Proposal for a COUNCIL DECISION on the signature and provisional application of a Memorandum of Cooperation between the European Union and the United States of America in civil aviation research and development
Date: 2011-02-04
Institutions: European Commission
Subjects: United States, civil aviation, international affairs, international cooperation, research, research and development

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EUROPEAN COMMISSION 

Brussels, 4.2.2011 
COM(2011) 43 final 

2011/0020 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of a Memorandum of Cooperation between 
the European Union and the United States of America in civil aviation research and 
development 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Grounds for and objectives of the proposal 

On  30  March  2009,  the  Council  requested  the  Commission  to  take  all  necessary  actions  to 
achieve  the  highest  level  of  interoperability  between  the  European  air  traffic  management 
(ATM) modernisation programme, SESAR (see below), and the corresponding programme in 
the USA, NextGEN, as well as other regional projects in ICAO (International civil aviation 
Organisation) regions. Furthermore, the Commission was asked to take into account the need 
for  consistency  of  SESAR  with  ICAO  global  concept  developments.  For  this  purpose,  the 
Council invited the Commission to submit a recommendation to authorise the Commission to 
open  negotiations  on  a  Memorandum  of  Cooperation  with 
the  Federal  Aviation 
Administration (FAA) of the USA1. The Commission presented the recommendation2 to the 
Council  on  10  June  2009.  However,  the  Commission  proposed  to  extend  the  cooperation 
framework  to  be  negotiated  with  the  FAA  beyond  SESAR-NextGEN  interoperability  to  the 
broader field of civil aviation research and development. 

Based  on  the  Commission's  recommendation,  on  9  October  2009,  the  Council  adopted  a 
decision  that  mandated  the  Commission  to  open  negotiations  on  behalf  of  the  EU  with  the 
FAA  for  a  Memorandum  of  Cooperation  for  research  and  develoment  in  the  field  of  civil 
aviation.  The  Council  also  requested  the  Commission  to  develop,  in  parallel,  an  Annex 
addressing SESAR-NextGen interoperability. 

The  proposed  draft  Memorandum  defines  the  terms  and  conditions  for  mutual  cooperation 
between  the EU and  the USA  for  the promotion and  development of civil aviation research 
and  development.  It  constitutes  an  important  instrument  that,  through  a  legally  binding 
framework  and  respecting  commonly  agreed  reciprocity  principles,  will  allow  the  parties  to 
jointly  pursue  their  common  objective  to  ensure  greener  and  more  efficient  air  transport 
systems. The draft Memorandum will allow the two parties to establish cooperative research 
and development activities in any civil aviation issue. 

Based on the negotiating directives of the mandate, a draft Memorandum of Cooperation and 
a draft Annex on SESAR-NextGEN interoperability were initialled by the two parties on 18 
June 2010. Pending the consent of the European Parliament and the Council's decision on the 
conclusion of the proposed Memorandum, the Commission proposes to the Council to adopt a 
decision authorising its signature and provisional application. 

1.2. 

General context 

SESAR 

The  Single  European  Sky  Air  Traffic  Management  Research  (SESAR)  Programme  is  the 
technological pillar of the Single European Sky (SES)3. It is a three phase Programme that has 

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Council Resolution on the endorsement of the European Air Traffic Management Master Plan, Articles 
14 and 15, 30 March 2009 
Recommendation from the Commission to the Council SEC(2009)744 final of 8.06.2009. 
Regulations…. 

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defined, is developing and will deploy a high quality, new generation of ATM technologies, 
systems  and  procedures  compliant  with  SES  objectives  and  requirements.  One  of  the  key 
results  of  the  SESAR  definition  phase  is  the  European  ATM  Master  plan  (Master  plan), 
which  constitutes  a  commonly  developed  roadmap,  endorsed  by  the  Council  of  the  EU  and 
recognised  by  all  ATM  stakeholders,  to  achieve  deployment  of  new  generation  of  ATM 
technologies  and  procedures  within  the  next  10-15  years.  The  Master  plan  steers  the  work 
programme for the development phase and similarly will be a key tool to govern the SESAR 
deployment phase. 

The  SESAR  Programme  is  now  in  its  development  phase  which  consists  of  over  300 
consistent  and  coordinated  research,  development  and  validation  projects  centrally  managed 
by the SESAR Joint Undertaking (SJU), the first ATM public-private partnership set up as an 
EU body. The SJU's mission is to ensure the modernisation of the European ATM system by 
coordinating and concentrating all the relevant research and development efforts in the EU. Its 
founding members are the EU and Eurocontrol and it counts 15 industrial members (ground 
and  airborne  equipment  manufacturers,  airports,  airlines,  air  navigation  service  providers), 
including entities from non-EU states and several associate partners. 

In  the  USA,  the  FAA  has  also  launched  an  ATM  modernization  programme,  known  as 
NextGen. Considering the parallelism of SESAR and NextGen, the European airspace users 
have raised a strong requirement to secure interoperability between SESAR and NextGen to 
ensure  safe  and  seamless  operations  worldwide,  to  increase  market  opportunities  for  the 
European  industry  and  to  avoid  costly  duplication  of  equipment  on  board  aircrafts.  US 
companies  already  have  access  to  European  research  and  development  programmes  such  as 
SESAR. It is therefore, essential to guarantee reciprocal opportunities for European industry. 

The Commission considers that strengthening technical and operational cooperation with the 
FAA is an urgent and necessary action for the civil aviation sector in general. In fact, more 
efficient  and  sustainable  air  transport  systems  can  be  better  achieved  through  a  holistic 
approach  addressing  all  aspects  of  civil  aviation.  This  motivated  the  Commission  to 
recommend  the  extension  of  the  scope  of  the  cooperation  framework  to  the  broader  civil 
aviation domain. 

