Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Regulation of the European Parliament and of the Council on the organisation and use of the airspace in the Single European Sky amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2003-08-27
Institutions: European Commission
Subjects: air space, air traffic, air transport, common transport policy, organisation of transport, trans-European network

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 27.8.2003
COM(2003) 514 final

2001/0060 (COD)
2001/0235 (COD)
2001/0236 (COD)
2001/0237 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposals for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
laying down the framework for the creation of the Single European Sky

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the provision of air navigation services in the Single European Sky

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the organisation and use of the airspace in the Single European Sky

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the interoperability of the European Air Traffic Management network

AMENDING THE PROPOSALS OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

2001/0060 (COD)
2001/0235 (COD)
2001/0236 (COD)
2001/0237 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposals for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
laying down the framework for the creation of the Single European Sky

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the provision of air navigation services in the Single European Sky

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the organisation and use of the airspace in the Single European Sky

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the interoperability of the European Air Traffic Management network

1.

INTRODUCTION

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is
to  deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second
reading.  The  Commission  sets  out  its  opinion  below  on  the  amendments  proposed  by
Parliament.

2.

a)

1

BACKGROUND

On  10  October  2001  the  Commission  submitted  four  legislative  proposals  for  the
creation  of  the  Single  European  Sky1  with  a  view  to  their  adoption  under  the
codecision  procedure  provided  for  in  Article  251  of  the  Treaty  establishing  the
European Community.

the  creation  of 

Proposal for a Regulation of the European Parliament and of the Council laying down the framework
for 
the  Single  European  Sky  (COM(2001) 123  final/2  of  30.11.2001  –
2001/0060 (COD).
Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  the  provision  of  air
navigation  services 
the  Single  European  Sky  (COM(2001) 564  final/2  of  11.12.2001  –
2001/0235 (COD).
Proposal for a Regulation of the European Parliament and of the Council on the organisation and use of
the airspace in the Single European Sky (COM(2001) 564 final/2 of 11.12.2001 – 2001/0236 (COD).
Proposal for a Regulation of the European Parliament and of the Council on the interoperability of the
European  Air  Traffic  Management  network 
final/2  of  11.12.2001  –
2001/0237 (COD).

(COM(2001) 564 

in 

2

                                                
b)

c)

d)

e)

f)

g)

The  Committee  of  the  Regions  delivered  an  opinion  supporting  the  Commission’s
proposals on 15 May 2002.

The European Economic and Social Committee delivered an opinion supporting the
Commission’s proposals on 17 July 2002.

On  3  September  2002  the  European  Parliament,  at  its  first  reading,  delivered  its
opinion, containing 113 amendments to the Commission proposals.

On  26  November  2002  (COM(2002)  658  final),  the  Commission  adopted,  in
accordance  with  Article  250(2)  of  the  Treaty,  amended  proposals  incorporating,
wholly or in part 82 and rejecting 31 of the amendments adopted by the Parliament.

The Council unanimously adopted it common position on 18 March 2003.

On  3  July  2003,  the  European  Parliament  adopted,  at  the  second  reading,  two
resolutions containing 50 amendments to the common position.

3.

OBJECTIVES OF THE COMMISSION’S PROPOSALS

The air traffic control system in the Community operates close to its capacity limits.
It  is  therefore  a  source  of  delays  in  air  traffic.  Delays  make  air  transport
unpredictable  for  air  passengers and operators and impose large  economic  costs  on
carriers  and  consumers.  The  lack  of  capacity  of  the  air  traffic  control  system  also
endangers the functioning of the internal market. The main origin of this lack is the
fragmentation  of  the  Air  Traffic  Management  (ATM)  system  which  also  results  in
the
high  co-ordination  costs.  There 
interoperability of the system among various Member States.

is  consequently  a  need 

improve 

to 

To remedy these deficiencies, the Commission adopted in October 2001 a legislative
package  with  the  objective  of  achieving  the  goal  of  a  Single  European  Sky.  The
objectives of the proposed legislation are:

– 
– 

– 

– 

to improve and reinforce safety,
to  achieved  more  effective  and  integrated  air  navigation  services  based  on
demand driven service provision,
to  restructure  European  airspace  as  a  function  of  traffic  flow,  rather  than
according to national borders,
to create additional capacity and to increase the overall efficiency of the ATM
system.

The  Commission’s  legislative  package  comprises  four  proposals  for  regulation
covering the essential elements for a seamless ATM system.

