 19(5) and its work programme; (f) monitoring the progress in the implementation of the Network Strategy Plan, the Network Operations Plan and the Network Performance Plan referred to in point (b) of Article 7(2) and addressing any potential deviations from initial plans; (g) monitoring the consultation process of operational stakeholders; (h) monitoring the activities related to management of the network functions and the performance of the tasks of the Network Manager, including the quality of the services it provides to operational stakeholders; (i) monitoring the Network Manager’s activities related to network crises; (j) approving the annual report referred to in Article 22(3); (k) addressing the issues referred to in Articles 15(3) and 16(4) which are not solved at the level of the individual network function; (l) endorsing the Network Manager’s annual budget; (m) approving the Board’s Rules of Procedure; (n) approving the work programme referred to in point (j) of Article 7(1) and monitoring its implementation; (o) endorsing the Network Performance Plan referred to in point (b) of Article 7(2); (p) giving an opinion on possible additional functions that might be attributed to the Network Manager in application of Article 6(3) or point (c) of Article 6(4) of Regulation (EC) No 551/2004; (q) providing recommendations for the purpose of the monitoring of the performance of the infrastructure referred to in Article 7(3)(g), including the corresponding cost benefit analyses; (r) giving opinions on the development and provision of common network support services referred to in Article 7(3)(h), including the corresponding cost benefit analyses; (s) approving the cooperative arrangements referred to in point (l) of Article 7(1), point (f) of Article 7(3) and Article 24; (t) giving an opinion on the appointment of the manager of the Network Manager, as referred to in point (g) of Article 4(4). 2. The Network Management Board shall set up working groups to support it in its work, in particular a working group on operations composed of the operational stakeholders’ directors of operations. 3. The Network Management Board shall have the following voting members: (a) one representative of air navigation service providers per functional airspace block, established or under establishment, with a total number of four votes for all air navigation service providers; (b) four representatives of commercial and non-commercial civil airspace users; (c) two representatives of the airport operators; (d) two representatives of the military air navigation service providers and airspace users 4. The Network Management Board shall have the following non-voting members: (a) the chairperson of the Network Management Board; (b) one representative of the Commission; (c) the manager of the Network Manager, as referred to in point (g) of Article 4(4); (d) the chairperson of the working group on operations referred to in paragraph 2; (e) two representatives of air navigation service providers of associated countries contributing to the work of the Network Manager; (f) one representative of Eurocontrol. 5. Each member of the Network Management Board shall have an alternate. 6. The Commission shall appoint the chairperson of the Network Management Board based on his or her technical competence and expertise and upon proposal from the voting members of the Network Management Board. It shall also appoint two vice-chair persons from the voting members. 7. The Commission shall appoint the voting members and their alternates referred to in points (a) of paragraph 3 upon proposals from their organisations. It shall appoint the voting members and their alternate referred to in point (b) and (c) of paragraph 3, upon proposals from their respective European representative bodies. It shall appoint the voting member and its alternate referred to in point (d) of paragraph 3, upon proposals from EDA. It shall appoint the non-voting members referred to in point (e) of paragraph 4, upon proposal from Eurocontrol based both on a rotation, which allows each associated country to be appointed in turn, and on the operational needs at the time of the appointment. 8. The Commission may appoint observers and independent experts as advisors who serve in their personal capacity and represent a broad range of disciplines encompassing the network functions. 9. The members referred to in points (a) and (b) of paragraph 4 shall have the right to reject proposals that have an impact on: (a) the compatibility of Network Management Board activities with the aims and objectives of this Regulation; (b) the impartiality and equity in the execution of network functions. 10. The decisions referred to in points (a) to (e), (j), (l) to (o) and (s) of paragraph 1 shall be adopted by the Network Management Board by simple majority of its voting members. 11. Meetings of the Network Management Board shall be convened by its chairperson. The board shall hold at least three ordinary meetings a year. In addition it shall meet at the request of the chairperson or the Commission. The Network Manager shall provide the secretariat for the Network Management Board and the chairperson. 12. The Network Manager shall provide the resources required for the establishment and operation of the Network Management Board and its working groups.

