Council Regulation (EC) No 1361/2008 of 16 December 2008 amending Regulation (EC) No 219/2007 on the establishment of a joint undertaking to develop the new generation European air traffic management system (SESAR)
Date: 2008-12-16
Institutions: Council of the European Union
Subjects: air safety, air space, air traffic, air traffic control, common transport policy, joint venture

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COUNCIL REGULATION (EC) No 1361/2008

of 16 December 2008

amending Regulation (EC) No 219/2007 on the establishment of a joint undertaking to develop the
new generation European air traffic management system (SESAR)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
establishing the European
Community, and in particular Articles 171 and 172 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

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

Whereas:

(1)

Since the establishment of the SESAR Joint Undertaking
(Joint Undertaking), Council Regulation (EC) No 71/2008
of 20 December 2007 has set up the Clean Sky Joint
Undertaking (3), Council Regulation (EC) No 72/2008 of
20 December 2007 set up the ENIAC Joint Under­
taking (4), Council Regulation (EC) No 73/2008 of
20 December 2007 set up the Joint Undertaking for
the implementation of
the Joint Technology Initiative
on Innovative Medicines (5), and Council Regulation
(EC) No 74/2008 of 20 December 2007 set up the
ARTEMIS Joint Undertaking to implement a Joint Tech­
nology Initiative in Embedded Computing Systems (6).
Those Joint Undertakings are bodies set up by the
Communities within the meaning of Article 185(1) of
Council Regulation (EC, Euratom) No 1605/2002 of
25 June 2002 on the Financial Regulation applicable to
the European Communities (7).
the general budget of
Regulation (EEC, Euratom, ECSC) No 259/68 of
the
Council of 29 February 1968 laying down the Staff
of
Regulations
Employment of other Servants of the European Commu­
nities (8) applies to their staff, and the Protocol on
Privileges and Immunities of the European Communities
applies to them and to their staff.

the Conditions

of Officials

and

(1) Opinion of 18 November 2008, not yet published in the Official

Journal.

(2) Opinion of 3 December 2008, not yet published in the Official

Journal.

(3) OJ L 30, 4.2.2008, p. 1.
(4) OJ L 30, 4.2.2008, p. 21.
(5) OJ L 30, 4.2.2008, p. 38.
(6) OJ L 30, 4.2.2008, p. 52.
(7) OJ L 248, 16.9.2002, p. 1.
(8) OJ L 56, 4.3.1968, p. 1.

(2)

(3)

(4)

(5)

(6)

(7)

As a body set up by the Communities, it is appropriate
to align the legal status of the SESAR Joint Undertaking
with that of the other newly established Joint Under­
takings,
in order to ensure that this Joint Undertaking
benefits from the same treatment as that afforded to
the other newly established Joint Undertakings.

Council Decision 2006/971/EC of 19 December 2006
concerning the specific programme ‘Cooperation’
im­
plementing the Seventh Framework Programme of the
European Community for research, technological devel­
opment and demonstration activities (2007 to 2013) (9)
states that research will develop and implement an inno­
vative Air Traffic Management (ATM) system within the
context of the SESAR initiative, which will also ensure
the most effective coordination of the development of
the ATM systems in Europe.

Programme of

(including aeronautics),

According to the annual work programmes for 2007 and
2008 concerning the Specific Programme ‘Cooperation’,
implementing the
Transport
Seventh Framework
European
the
technological development
Community for
the
(2007 to 2013),
and demonstration activities
Commission will provide annual contributions from the
Seventh Framework Programme to the SESAR Joint
Undertaking for a total estimated amount of EUR 350
million over the entire programme.

research,

The multi-annual work programme for grants in the field
of
trans-European Transport networks for the period
2007-2013 identifies the SESAR project to modernise
ATM in Europe as a major horizontal priority by allo­
cating to it an estimated budget of EUR 350 million over
that period.

