Common Position (EC) No 31/2003 of 18 March 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on the provision of air navigation services in the single European sky (the service provision Regulation) (Text with EEA relevance)
Date: 2003-03-18
Institutions: Council of the European Union
Subjects: Eurocontrol, European standard, air space, air traffic, air transport, organisation of transport, trans-European network

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COMMON POSITION (EC) No 31/2003

adopted by the Council on 18 March 2003

with a view to adopting Regulation (EC) No . . ./2003 of the European Parliament and of the
Council of . . . on the provision of air navigation services in the single European sky (the
service provision Regulation)

(2003/C 129 E/03)

(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
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1) Member States have restructured, to varying degrees, their
national air navigation service providers by increasing
their level of autonomy and freedom to provide services.
It
increasingly necessary to ensure that minimum
public-interest requirements are satisfied under this new
environment.

is

(2) The report of

the High Level Group on the Single
European Sky, of November 2000, has confirmed the
to distinguish
need for
at Community level
rules
between regulation and
to
introduce a system of certification aimed at preserving
public-interest requirements, most notably in terms of
safety, and to improve charging mechanisms.

provision and

service

(3) Regulation (EC) No . . ./2003 of the European Parliament
and of the Council (5) of . . . lays down the framework for
the creation of the Single European Sky (‘the framework
Regulation’).

(4)

In order to create the Single European Sky, measures
should be adopted to ensure the safe and efficient

(1) OJ C 103 E, 30.4.2002, p. 26.
(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 (not yet
published in the Official
Journal), Council Common Position of
18 March 2003 and Decision of the European Parliament of . . .
(not yet published in the Official Journal).

provision of air navigation services consistent with the
organisation and use of airspace as provided for in Regu-
lation (EC) No . . ./2003 of the European Parliament and of
the Council of . . . on the organisation and use of the
airspace in the Single European Sky (‘the airspace Regu-
lation’) (6). The establishment of a harmonised organisation
for the provision of such services is important in order to
respond adequately to the demand of airspace users and to
regulate air traffic safely and efficiently.

(5) The provision of air traffic services, as envisaged by this
Regulation, is connected with the exercise of the powers
of a public authority, which are not of an economic nature
justifying
rules of
competition.

application of

the Treaty

the

(6) Member States are responsible for monitoring the safe and
efficient provision of air navigation services and for the
control of compliance by air navigation service providers
with the common requirements established at Community
level.

should be permitted to entrust

to
(7) Member States
technically
recognised
experienced, the verification of compliance of air navi-
gation service providers with the common requirements
established at Community level.

organisations,

which

are

(8) Smooth operation of the air transport system also requires
uniform and high safety standards for air navigation
service providers.

(9) Whilst guaranteeing the continuity of service provision, a
common system should be established for certifying air
navigation service providers, which constitutes a means
for defining the rights and obligations of those providers.

(10) Conditions attached to certificates should be objectively
justified and should be non-discriminatory, proportionate
and transparent, and compatible with relevant
inter-
national standards.

(11) The certificates should be mutually recognised by all
Member States in order to allow air navigation service
providers to provide services in a Member State other
than the country in which they obtained their certificates,
within the limits of the safety requirements.

(5) See page 1 of this Official Journal.

(6) See page 11 of this Official Journal.

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(12) The

of

provision

communication,

and
surveillance services, as well as aeronautical
information
services, should be organised under market conditions
whilst taking into account the special
features of such
services and maintaining a high level of safety.

navigation

(13) In the interest of facilitating the safe handling of air traffic
across the boundaries of the Member States for the benefit
of the airspace users and their passengers, the system of
certification should provide for a framework to enable
Member States
traffic
services, regardless of where they have been certified.

to designate providers of air

(14) On the basis of their analysis of safety considerations,
Member States should be able to designate one or more
providers of meteorological services in respect of all or
part of the airspace under their responsibility, without
the need to organise a call for tenders.

