REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

on the implementation of the Single Sky legislation: time to deliver

(Text with EEA relevance)

INTRODUCTION

Air transport plays a major role in the economy and society of the European Union (EU). In this context the air traffic management (ATM) system is crucial to the air transport operations while addressing its challenges related to competitiveness, safety and sustainability.

ATM is a network industry. It consists of hundreds of air traffic control sectors operated by more than 60 air traffic control centres and more than 16,700 air traffic controllers managing the traffic from/to 450 European airports and also from and to third countries. This complex structure manages more than 26,000 daily flights in the EU, accommodates approximately 38,000 daily flight hours and operates on a network of aviation routes still optimised at national level and not yet at European level.

Because it is based still on national sovereign airspace, ATM in Europe is very fragmented and dominated by national monopoly service provision. As air traffic volumes have increased considerably, not least because of the development of the aviation single market, this fragmentation is now posing serious capacity problems and major delays for passengers. In addition it causes needless fuel consumption and emissions and generates higher infrastructure charges than would be the case if it would operate at European rather than national level. While the cost for the provision of air navigation services in Europe amounts to some € 8 billion per year, the total additional cost borne by airlines because of suboptimal cost-efficiency and fragmentation of the European airspace is estimated at some € 4 billion per year. In short, a single European airspace is not yet a reality.

Following the launch of the Single European Sky (SES) initiative in 2000[1], the legislation adopted in 2004[2] brought ATM under EU competence with the aim of reducing the fragmentation of the European airspace and increasing its capacity. We now have an evolving institutional framework, safety and interoperability standards and rules on airspace and air traffic flow management as well as improved cost transparency. But while the first legislative framework was necessary, it was not sufficient. So a second package of legislation (SES II) proposed by the Commission in June 2008[3] was adopted in November 2009 by the Council and the European Parliament with the objective of accelerating the establishment of a truly single SES from 2012 onwards[4]. It is based on five pillars: performance, safety, technology, airports and the human factor. The second package has received strong and vocal support not only from the airlines and airports but also even from the air navigation service providers (ANSPs). The support of the whole ATM community was reaffirmed with the approval of a roadmap in Madrid in February 2010, at the Council of Ministers of 4 May 2010 following the volcanic ash cloud crisis, and through a charter in Budapest in March 2011. This strong political support confirms the urgency of the need for ongoing reform of the ATM sector and in particular the high level of priority to be given to the full and timely implementation and delivery of SES.

In accordance with Article 12.2 of Regulation (EC) No 549/2004, this report[5][6] provides an overview of the state of play of the application of the SES legislation and of key actions taken or still to be taken since the approval of the second package in November 2009.

STATE OF IMPLEMENTATION OF THE FIRST PACKAGE OF SES LEGISLATION

Progress made and remaining concerns

Since its adoption in 2004 and considering the volume of implementing measures which need to be implemented, it should be stressed that significant work has been done by the Member States and the stakeholders. Progress in the implementation of the SES legislation has been regularly monitored[7]. In particular,

- all Member States have now established a National Supervisory Authority (NSA);

- the vast majority of the ANSPs have been certified and duly designated;

- a transparent charging system has been implemented;

- oversight of the airspace management and air traffic flow management takes place at national level; and

- the Single Sky Committee and the Industry Consultation Body play full and important roles at EU level.

Nevertheless more is required to achieve full and timely compliance with SES legislation. For example, sixty recommendations were given by Eurocontrol (in the 2010 report on SES legislation implementation[8]) relating to concrete actions that Member States should take either to improve their level of compliance or their checks on the level of compliance by ANSPs. In particular,

- the lack of resources for NSAs is a major issue of concern that must be addressed at national political level swiftly. The proper functioning of the SES can only be assured if the NSAs have the right resources for effective oversight in all areas including safety, interoperability and performance (a new area of competence where NSAs act as national regulator). Possible solutions to these problems are well known and include cooperation, delegation and/or outsourcing.

- insufficient steps have been taken at Member State and NSA level to ensure proper supervision of cross-border air navigation service provision. The framework for the provision and supervision of cross-border services is not yet properly established in a number of Member States. Numerous cross-border arrangements seem to be known only at operational level but not yet formalised at institutional level; this may imply an absence of supervision on the cross-border service provision. . Member States must ensure that the legal basis for the cross-border provision of ANS in their sovereign territory is correctly established and enforced, and;

- the interoperability Regulation [9] has been poorly observed. Seven years after the adoption of the basic regulation, approximately a third of the NSAs have not properly verified the capability of the ANSPs to conduct conformity assessment activities – which are the corner stone of the implementation of interoperable ATM systems. Similarly, around a third of the NSAs are not exercising the required oversight to ensure the compliance of the ANSPs with the implementing rules and are not sufficiently active in verifying the timelines of the ANSPs' implementation plans against the required deadlines.

