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)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the European Economic and Social Committee(2),

Having regard to the opinion of the Committee of the Regions(3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4), in the light of the joint text approved by the Conciliation Committee on 11 December 2003,

Whereas:

(1) Implementation of the common transport policy requires an efficient air transport system allowing safe and regular operation of air transport services, thus facilitating the free movement of goods, persons and services.

(2) At its Extraordinary Meeting in Lisbon on 23 and 24 March 2000, the European Council called on the Commission to put forward proposals on airspace management, air traffic control and air traffic flow management, based on the work of the High Level Group on the single European sky set up by the Commission. This Group, made up largely of the civil and military air navigation authorities in the Member States, submitted its report in November 2000.

(3) Smooth operation of the air transport system requires a consistent, high level of safety in air navigation services allowing optimum use of Europe's airspace and a consistent, high level of safety in air travel, in keeping with the duty of general interest of air navigation services, including public service obligations. It should therefore be carried out to the highest standards of responsibility and competence.

(4) The single European sky initiative should be developed in line with the obligations stemming from the membership of the Community and its Member States of Eurocontrol, and in line with the principles laid down by the 1944 Chicago Convention on International Civil Aviation.

(5) Decisions relating to the content, scope or carrying out of military operations and training do not fall within the sphere of competence of the Community.

(6) The Member States have adopted a general statement on military issues related to the single European sky(5). According to this statement, Member States should, in particular, enhance civil-military cooperation and, if and to the extent deemed necessary by all Member States concerned, facilitate cooperation between their armed forces in all matters of air traffic management.

(7) Airspace constitutes a limited resource, the optimum and efficient use of which will be possible only if the requirements of all users are taken into account and where relevant, represented in the whole development, decision-making process and implementation of the single European sky, including the Single Sky Committee.

(8) For all these reasons, and with a view to extending the single European sky to include a larger number of European States, the Community should, while taking into account the developments occurring within Eurocontrol, lay down common objectives and an action programme to mobilise the efforts by the Community, the Member States and the various economic stakeholders in order to create a more integrated operating airspace: the single European sky.

(9) Where Member States take action to ensure compliance with Community requirements, the authorities performing verifications of compliance should be sufficiently independent of air navigation service providers.

(10) Air navigation services, in particular air traffic services which are comparable to public authorities, require functional or structural separation and are organised according to very different legal forms in the various Member States.

(11) Where independent audits are required relating to providers of air navigation services, inspections by the official auditing authorities of the Member States where those services are provided by the administration, or by a public body subject to the supervision of the abovementioned authorities, should be recognised as independent audits, whether the audit reports drawn up are made public or not.

(12) It is desirable to extend the single European sky to European third countries, either within the framework of participation by the Community in the work of Eurocontrol, after the accession by the Community to Eurocontrol, or by means of agreements concluded by the Community with these countries.

(13) The accession of the Community to Eurocontrol is an important component in the creation of a pan-European airspace.

(14) In the process of creating the single European sky, the Community should, where appropriate, develop the highest level of cooperation with Eurocontrol in order to ensure regulatory synergies and consistent approaches, and to avoid any duplication between the two sides.

(15) In accordance with the conclusions of the High Level Group, Eurocontrol is the body that has the appropriate expertise to support the Community in its role as regulator. Accordingly, implementing rules should be developed, for matters falling within the remit of Eurocontrol as a result of mandates to that organisation, subject to the conditions to be included in a framework of cooperation between the Commission and Eurocontrol.

(16) The drafting of the measures necessary in order to create the single European sky requires broad-based consultations of economic and social stakeholders.

(17) The social partners should be informed and consulted in an appropriate way on all measures having significant social implications. The Sectoral Dialogue Committee set up under Commission Decision 1998/500/EC of 20 May 1998 on the establishment of Sectoral Dialogue Committees promoting the dialogue between the social partners at European level(6) should also be consulted.

(18) Stakeholders such as air navigation service providers, airspace users, airports, manufacturing industry and professional staff representative bodies should have the possibility to advise the Commission on technical aspects of the implementation of the single European sky.

(19) The performance of the air navigation services system as a whole at European level should be assessed on a regular basis, with due regard to the maintenance of a high level of safety, to check the effectiveness of the measures adopted and to propose further measures.

(20) The sanctions provided for with respect to infringements of this Regulation and of the measures referred to in Article 3 should be effective, proportional and dissuasive, without reducing safety.