(15) Air navigation service providers

maintain close
responsible for activities
traffic, through appropriate arrangements.

should establish and
cooperation with military authorities
that may affect general air

(16) The accounts of all air navigation service providers should

provide for maximum transparency.

(17) The introduction of harmonised principles and conditions
for access
the
provision of air navigation services and the operation of
airspace users and airports under a new environment.

to operational data should facilitate

(18) Charging conditions applying to airspace users should be

fair and transparent.

explained to airspace users; such changes or investment
proposed by air navigation service providers should be
explained as part of an exchange of information between
their management bodies and airspace users.

(23) There should be scope for modulating charges

that
contribute to maximising system-wide capacity. Financial
incentives may be a useful way of accelerating the intro-
that
duction of ground-based or airborne equipment
increases capacity, of rewarding high performance or of
offsetting the inconvenience of choosing less desirable
routings.

(24) The Commission should examine the feasibility of orga-
nising temporary financial aid for measures to increase the
capacity of Europe's air traffic control system as a whole.

(25) The establishment and imposition of charges on airspace
users should be reviewed by the Commission on a regular
basis, in cooperation with Eurocontrol, and with national
supervisory authorities and airspace users.

(26) Owing

sensitivity of

to the particular

information
concerning air navigation service providers, national
supervisory authorities should not disclose information
secrecy,
covered by
without prejudice to the organisation of a system for
monitoring and publishing the performance of
those
providers,

the obligation of professional

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL

Article 1

Scope and objective

(19) User charges should provide remuneration for the facilities
and services provided by air navigation service providers
and Member States. The level of user charges should be
proportionate to the cost, taking into consideration the
objectives of safety and economic efficiency.

1. Within the scope of the framework Regulation, this Regu-
lation concerns the provision of air navigation services in the
Single European Sky. The objective of this Regulation is to
establish common requirements for
the safe and efficient
provision of air navigation services in the Community.

(20) There should be no discrimination between airspace users
as to the provision of equivalent air navigation services.

This Regulation shall apply to the provision of air navi-
2.
gation services for general air traffic in accordance with and
within the scope of the framework Regulation.

(21) Air navigation service providers offer certain facilities and
services directly related to the operation of aircraft, the
costs of which they should be able to recover according
to the ‘user pays’ principle, which is to say that airspace
users should pay for the costs they generate at, or as close
as possible to, the point of use.

(22) It is important to ensure the transparency of the costs to
which such facilities or services give rise. Accordingly, any
changes made to the system or level of charges should be

Article 2

Tasks of national supervisory authorities

1.
The national supervisory authorities referred to in Article
4 of the framework Regulation shall ensure the appropriate
supervision of the application of this Regulation, in particular
with regard to the safe and efficient operation of air navigation
service providers which provide services relating to the airspace
falling under the responsibility of the Member State which
nominated or established the relevant authority.

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To this end, each national supervisory authority shall
2.
organise proper inspections and surveys to verify compliance
with the requirements of this Regulation. The air navigation
service provider concerned shall facilitate such work.

CHAPTER II

RULES FOR THE PROVISION OF SERVICES

Article 5

Common requirements

3.
In respect of functional airspace blocks that extend across
the airspace falling under the responsibility of more than one
Member State, the Member States concerned shall conclude an
agreement on the supervision provided for in this Article with
regard to the air navigation service providers providing services
relating to those blocks. Member States may conclude an
agreement on the supervision provided for in this Article
with regard to the air navigation service provider providing
services in a Member State other than that
in which the
provider has its principal place of operation.

Common requirements for the provision of air navigation
services shall be established in accordance with the procedure
referred to in Article 5(3) of the framework Regulation. The
common requirements shall include the following:

— technical and operational competence and suitability,

— systems and processes for safety and quality management,

4.
National supervisory authorities shall make appropriate
arrangements for close cooperation with each other to ensure
supervision of air navigation service providers
adequate
holding a valid certificate from one Member State that also
provide services relating to the airspace falling under the
responsibility of another Member State. Such cooperation
shall
cases
common
involving non-compliance with the
requirements set out in Article 5 or conditions set out in
Annex II.

the handling of
applicable

arrangements

include

for

— reporting systems,

— quality of services,

— financial strength,

— liability and insurance cover,

— ownership and organisational structure,

— human resources,

Article 3

— security.