Finally, although progress has been made by Member States in the implementation of Flexible Use of Airspace, more needs to be done to improve its effectiveness, especially in relation to its performance monitoring. At all levels, Member States should focus on enhancing civil-military cooperation and coordination including with neighbouring countries.

Need for remediation by Member States

The level of progress achieved in some areas has been insufficient and suggests that various implementation dates may be at risk. The Commission has therefore written to each Member State in October 2011 to spell out the particular problems in each case and to insist on full compliance with EU law keeping in mind that the implementation of the SES first package is required for the successful implementation of the SES second package. Sharing of best practices can be carried out using the NSA peer reviews initiated in 2010 or the coordination platforms for NSAs and FABs. But where non-compliance is confirmed and not rectified in due time, the Commission will consider all options at it disposal, including the opening of infringement procedures.

STATE OF IMPLEMENTATION OF THE SECOND PACKAGE OF SES LEGISLATION

The basic SES II architecture (both the rule-making programme and organisational aspects) has been set up according to the initial time schedule. The time for implementation has come.

The successful delivery of the SES relies on the timely implementation of its different components. Priority should be given to actions that will make the biggest contribution to performance, in particular the performance scheme (starting early in 2012), the FABs (to be operational by end 2012), the network functions (already in place) and the deployment of the SESAR programme (to start in 2014), 2012 being a pivotal year for implementation of the SES. A table providing an overview of the state of play of key priorities in the second package of SES is attached.

Overview of the SES II regulatory framework

The basic SES II rule-making programme is completed

The regulations and subsequent main implementing measures directly related to SES II have all been adopted, e.g.

- the performance scheme (Commission Regulation adopted on 29.7.2010)[10]

- the en-route charging system (Commission Regulation adopted on 16.12.2010 amending previous legislation)[11]

- the FAB requirements to ensure appropriate consultation at European level of the relevant stakeholders before establishing a FAB (Commission Regulation adopted on 24.02.2011) [12] and

- the network functions (Commission Regulation adopted on 7.07. 2011)[13].

Following the extension of the powers of the European Aviation Safety Agency (EASA) into the new areas of ATM and aerodromes[14], implementing rules should be developed in accordance with the essential requirements contained in the EASA Basic Regulation. As a first step, three existing SES rules (on controller licensing, common requirements on service providers and safety oversight) have been transposed under the new legal basis.[15].

Oversight of the implementation of the SES II regulatory framework

A major advantage of the SES II framework is that, in addition to the oversight performed by the NSAs at national level, it gives the opportunity to rely on EASA safety standardisation inspections as of 2012 in Member States and neighbouring countries to oversee the application of the European legislation. EASA will also oversee third country providers and pan-European providers (including the Network Manager).

Prospects for future regulations

Whilst the above implementing measures have laid down a solid basis for SES II, further measures should be developed. This primarily concerns interoperability rules required for the deployment of the SESAR programme, rules which generally transpose and further detail the provisions of ICAO annexes into EU.

The new institutional set-up is largely in place

The new institutional set-up endorsed by the SES II package has been established:

- The Performance Review Body (PRB) has been established in July 2010 in line with Article 11 of Regulation (EC) 549/2004. The Performance Review Commission of Eurocontrol has been designated as the PRB[16]. The PRB is to assist the Commission and the NSAs in the implementation and monitoring of the performance scheme. Its contribution was essential in the preparation of the EU-wide targets adopted in February 2011, thus allowing the start of the first reference period of the performance scheme in 2012.

- The FAB Coordinator has been designated in August 2010[17] with a view to facilitating the establishment of FABs as provided for in Article 9b of Regulation 1070/2009; since his designation, the Coordinator has visited most Member States to trigger the FAB establishment process.

- The Network Manager of the EU ATM network has been nominated in July 2011 in accordance with Article 6 of Regulation (EC) No 551/2004[18]. The Commission has entrusted to Eurocontrol the tasks related to the execution of the network functions (air traffic flow management, design of the European route network, coordination of scarce resources especially the radio frequencies within aviation frequency bands used by general air traffic and radar (SSR) transponder codes) and the operation of the European Aviation Crisis Coordination Cell.

- The SESAR Joint Undertaking (SJU) has been established in 2007 as a public-private partnership in order to manage the development phase of the SESAR programme.