The  proposed  Memorandum  of  Cooperation  with  the  USA  provides  a  sound  and  legally 
binding  basis  for  establishing  cooperative  research  and  development  activities,  while  duly 
addressing sensitive issues such as liability, Intellectual Property Rights (IPR) and reciprocity. 
In addition, the Memorandum has the potential to set the international  standards in  aviation 
providing a worldwide interoperability in response to aviation stakeholders' expectations and 
providing the European industry with wider market opportunities. 

1.3. 

Existing provisions in the area of the proposal 

The  European  Commission  and  the  FAA  initially  signed  a  Memorandum  of  Understanding 
(MoU) on 18 July 2006 establishing a framework for cooperation to contribute to more global 
ATM by facilitating joint global operations. The MoU was updated on 17 March 2009 to take 
into account the SJU's key role in the technical cooperation with the FAA under the authority 
of the European Commission. However, because of its declarative nature, the MoU does not 
provide  the  required  legally  binding  framework  to  adequately  address  liability,  intellectual 
property  rights  and  reciprocity  issues.  The  proposed  Memorandum  of  Cooperation,  and  in 
particular its Annex on SESAR-NextGEN interoperability, will replace the existing MoU. 

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1.4. 

Consistency with the other policies and objectives of the Union 

The  proposed  Memorandum  of  Cooperation  will  contribute  to  achieve  the  objectives  of  the 
SES  policy  as  it  supports  the  SESAR  programme,  its  technological  pillar.  The  timely 
development  and  deployment  of  new  ATM  technologies  and  procedures  will,  in  fact,  boost 
Europe's innovation capacity and the competitiveness of its industry worldwide allowing the 
EU to have a strong voice in standardisation bodies. 

The draft Memorandum will stimulate the technical and operational cooperation between the 
parties through the provision of a clear legal framework. Such a stimulus is in line with the 
research  policy  of  the  EU  and  will  contribute  to  the  achievement  of  7th  Framework 
Programme. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

2.1. 

Consultation of interested parties 

The  aviation  industry  supports  the  perspectives  offered  by  a  binding  Memorandum  of 
Cooperation  between the EU and the USA.  The  European industry expects that through the 
implementation of reciprocity principles underlying the Memorandum, it will be able to take 
advantage  of  comparable  opportunities  to  engage  in  cooperative  activities  with  the  USA  on 
the basis of transparency, mutual benefits, equitable and fair treatment.  

Consultation methods, main sectors targeted and general profile of respondents 

Throughout  the  negotiating  process,  the  Commission  has  consulted  with  stakeholders,  in 
particular through the SESAR Joint Undertaking, and the Member states, through the Special 
Committee established by the Council for the negotiation of the Memorandum. 

Summary of responses and how they have been taken into account 

The comments from stakeholders were duly taken into consideration in the preparation of the 
Union's negotiating position. 

2.2. 

Collection and use of expertise 

Technical  expertise  during  the  negotiations  was  provided  by  the  SESAR  Joint  Undertaking. 
Legal expertise was provided by the Commission's Legal Service. There was no need for any 
other external expertise. 

2.3. 

Impact assessment 

The  Memorandum  provides  a  sound  legal  basis  that  allows  for  an  in-depth  technical  and 
operational  cooperation,  leading  to  the  early  development  of  common  standards  in  civil 
aviation. Furthermore, the definition, implementation and monitoring of reciprocity principles 
will help the European industry to step into new US markets. Failing to implement reciprocity 
would deny fair access of the European industry to the US Market. 

In the specific case of ATM modernisation, the coordinated support, between EU and USA, to 
ICAO  standardization  activities  will  be  a  driving  force  with  the  potential  to  turn  common 
SESAR-NextGen  standards  into  international  standards  for  ATM.  Failing  to  guarantee 

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interoperability would imply duplication of airborne equipment in thousands of aircraft flying 
both in Europe and in the US, representing an investment that airlines are unable to afford in 
this time of financial crisis. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Summary of the proposed action 

The proposed Memorandum of Cooperation consists of a main body document, establishing 
the  main  principles  of  cooperation  and  governance  arrangements.  The  main  body  shall  be 
complemented  by  Annexes  and  Appendices  to  the  Annexes  that  further  address  specific 
technical objectives in the field of civil aviation research and development. As requested by 
the Counicl in its mandate, the first Annex addresses SESAR-NextGEN interoperability. 

The  governance  arrangements  consist  of  a  Joint  Committee  composed  of  representatives  of 
the Commission, assisted by representatives of the EU Members States, and representatives of 
the  FAA.  The  Joint  Committee  may  address  any  matter  related  to  the  functionning  of  the 
Memorandum and its Annexes and Appendices. 

3.2. 

Legal basis 

Article  100(2),  in  conjunction  with  Article  218,  paragraph  (5),  of  the  Treaty  on  the 
Functioning of the European Union 

3.3. 

Subsidiarity principle 

Because  of  the  pan-European  nature  of  air  transport  and  the  need  to  have  a  consistent 
approach  at  European  level,  the  Member  States  cannot  reach  the  objectives  of  the 
Memorandum  of  Cooperation  on  a  bilateral  basis  with  the  USA.  The  proposal  therefore 
complies with the subsidiarity principle. 

3.4. 

Proportionality principle 

The Memorandum of Cooperation between the EU and the USA is an efficient binding legal 
instrument that fosters technical cooperation between the two parties. It establishes a general 
framework  that  allows  setting  up  cooperative  activities  ensuring  both  parties  comparable 
opportunities for participation in their research and development activities in any field of civil 
aviation. 

The  proposed  agreement  will  not  impose  any  additional  administrative  or  financial  burden 
neither on Member States authorities nor on the industry. 