3.1

Regulation  of  the  European  Parliament  and  of  the  Council  laying  down  the
framework for the creation of the Single European Sky (2001/0060 (COD))

This proposal for a regulation fixes the end of 2004 as the deadline for the creation of
the Single European Sky. It proposes an institutional framework for  the creation of
the  Single  European  Sky.  According  to  this  framework  the  Community  regulates,
Eurocontrol,  where  appropriate,  prepares  draft  measures  with  a  view  to  being
incorporated  into  Community  law,  and  Member  States  enforce  the  rules  without
prejudice to the role of the Commission as the guardian of the Treaty. This regulation

3

also  proposes  to  significantly  enhance  international  co-ordination.  The  institutional
set up aims at removing the administrative and organisational bottlenecks in the area
of decision-making and enforcement processes in ATM.

3.2

Regulation of the European Parliament and of the Council on the provision of
air navigation services in the Single European Sky (2001/0235 (COD))

This proposal for a regulation aims to promote the safe and efficient provision of air
navigation services in a seamless and interoperable manner across the Community. It
ensures  a  functional  separation  between  national  supervisory  authorities  and  air
navigation  service  providers.  This  separation  is  compatible  with  both  public  and
private means of ownership and service provision – whichever model is adopted by
individual Member States. Eurocontrol safety requirements would be transposed into
Community rules. The regulation introduces a certification scheme for air navigation
services setting the harmonised requirements for their provision at Community level.
Member  States  would  retain  their  power  to  designate  service  providers  operating
under monopoly  conditions (air traffic  control services).  The  regulation also allows
the  revision  of  the  current  charging  system  to  encourage  the  efficient  use  and  the
efficient provision of ATM infrastructure.

3.3

Regulation of the European Parliament and of the Council on the organisation
and use of the airspace in the Single European Sky (2001/0236 (COD))

This proposal for a regulation would create a Community airspace that behaves as a
single operating continuum, where common procedures for the design, planning and
management  of  airspace  ensure  the  safe  performance  of  the  entire  air  traffic
management network. The regulation defines the principles for the organisation and
use  of  the  airspace,  for  the  co-ordination  between  civil  and  military  and  for  the
management of air traffic flows. Its most significant actions would be the creation of
a European Upper Information Region, replacing the existing national zones, and the
reconfiguration of airspace into functional airspace blocks of adequate size, based on
safety and efficiency criteria, regardless of national boundaries.

3.4

Regulation  of  the  European  Parliament  and  of  the  Council  on  the
the  European  Air  Traffic  Management  network
interoperability  of 
(2001/0237 (COD))

This  proposal  for  a  regulation  defines  the  conditions  necessary  to  ensure
interoperability in the Community between the different systems and components of
the  air  traffic  management  network  and  of  their  upgrading  to  new  technologies,  as
appropriate.  A key pillar of this regulation is the definition and management of the
European  ATM  standardisation  processes,  including  the  procedures  for  conformity
assessment, in line with the Community policies in this field.

4

4.

4.1

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN
PARLIAMENT

Regulation  of  the  European  Parliament  and  of  the  Council  laying  down  the
framework for the creation of the Single European Sky (2001/0060 (COD))

The European Parliament adopted at second reading 18 amendments to the Common
Position of the Council.

The  Commission  can  accept  5  amendments  in  full,  6  in  principle,  subject  to
redrafting.

It has nonetheless to reject 7 amendments in full.

4.1.1

Amendments accepted by the Commission (5 amendments in full)

The  Commission  believes  that  amendments  2,  5,  16,  17  and  18  constitute  genuine
improvements and useful clarifications in the text.

4.1.1.1 Genuine improvements (2 amendments in full)

Amendment 5 and amendment 18 delete the reference to military training exercises
respectively  in  recital  19  and  in  the  safeguard  clause  (Article  11,  indent  5).  The
Commission  believes  that  such  reference  is  superfluous.  The  concepts  of  the
organisation of armed forces and of military operations in the provisions of recital 19
and Article 11 of the Common Position already cover training aspects. Furthermore
the scope of the legislative package, as defined in Article 1, excludes any  measures
of the legislation in the field of military operations and training, namely with regard
to  air  traffic  flown  under  military  rules  (OAT  =  Operational  Air  Traffic).  These
amendments will also help clarifying the scope of Articles 7 and 8 in the “airspace”
regulation concerning the flexible use of airspace. Airspace has a dual-use as it can
be used  for  both  civil  and  military  purposes.  The  dual-use  of  airspace,  whether  for
civil flights or military training, is within the scope of the legislative package with a
view to make it really flexible and efficient and subject to effective control.