- Since 2010, EASA has gradually become involved in the SES rule-making process in the field of ATM while Eurocontrol has achieved a process of internal reform to become the technical support body for the EU.

- An expert group on the social dimension of the SES has been set up in December 2010; it advises the Commission on new measures which may improve the consideration of the social impact within SES.

- Finally, action was taken to set up the NSA Coordination Platform and the FAB Focal Points Group, two fora where NSAs and FABs share experience, exchange best practices and discuss difficulties encountered and endeavour to develop common approaches and processes.

Implementation of the EU performance scheme (2012-2014)

Performance is at the heart of SES II. Following the adoption of the performance Regulation in July 2010, the Commission assisted by the newly nominated PRB worked in the second half of 2010 on the setting of the EU-wide performance targets in the key performance areas of environment, capacity/delays and cost-efficiency (safety being only monitored for the first reference period). On 21 February 2011 the Commission adopted EU-wide performance targets[19] for the period 2012-2014 in a context of expected 16 % of traffic growth ( i.e. for capacity an average delay of 0,5 min per flight in 2014, a 10% improvement in cost-efficiency over the period, and an environmental target, applied to the efficiency of flights, that will allow a carbon-neutral aviation growth).

Member States were given the deadline of 30 June 2011 to prepare and adopt their national or FAB performance plans and targets. Work has started in the Commission on the detailed assessment of the plans. If they are not consistent with the adopted EU-wide targets, the Commission will recommend to the Member States concerned to adopt revised performance targets, having first sought the opinion of the Single Sky Committee.

In parallel, work has also started involving EASA and Eurocontrol on both the setting up of safety key performance indicators to be adopted by the Commission before end 2011 and the preparation of the second performance reference period (2015-2019).

FAB establishment and start of operations (by December 2012)

Member States are required to take all necessary measures in order to ensure the establishment of FABs by December 2012 and then to deliver operational benefits to airspace users. In particular, they should enhance cooperation and seek integration of ANS provision within a FAB where appropriate with a view to ensuring that national airspace boundaries do not reduce the efficiency of air traffic flows and air traffic services provision in Europe. Guidance material for the establishment of FABs has been made available in this respect[20]. Details on the establishment and progress of FABs are reported by the FAB Coordinator[21].

Currently two FABs have been formally established[22] and are in an implementation phase while seven more FABs are in various stages of establishment. EU financial support has been granted to all FABs through the TEN-T financial programme. It seems likely that all the FAB initiatives will be able to sign and potentially ratify the FAB State Level Agreements in order to meet the December 2012 deadline. Nevertheless it appears that the implementation of FABs is not proceeding as fast as it should - only two performance plans at FAB level have been submitted. The Commission will continue to closely monitor progress with a reinforced interest as the deadline approaches; it will in particular assess the fulfilment by each FAB of the regulatory requirements, whether stakeholders (including professional staff representative bodies) have been properly involved and whether the bottom-up approach to airspace de-fragmentation has delivered operational benefits.

In addition to the formal requirements, some key issues still need to be addressed, e.g. the implementation of FAB performance plans and charging strategies; the development of real partnership between individual FABs and the Network Manager for better airspace management; and coordinated and synchronised deployment of SESAR.

Establishment of the Network Manager for the EU ATM network

Currently Member States take decisions regarding network functions on a voluntary basis relying mainly on the principles of good will and peer pressure. A major achievement of the SES II package is a more centralised management of the network based on cooperative decision-making (CDM) and detailed plans for achieving performance objectives based on EU legislation.

The framework is now in place to deliver the desired benefits for the network. The network functions will be under the governance of a Network Management Board reporting to the Single Sky Committee. The Network Manager is an important asset to improve performance in the use of the airspace. ANSPs, airspace users and airports expect immediate actions at network, FAB and national levels to anticipate and mitigate capacity problems (including inter-alia summer delays).

As Eurocontrol is nominated as the Network Manager for the EU ATM network, the SES can be applied beyond the EU to cover more than 40 States. The new directorate for network management refocuses Eurocontrol's resources on the role of Network Manager.

Readiness to mitigate crisis impacts (European Aviation Crisis Coordination Cell)

The events linked to the eruption of the Eyjafjallajökull volcano in spring 2010 demonstrated the need to establish a central entity to take the lead in coordinating the management of responses at national and network level in order to guarantee a timely and harmonised response to crisis affecting aviation. This has been dealt with through the adoption of the network functions Regulation, which incorporates provisions related to crisis management.