3.5. 

Choice of instruments 

Proposed instrument: Memorandum of Cooperation 

External aviation relations can only be given effect through international agreements. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Union budget. 

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2011/0020 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of a Memorandum of Cooperation between 
the European Union and the United States of America in civil aviation research and 
development 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union  and  in  particular 
Article 100(2), in conjunction with Article 218(5) thereof 

Having regard to the proposal from the European Commission4, 

Whereas: 

(1) 

The  Commission  has  negotiated  on  behalf  of  the  Union  a  Memorandum  of 
Cooperation  between  the  European  Union  and  the  United  States  of  America  in  civil 
aviation  research  and  development  (hereinafter,  the  “Memorandum”)  and  Annex  I 
thereto  on  SESAR-NEXTGEN  cooperation  for  global interoperability,  in  accordance 
with the Council Decision authorising the Commission to open negotiations. 

(2) 

The Memorandum and the Annex I thereto were initialled on 18 June 2010; 

(3) 

(4) 

The  Memorandum  and  its  Annex  I  negotiated  by  the  Commission  should  be  signed 
and  applied  provisionally,  subject  to  the  conclusion  of  the  Memorandum  at  a  later 
date; 

it is necessary to lay down procedural arrangements for the participation of the Union 
in  the  Joint  Committee  established  by  the  Memorandum,  the  resolution  of 
disagreements and the termination of Annexes and Appendices to the Memorandum.. 

HAS DECIDED AS FOLLOWS:  

Article 1(Signature) 

1. 

The signing of the Memorandum and its Annex I is hereby approved on behalf of the 
Union, subject to a Council Decision concerning the conclusion of the Memorandum. 
The texts of the Memorandum and its Annex I are attached to this Decision. 

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The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s) 
empowered  to  sign  the  Memorandum  on  behalf  of  the  Union,  subject  to  its 
conclusion. 

2. 

3. 

Article 2 (Provisional application) 

Pending its entry into force, the Memorandum, shall be applied on a provisional basis by the 
European Union from the first day of the month following the earliest of (i) the date of the 
latest note of which the Parties have notified each other of the completion of the procedures 
necessary  to  provisionally  apply  the  Memorandum,  or  (ii)  the  date  that  falls  twelve  months 
from the date of signature of the Memorandum. 

Article 3 (Joint Committee) 

1. 

2. 

The Union shall be represented in the Joint Committee established under Article III 
of the Memorandum by the Commission, assisted by representatives of the Member 
States. 

The  Commission,  after  consultation  with  the  Special  Committee  appointed  by  the 
Council,  shall  determine  the  position  to  be  taken  by  the  Union  in  the  Joint 
Committee, including with respect to: 

–  The adoption of additional Annexes to the Memorandum and Appendices thereto 

–  The  adoption  of  amendments  to  Annexes  to  the  Memorandum  and  Appendices 

thereto 

Article 4 (implementation) 

The Commission may take any appropriate action under Articles II (B), IV, V, VII and VIII of 
the Memorandum. 

Article 5 (Resolution of disagreements) 

The  Commission  shall  represent  the  Union  in  consultations  under  Article  XI  of  the 
Memorandum. 

Article 6 (Termination of Annexes and Appendices) 

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The  Commission,  after  consultation  with  the  Special  Committee  referred  to  in  Article  3(2), 
may terminate Annexes or Appendices to the Memorandum in accordance with Article XII.D 
thereof. 

Done at Brussels,  

For the Council 
The President 

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MEMORANDUM OF COOPERATION 

NAT-I-9406 

BETWEEN THE 

UNITED STATES OF AMERICA 

AND 

THE EUROPEAN UNION 

WHEREAS the United States of America and the European Union have as a common purpose 
the  promotion  and  development  of  cooperation  in  civil  aviation  research  and  development; 
and 

WHEREAS such cooperation will encourage the development and safety of civil aeronautics 
in the United States of America and the European Union; 

NOW THEREFORE, the United States of America and the European Union (collectively, the 
“Parties,” and individually, a “Party”) agree to undertake joint programs in accordance with 
the following terms and conditions: 

ARTICLE I—OBJECTIVE 

A. 

This  Memorandum  of  Cooperation,  including  its  Annexes  and  Appendices  (the 
“Memorandum”), establishes the terms and conditions for mutual cooperation in the 
promotion  and  development  of  civil  aviation  research  and  development.  For  this 
purpose  the  Parties  may,  subject  to  the  availability  of  appropriated  funds  and  other 
necessary resources, provide personnel, resources, and related services to cooperate 
to the extent called for in the Annexes and Appendices to this Memorandum. 

B. 

The objectives of this Memorandum may be achieved by cooperation in any of the 
following areas: 

1. 

2. 

3. 

4. 

5. 

The  exchange  of  information  regarding  programs  and  projects,  research 
results, or publications; 

The execution of joint analyses; 

The  coordination  of  research  and  development  programs  and  projects,  and 
their execution based on shared effort; 

The exchange of scientific and technical staff; 

The  exchange  of  specific  equipment,  software,  and  systems  for  research 
activities and compatibility studies; 

6. 

The joint organization of symposia or conferences; and 

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7. 

Reciprocal  consultations  with  the  aim  of  establishing  concerted  action  in 
appropriate international bodies. 

C. 

Subject to applicable laws, regulations and policies, as may be amended or modified, 
the  Parties  shall  foster,  to  the  fullest  extent  practicable,  the  involvement  of 
participants  in  cooperative  activities  under  this  Memorandum  in  view  of  providing 
comparable  opportunities  for  participation  in  their  research  and  development 
activities.  The  Parties  shall  involve  participants  in  the  cooperative  activities,  which 
shall be conducted on a reciprocal basis in accordance with the following principles: 

1.  Mutual benefit; 

2. 