Recognised organisations

1.
National supervisory authorities may decide to delegate in
full or in part the inspections and surveys referred to in Article
2(2) to recognised organisations that fulfil the requirements set
out in Annex I.

A recognition granted by a national supervisory authority
2.
shall be valid within the Community for a renewable period of
three years. National supervisory authorities may instruct any
of the recognised organisations located in the Community to
undertake these inspections and surveys.

Article 4

Safety requirements

the

and

adopt

in accordance with the procedure
The Commission shall,
the framework Regulation,
referred to in Article 5(3) of
Safety Regulatory
identify
Requirements (ESARRs) and subsequent amendments to those
requirements within the scope of this Regulation that shall be
made mandatory under Community law. Publication shall take
the form of references to such ESARRs in the Official Journal of
the European Union.

Eurocontrol

Article 6

Certification of air navigation service providers

1.
The provision of all air navigation services within the
Community shall be subject to certification by Member States.

2.
Applications for certification shall be submitted to the
national supervisory authority of the Member State where the
applicant has its principal place of operation and, if any, its
registered office.

3.
National supervisory authorities shall issue certificates to
air navigation service providers where they comply with the
common requirements referred to in Article 5. Certificates may
be issued individually for each type of air navigation service as
defined in Article 2 of the framework Regulation, or for a
including the situation where a
bundle of such services,
provider of air
status,
traffic services, whatever
operates and maintains its own communication, navigation
and surveillance systems.

legal

its

4.
Certificates shall specify the rights and obligations of air
navigation service providers. Certification may be subject only
to the conditions set out in Annex II. Such conditions shall be
objectively justified, non-discriminatory, proportionate and
transparent.

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Notwithstanding paragraph 1, Member States may allow
5.
the provision of air navigation services in all or part of the
airspace under their responsibility without certification in cases
where the provider of such services offers them primarily to
aircraft movements other than general air traffic. In those cases,
the Member State concerned shall inform the Commission and
the other Member States of its decision and of the measures
taken to ensure maximum compliance with the common
requirements.

6. Without prejudice to Article 7 and subject to Article 8,
the issue of certificates shall confer on air navigation service
providers the possibility of offering their services to other air
navigation service providers, airspace users and airports within
the Community.

National supervisory authorities shall monitor compliance
7.
with the common requirements and with the conditions
attached to the certificates. If a national supervisory authority
finds that the holder of a certificate no longer satisfies such
requirements or conditions, it shall take appropriate measures
while ensuring continuity of services. Such measures may
include the revocation of the certificate.

A Member State shall recognise any certificate issued in

8.
another Member State in accordance with this Article.

In exceptional

circumstances, Member

States may
9.
postpone compliance with this Article beyond the date
resulting from Article 18(2) by six months. Member States
shall notify the Commission of such postponement, giving
their reasons therefor.

Article 7

Designation of air traffic service providers

1. Member States shall ensure the provision of air traffic
services on an exclusive basis within specific airspace blocks
in respect of the airspace under their responsibility. For this
purpose, Member States shall designate an air traffic service
provider holding a valid certificate in the Community.

2. Member States shall define the rights and obligations to
be met by the designated service providers. The obligations
may include conditions for the timely supply of relevant
information enabling all aircraft movements in the airspace
under their responsibility to be identified.

3. Member States have discretionary powers in choosing a
service provider, on condition that
the
requirements and conditions referred to in Articles 5 and 6.

the latter

fulfils

In respect of

4.
accordance with Article 5 of

functional airspace blocks established in
the airspace Regulation that

extend across the airspace under the responsibility of more
than one Member State, the Member States concerned shall
jointly designate one or more air traffic service providers.