4.1.1.2 Useful clarifications (3 amendments in full)

Amendment  2  (on  recital  9)  extends  the  notion  of  public  authorities  subject  to  the
principle  of  separation  between  regulatory  and  operational  functions  to  all  air
navigation services. The Commission can accept it provided that the list of services
(into brackets) is deleted since in contradiction with the definition of air navigation
services under Article 2.

Amendments  16  and  17  (on  Articles  9  and  10)  add  new  text,  which  clarifies  the
scope of the review of performance and impact assessment.

5

4.1.2

Amendments accepted in principle, subject to redrafting (6 amendments)

Amendment  3  and  12  (new  recital  and  article)  stress  the  importance  of  involving
industry to get advise on the implementation of the Single European Sky and, to this
purpose,  introduce  the  concept  of  an  industry  advisory  group.  The  Commission
agrees  on  the  need  for  a  full  and  effective  consultation  of  industry.  Hence  the
Commission can accept to reinforce the principle of consultation and dialogue with
industry 
11.12.2002
its 
(COM(2002) 704 final).  As  to  the  creation  of  a  body,  a  re-drafting  is  required  to
avoid any prejudice to the right of initiative of the Commission  and  the  role of the
Single Sky Committee.

accordance  with 

Communication 

of 

in 

Amendments  4  and  15  (new  recital  and  Article).  The  Commission  is  in  favour  of
introducing  a  mechanism  to  sanction  operators  that  breach  the  rules.  Nevertheless
this  mechanism  should  be  defined  in  a  uniform  way  across  the  Community  and
linked to the obligations imposed on air carriers and service providers.

Amendment  6  (on  Article  1)  reinstates  the  text  of  the  Commission’s  proposal
concerning the scope of the “framework” regulation. The Commission agrees that the
scope of the Community action should be clearly spelt out before defining the limits
of such actions in relation to Member States’ sovereignty over national airspace and
to the defence policy. This amendment  could therefore be  accepted in parallel with
the text of the Common Position of the Council.

Amendement 7 (on Article 2) clarifies that the legal statute of service providers is a
choice  of  Member  States.  This  clause  appears  indeed  to  be  superfluous  since  the
legislative package does not provide on this issue.

4.1.3

Amendments rejected by the Commission (7 amendments in full)

The Commission believes that amendments 1, 8, 9, 10, 11, 13 and 14 are contrary to
the basic principles and philosophy of its proposal.

Amendment 1 (on recital 3) limits the aim of air navigation services to the protection
of  passengers  and  residents.  This  drafting  would  negate  the  principal  role  of  air
navigation  services  in  supporting  the  smooth  and  safe  operations  of  air  transport,
which is unacceptable.

Amendements  8  and  9  (on  Article  2)  modify  the  definitions  of  “air  traffic  flow
management”  and  “sector”.  These  definitions  stem  from  the  ICAO  glossary  which
the  accepted  reference  in  the  air  traffic  management  community.  Thus  the
amendments are rejected.

Amendments  10  and  11  (on  Article  5)  introduce  a  reference  to  the  “military”
dimension  of  the  Single  Sky  Committee  and  to  the  participation  of  Eurocontrol  at
such a committee. The drafting of these amendments does not conform to Decision
1999/468/CE on comitology and the associated rules of procedures. The Commission
cannot therefore accept these amendments.

Amendment  13  (on  Article  6)  requires  the  Commission  to  act  consistently  for  the
extension  of  the  Single  European  Sky  to  the  largest  European  scale.  However  this
goal  would  finally  depend  on  the  whole  Community  action,  including  the
Commission. The drafting proposed is incomplete and therefore unacceptable.

6

Amendment 14 (on Article 7) requires the Commission to make use of Eurocontrol
working  procedures,  including  its  consultation  processes,  in  the  development  of
implementing  rules.  These  procedures  should  be  specified  in  the  context  of  the
mandates  for  the  development  of  implementing  rules.  This  is  in  particular  to
guarantee  the  conformity  with  the  Commission’s  procedures  on  the  consultation  of
stakeholders and the absence of conflict of interest. The Commission cannot accept
this amendment.