3. 

4. 

5. 

Comparable opportunities to engage in cooperative activities; 

Equitable and fair treatment; 

Timely exchange of information which may affect cooperative activities; and 

Transparency. 

D. 

Such  cooperative  activities  shall  take  place  pursuant  to  specific  Annexes  and 
Appendices defined in Article II.  

ARTICLE II—IMPLEMENTATION 

A. 

This Memorandum shall be implemented through specific Annexes and Appendices 
to this Memorandum. These Annexes and Appendices shall describe, as appropriate, 
the nature and the duration of cooperation for a specific area or purpose, treatment of 
intellectual property, liability, funding, allocation of costs, and other relevant matters. 
Unless explicitly stated otherwise, in case of an incompatibility between a provision 
in an Annex or Appendix and a provision in this Memorandum, the provision in the 
Memorandum shall have precedence. 

B. 

Representatives  from  the  United  States  of  America  and  the  European  Union  shall 
meet periodically to: 

1. 

2. 

discuss proposals for new cooperative activities; and 

review the status of ongoing activities that have been undertaken pursuant to an 
Annex or Appendix to this Memorandum. 

C. 

D. 

The  coordination  and  facilitation  of  cooperative  activities  under  this  Memorandum 
shall be accomplished on behalf of the Government of the United States of America 
by the Federal Aviation Administration and on behalf of the European Union by the 
European Commission. 

The designated offices for the coordination and management of this Memorandum, 
and where all requests for services under this Memorandum should be made, are: 

1. 

For the United States of America: 

Federal Aviation Administration 

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Office of International Aviation 

Wilbur Wright Bldg., 6th Floor, East 

600 Independence Ave., S.W. 

Washington, D.C. 

20591 - USA 

Telephone: 

+1-202-385-8900 

2. 

For the European Union: 

European Commission 

Directorate-General for Mobility and Transport 

Directorate for Air Transport 

1040 Brussels - Belgium 

Telephone: 

+32-2-2968430 

Facsimile: 

+32-2-2968353 

E. 

Technical program liaisons for specific activities shall be established as indicated in 
the Annexes and Appendices to this Memorandum. 

ARTICLE III—EXECUTIVE MANAGEMENT 

A. 

The  Parties  hereby  establish  a  Joint  Committee,  which  shall  be  responsible  for 
ensuring the effective functioning of this Memorandum and shall meet at regular intervals 
to evaluate the effectiveness of its implementation. 

B. 

The Joint Committee shall be composed of representatives of: 

1. 

2. 

The United States of America, which shall be the Federal Aviation Administration 
(FAA, co-chair), and 

The European Union, which shall be the European Commission (co-chair) assisted 
by representatives of the European Union's Member States. 

C. 

D. 

The Joint Committee may invite the participation of subject-specific experts on an ad 
hoc  basis.  The  Joint  Committee  may  establish technical working groups and oversee 
their work and the work of committees and groups established in the specific Annexes 
and  Appendices.  The  Joint  Committee  shall  develop  and  adopt  internal  governing 
procedures. 

All decisions of the Joint Committee shall be taken by consensus of the two Parties, which 
comprise  the  Joint  Committee.  These  decisions  shall  be  in  writing  and  signed  by  the 
Parties' representatives on the Joint Committee. 

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E. 

The  Joint  Committee  may  consider  any  matter  related  to  the  functioning  of  this 
Memorandum  and  its  Annexes  and  Appendices.  In  particular  it  shall  be  responsible 
for: 

1. 

providing  a  forum  for  discussion,  within  the  scope  of  this  Memorandum  and  its 
Annexes and Appendices, of: 

a. 

b. 

c. 

issues that may arise and changes that may affect the implementation of this
Memorandum and its Annexes and Appendices; 

common  approaches 
technologies  and
procedures,  research  and  evaluation  programs,  and  other  areas  of  mutual
interest; and 

introduction  of  new 

the 

to 

draft  regulations  and  legislation  by  either  Party  that  could  affect  the
interests of the other Party, within the scope of this Memorandum and its
Annexes and Appendices; 

2. 

3. 

as  appropriate,  adopting  additional  Annexes  to  this  Memorandum  and 
Appendices thereto; 

as  appropriate  adopting  amendments  to  Annexes  to  this  Memorandum  and 
Appendices thereto; and 

4.  making  proposals,  as  appropriate,  to  the  Parties  to  otherwise  amend  this 

Memorandum. 

ARTICLE IV—EXCHANGE OF PERSONNEL 

The Parties may exchange technical personnel as required to pursue the activities described in 
an Annex or Appendix to this Memorandum. All such exchanges shall be in accordance with 
the  terms  and  conditions  set  forth  in  this  Memorandum,  its  Annexes  and  Appendices. 
Technical personnel exchanged by the Parties shall perform work as specified in the Annex or 
Appendix. Such technical personnel may be from United States or European Union agencies 
or contractors, as mutually agreed. 

ARTICLE V—EQUIPMENT LOAN ARRANGEMENTS 

Equipment  may  be  loaned  by  one  Party  (the  “Lending  Party”)  to  the  other  Party  (the 
“Borrowing  Party”)  under  an  Annex  or  Appendix  to  this  Memorandum.  The  following 
general  provisions  shall  apply  to  all  loans  of  equipment  unless  otherwise  specified  in  an 
Annex or Appendix: 

A. 

B. 

C. 

The Lending Party shall identify the value of the equipment that is to be loaned. 

The  Borrowing  Party  shall  assume  custody  and  possession  of  the  equipment  at  the 
Lending Party’s facility as designated by the Parties in the Annex or Appendix. The 
equipment shall remain in the custody and possession of the Borrowing Party until it 
has been returned to the Lending Party in accordance with paragraph H below. 