5. Member States shall inform the Commission and other
Member States without delay of any decisions within the
framework of
this Article regarding the designation of air
traffic service providers within specific airspace blocks in
respect of the airspace under their responsibility.

Article 8

Designation of providers of meteorological services

1. Member States may designate a provider of meteoro-
logical services to supply all or part of meteorological data
on an exclusive basis in all or part of the airspace under
their responsibility, taking into account safety considerations.

2. Member States shall inform the Commission and other
Member States without delay of any decision within the
framework of
this Article regarding the designation of a
provider of meteorological services.

Article 9

Relations between service providers

1.
Air navigation service providers may avail themselves of
the services of other service providers that have been certified
in the Community.

Air navigation service providers shall

2.
formalise their
working relationships by means of written agreements or
equivalent legal arrangements, setting out the specific duties
and functions assumed by each provider. Those arrangements
shall be notified to the national supervisory authority or auth-
orities concerned.

3.
In cases involving the provision of air traffic services, the
approval of the Member States concerned shall be required. In
cases involving the provision of meteorological services, the
approval of the Member States concerned shall be required if
they have designated a provider on an exclusive basis in
accordance with Article 8(1).

Article 10

Relations with military authorities

the common
Member States shall, within the context of
transport policy,
take the necessary steps to ensure that
written agreements between the competent civil and military
authorities or equivalent legal arrangements, are established in
respect of the management of specific airspace blocks.

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Article 11

Transparency of accounts

1.
Air navigation service providers, whatever their system of
ownership or legal form, shall draw up, submit to audit and
publish their financial accounts. These accounts shall comply
with the International Accounting Standards adopted by the
Community. Where, owing to the legal status of the service
full compliance with the International Accounting
provider,
Standards is not possible,
the provider shall endeavour to
achieve such compliance to the maximum possible extent.

In all cases, air navigation service providers shall publish
2.
an annual report and regularly undergo an independent audit.

in their internal accounting,

3. When providing a bundle of services, air navigation
identify
service providers shall,
the relevant costs and income for air navigation services,
broken down in accordance with Eurocontrol's principles for
establishing the cost-base for route facility charges and the
calculation of unit rates and, where appropriate, shall keep
consolidated accounts for other, non-air-navigation services,
as they would be required to do if the services in question
were provided by separate undertakings.

conditions. Detailed rules relating to such conditions shall be
established, where
in accordance with the
procedure referred to in Article 5(3) of the framework Regu-
lation.

appropriate,

CHAPTER III

CHARGING SCHEMES

Article 13

General

In accordance with the requirements of Articles 14 and 15, a
charging scheme for air navigation services shall be developed
that contributes to the achievement of greater transparency
with respect to the determination, imposition and enforcement
of charges
scheme shall also be
consistent with Article 15 of the 1944 Chicago Convention
on International Civil Aviation and with Eurocontrol's
charging system for en route charges.

to airspace users. This

Article 14

Principles

4. Member States shall designate the competent authorities
that shall have a right of access to the accounts of service
providers that provide services within the airspace under
their responsibility.

1.
The charging scheme shall be based on the account of
costs for air navigation services incurred by service providers
for the benefit of airspace users. The scheme shall allocate
these costs among categories of users.

5. Member States may apply the transitional provisions of
Article 9 of Regulation (EC) No 1606/2002 of the European
the Council of 19 July 2002 on the
Parliament and of
application of international accounting standards (1) to air navi-
gation service providers that fall within the scope of that Regu-
lation.

Article 12

Access to and protection of data

Relevant operational data shall be exchanged in real-time
1.
between air navigation service providers and between such
service providers, airspace users and airports to facilitate their
operational needs. The data shall be used only for operational
purposes.