The Commission estimates that the Community’s contri­
bution to the SESAR Joint Undertaking will be EUR 700
million, which will come in equal parts from the 7th
Framework Programme for Research and Development
and from the Trans-European transport networks
programme.

its

As the Joint Undertaking is a body set up by the
Communities,
should
decision-making
guarantee the Community’s decision-making autonomy,
in particular in respect of; issues having an impact on the
the
the
strategic orientation of
Community’s contribution, and the independence and
equal treatment of the Joint Undertaking’s staff.

Joint Undertaking,

process

(9) OJ L 400, 30.12.2006, p. 86. Corrected by OJ L 54, 22.2.2007,

p. 30.

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(8)

(9)

agreement

concluded
An administrative
between the SESAR Joint Undertaking and Belgium
concerning privileges and immunities and other support
to be provided by Belgium to the Joint Undertaking.

should be

the
In order to ensure the efficient management of
resources provided to the Joint Undertaking for
its
research activities and to ensure that, as far as possible,
the Joint Undertaking receives the same treatment as
other
is necessary to
ensure that the fiscal matters of the Protocol on Privileges
and Immunities of
the European Communities are
applied retroactively from an appropriate date.

comparable undertakings,

it

(10)

Regulation (EC) No 219/2007 should therefore be
amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Amendments to Regulation (EC) No 219/2007

Regulation (EC) No 219/2007 is hereby amended as follows:

1.

in Article 1, paragraph 2 shall be replaced by the following:

The

cease

Joint Undertaking shall

‘2.
to exist on
31 December 2016 or eight years after an endorsement by
the Council of the European Air Traffic Management Master
Plan (the ATM Master Plan) resulting from the definition
phase of the SESAR project, whichever is the earlier. The
Council shall decide on such endorsement acting on a
proposal from the Commission.’;

2. Article 2 shall be replaced by the following:

‘Article 2

Legal status

The Joint Undertaking shall be a Community body and shall
have legal personality. In every Member State, it shall enjoy
the most extensive legal capacity accorded to legal persons
under the law of that State. It may, in particular, acquire or
dispose of movable and immovable property and may be a
party to legal proceedings.’;

3. the following Articles shall be inserted:

2. Without prejudice to Article 7(2) of its Statutes, the
Joint Undertaking shall exercise the powers conferred on the
appointing authority by the Staff Regulations of Officials of
the European Communities and on the authority empowered
to conclude employment contracts by the Conditions of
employment of other servants of the European Communities
in respect of its staff.

The Administrative Board shall, in agreement with the
3.
the appropriate implementing rules
Commission, adopt
referred to in Article 110(1) of
the Staff Regulations of
Officials of the European Communities and the Conditions
of Employment of other Servants of the European Commu­
nities.

4.
The staff resources shall be determined in the estab­
lishment plan of the Joint Undertaking that will be set out in
its annual budget.

The staff of

5.
the Joint Undertaking shall consist of
temporary agents and contract agents engaged for a fixed
period that may be renewed once and for a fixed period
only. The total period of engagement shall not exceed
eight years and shall not in any case exceed the duration
of the Joint Undertaking.

All costs related to the staff shall be borne by the Joint

6.
Undertaking.

Article 2b

Privileges and immunities

1.
The Protocol on the Privileges and Immunities of the
European Communities shall apply to the Joint Undertaking
and, insofar as they are subject to the rules referred to in
to its staff and its Executive
paragraph 1 of Article 2a,
are
Insofar
Director.
concerned, that Protocol shall apply to the Joint Undertaking
as from 15 October 2008.

customs

duties

taxes

and

as

An administrative

concluded
2.
between the Joint Undertaking and Belgium concerning
privileges
to be
provided by Belgium to the Joint Undertaking.

and immunities

and other

agreement

shall be

support

Article 2c

Liability

‘Article 2a

Staff

The Staff Regulations of Officials of

the European
1.
the Conditions of Employment of other
Communities,
servants of
the European Communities and the rules
adopted jointly by the institutions of the European Commu­
nities for the purpose of applying these Staff Regulations and
the Conditions of Employment shall apply to the staff of the
Joint Undertaking and its Executive Director.