To support the Network Manager, the European Aviation Crisis Coordination Cell (EACCC) has been established under the leadership of the Commission and Eurocontrol. It requires the involvement of EASA and of the Member States. The volcanic eruption in May 2011 demonstrated the growing effectiveness of EACCC.

The technological challenge and SESAR deployment

SESAR is the technological enabler for the implementation of the SES. It is the most important public-private technological programme in the field of ATM ever launched in Europe. However, the performance objectives of the SES in terms of capacity, environment, safety and cost efficiency, can only be achieved through a well synchronised and coordinated deployment of new ATM infrastructures as indicated in the ATM Master Plan.

The European ATM Master Plan

The European ATM Master Plan[23] includes a set of deployment scenarios to be implemented by the relevant stakeholders by 2025 and beyond on which validation activities of SJU are based to achieve the new generation ATM system. It has been endorsed by the Council in 2009 and has been further updated by the SESAR Joint undertaking (SJU); another update will take place by March 2012.

The SESAR Joint Undertaking

In 2010, the Commission has carried out the first intermediate evaluation of the SJU after the first three years of operations. The outcome indicates that, in terms of ability to fulfil its mandate, the SJU has been performing well and has largely met the satisfaction from stakeholders; it has proven to be the appropriate organization for the management of the SESAR development phase and the timely execution of the European ATM Master Plan.

Future SESAR deployment

In 2009, the Council requested the Commission to present detailed proposals for a SESAR deployment strategy, with particular regard to a governance structure and the funding mechanisms. The Commission will make a proposal by end 2011 on how to align the complex transition from the development to the deployment phases of SESAR. The strategy will include a set of recommendations to allow a strong buy in and commitment from all stakeholders, including the military, to deploy the new technologies and procedures in a synchronised, coordinated and timely manner. This strategy will primarily rely on existing EU instruments; a strong involvement of the industry with the appropriate oversight is also considered of utmost importance[24]. Attention is also paid to early deployment projects forming the baseline for future implementation of the SESAR results[25].

Memorandum of Cooperation with the USA on research and development in civil aviation

The EU and the USA have made a significant step forward in the field of international cooperation for ATM modernisation and interoperability by signing on 3 March 2011 a Memorandum of Cooperation (MoC) on civil aviation research and development. This cooperation should achieve interoperability between the SESAR and NextGen programmes; it will facilitate further cooperation between the EU and US industry and will also coordinate technical efforts in support of global ATM standardisation activities while providing for a joint EU-US support to ICAO’s standardisation effort.

The gate-to-gate dimension: airports' involvement in SES

Airports being the entry and exit points to the European network, they have been fully considered in relation to the regulations on performance and network management. The performance of air navigation services at airports will have to meet performance targets starting in 2015. Moreover, considering the interdependence between performance of ANS and other operations/activities at airports, the upcoming revision of the existing EU legislation on airport slots and groundhandling will extend the logic of the performance regulation to all airport operations and to define potential performance targets for stakeholders involved in airport operations.

Human factor

The human and social dimensions are key elements for the completion of the SES to ensure that such dimensions are not underestimated or even neglected. Social dialogue should develop at three layers: national, European and FABs. Full SES implementation can be achieved if we maintain a stable and professional workforce of air traffic controllers. However, SES also implies optimisation of resource allocation, evolution of the modalities of the job of air traffic controller and development of "just culture". The implementation and operation of the performance scheme, the FABs, the Network Manager and the SESAR deployment will all have an impact on ATM staff which should be carefully evaluated and where the Commission is committed to full consultation.

Pan-European dimension of SES

The SES is open to neighbouring countries, with the objective to expand and bring its benefits to a geographical area broader than the EU. The application of the SES framework has already been extended to Norway and Iceland (based on the European Economic Area agreement) and to Switzerland (based on a bilateral agreement on air transport with the European Union). Morocco, Jordan, Georgia and the Balkan countries (Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Serbia, Montenegro and Kosovo[26]), which are also part of the European Common Aviation Area by virtue of comprehensive aviation agreements with EU are also progressing towards the full implementation of the SES legislation. The opportunity for these countries to join FAB initiatives will likely drive compliance prior to any formal adoption. Following mandates given by the Council, the Commission is also negotiating comprehensive agreements with Ukraine and Moldova. Negotiations with Tunisia could be opened in the near future. Furthermore, Turkey (accession partnership) and Ukraine (association partnership) have committed to progressively align their legal order with the EU legislation in the air transport field.

The Commission is determined to work closely with all neighbouring States and develop the pan-European dimension of SES[27]. In this context the partnership with Eurocontrol can contribute positively.