Access to relevant operational data shall be granted to
2.
appropriate
service
certified
providers, airspace users and airports on a non-discriminatory
basis.

authorities,

navigation

air

3.
Certified service providers, airspace users and airports
shall establish standard conditions of access to their relevant
operational data other than those referred to in paragraph 1.
National supervisory authorities shall approve such standard

The following principles shall be applied when estab-

2.
lishing the cost-base for charges:

(a) The cost to be shared among airspace users shall be the full
cost of providing air navigation services, including appro-
priate amounts for interest on capital
investment and
depreciation of assets, as well as the costs of maintenance,
operation, management and administration;

(b) The costs to be taken into account in this context shall be
those assessed in relation to the facilities and services
provided for and implemented under the ICAO Regional
Air Navigation Plan, European Region. They may also
include costs incurred by national supervisory authorities
and/or recognised organisations, as well as other costs
incurred by the
and service
provider in relation to the provision of air navigation
services;

relevant Member State

(c) The cost of different air navigation services

shall be

identified separately, as provided for in Article 11(3);

(1) OJ L 243, 11.9.2002, p. 1.

(d) Cross-subsidy between different air navigation services shall

be allowed subject to clear identification;

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(e) Transparency of the cost-base for charges shall be provided.
Implementing rules for the provision of information by the
service providers shall be adopted in order to permit
forecasts, actual costs and
reviews of
exchanged
revenues.
between the national
service
providers, airspace users, the Commission and Eurocontrol.

the provider's
Information shall

supervisory

authorities,

regularly

be

3. Without prejudice to Eurocontrol's charging system for
en-route charges, Member States
shall comply with the
following principles when setting charges in accordance with
paragraph 2:

under

(a) Charges shall be set for the availability of air navigation
services
conditions. When
non-discriminatory
imposing charges on different airspace users for the use
the same service, no distinction shall be made in
of
relation to the nationality or category of the user;

(b) Exemption of certain users, especially light aircraft and
State aircraft, may be permitted, provided that the cost of
such exemption is not passed on to other users;

(c) Air navigation services may produce sufficient revenues to
exceed all direct and indirect operating costs and to provide
for a reasonable return on assets to contribute towards
necessary capital improvements;

(d) Charges shall reflect the cost of air navigation services and
facilities made available to airspace users
taking into
account the relative productive capacities of the different
aircraft types concerned;

(e) Charges shall allow for the safe and effective provision of
air navigation services with a view to a high level of safety
and to cost efficiency and shall stimulate integrated service
provision. To that effect, such charges may be used to
provide:

and/or

airspace

to encourage

air navigation service
— mechanisms
providers
support
to
improvements in air traffic flow management such as
increased capacity and reduction of delays, while main-
taining an optimum safety level. The decision as to
whether to apply such mechanisms remains within
the sole responsibility of each Member State;

users

— revenues to benefit projects designed to assist specific
categories of airspace users and/or air navigation service
providers in order to improve collective air navigation
infrastructures, the provision of air navigation services
and the use of airspace.

The

implementing rules

4.
covered by
paragraphs 1, 2 and 3 shall be established in accordance
with the procedure under Article 7 of the framework Regu-
lation.

in the

fields

Article 15

Review of charges

1.
The Commission shall provide for the ongoing review of
compliance with the principles and rules referred to in Articles
13 and 14, acting in cooperation with the Member States. The
Commission shall endeavour to establish the necessary mech-
anisms for making use of Eurocontrol expertise.

2.
At the request of one or more Member States which
consider that the abovementioned principles and rules have
the
not been properly applied, or on its own initiative,
Commission shall carry out an investigation on any allegation
of non-compliance or non-application of the principles and/or
rules concerned. Within two months of receipt of a request,
after having heard the Member State concerned and after
consulting the Single Sky Committee in accordance with the
procedure referred to in Article 5(2) of the framework Regu-
lation, the Commission shall take a decision on the application
of Articles 13 and 14 and as to whether the practice concerned
may continue.