The  Borrowing  Party  shall,  at  its  own  expense,  transport  any  equipment  to  the 
facility designated by the Parties in the Annex or Appendix. 

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D. 

E. 

F. 

G. 

H. 

I. 

J. 

K. 

The  Parties  shall  cooperate  in  securing  any  export  licenses  and  other  documents 
required for the shipment of the equipment. 

The Borrowing Party shall be responsible for installing the equipment at the facility 
designated  by  the  Parties  in  the  Annex  or  Appendix.  The  Lending  Party  shall,  if 
necessary, provide assistance to the Borrowing Party for installing the equipment that 
is lent on the basis of terms agreed on by the Parties. 

During  the  period  of  the  loan,  the  Borrowing  Party  shall  operate  and  maintain 
equipment  in  proper  condition,  ensure  the  continued  operability  of  the  equipment, 
and permit inspection by the Lending Party at any reasonable time. 

The Lending Party shall assist the Borrowing Party in locating sources of supplies for 
common  items  and  parts  peculiar  which  are  not  readily  available  to  the  Borrowing 
Party. 

Upon  the  expiration  or  termination  of  the  pertinent  Annex  or  Appendix  or  this 
Memorandum,  or  when  the  use  of  the  equipment  is  complete,  the  Borrowing  Party 
shall return the equipment to the Lending Party at the Borrowing Party's expense. 

In the event of loss or damage of any equipment loaned under this Memorandum and 
for  which  the  Borrowing  Party  assumed  custody  and  possession,  the  Borrowing 
Party, at the Lending Party’s discretion, shall repair or compensate the Lending Party 
for the value (as identified by the Lending Party in paragraph A above) of the lost or 
damaged equipment. 

Any  equipment  exchanged  under  this  Memorandum  shall  be  solely  for  research, 
developmental and validation purposes and shall not be used in any way whatsoever 
for active civil aviation or other operational use. 

Any transfers of technology, equipment or other items pursuant to this Memorandum 
shall be subject to the applicable laws and policies of the Parties. 

ARTICLE VI—FUNDING 

A. 

B. 

Unless  otherwise  specified  in  an  Annex  or  Appendix  to  this  Memorandum,  each 
Party shall bear the costs of the activities it performs pursuant to this Memorandum. 

Memorandum  number  NAT-I-9406  has  been  assigned  by  the  United  States  to 
identify  this  cooperative  program  and  shall  be  referenced  in  all  correspondence 
related to this Memorandum. 

ARTICLE VII—RELEASE OF INFORMATION 

A. 

Except  as  required  by  applicable  law  or  by  prior  written  agreement  between  the 
Parties, neither Party shall release any information or material pertinent to the tasks 
or  related  to  the  agreed  programs  under  this  Memorandum  and  its  Annexes  and 
Appendices to third parties other than (i) contractors or subcontractors engaged in the 
tasks or programs insofar as they are necessary for the execution of those tasks and 
programs; or (ii) other governmental authorities of the Parties. 

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B. 

If one of the Parties becomes aware that, under its laws or regulations, it will be, or 
may reasonably be expected to become, unable to meet the non-disclosure provisions 
of  this  Article,  it  shall  immediately  and  prior  to  disclosure  inform  the  other  Party. 
The Parties shall thereafter consult to identify an appropriate course of action.  

ARTICLE VIII—INTELLECTUAL PROPERTY RIGHTS 

A. 

reports,  databases,  software,  know-how, 

A  Party  providing  intellectual  property  (which  for  purposes  of  this  Memorandum 
includes  analyses, 
technical  and 
commercially sensitive information, data, and records, and associated documentation 
and materials, regardless of form or the media on which it may be recorded) to the 
other  Party  in  accordance  with  the  terms  of  an  Annex  or  Appendix  to  this 
Memorandum shall retain such proprietary rights in the intellectual property as it had 
at  the  time  of  the  exchange.  The  Party  providing  a  document  or  other  intellectual 
property pursuant to an Annex or Appendix to this Memorandum shall clearly mark 
the  document  or  other  intellectual  property  as  confidential,  proprietary,  or  a  trade 
secret, as appropriate. 

B. 

Except as may be specified in an Annex or Appendix to this Memorandum, the Party 
receiving intellectual property from the other Party under this Memorandum: 

1. 

2. 

Shall not acquire any proprietary rights in the intellectual property by reason of 
its receipt from the other Party; and 

Shall  not  disclose  the  intellectual  property  to  a  third  party,  other  than 
contractors  or  subcontractors  engaged  in  a  program  related  to  an  Annex  or 
Appendix to this Memorandum, without the prior written consent of the other 
Party. In the case of a disclosure to a contractor or subcontractor engaged in the 
program, the Party making the disclosure shall: 

a.  Limit the use of the intellectual property by the contractor or subcontractor 

to the purposes specified in the applicable Annex or Appendix; and 

b.  Prohibit  the  further  disclosure  of  the  intellectual  property  to  third  parties 
by the contractor or subcontractor except where the other Party consents in 
advance and in writing to the further disclosure. 

C. 

Except  as  may  be  specified  in  an  Annex  or  Appendix  to  this  Memorandum,  the 
proprietary  rights  in  any  intellectual  property  jointly  developed  by  the  Parties 
pursuant to this Memorandum and its Annexes or Appendices shall be shared by the 
Parties. 