(21) The impact of the measures taken to apply this Regulation should be evaluated in the light of reports to be submitted regularly by the Commission.

(22) This Regulation does not affect the power of Member States to adopt provisions in relation to the organisation of their armed forces. This power may lead Member States to adopt measures to ensure that their armed forces have sufficient airspace for adequate education and training purposes. Provision should therefore be made for a safeguards clause to enable this power to be exercised.

(23) Arrangements for greater cooperation over the use of Gibraltar airport were agreed in London on 2 December 1987 by the Kingdom of Spain and the United Kingdom in a joint declaration by the Ministers of Foreign Affairs of the two countries. Such arrangements have yet to enter into operation.

(24) Since the objective of this Regulation, namely the creation of the single European sky, cannot be sufficiently achieved by the Member States, by reason of the transnational scale of the action, and can therefore be better achieved at Community level, while allowing for detailed implementing rules that take account of specific local conditions, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve this objective.

(25) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7).

(26) Article 8(2) of the Standard Rules of Procedure for committees(8) established in application of Article 7(1) of Decision 1999/468/EC provides a standard rule according to which the Chairman of a committee may decide to invite third parties to a meeting of that committee. If appropriate, the Chairman of the Single Sky Committee should invite representatives of Eurocontrol to take part in meetings as observers or experts,

HAVE ADOPTED THIS REGULATION:

Article 1

Objective and scope

1. The objective of the single European sky initiative is to enhance current safety standards and overall efficiency for general air traffic in Europe, to optimise capacity meeting the requirements of all airspace users and to minimise delays. In pursuit of this objective, the aim of this Regulation is to establish a harmonised regulatory framework for the creation of the single European sky by 31 December 2004.

2. The application of this Regulation and of the measures referred to in Article 3 shall be without prejudice to Member States' sovereignty over their airspace and to the requirements of the Member States relating to public order, public security and defence matters, as set out in Article 13. This Regulation and the abovementioned measures do not cover military operations and training.

3. The application of this Regulation and of the measures referred to in Article 3 shall be without prejudice to the rights and duties of Member States under the 1944 Chicago Convention on International Civil Aviation.

4. The application of this Regulation and of the measures referred to in Article 3 to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.

5. Application of this Regulation and of the measures referred to in Article 3 to Gibraltar airport shall be suspended until the arrangements included in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 enter into operation. The Governments of Spain and the United Kingdom will inform the Council of such date of entry into operation.

Article 2

Definitions

For the purpose of this Regulation and of the measures referred to in Article 3, the following definitions shall apply:

1. "air traffic control (ATC) service" means a service provided for the purpose of:

(a) preventing collisions:

- between aircraft, and

- in the manoeuvring area between aircraft and obstructions; and

(b) expediting and maintaining an orderly flow of air traffic;

2. "aerodrome control service" means an ATC service for aerodrome traffic;

3. "aeronautical information service" means a service established within the defined area of coverage responsible for the provision of aeronautical information and data necessary for the safety, regularity, and efficiency of air navigation;

4. "air navigation services" means air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services;

5. "air navigation service providers" means any public or private entity providing air navigation services for general air traffic;

6. "airspace block" means an airspace of defined dimensions, in space and time, within which air navigation services are provided;

7. "airspace management" means a planning function with the primary objective of maximising the utilisation of available airspace by dynamic time-sharing and, at times, the segregation of airspace among various categories of airspace users on the basis of short-term needs;

8. "airspace users" means all aircraft operated as general air traffic;

9. "air traffic flow management" means a function established with the objective of contributing to a safe, orderly and expeditious flow of air traffic by ensuring that ATC capacity is utilised to the maximum extent possible, and that the traffic volume is compatible with the capacities declared by the appropriate air traffic service providers;

10. "air traffic management" means the aggregation of the airborne and ground-based functions (air traffic services, airspace management and air traffic flow management) required to ensure the safe and efficient movement of aircraft during all phases of operations;

11. "air traffic services" means the various flight information services, alerting services, air traffic advisory services and ATC services (area, approach and aerodrome control services);

12. "area control service" means an ATC service for controlled flights in a block of airspace;

13. "approach control service" means an ATC service for arriving or departing controlled flights;

14. "bundle of services" means two or more air navigation services;

15. "certificate" means a document issued by a Member State in any form complying with national law, which confirms that an air navigation service provider meets the requirements for providing a specific service;