3.
The Commission shall address its decision to the Member
States and inform the service provider thereof, insofar as it is
legally
the
Commission's decision to the Council within one month. The
Council, acting by a qualified majority, may take a different
decision within a period of one month.

concerned. Any Member

State may

refer

CHAPTER IV

FINAL PROVISIONS

Article 16

Adjustment to technical progress

1.
In order to make adaptations to technical developments,
adjustments may be made to the Annexes in accordance with
the procedure referred to in Article 5(3) of the framework
Regulation.

rules
The Commission shall publish implementing
2.
adopted on the basis of this Regulation in the Official Journal
of the European Union.

Article 17

Confidentiality

1.
Neither the national supervisory authorities, acting in
accordance with their national legislation, nor the Commission
shall disclose information of a confidential nature, in particular
information about air navigation service providers,
their
business relations or their cost components.

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Paragraph 1 shall be without prejudice to the right of
2.
is
disclosure by national
essential for the purposes of fulfilling their duties,
in which
case such disclosure shall be proportionate and shall have
regard to the legitimate interests of air navigation service
providers in the protection of their business secrets.

supervisory authorities where it

Article 18

Entry into force

1.
This Regulation shall enter into force on the twentieth
day following that of its publication in the Official Journal of the
European Union.

3. Moreover, paragraph 1 shall not preclude disclosure of
information, other than information of a confidential nature,
on the conditions and performance of service provision.

2.
However, Articles 6 and 7 shall enter into force one year
after publication of the common requirements, as referred to in
Article 5, 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 . . .

For the European Parliament

The President

For the Council

The President

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ANNEX I

REQUIREMENTS FOR RECOGNISED ORGANISATIONS

The recognised organisation must:

— be able to document extensive experience in assessing public and private entities in the air transport sectors, in
particular air navigation service providers, and in other similar sectors in one or more of the fields covered by this
Regulation;

— have comprehensive rules and regulations for the periodic survey of the above mentioned entities, published and

continually upgraded and improved through research and development programmes;

— not be controlled by air navigation service providers, by airport management authorities or by others engaged

commercially in the provision of air navigation services or in air transport services;

— be established with a significant technical, managerial, support and research staff commensurate with the tasks to be

carried out;

— be managed and administered in such a way as to ensure the confidentiality of information required by the

administration;

— be prepared to provide relevant information to the national supervisory authority concerned;

— have defined and documented its policy and objectives for, and commitment to, quality and have ensured that this

policy is understood, implemented and maintained at all levels in the organisation;

— have developed, implemented and maintained an effective internal quality system based on appropriate parts of
internationally recognised quality standards and in compliance with EN 45004 (inspection bodies) and with EN
29001, as interpreted by the IACS Quality System Certification Scheme Requirements;

— be subject to certification of its quality system by an independent body of auditors recognised by the authorities of

the Member State in which it is located.

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ANNEX II

CONDITIONS TO BE ATTACHED TO CERTIFICATES

1. Certificates shall specify:

(a) the national supervisory authority issuing the certificate;

(b) the applicant (name and address);

(c) the services which are certified;

(d) a statement of the applicant's conformity with the common requirements, as defined in Article 5 of this

Regulation;

(e)

the date of issue and the period of validity of the certificate.

2. Additional conditions attached to certificates may, as appropriate, be related to:

(a) the operational specifications for the particular services;

(b) the time by which the services should be provided;

(c) the various operating equipment to be used within the particular services;

(d) ring-fencing or restriction of operations of services other than those related to the provision of air navigation

services;

(e) contracts, agreements or other arrangements between the services provider and a third party and which concern

the service(s);

(f) provision of information reasonably required for the verification of compliance of the services with the common
requirements, including plans, financial and operational data, and major changes in the type and/or scope of air
navigation services provided;

(g) any other legal conditions which are not specific to air navigation services, such as conditions relating to the

suspension or revocation of the certificate.

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STATEMENT OF THE COUNCIL'S REASONS (1)

(1) See page 8 of this Official Journal.