Proposal for a COUNCIL DECISION on the signing, on behalf of the Union, and provisional application of the Agreement providing a general framework for enhanced cooperation between the European Union and the European Organisation for the Safety of Air Navigation
Date: 2012-08-02
Institutions: European Commission
Subjects: Eurocontrol, air safety, cooperation agreement (EU), interim agreement (EU), signature of an agreement

EUROPEAN COMMISSION 

Brussels, 2.8.2012  
COM(2012) 438 final 

2012/0212 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing, on behalf of the Union, and provisional application of the Agreement 
providing a general framework for enhanced cooperation between the European Union and 
the European Organisation for the Safety of Air Navigation(Text with EEA relevance) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

On 6 October 2011, the Council granted a mandate to the Commission authorising it to open 
negotiations with the European Organisation for the Safety of Air Navigation (Eurocontrol) in 
order  to  conclude  a  cooperation  agreement  between  the  European  Union  (EU)  and 
Eurocontrol. The Agreement should acknowledge the principles of the Single European Sky 
(SES),  notably  the  role  of  the  EU  as  the  single  regulator  for  air  traffic  management  (ATM) 
and  the  use  of  the  technical  expertise  of  Eurocontrol  to  help  the  EU  to  deliver  ATM 
improvements in Europe in accordance with the SES legal framework and to support the EU 
in the implementation and development of the SES and other related policies (environment, 
climate  change  and  research).  The  Agreement  should  also  facilitate  further  institutional 
reform  of  Eurocontrol,  for  example,  in  establishing  a  new  relationship  between  Eurocontrol 
and the European Aviation Safety Agency (EASA), and provide a framework for potentially 
sensitive issues such as pan-European civil-military cooperation. 

Based  on  the  negotiating  directives  of  the  mandate,  a  draft  agreement  was  initialled  by  the 
two parties on 24 April 2012. 

The  proposed  draft  Agreement  defines  the  terms  and  conditions  of  enhanced  cooperation 
between the EU and Eurocontrol to support the EU in the implementation and development of 
ATM  in  accordance  with  the  SES  legal  framework  and  related  EU  policies.  The  objectives 
are: to contribute to timely and consistent implementation of the SES within the EU and with 
States that agree to be bound by the SES; to facilitate the necessary civil-military cooperation 
on  ATM  in  the  SES  and  the  use  of  Eurocontrol  expertise  in  these  areas;  to  facilitate  the 
involvement of non-EU Member States in the SES. In addition, the draft Agreement aims to 
ensure synergies and avoid duplication of EASA’s work  in safety-related  ATM  matters  and 
environmental issues and to consider Eurocontrol’s pan-European dimension. 

The proposed draft agreement lists the areas of cooperation concerning the implementation of 
SES, SESAR and other related EU policies that will be defined further in separate annexes to 
the Agreement. 

The  proposed  draft  Agreement  defines  the  forms  and  mechanisms  of  cooperation  and 
coordination  between  the  parties  including  the  stakeholder  consultation  processes.  A  Joint 
Committee set up by the agreement will be responsible for its management and functioning. 
In addition, the funding of the activities is defined in accordance with the rules applicable to 
the parties’ respective budgets. 

The Commission proposes to the Council to adopt: 

• 

• 

a  decision  authorising  signature  of  the  Agreement  and  its  provisional 
application before entry into force; 

once  this  first  decision  has  been  adopted,  a  further  decision  to  conclude  the 
Agreement  with  a  view  to  its  entry  into  force  based  on  the  consent  of  the 
European Parliament. 

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2. 

LEGAL ELEMENTS OF THE PROPOSAL 

The proposed Council Decisions are both based on Article 100, paragraph 2 of the Treaty on 
the  Functioning  of  the  European  Union  (TFEU).  In  addition  the  Council  Decision  on  the 
signing and provisional application of the agreement is based on Article 218, paragraph 5 of 
the TFEU, while the Council Decision on the conclusion is based on Article 218, paragraph 6. 

The  Agreement  on  enhanced  cooperation  between  the  EU  and  Eurocontrol  is  an  efficient 
binding legal instrument that fosters technical cooperation between both parties. It establishes 
a general framework that allows cooperative activities to be set up in the field of ATM and 
related  policies.  The  proposed  agreement  does  not  impose  any  additional  administrative  or 
financial burden on Member States’ authorities. 