16. "communication services" means aeronautical fixed and mobile services to enable ground-to-ground, air-to-ground and air-to-air communications for ATC purposes;

17. "European air traffic management network" (EATMN) means the collection of systems listed in Annex I to Regulation (EC) No 552/2004 of the European Parliament and of the Council of 10 March 2004 on the interoperability of the European air traffic management network (the interoperability Regulation)(9) enabling air navigation services in the Community to be provided, including the interfaces at boundaries with third countries;

18. "concept of operation" means the criteria for the operational use of the EATMN or of part thereof;

19. "constituents" means tangible objects such as hardware and intangible objects such as software upon which the interoperability of the EATMN depends;

20. "Eurocontrol" is the European Organisation for the Safety of Air Navigation set up by the International Convention of 13 December 1960 relating to Cooperation for the Safety of Air Navigation(10)

21. "Eurocontrol's principles for establishing the cost-base for route facility charges and the calculation of unit rates" means the principles as specified in document No 99.60.01/01 of 1 August 1999, issued by Eurocontrol;

22. "flexible use of airspace" means an airspace management concept applied in the European Civil Aviation Conference area, as specified in the first edition of 5 February 1996 of the "Airspace Management Handbook for the application of the Concept of the Flexible Use of Airspace" issued by Eurocontrol;

23. "flight information region" means an airspace of defined dimensions within which flight information services and alerting services are provided;

24. "flight level" means a surface of constant atmospheric pressure which is related to the specific pressure datum of 1013,2 hectopascals and is separated from other such surfaces by specific pressure intervals;

25. "functional airspace block" means an airspace block based on operational requirements, reflecting the need to ensure more integrated management of the airspace regardless of existing boundaries;

26. "general air traffic" means all movements of civil aircraft, as well as all movements of State aircraft (including military, customs and police aircraft) when these movements are carried out in conformity with the procedures of the ICAO;

27. "ICAO" means the International Civil Aviation Organisation, as established by the 1944 Chicago Convention on International Civil Aviation;

28. "interoperability" means a set of functional, technical and operational properties required of the systems and constituents of the EATMN and of the procedures for its operation, in order to enable its safe, seamless and efficient operation. Interoperability is achieved by making the systems and constituents compliant with the essential requirements;

29. "meteorological services" means those facilities and services that provide aircraft with meteorological forecasts, briefs and observations as well as any other meteorological information and data provided by States for aeronautical use;

30. "navigation services" means those facilities and services that provide aircraft with positioning and timing information;

31. "operational data" means information concerning all phases of flight that are required to take operational decisions by air navigation service providers, airspace users, airport operators and other actors involved;

32. "procedure", as used in the context of the interoperability Regulation, means a standard method for either the technical or the operational use of systems, in the context of agreed and validated concepts of operation requiring uniform implementation throughout the EATMN;

33. "putting into service" means the first operational use after the initial installation or an upgrade of a system;

34. "route network" means a network of specified routes for channelling the flow of general air traffic as necessary for the provision of ATC services;

35. "routing" means the chosen itinerary to be followed by an aircraft during its operation;

36. "seamless operation" means the operation of the EATMN in such a manner that from the user's perspective it functions as if it were a single entity;

37. "sector" means part of a control area and/or a flight information region/upper region;

38. "surveillance services" means those facilities and services used to determine the respective positions of aircraft to allow safe separation;

39. "system" means the aggregation of airborne and ground-based constituents, as well as space-based equipment, that provides support for air navigation services for all phases of flight;

40. "upgrade" means any modification that changes the operational characteristics of a system.

Article 3

Fields for action by the Community

1. This Regulation establishes a harmonised regulatory framework for the creation of the single European sky in conjunction with:

(a) 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)(11);

(b) Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the Single European Sky (the service provision Regulation)(12); and

(c) Regulation (EC) No 552/2004 of the European Parliament and of the Council of 10 March 2004 on the interoperability of the European Air Traffic Management network (the interoperability Regulation)(13);

and with the implementing rules adopted by the Commission on the basis of this Regulation and the regulations referred to above.

2. The measures referred to in paragraph 1 shall apply subject to the provisions of this Regulation.

Article 4

National supervisory authorities

1. Member States shall nominate or establish a body or bodies as their national supervisory authority in order to assume the tasks assigned to such authority under this Regulation and under the measures referred to in Article 3.