4.2

Regulation of the European Parliament and of the Council on the provision of
air navigation services in the Single European Sky (2001/0235 (COD))

The European Parliament adopted at second reading 16 amendments to the Common
Position of the Council.

The  Commission  can  accept  6  amendments  in  full,  8  in  principle  (one  of  which  in
part), subject to redrafting.

It has nonetheless to reject 2 amendment in full and 1 in part.

4.2.1

Amendments accepted by the Commission (6 amendments in full)

The Commission believes that amendments 3, 9, 10, 11, 12 and 14 constitute genuine
improvements and useful clarifications in the text.

4.2.1.1 Genuine improvements (2 amendments in full)

Amendment  3  (new  recital)  supports  the  concept  of  a  flexible  definition  of  route
charges to allow the constitution of financial reserves. These would relieve airspace
users and service providers from unexpected rises in the charges as a consequence of
sudden downturn in air traffic.

Amendment  12  (on  Article  10)  reinstate  the  text  of  the  Commission’s  proposal
concerning  mandatory  information  from  Member  States  to  the  Commission  on  the
modalities for the civil-military co-operation in air traffic control. The Commission
believes  that  this  provision  is  consistent  with  the  scope  of  the  legislative  package
since  addressing  arrangements  imposed  on  air  navigation  services  to  respond  to
military requirements.

4.2.1.2 Useful clarifications (4 amendments in full)

Amendment 9 (on Article 6) adds new text, which clarifies the nature and scope of
conditions attached to certificates.

Amendment  10  (on  Article  7)  specifies  the  period  within  which  Member  States
should  designate  one  or  more  service  providers  to  operate  in  respect  of  functional
airspace blocks.

Amendments 11 and 14 (on Article 7 and 14) are editorial improvements.

7

4.2.2

Amendments  accepted  in  principle,  subject  to  redrafting  (7  amendments  –  1  in
part)

Amendments  1  and 4  (new recital and  article)  aims  at  reintroducing  in  the  text  the
social  dimension,  in  particular  the  need  for  a  legislative  action  to  improve  the
availability  of  controllers  and  to  harmonise  procedures  for  licensing  of  controllers.
The Commission can accept these amendments subject to redrafting.

Amendments 2 and 8 (on recital 9 and Article 6) establish a maximum and minimum
period of validity of certificates respectively of ten and five years. The Commission
prefers  that  this  period  is  fixed  by  Member  States  within  the  conditions  to  be
attached  to  certificates  (annex  II).  However,  it  supports  the  idea  that  these  periods
should be harmonised across the Community.

Amendments 5, 6 and 7 (on Article 5) add new text to clarify the scope of common
requirements.  Though  acceptable  in  principle,  these  additions  would  highlight
specific  aspects of  common  requirements.  They  need  therefore  redrafting  to  ensure
that  there  is  no  unbalance  in  the  identification  of  various  areas  where  common
requirements should be developed.

Amendment  15,  1st  part  (on  Article  14)  reinstate  the  text  of  the  Commission’s
proposal  concerning  economic  regulation,  in  particular  financial  incentives.  The
Commission  does  not  see  major  contradictions  between  the  Common  Position  and
the  proposed  text,  except  for  the  right  given  to  Member  States  to  decide  on  the
application of such incentives.

4.2.3

Amendments rejected by the Commission (2 amendments in full – 1 in part)

The Commission believes that amendments 13, 15.2nd part and 16 are contrary to the
basic principles and philosophy of its proposal.

Amendment  13  (on  Article  12)  introduces  the  principles  of  commercial  value  of
operational  data.  The  application  of  this  principle  should  be  decided  on  a  case  by
case basis. Some operational data are in fact provided free of charge, in accordance
with ICAO provisions. The Commission cannot therefore accept this amendment.

Amendment  15,  2nd  part  (on  Article  14)  limits  the  cross-subsidies  between  air
navigation  services  to  exceptional  cases.  Cross-subsidies  primarily  concerns  the
definition  of  the  cost-bases  and  specific  rules  are  already  provided  for  in  Article
14.2(d) of the Common Position.

Amendment 16 (on Article 18) deletes the transitional period for the entry into force
of the certification scheme. However this transitional period is needed. It depends on
the availability of common requirements and it allows service providers to adapt to
such requirements.

8

4.3

Regulation of the European Parliament and of the Council on the organisation
and use of the airspace in the Single European Sky (2001/0236 (COD))

The European Parliament adopted at second reading 15 amendments to the Common
Position of the Council.