The contractual liability of the Joint Undertaking shall
1.
be governed by the relevant contractual provisions and by
the law applicable to the agreement or contract in question.

In the case of non-contractual liability, the Joint Under­
2.
taking shall,
in accordance with the general principles
common to the laws of the Member States, make good
any damage caused by its staff in the performance of their
duties.

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Any payment by the Joint Undertaking in respect of
3.
the liability referred to in paragraphs 1 and 2 and the costs
and expenses incurred in connection therewith shall be
considered as expenditure of
the Joint Undertaking and
shall be covered by its resources.

The Joint Undertaking shall be solely responsible for

4.
meeting its obligations.

Article 2d

Jurisdiction of the Court of Justice and applicable law

1.

The Court of Justice shall have jurisdiction:

concluded between the Commission, on behalf of
Community, and the Joint Undertaking.

the

The general agreement shall provide for a right
for the
Commission to oppose the use of the Community contri­
bution for purposes it considers to be contrary to the prin­
ciples of the Community programmes mentioned in the first
subparagraph or to its Financial Regulation or detrimental to
the
the interests of
Commission’s opposition,
the Community contribution
cannot be used by the Joint Undertaking for those purposes.

In the event of

the Community.

___________
(*) OJ L 248, 16.9.2002, p. 1.’;

5. the following Articles shall be inserted:

(a)

in any dispute between the members, which relates to
the subject matter of this Regulation and/or the Statutes
referred to in Article 3;

‘Article 4a

Financial Rules

(b) pursuant

to any

in
agreements and contracts concluded by the Joint Under­
taking;

arbitration clause

contained

(c)

in actions brought
Joint Undertaking,
including decisions of its bodies, under the conditions
provided for in Articles 230 and 232 of the Treaty;

against

the

(d) in disputes related to compensation for damage caused
by the staff of the Joint Undertaking in the performance
of their duties.

2.
For any matter not covered by this Regulation or by
other acts of Community law, the law of the State where the
seat of the Joint Undertaking is located shall apply.’;

4.

in Article 4, paragraph 2 shall be replaced by the following:

‘2.
The maximum Community contribution shall be EUR
700 million of which EUR 350 million shall be paid from
the budget appropriation allocated to the theme “Transport
(Including Aeronautics)” of the Specific Programme Cooper­
ation of the Seventh Framework Programme for research and
technological development and EUR 350 million from the
budget of the Framework Programme on Trans-European
networks for the period 2007-2013. The Community contri­
bution shall be paid in accordance with Article 54(2)(b) of
Council Regulation (EC, Euratom) No 1605/2002 of 25 June
2002 on the Financial Regulation applicable to the general
budget of the European Communities (*) (hereinafter referred
to as the Financial Regulation).

1.
The Joint Undertaking shall adopt specific financial
the Financial
rules in accordance with Article 185(1) of
Regulation. They may depart from the rules laid down in
Commission Regulation (EC, Euratom) No 2343/2002 of
23 December 2002 on the framework Financial Regulation
for the bodies referred to in Article 185 of the Financial
Regulation (*) where the specific operating needs of
the
Joint Undertaking so require and subject to prior consent
of the Commission.

The Joint Undertaking shall have its own internal audit

2.
capability.

Article 4b

Discharge
Discharge for the implementation of the budget of the year n
of the Joint Undertaking shall be given by the European
Parliament, upon recommendation from the Council,
before 15 May of the year n + 2. The Administrative Board
shall, in the financial rules of the Joint Undertaking, provide
for the procedure to be followed when giving discharge,
taking into account the particular characteristics resulting
from the nature of the Joint Undertaking as public-private
partnership, and in particular from the private sector contri­
bution to the budget.