2. The national supervisory authorities shall be independent of air navigation service providers. This independence shall be achieved through adequate separation, at the functional level at least, between the national supervisory authorities and such providers. Member States shall ensure that national supervisory authorities exercise their powers impartially and transparently.

3. Member States shall notify the Commission of the names and addresses of the national supervisory authorities, as well as changes thereto, and of the measures taken to ensure compliance with paragraph 2.

Article 5

Committee procedure

1. The Commission shall be assisted by the Single Sky Committee, hereinafter referred to as "the Committee", composed of two representatives of each Member State and chaired by a representative of the Commission. The Committee shall ensure an appropriate consideration of the interests of all categories of users.

2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

3. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period referred to in Article 5(6) of Decision 1999/468/EC shall be set at one month.

4. The Committee shall adopt its rules of procedure.

Article 6

Industry consultation body

Without prejudice to the role of the Committee and of Eurocontrol, the Commission shall establish an "industry consultation body", to which air navigation service providers, associations of airspace users, airports, the manufacturing industry and professional staff representative bodies shall belong. The role of this body shall be solely to advise the Commission on technical aspects of the implementation of the single European sky.

Article 7

Relations with European third countries

The Community shall aim at and support the extension of the single European sky to countries which are not members of the European Union. To that end, it shall endeavour, either within the framework of agreements concluded with neighbouring third countries, or within the context of Eurocontrol, to extend the scope of this Regulation, and of the measures referred to in Article 3, to those countries.

Article 8

Implementing rules

1. For the development of implementing rules pursuant to Article 3 which fall within the remit of Eurocontrol, the Commission shall issue mandates to Eurocontrol setting out the tasks to be performed and the timetable therefor. In this connection, it shallendeavour to make best use of the arrangements of Eurocontrol for the involvement and consultation of all interested parties, where these arrangements correspond to Commission practices on transparency and consultation procedures and do not conflict with its institutional obligations. The Commission shall act in accordance with the procedure referred to in Article 5(2).

2. On the basis of the work completed pursuant to paragraph 1, decisions regarding the application of the results of such work within the Community and the deadline for their implementation shall be taken in accordance with the procedure referred to in Article 5(3). These decisions shall be published in the Official Journal of the European Union.

3. Notwithstanding paragraph 2, if Eurocontrol cannot accept a mandate that was issued to it under paragraph 1, or if the Commission, in consultation with the Committee, considers that

(a) the work carried out on the basis of such mandate is not progressing satisfactorily given the deadline set, or

(b) the results of the work carried out are not adequate,

the Commission, acting in accordance with the procedure referred to in Article 5(3), may adopt alternative measures to achieve the objectives of the mandate concerned.

4. For the development of implementing rules pursuant to Article 3 which fall outside the remit of Eurocontrol, the Commission shall act in accordance with the procedure referred to in Article 5(3).

Article 9

Sanctions

The sanctions that Member States shall lay down for infringements of this Regulation and of the measures referred to in Article 3 by airspace users and service providers shall be effective, proportional and dissuasive.

Article 10

Consultation of stakeholders

The Member States, acting in accordance with their national legislation, and the Commission shall establish consultation mechanisms for appropriate involvement of stakeholders in the implementation of the single European sky.

Such stakeholders may include:

- air navigation service providers,

- airspace users,

- airports,

- manufacturing industry, and

- professional staff representative bodies.

Consultation of stakeholders shall cover, in particular, the development and introduction of new concepts and technologies in the EATMN.

Article 11

Performance review

1. The Commission shall ensure the examination and evaluation of air navigation performance, drawing upon the existing expertise of Eurocontrol.

2. The analysis of the information collected for the purposes of paragraph 1 aims at:

(a) allowing the comparison and improvement of air navigation service provision;

(b) assisting air navigation service providers to deliver the required services;

(c) improving the consultation process between airspace users, air navigation service providers and airports;

(d) allowing the identification and the promotion of best practice, including improved safety, efficiency and capacity.

3. Without prejudice to the public's right of access to the Commission's documents as laid down in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(14), the Commission shall adopt, in accordance with the procedure referred to in Article 5(3), measures for the dissemination to interested parties of the information referred to in paragraph 2.

Article 12

Supervision, monitoring and methods of impact assessment

1. The supervision, monitoring and methods of impact assessment shall be based on the submission of annual reports by the Member States on implementation of the actions taken pursuant to this Regulation and to the measures referred to in Article 3.