CHAPTER IV

NETWORK CRISIS MANAGEMENT

Article 19 European Aviation Crisis Coordination Cell 1. The management of network crises shall be supported by the establishment of a European Aviation Crisis Coordination Cell (the EACCC). The EACCC shall contribute, through its work, to a coordination of responses to network crises. 2. The EACCC shall have as permanent members one representative of each of the following: (a) a Member State mandated for these purposes by all Member States; (b) the Commission; (c) the Agency; (d) Eurocontrol; (e) the Network Manager; (f) the military; (g) the air navigation services providers; (h) the airport operators; (i) the airspace users. The Commission shall appoint those members and their alternates. The appointment shall be made following a proposal by: (1) the Member States in the case referred to in point (a) of the first subparagraph; (2) the Agency, Eurocontrol and the Network Manager in the case referred to in points (c), (d) and (e) of the first subparagraph, as the case may be; (3) EDA in the case referred to in point (f) of the first subparagraph; (4) the respective European representative bodies in the case referred to in points (g), (h) and (i) of the first subparagraph; 3. Each Member States shall nominate a focal point (State focal point) and an alternate to the EACCC and facilitate their access to relevant information from national crisis management structures not limited to the aviation domain. The State focal points shall carry out their duties in accordance with the EACCC Rules of Procedure. 4. The EACCC may involve, on a case-by-case basis, experts depending on the nature of the specific crisis to assist it in formulating its crisis management responses. 5. The EACCC shall prepare its Rules of Procedure and amendments thereto for approval by the Network Management Board in accordance with Article 18(1)(e). 6. The Network Manager shall provide the resources required for the establishment and operation of the EACCC.

Article 20 Responsibilities of the Network Manager The Network Manager shall, when necessary with the support of the EACCC: (a) coordinate the responses to the network crises, involving close cooperation with corresponding structures in Member States; (b) support the activation and coordination of contingency plans at Member State level, in particular through the network of State focal points; (c) prepare mitigating measures at network level to secure the provision of a timely response to a network crisis in order to protect and ensure the continued and safe operation of the network. For this purpose, the Network Manager shall independently: (i) monitor the network situation regarding network crises on a 24-hour basis; (ii) ensure effective information management and communication by disseminating accurate, timely and consistent data to support Member States and operational stakeholders in their decisions on how to recover from network crises and/or mitigate their impact on the network; (iii) facilitate the organised collection and centralised storage of that data; (d) indicate, where appropriate, to the Commission, the Agency or Member States any opportunities for an additional support for mitigation of network crisis, including liaising with operators of other modes of transport who may identify and implement intermodal solutions; (e) monitor and report to the EACCC on network recovery and resilience; (f) organise, facilitate and perform an agreed programme of network crisis simulation exercises involving Member States and operational stakeholders to anticipate real network crises; (g) develop, implement and monitor a work programme and a risk register.

CHAPTER V

CONSULTATION OF MEMBER STATES, MONITORING, REPORTING AND SUPERVISION

Article 21 Information and consultation of the Member States 1. The Network Manager shall regularly update the Commission on progress in the execution of network functions and the measures taken. The Commission shall inform Member States of that progress and of those measures. 2. The Commission shall consult Member States on the strategic issues of the network functions and to take account their opinion. Those issues shall include: (a) the overall performance of the network; (b) the implementation of remedial measures by the Network Manager referred to in Article 10; (c) the appointment of the chairperson and the members of the Network Management Board; (d) the draft Network Strategy Plan, and in particular the objectives of the plan at an early stage; (e) the draft Network Performance Plan; (f) the draft annual budget of the Network Manager; (g) the Network Manager Annual Report; (h) the draft Rules of Procedure of the EACCC; (i) the specifications for the consultation processes and the detailed working arrangements and processes for operations referred to in Articles 16 and 17; (j) the issues referred to in Articles 12(3) which are not solved at the level of the individual network function; (k) the cases referred to in Article 10(3); (l) the assessment referred to in Article 5; (m) the development and provision of monitoring tasks related to the ATM/CNS infrastructure and of common network support services related to the execution of network functions, including the corresponding cost benefit analyses and budget. The consultation on point (a) of the second subparagraph shall take place on a regular basis.

Article 22 Monitoring and reporting 1. The Network Manager shall establish a process of continuous monitoring of all of the following: (a) the operational network performance; (b) the measures taken and the performance outcome achieved by the operational stakeholders and Member States; (c) the effectiveness and efficiency of cooperative decision-making in the execution of each of the functions; (d) the quality of its services to operational stakeholders by means of specific indicators. 2. The continuous monitoring shall aim to identify any potential deviation from the Network Strategy Plan and Network Operations Plan. The operational stakeholders shall support the Network Manager in this process by providing data. 3. The Network Manager shall submit annually a report to the Commission, the Network Management Board and the Agency on the measures taken to fulfil its tasks and recommendations to address network issues. The report shall address individual network functions as well as the total network situation and the implementation of the Network Strategy Plan, the Network Operations Plan and the Network Performance Plan and the achievement of the Network Manager’s objectives for ensuring the quality of its services to operational stakeholders. The Commission shall transfer the report to the Member States.