1. 

such 

Each  Party  shall  be  entitled  to  a  non-exclusive,  irrevocable  right  in  all 
countries  to  reproduce,  prepare  derivative  works,  publicly  distribute,  and 
translate 
such 
reproduction,  preparation,  distribution  and  translation  does  not  affect  the 
protection of the intellectual property rights of the other Party. Each Party or its 
implementing  authorities  shall  have  the  right  to  review  a  translation  prior  to 
public distribution. 

intellectual 

property, 

provided 

that 

2.  All publicly distributed copies of scientific and technical journal articles, non- 
proprietary scientific reports and books directly arising from cooperation under 

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this Memorandum and its Annexes or Appendices shall indicate the names of 
the authors of the work unless an author explicitly declines to be named. 

D. 

If a Party disagrees with the designation of a document or other intellectual property 
provided by the other Party pursuant to an Annex or Appendix to this Memorandum 
as  confidential,  proprietary,  or  a  trade  secret,  then  the  Party  disagreeing  with  the 
designation shall request consultations with the other Party to address the issue. The 
Consultations may be held in conjunction with a meeting of the Joint Committee or a 
meeting  of  such  other  committees  as  may  be  established  under  an  Annex  or 
Appendix to this Memorandum. 

ARTICLE IX—IMMUNITY AND LIABILITY 

A. 

B. 

The  Parties  shall  address  immunity  and  liability  issues  associated  with  activities 
under this Memorandum in the relevant Annex or Appendix as appropriate. 

The Parties agree that all activities undertaken pursuant to this Memorandum and its 
Annexes or Appendices shall be performed with due professional care and that every 
reasonable  effort  shall  be  made  to  minimise  potential  risks  to  third  parties  and  to 
fulfil all safety and oversight requirements. 

ARTICLE X—AMENDMENTS 

A. 

B. 

The Parties may amend this Memorandum, its Annexes or Appendices. The Parties 
shall document the details of any such amendment in a written agreement signed by 
both Parties. 

Amendments of the Annexes or the Appendices to this Memorandum, adopted by the 
Joint  Committee,  shall  enter  into  force  upon  a  decision  of  the  Joint  Committee 
pursuant  to  Article  III.D  of  this  Memorandum,  signed  by  the  co-chairs  of  the  Joint 
Committee on behalf of the Parties. 

ARTICLE XI—RESOLUTION OF DISAGREEMENTS 

The Parties shall resolve any disagreement regarding the interpretation or application of this 
Memorandum or its Annexes or Appendices in consultations between the Parties. The Parties 
shall not refer any such disagreement to an international tribunal or third party for settlement. 

ARTICLE XII—ENTRY INTO FORCE AND TERMINATION 

A. 

B. 

C. 

Pending  its  entry  into  force,  this  Memorandum  shall  be  applied  provisionally  from 
the date of signature. 

This Memorandum shall enter into force when the Parties have notified each other in 
writing  that  their  respective  internal  procedures  for  its  entry  into  force  have  been 
completed, and shall remain in force until terminated. 

Any individual Annex or Appendix adopted by the Joint Committee after the entry 
into  force  of  this  Memorandum  shall  enter  into  force  upon  a  decision  of  the  Joint 
Committee pursuant to Article III.D of this Memorandum, signed by the co-chairs of 
the Joint Committee on behalf of the Parties. 

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D 

Either Party may terminate this Memorandum or its Annexes or Appendices at any 
time by providing sixty (60) days’ notice in writing to the other Party. Termination of 
this  Memorandum  shall  not  affect  the  rights  and  obligations  of  the  Parties  under 
Articles V, VII, VIII and IX. Each Party shall have one hundred twenty (120) days to 
close out its activities following termination of this Memorandum or its Annexes or 
Appendices. Termination of this Memorandum also shall terminate all Annexes and 
Appendices concluded by the Parties pursuant to this Memorandum. 

ARTICLE XIII—AUTHORITY 

The  United  States  and  the  European  Union  agree  to  the  provisions  of  this  Memorandum  as 
indicated by the signatures of their duly authorized representatives. 

UNITED STATES OF AMERICA 

EUROPEAN UNION 

BY:_______________________________ 

BY:_______________________________ 

TITLE: 

TITLE: 

Assistant Administrator 

For International Aviation 

Federal Aviation Administration 

Department of Transportation 

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ANNEX 1  

TO 

MEMORANDUM OF COOPERATION  

NAT-I-9406 

BETWEEN THE 

UNITED STATES OF AMERICA 

AND 

THE EUROPEAN UNION 

SESAR-NEXTGEN COOPERATION FOR GLOBAL INTEROPERABILITY 

WHEREAS  SESAR  and  NextGen  are  respectively  the  European  Union's  and  the  United 
States  of  America's  programmes  for  developing  new  generations  of  air  traffic  management 
systems; 

WHEREAS  the  SESAR  Joint  Undertaking  was  established  by  Council  Regulation  (EC)  No 
219/2007 of 27 February 2007 for the purpose of managing the SESAR Development phase;  

NOW THEREFORE, the United States of America and the European Union (collectively the 
"Parties", and individually a "Party") have agreed as follows: 

ARTICLE I — PURPOSE 

The  purpose  of  this  Annex  is  to  implement  the  Memorandum  of  Cooperation  NAT-I-9406 
between the United States of America and the European Union (the Memorandum) by setting 
forth  the  terms  and  conditions  under  which  the  Parties  shall  establish  cooperation  to  ensure 
global 
(ATM) 
modernization  programmes,  NextGen  and  SESAR,  taking  into  account  the  interests  of  civil 
and military airspace users. 

respective  Air  Traffic  Management 

interoperability  between 

their 

ARTICLE II — DEFINITIONS 

For  the  purpose  of  this  Annex,  the  term  "validation”  means  to  confirm,  throughout  the 
development lifecycle, that the proposed solution, including concept, system, and procedures, 
complies with stakeholders’ needs. 