2. The Commission shall periodically review the application of this Regulation and of the measures referred to in Article 3, and shall report to the European Parliament and to the Council, on the first occasion by 20 April 2007, and every three years thereafter. For this purpose, the Commission may request from the Member States information additional to the information contained in the reports submitted by them in accordance with paragraph 1.

3. For the purposes of drafting the reports referred to in paragraph 2, the Commission shall request the opinion of the Committee.

4. The reports shall contain an evaluation of the results achieved by the actions taken pursuant to this Regulation including appropriate information about developments in the sector, in particular concerning economic, social, employment and technological aspects, as well as about quality of service, in the light of the original objectives and with a view to future needs.

Article 13

Safeguards

This Regulation shall not prevent the application of measures by a Member State to the extent to which these are needed to safeguard essential security or defence policy interests. Such measures are in particular those which are imperative:

- for the surveillance of airspace that is under its responsibility in accordance with ICAO Regional Air Navigation agreements, including the capability to detect, identify and evaluate all aircraft using such airspace, with a view to seeking to safeguard safety of flights and to take action to ensure security and defence needs,

- in the event of serious internal disturbances affecting the maintenance of law and order,

- in the event of war or serious international tension constituting a threat of war,

- for the fulfilment of a Member State's international obligations in relation to the maintenance of peace and international security,

- in order to conduct military operations and training, including the necessary possibilities for exercises.

Article 14

Entry into force

This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 10 March 2004.

For the European Parliament

The President

P. Cox

For the Council

The President

D. Roche

(1) OJ C 103 E, 30.4.2002, p. 1.

(2) OJ C 241, 7.10.2002, p. 24.

(3) OJ C 278, 14.11.2002, p. 13.

(4) Opinion of the European Parliament of 3 September 2002 (OJ C 272 E, 13.11.2003, p. 296), Council common position of 18 March 2003 (OJ C 129 E, 3.6.2003, p. 1) and position of the European Parliament of 3 July 2003 (not yet published in the Official Journal). Legislative resolution of the European Parliament of 29 January 2004 and Decision of the Council of 2 February 2004.

(5) See page 9 of this Official Journal.

(6) OJ L 225, 12.8.1998, p. 27.

(7) OJ L 184, 17.7.1999, p. 23.

(8) OJ C 38, 6.2.2001, p. 3.

(9) See page 33 of this Official Journal.

(10) Convention modified by the protocol of 12 February 1981 and revised by the protocol of 27 June 1997.

(11) See page 20 of this Official Journal.

(12) See page 10 of this Official Journal.

(13) See page 26 of this Official Journal.

(14) OJ L 145, 31.5.2001, p. 43.

STATEMENT BY THE MEMBER STATES ON MILITARY ISSUES RELATED TO THE SINGLE EUROPEAN SKY

The Member States,

- taking into account that the Regulations aimed at creating the single European sky apply only to general air traffic and do not cover military operations and training,

- affirming the necessity to put into practice the legislative framework for the single European sky in a coherent and consistent way, taking full account of the needs related to national defence and security policy and international agreements,

- being convinced that the safe and efficient use of airspace can only be achieved through close cooperation between civil and military users of airspace, mainly based on the concept of flexible use of airspace and effective civil-military coordination as established by ICAO,

declare that they will:

1. cooperate with each other, taking into account national military requirements, in order that the concept of flexible use of airspace is fully and uniformly applied in all Member States by all users of airspace;

2. ensure that the interests of Member States' military users of airspace will, where relevant, be represented in the whole development, decision-making process and implementation of the single European sky, including the Single Sky Committee set up under Article 5 of Regulation (EC) No 549/2004 (framework Regulation);

3. ensure, where appropriate, that military personnel are involved in the work undertaken by recognised organisations set up under Article 3 of Regulation (EC) No 550/2004 (service provision Regulation);

4. take into account, in relation to matters of air traffic management, the fundamental importance of Eurocontrol;

5. enhance civil military cooperation and, if and to the extent deemed necessary by all Member States concerned,

- facilitate cooperation between their armed forces in all matters of air traffic management, so as to make it possible to address relevant needs in the implementation of the regulatory framework for the single European sky;

- taking into account the objective of establishing the regulatory framework for the single European sky by 31 December 2004, create the arrangements necessary to support such military cooperation in order to guarantee a balanced consideration of economic as well as security and defence requirements.