___________
(*) OJ L 357, 31.12.2002, p. 72.’;

6.

in Article 5, paragraph 4 shall be replaced by the following:

‘4.
The position of the Community in the Administrative
Board as regards decisions concerning the accession of new
members and significant modifications of the ATM Master
Plan shall be adopted in accordance with the procedure
referred to in Article 6.3.’;

The arrangements for the Community contribution shall be
established by means of a general agreement and annual
be
financial

implementation agreements, which shall

7. the Annex shall be amended in accordance with the Annex

to this Regulation.

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Article 2

Transitional provisions related to the staff of the Joint
Undertaking

all
Notwithstanding the provisions of Article 1(3),
1.
employment contracts concluded by the Joint Undertaking in
force on 1 January 2009 (hereinafter prior contracts) shall be
honoured until their expiry date without further renewal.

All members of staff under prior contracts shall be offered
2.
the possibility to apply for temporary agents’ contracts under
Article 2(a) of the Conditions of Employment of Other Servants
of the European Communities laid down in Regulation (EEC,
Euratom, ECSC) No 259/68 at the various grades as set out in
the establishment plan.

In order to check the ability, efficiency and integrity of potential
applicants, an internal selection process shall be applied to all
staff members who have prior contracts, except the Executive
Director. This internal selection process shall be carried out
before 1 July 2009 by the authority authorised to conclude
employment contracts.

Depending on the type and level of
successful
contracts of a duration corresponding at
remaining under the prior contract.

applicants

shall be offered temporary

functions performed,
agents’
to the time

least

3.
If a prior contract had been concluded for the duration of
the Joint Undertaking and the staff member accepts a new
temporary agent’s contract under the conditions set out
in
paragraph 2, that new contract will be concluded for an inde­
finite duration in accordance with the first paragraph of
Article 8 of the Conditions of Employment of other Servants
of the European Communities.

The Belgian law applying to labour contracts and other
4.
relevant instruments shall continue to apply to staff members
with prior contracts who choose not to apply for temporary
agents’ contracts or who are not offered temporary agents’
contracts in accordance with paragraph 2.

Article 3

Transitional provisions related to the mandate of

the

Executive Director

Joint Undertaking, a new procedure

The mandate of the Executive Director in place on 1 January
2009 shall cease on the date on which the Joint Undertaking
shall cease to exist, as set out in Article 1(2) of Regulation (EC)
No 219/2007. In the event of an extension of the duration of
leading to the
the
appointment of
in accordance with
Article 7(2) of the Annex to Regulation (EC) No 219/2007
shall be launched.
the Executive
Director has to be replaced, his successor shall be appointed
in accordance with Article 7(2) of the Annex to Regulation (EC)
No 219/2007.

If, during his mandate,

the Executive Director

Article 4

Prior contracts and agreements

Without prejudice to Article 2, this Regulation shall not affect
the rights and obligations arising from contracts and other
to
agreements concluded by the Joint Undertaking prior
1 January 2009.

Article 5

Entry into force

This Regulation shall enter into force on the day following 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 Brussels, 16 December 2008.

For the Council
The President

R. BACHELOT-NARQUIN

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ANNEX

The Statutes of the Joint Undertaking shall be amended as follows:

1.

in Article 5, paragraph 1(f) the following words shall be added at the end:

‘and monitoring the Executive Director’s performance’;

2.

in Article 5, paragraph 1(h) the words ‘financial regulations’ are replaced by ‘financial rules’;

3. Article 7 shall be amended as follows:

(a)

in paragraph 1 the following sentence shall be added:

‘The Executive Director shall exercise, in respect of the staff, the powers laid down in Article 2a(2) of Regulation
(EC) No 219/2007.’;

(b) paragraph 2 shall be replaced by the following:

‘2.
The Executive Director shall be appointed by the Administrative Board on the basis of a list of at least three
candidates proposed by the Commission following a call for expressions of interest published in the Official
Journal of the European Union and in other periodicals or Internet sites. The Executive Director shall be appointed
the Executive Director’s
for a period of
performance during this period, his term of office may be extended once for a further period of no more
than four years. In any case the term of office may not go beyond the duration of the Joint Undertaking set out
in Article 1(2) of Regulation (EC) No 219/2007.’;

three years. After an evaluation by the Administrative Board of

(c) paragraph 5 is amended as follows:

(i) point (a) is replaced by the following:

‘(a) employ, manage and supervise the staff of the Joint Undertaking,

Article 8;’;

including the staff referred to in

(ii) in point (e) the words ‘Financial Regulations’ are replaced by ‘financial rules’;

4. the following Article shall be inserted:

‘Article 7a

Internal Auditing function
The functions entrusted by Article 185(3) of the Financial Regulation to the Commission’s internal auditor shall be
carried out under the responsibility of the Administrative Board, which shall make appropriate provision, taking into
account the size and the scope of the Joint Undertaking.’;

5. Article 8 shall be replaced by the following:

‘Article 8

Secondment of staff to the Joint Undertaking

Any member of the Joint Undertaking may propose to the Executive Director the secondment of members of its staff
to the Joint Undertaking in accordance with conditions provided for in the relevant agreement referred to in
Article 1(3) of these Statutes. Staff seconded to the Joint Undertaking must act with complete independence
under the supervision of the Executive Director.’;

6. Article 14 shall be deleted;

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7. Article 15 shall be amended as follows:

(a) paragraph 2 is replaced by the following:

‘2.
Each year the Executive Director shall transmit to the members the cost estimates of the SESAR project as
approved by the Administrative Board. The Administrative Board shall, in the financial rules of the Joint Under­
taking, provide for the procedure to be followed when transmitting the cost estimates.’;

(b) paragraph 4 is replaced by the following:

‘4.
Based on the approved project cost estimates, and taking into account the comments received from
members, the Executive Director shall prepare the draft budget for the following year and, submit it to the
Administrative Board for adoption. The Administrative Board shall, in the financial rules of the Joint Undertaking,
provide for the procedure to be followed when submitting the draft budget.’;

8.

in Article 17, the following paragraph shall be added:

‘3.
All decisions adopted and contracts concluded by the Joint Undertaking, shall provide explicitly that OLAF and
the Court of Auditors may carry out on-the-spot inspections of the documents of all contractors and sub-contractors
which have received Community funds, including inspections at the premises of the final beneficiaries.’;

9. Article 19 shall be replaced by the following:

‘Article 19

Transparency

1.
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
access to European Parliament, Council and Commission documents (*) shall apply to documents held by the Joint
Undertaking.

The Joint Undertaking shall adopt practical arrangements for implementing Regulation (EC) No 1049/2001 by

2.
1 July 2009.

3.
Decisions taken by the Joint Undertaking pursuant to Article 8 of Regulation (EC) No 1049/2001 may form
the subject of a complaint to the Ombudsman or of an action before the Court of Justice, under the conditions laid
down in Articles 195 and 230 of the Treaty respectively.
___________
(*) OJ L 145, 31.5.2001, p. 43.’.

10. Article 21 shall be replaced by the following:

‘Article 21

Insurance

The Executive Director shall propose to the Administrative Board to take out any necessary insurance and the Joint
Undertaking shall take out such insurance as the Administrative Board may request.’;

11.

in Article 24, paragraph 2 is replaced by the following:

‘2.
If the Administrative Board agrees to the proposals referred to in paragraph 1 by a majority of 75 % of the
votes and in accordance with Article 4(5) of these Statutes, these proposals shall be submitted as draft amendments
to the Commission, which shall adopt them as appropriate in accordance with the procedure set out in Article 6(3)
of Regulation (EC) No 219/2007.’;

12.

in Article 24, the following paragraph shall be added:

‘3.
However, any amendment affecting the essential elements of these Statutes and in particular amendments to
Articles 1, 3, 4, 5, 7, 12, 17, 18, 19, 20, 22, 24 and 25 shall be adopted in accordance with Article 172 of the
Treaty.’.