Article 23 Supervision of the Network Manager The Commission shall ensure the supervision of the Network Manager, in respect of compliance with the requirements contained in this Regulation and other Union legislation, in particular Regulation (EC) No 2150/2005, Implementing Regulation (EU) No 390/2013 and Commission Implementing Regulation (EU) No 391/2013 (14), Implementing Regulation (EU) No 409/2013 and common projects set up in accordance with that Regulation. The Commission shall inform the Member States of the outcome of the supervision.

CHAPTER VI

RELATIONS WITH THIRD COUNTRIES

Article 24 Participation of third countries in the work of the Network Manager 1. Third countries participate in the work of the Network Manager in accordance with Union law, subject to and in accordance with agreements with the Union. 2. Associated countries and their operational stakeholders may contribute to the work of the Network Manager. 3. The Network Manager may enter into cooperative arrangements with air navigation service providers established in countries other than the ones referred to in paragraph 1 and 2 within the ICAO EUR, NAT, AFI and MID regions, where these countries are participating in a functional airspace block or their participation has a direct impact on the performance of the network and to ensure appropriate regional interoperability and connectivity. 4. In order to improve the execution of network functions and the performance of the network, the Network Manager may also enter into cooperative arrangements with air navigation service providers established in countries within other ICAO regions than the ones referred to in paragraph 3 in order to exchange data concerning network functions.

CHAPTER VII

FINANCING AND BUDGET

Article 25 Financing and budget of the Network Manager 1. Member States shall take the necessary measures to fund the tasks entrusted to the Network Manager through air navigation charges. 2. The Network Manager shall establish its costs in a clear and transparent manner. 3. The Network Manager shall establish the budget that is: (a) adequate to meet its performance targets in accordance with the Network Performance Plan referred to in point (b) of Article 7(2); (b) adequate to implement its work programme referred to in point (j) of Article 7(1); (c) set in separate accounts in situations where the body appointed to act as the Network Manager also performs tasks other than those referred to in Article 7.

CHAPTER VIII

FINAL PROVISIONS

Article 26 Repeal Regulation (EU) No 677/2011 is repealed.

Article 27 Entry into force This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 1 January 2020.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 24 January 2019. For the Commission The President Jean-Claude JUNCKER

(1) OJ L 96, 31.3.2004, p. 20.

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

(3) Commission Regulation (EU) No 255/2010 of 25 March 2010 laying down common rules on air traffic flow management (OJ L 80, 26.3.2010, p. 10).

(4) Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ L 14, 22.1.1993, p. 1).

(5) Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (OJ L 108, 24.4.2002, p. 1).

(6) Commission Regulation (EC) No 677/2011 of 7 July 2011 laying down detailed rules for the implementation of air traffic management (ATM) network functions and amending Regulation (EU) No 691/2010 (OJ L 185, 15.7.2011, p. 1).

(7) Commission Regulation (EC) No 2150/2005 of 23 December 2005 laying down common rules for the flexible use of airspace (OJ L 342, 24.12.2005, p. 20).

(8) Commission Implementing Decision (EU) 2016/2296 of 16 December 2016 setting up the independent group of experts designated as Performance Review Body of the single European sky (OJ L 344, 17.12.2016, p. 92).

(9) Commission Implementing Regulation (EU) No 390/2013 of 3 May 2013 laying down a performance scheme for air navigation services and network functions (OJ L 128, 9.5.2013, p. 1).

(10) Commission Implementing Regulation (EU) 2017/373 of 1 March 2017 laying down common requirements for providers of air traffic management/air navigation services and other air traffic management network functions and their oversight, repealing Regulation (EC) No 482/2008, Implementing Regulations (EU) No 1034/2011, (EU) No 1035/2011 and (EU) 2016/1377 and amending Regulation (EU) No 677/2011 (OJ L 62, 8.3.2017, p. 1).

(11) Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC (OJ L 344, 27.12.2005, p. 15).

(12) Commission Implementing Regulation (EU) No 409/2013 of 3 May 2013 on the definition of common projects, the establishment of governance and the identification of incentives supporting the implementation of the European Air Traffic Management Master Plan (OJ L 123, 4.5.2013, p. 1).

(13) Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC (OJ L 295, 12.11.2010, p. 35).

(14) Commission Implementing Regulation (EU) No 391/2013 of 3 May 2013 laying down a common charging scheme for air navigation services (OJ L 128, 9.5.2013, p. 31).