ARTICLE III — PRINCIPLES 

Within the framework of the NextGen and SESAR programmes and in accordance with the 
principles set out in Article I.C of the Memorandum, the Parties shall: 

A. 

as  appropriate,  allow  participation  by  each  other’s  governmental  and  industrial 
entities in their relevant consultative bodies and industrial initiatives, in accordance 
with  applicable  laws  and  regulations,  and  the  governing  rules  of  such  bodies  and 
initiatives; 

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B. 

C. 

endeavour  to  provide  opportunities  to  each  other’s  industry  stakeholders  to 
contribute  to  work  programs  and  access  information  on,  and  results  of,  equivalent 
research and development programs and projects; and 

through  the  High  Level  Committee  established  under  Article  V  of  this  Annex, 
mutually  identify,  in  attachments  to  this  Annex  (“Attachments”),  the  domains  that 
allow  specific  opportunities  for  participation  in  each  Party’s  consultative  bodies, 
initiatives,  and  research  programs  and  projects,  in  particular  those  domains  that 
provide  for  a  contribution  to  high  level  system  definition,  such  as  interoperability, 
architecture definition, and technical baseline. 

The High Level Committee shall monitor the implementation of this Article and shall update 
the Attachments as necessary. 

ARTICLE IV — SCOPE OF WORK 

A. 

The scope of the work is to contribute to ATM research, development, and validation 
for global interoperability. The work may include, but is not limited to, the activities 
set out in paragraphs 1 to 5 of the present Article. 

1. 

Transversal Activities 

Transversal  activities  cover  those  tasks  that  are  not  specific  to  any  one 
operational  or  technical  development,  but  have  interdependencies  across  the 
SESAR  and  NextGen  Programs.  These  activities  are  of  particular  importance 
to  the  cooperation,  as  any  diverging  approach  potentially  has  wide-reaching 
material  implications  for  harmonization  and  interoperability.  In  this  area,  the 
Parties intend to address: 

a.  Operations concept and roadmap; 

b. 

c. 

d. 

e. 

f. 

g. 

h. 

Separation provision; 

Road-mapping  including  standardization  and  regulation  with  a  view  to 
facilitate implementation synchronization; 

Business case and investment planning; 

Environment; 

The  coordination  of  technical  efforts  in  support  of  global  and  ICAO 
standardization activities in the field of ATM modernization; 

The  synchronization  and  consistency  of  avionics  roadmaps,  in  order  to 
ensure best economic efficiency for airspace users; and 

Co-ordinated  delivery  of 
that 
achieve/maintain seamless operations from an airspace user’s perspective 

technical  and  operational  changes 

2. 

Information Management 

The key focus on Information Management is to ensure timely distribution of 
accurate  and  relevant  ATM-related 
the  stakeholder 
community in a manner that is seamless (interoperable), secure and supportive 
of collaborative decision making. In this area, the Parties intend to address: 

information  across 

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a. 

b. 

c. 

System Wide Information Management (SWIM) interoperability; 

Aeronautical Information Management (AIM) interoperability; and 

Meteorological information exchange. 

3. 

Trajectory Management 

Trajectory Management encompasses air/air and air/ground exchange of four-
dimensional  (4D)  trajectories  requiring  a  consistent  approach  to  terminology, 
definition  and  exchange  of  flight  information  at  all  times  and  in  all  flight 
phases. In this area, the Parties intend to address 

a. 

b. 

c. 

d. 

e. 

Common trajectory definition and exchange; 

Flight planning and dynamic flight plan updates; 

Traffic management (including trajectory integration and prediction); 

Unmanned Aircraft Systems (UAS) integration into ATM; and 

The  convergence  of  the  SESAR  and  NextGen  concepts  of  operations, 
the service definitions and their applications including the 4D trajectory 
definition and exchange format operations. 

4. 

Communications, Navigation, Surveillance (CNS) & Airborne Interoperability 

CNS and airborne interoperability includes planning airborne equipage and the 
development  of  mutually  interoperable  air/air  and  air/ground  applications  and 
systems. In this area, the Parties intend to address: 

a. 

Airborne interoperability, including: 

i. 

ii. 

Airborne Collision Avoidance System (ACAS); 

Avionics roadmap; and 

iii. 

Airborne Separation Assistance Systems (ASAS) for air/air and 

air/ground separation assistance. 

b. 

Communications, including: 

i. 

ii. 

Data-link services and technology and 

Flexible communication architecture 

c. 

Navigation, including: 

i. 

ii. 
. 

Performance Based Navigation and 

Global  Navigation  Satellite  System  (GNSS)  applications  for  en
route and approach, including approach with vertical guidance. 

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d. 

Surveillance, including: 

i. 
technology and 

Automatic  Dependent  Surveillance 

(ADS) 

services  and 

ii. 

Ground surveillance. 

5. 

Collaborative Projects 

Collaborative Projects include ad hoc projects for which the Parties agree that 
focussed  coordination  and  collaboration  is  needed.  In  this  area,  the  Parties 
intend to address: 

a. 

b. 

Atlantic Interoperability Initiative to Reduce Emissions (AIRE) and 

Improvements  of  monitoring  and  position  tracking  of  aircraft  over 
oceanic and remote regions. 

B. 

The Parties shall, as necessary, produce on a reciprocal basis, either individually or 
jointly  for  exchange  between  them,  reports  describing  concepts  of  use,  models, 
prototypes,  evaluations,  validation  exercises,  and  comparative  studies  related  to  the 
technical  and  operational  aspects  of  ATM.  Evaluations  and  validations  may  use  a 
range of tools such as simulations and live trials. 