The  Commission  can  accept  8  amendments  in  full,  5  in  principle,  subject  to
redrafting.

It has nonetheless to reject 2 amendment in full.

4.3.1

Amendments accepted by the Commission (8 amendments in full)

The  Commission  believes  that  amendments  17,  18,  19,  20,  21,  22,  24  and  28
constitute  important  changes  of  substance,  genuine  improvements  and  useful
clarifications in the text.

4.3.1.1 Changes of substance (2 amendments)

Amendment 24 (new Article) reinstates the text of the Commission’s proposal aimed
at  extending  the  concept  of  the  European  Flight  Information  Region  to  the  lower
airspace.

Amendment  28  (new  Article)  extends  the  concept  of  functional  airspace  blocks  to
lower airspace. This amendment could be accepted subject to drafting changes.

4.3.1.2 Genuine improvements (1 amendment in full)

Amendment 21 (on recital 12) clarifies that the creation of functional airspace blocks
requires taking into account, as appropriate the  recommendations  of  Eurocontrol.  It
can therefore be accepted subject to redrafting.

4.3.1.3 Useful clarifications (5 amendments in full)

Amendments  17,  18,  19,  20,  22  (on  recital  2,  3,  6,  9  and  Article  1)  add  new  text
and/or delete some text thereby clarifying the spirit of regulation.

4.3.2

Amendments accepted in principle, subject to redrafting (5 amendments)

Amendment 23 (on Article 3) sets an obligation of result within a certain period of
time.  However,  as  the  establishment  of  the  European  Upper  Flight  Information
Region  depends  on  an  ICAO  decision,  it  is  more  appropriate  to  set  this  obligation
upon the Commission to initiate the process within a specific timeframe.

Amendment  26  (on  Article  5)  defines  an  arbitration  process  governed  by  the
Commission to solve disputes in relation to the establishment of functional airspace
blocks.  The  Common  Position  does  not  provide  for  mechanisms  to  ensure  that
decisions  of  Member  States  on  this  issue  will  lead  the  timely  and  efficient
reconfiguration  of  air 
into  few  homogeneous  blocks.  The
Commission can therefore accept the principle of a process of consultation within the
Single Sky Committee to discuss on the consistency of individual functional airspace
blocks in respect of the neighbouring blocks.

traffic  services 

9

Amendment 27 (new Article) clarifies that the modalities of the process of airspace
and route design. The Commission agrees on these modalities which are, to a great
extent, already in existence. This amendment is therefore superfluous.

Amendment 30 (on Article 8) provides for an information to the Commission on the
application of the concept of the flexible use of airspace. The Commission can accept
this  amendment  whose  objective  is  already  covered  by  Article  7.2  of  the  common
position.

Amendment  31  (on  Article  10)  deletes  the  provisions  of  the  Common  Position
concerning  the  review  process  and  the  possible  extension  of  the  concept  of  this
regulation  to  the  lower  airspace.  This  deletion  is  dependent  upon  the  inclusion  of
similar provisions in conjunction with amendment 28.

4.3.3

Amendments rejected by the Commission (2 amendments in full)

The  Commission  believes  that  amendments  25  and  29  are  contrary  to  the  basic
principles and philosophy of its proposal.

Amendment 25 (on Article 4) links the change in the classification of airspace to the
creation of the European Upper Flight Information Region and it specifies the nature
of such classification. This level of detail in unacceptable.

Amendment 29 (on Article 7) reinstates the text of the Commission’ proposal on the
civil-military  co-ordination.  This  wording  no  longer  fits  in  with  the  text  of  the
Common Position and its legal basis, given the impact it has on military operations
and training.

4.4

Regulation  of  the  European  Parliament  and  of  the  Council  on  the
interoperability  of  the  European  Air  Traffic  Management  network  (2001/0237
(COD))

The  European  Parliament  adopted  at  second  reading  1  amendment  to  the  Common
Position of the Council.

The Commission can accept this amendment in part.

4.4.1

Amendments accepted by the Commission (1 amendments in part)

Amendment 32, 2nd part (on Article 10) constitutes an improvement since it requires
speeding up the process of conformity of all systems with the essential requirements.

4.4.2

Amendments rejected by the Commission (1 amendments in part)

Amendment  32,  1st  part  (on  Article  10)  is  unacceptable  since  the  application  of
essential requirements requires a transitional period during which implementing rules
and Community specifications will have to be established.

5.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as
set out above.

10