Consolidation of the relations between the EU and Eurocontrol

Since 2001, the SES has introduced a new perspective to EU-Eurocontrol relations.

Eurocontrol is keen to evolve to respond to the needs of the new EU legislative framework. Important changes have been introduced to its organisation, such as the separation of the support to regulatory functions from service provision. This process (organisation, decision-making bodies) should be encouraged. In October 2011, a mandate has been given by the Council to the Commission in view of negotiating a High-Level Agreement between the EU and Eurocontrol. The aim is to stabilise and strengthen relations between the EU and Eurocontrol, to confirm Eurocontrol as a technical support body for the EU and to support further institutional changes in Eurocontrol.

CONCLUSION AND WAY FORWARD

The process of establishment of the SES continues at a high pace. If the level of progress achieved so far in the implementation of the first package falls short of initial expectations, the simultaneous implementation of key measures of the second package will start in 2012 and should deliver significant benefits swiftly. Member States are invited to confirm their commitments and to take action across the board to make this process a success.

In particular, the Union needs to establish an integrated European air traffic management system, a true network with a single governance structure and a stronger regulatory and oversight capability.

Additional measures may well need to be developed, such as the extension of the performance scheme to airports in accordance with a true gate-to-gate approach and the management of investments to ensure the contribution of SESAR deployment to the performance of the SES as a network. Impact assessment will be carried out where appropriate.

ANNEX

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[1] COM(1999) 614 final of 06.12.1999

[2] Regulation (EC) No 549/2004, OJ L 96, 31.3.2004, p.1

[3] COM(2008) 389 Single European Sky II: towards more sustainable and better performing aviation

[4] Regulation (EC) No 1070/2009 of 21 October 2009, OJ L 300, 14.11.2009, p. 34.

[5] A first report on the implementation of the SES legislation was adopted in 2007, COM(2007) 845

[6] Considering the status of SES implementation, this overview does not provide an evaluation of the results achieved from an economic, social, environmental, employment and technological perspective; this will be addressed in a next report.

[7] Three reports have been published so far (in 2007-2008, 2009 and 2010) by Eurocontrol, on behalf of the European Commission.

[8] http://ec.europa.eu/transport/air/single_european_sky/single_european_sky_en.htm

[9] Regulation (EC) No 552/2004, OJ L 96, 31.3.2004, p. 26

[10] Commission Regulation (EC) No 691/2010, OJ L 201, 3.08.2010, p.1.

[11] Commission Regulation (EU) No 1191/2010, OJ L 333, 16.12.2010, p.6.

[12] Commission Regulation (EU) No 176/2011, OJ L 51, 25.02.2011, p. 2.

[13] Commission Regulation (EU) No 677/2011, OJ L 185, 15.07.2011, p.1

[14] Regulation (EC) No 1108/2009, OJ L 309, 24.11.2009, p.51.

[15] Commission Regulation (EU) No 805/2011 of 10 August 2011 laying down detailed rules for air traffic controllers' licences and certain certificates pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council , L 206, 11.08.2011, p.21; Commission Implementing Regulation (EU) No 1034/2011 of 17 October 2011 on safety oversight in air traffic management and air navigation services and amending Regulation (EU) No 691/2010, OJ L 271, 18.10.2011, p.15; Commission Implementing Regulation (EU) No 1035/2011 of 17 October 2011 laying down common requirements for the provision of air navigation services and amending Regulations (EC) No 482/2008 and (EU) No 691/2010, OJ L 271, 18.10.2011, p. 23

[16] Commission Decision of 29 July 2010

[17] Commission Decision of 12 August 2010 designating Mr Jarzembowski as FAB system Coordinator

[18] Commission Decision C(2011) 4130 final of 7 July 2011 on the nomination of the Network Manager for the air traffic management (ATM) network functions of the single European sky

[19] Commission Decision 2011/121/EU, OJ L 48, 23.02.2011, p.16

[20] http://ec.europa.eu/transport/air/single_european_sky/functional_airspace_blocks_en.htm

[21] Reports of December 2010 and March 2011 http://ec.europa.eu/transport/air/single_european_sky/functional_airspace_blocks_en.htm

[22] Danish-Swedish FAB and UK-Ireland FAB

[23] http://ec.europa.eu/transport/air/sesar/european_atm_en.htm

[24] See Commission staff working document SEC(2010) 1580 on preparing a deployment strategy for the Single European Sky technological pillar.

[25] named IP1 for implementation package 1.

[26] Under UNSCR Resolution 1244/1999.

[27] See COM(2011) 415 final of 7.07.2011: The EU and its neighbouring regions: A renewed approach to transport cooperation.