ARTICLE V — MANAGEMENT 

Subject  to  the  availability  of  funds,  the  Parties  shall  establish  and  manage  projects  and 
activities and ensure that the work in progress remains pragmatic, timely and result-oriented. 
To this end, the following management levels shall be established: 

A. 

A  High  Level  Committee,  which  shall  be  composed  of  an  equal  number  of 
participants from the European Commission, which may be assisted by the SESAR 
Joint Undertaking, and from the Federal Aviation Administration (FAA). 

1. 

The  High  Level  Committee  shall  be  co-chaired  by  one  representative  each 
from the European Commission and the FAA. The High Level Committee shall 
meet at least once a year to: 

a. 

b. 

c. 

d. 

e. 

f. 

oversee SESAR-NextGen cooperation; 

assess the achieved results; 

decide on the launch of new projects and activities upon a proposal from 
the Coordination Committee defined below; 

decide  on  proposals  for  new  Appendices  or  amendments  to  existing 
Appendices to this Annex, which it shall submit to the Joint Committee 
for approval in accordance with Article III.D of the Memorandum; 

give instructions to the Coordination Committee defined below; and 

monitor  the  implementation  of  Article  III  of  this  Annex  and,  as 

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necessary,  consult  on  industry  participation  mechanisms  or  refer 
questions to the Joint Committee established under the Memorandum. 

2. 

3. 

The  High  Level  Committee  shall  establish  its  working  procedures  and  all 
decisions shall be taken by consensus between the co-chairs. 

The  High  Level  Committee  shall  report  to  the  Joint  Committee  established 
pursuant to Article III of the Memorandum. 

B. 

A Coordination Committee, which shall be composed of an appropriate and limited 
number  of  participants  from  the  SESAR  Joint  Undertaking  and  from  the  FAA  Air 
Traffic Organization, which may both be assisted by experts. 

1. 

The  Coordination  Committee  shall  be  co-chaired  by  one  representative  each 
from the SESAR Joint Undertaking and the FAA Air Traffic Organization. The 
Coordination Committee shall meet at least twice a year to: 

a.  monitor the progress of on-going joint projects and activities as defined 

in the Appendices; 

b. 

c. 

d. 

e. 

ensure  the  efficient  execution  of  the  Appendices  through  the  Working 
Groups defined below; 

ensure the efficient implementation of Article III of this Annex; 

prepare reports to the High Level Committee; or 

consider  proposals  for  submission  to  the  High  Level  Committee, 
including for new Appendices or amendments to existing Appendices to 
this Annex. 

2. 

The  Coordination  Committee  shall  establish  its  working  procedures  and  all 
decisions shall be taken by consensus between the co-chairs. 

C. 

Working  Groups  dedicated  to  specific  projects  or  activities  described  in  the 
Appendices. Each Working Group shall be composed of an appropriate and limited 
number of participants. The Working Groups shall meet as necessary, shall comply 
with  instructions  given  by  the  Coordination  Committee  and  shall  report  to  it  on  a 
regular basis. 

ARTICLE VI—IMMUNITY AND LIABILITY 

The  Parties  shall  address  immunity  and  liability  issues  associated  with  activities  under  this 
Annex in the relevant Appendix, as appropriate. 

ARTICLE VII — IMPLEMENTATION 

A. 

B. 

All work provided under this Annex shall be described in Appendices, which, upon 
their entry into force, shall become part of this Annex. 

Each Appendix shall be numbered sequentially and contain a description of the work 
to  be  performed  by  the  Parties  or  the  entities  they  designate  to  carry  out  the  work, 
including  the  location  and  planned  duration  of  the  work;  the  personnel  and  other 

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resources  required  to  accomplish  the  work;  the  estimated  costs;  and  any  other 
pertinent information concerning the work. 

ARTICLE VIII — FINANCIAL PROVISIONS 

Funding  of  work  to  be  performed  under  this  Annex  shall  be  provided  in  accordance  with 
Article VI of the Memorandum. 

ARTICLE IX — POINTS OF CONTACT 

A. 

The designated offices for the coordination and management of this Annex are: 

1. 

For the United States of America: 

Africa, Europe & Middle East Office, AEU-10 

Federal Aviation Administration 

Wilbur Wright Bldg., 6th Floor, East 

600 Independence Avenue, S.W. 

Washington, D.C. 20591 - USA 

Telephone:  +1 202-385-8905 

Facsimile:  +1 202-267-5032 

2. 

For the European Union: 

Single European Sky and ATC Modernisation Unit 

Directorate-General for Mobility and Transport 

Directorate for Air Transport 

European Commission 

Rue de Mot 24 

1040 Brussels – Belgium 

Telephone: 

+32 2 296 84 30 

Facsimile: 

+32 2 296 83 53 

B. 

Technical  program liaison for specific activities shall be established as indicated in 
the Appendices to this Annex. 

ARTICLE X — ENTRY INTO FORCE AND TERMINATION 

A. 

Pending its entry into force, this Annex shall be applied provisionally from the date 
of signature. 

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B. 

This Annex shall enter into force when the Parties have notified each other in writing 
that their respective internal procedures for its entry into force have been completed, 
and  shall  remain  in  force  until  terminated  in  accordance  with  Article  XII  of  the 
Memorandum. Termination of this Annex shall terminate all Appendices concluded 
by the Parties pursuant to this Annex. 

ARTICLE XI — AUTHORITY 

The United States of America and the European Union agree to the provisions of this Annex 
as indicated by the signatures of their duly authorised representatives. 

UNITED STATES OF AMERICA 

EUROPEAN UNION 

BY:_______________________________ 

BY:_______________________________ 

TITLE: 

TITLE: 

Assistant Administrator 

For International Aviation 

Federal Aviation Administration 

Department of Transportation 

DATE 

PLACE: 

DATE 

PLACE: 

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