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2012/0212 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing, on behalf of the Union, and provisional application of the Agreement 
providing a general framework for enhanced cooperation between the European Union 
and the European Organisation for the Safety of Air Navigation 

(Text with EEA relevance) 

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 Commission, 

Whereas: 

(1) 

The  European  Commission  has  negotiated  on  behalf  of  the  Union  an  Agreement 
providing  a  general  framework  for  enhanced  cooperation  (hereinafter  ‘the 
Agreement’)  between  the  European  Union  and  the  European  Organisation  for  the 
Safety of Air Navigation, in accordance with the Council Decision of 6 October 2011 
authorising the Commission to open negotiations. 

(2) 

The Agreement was initialled on 24 April 2012. 

(3) 

(4) 

The Agreement should be signed and applied provisionally, pending completion of the 
procedures for the conclusion of the Agreement. 

It is necessary to lay down procedural arrangements for the participation of the Union 
in the Joint Committee established under the Agreement, 

HAS ADOPTED THIS DECISION: 

Article 1 

The  signing  of  the  Agreement  providing  a  general  framework  for  enhanced  cooperation 
between the Union and the European Organisation for the Safety of Air Navigation is hereby 
approved on behalf of the Union, subject to the conclusion of the Agreement. 

The text of the Agreement is attached to this Decision. 

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Article 2 

The  Council  Secretariat  General  shall  establish  the  instrument  of  full  powers  to  sign  the 
Agreement,  subject  to  its  conclusion,  for  the  person(s)  indicated  by  the  negotiator  of  the 
Agreement.  

Article 3 

The  Agreement  shall  be  applied  provisionally,  in  accordance  with  Article  13.1  of  the 
Agreement, as from the date of its signature, pending its entry into force. 

Article 4 

1.  The  Union  shall  be  represented  by  the  Commission  in  the  Joint  Committee  established 
under Article 7 of the Agreement. 

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

(a) the adoption of Annexes to the Agreement; 

(b) the adoption of amendments to Annexes to the Agreement. 

Article 5 

The Commission may take any appropriate action under Articles 5, 6, 8, 9,10 and 11 of the 
Agreement. 

The Commission shall regularly inform the Council of the implementation of the Agreement. 

Article 6 

Article 7 

This Decision shall enter into force on the date following that of its publication in the Official 
Journal of the European Union. 

Done at Brussels,  

For the Council 
The President 

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DRAFT 

AGREEMENT 

BETWEEN 

THE EUROPEAN UNION 

AND 

THE EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVIGATION 

PROVIDING A GENERAL FRAMEWORK FOR ENHANCED COOPERATION 

The European Union (EU) 

and 

The European Organisation for the Safety of Air Navigation (EUROCONTROL) 

Hereinafter referred to as ‘the Parties’ 

HAVING  REGARD  to  the  Treaty  on  the  Functioning  of  the  European  Union  (hereinafter 
‘TFEU’), and in particular Articles 218 and 220 thereof; 

to 

HAVING  REGARD 
to 
Cooperation  for  the  Safety  of  Air  Navigation  of  13  December  1960  as  amended  by  the 
Protocol  signed  at  Brussels  on  12  February  1981  (hereinafter  ‘EUROCONTROL 
Convention’), and in particular Articles 7.2 and 11.3 thereof; 

the  EUROCONTROL  International  Convention  relating 

HAVING  REGARD  to  Measure  No  11/74  of  12  May  2011  taken  by  the  Permanent 
Commission of EUROCONTROL delegating authority to the Agency to open negotiations for 
the conclusion of a High Level Agreement with the EU and Measure No XXX of [date] taken 
by the Permanent Commission of EUROCONTROL approving the negotiated Agreement; 

HAVING  REGARD  to  the  respective  present  legal  and  institutional  contexts  of  the  Parties 
and  their  contributions  to  the  implementation  of  the  Single  European  Sky  (SES)  within  and 
beyond the EU; 

HAVING REGARD to the competence conferred upon the EU in matters related to the SES; 

HAVING REGARD to the role of EUROCONTROL as the intergovernmental pan-European 
civil-military organisation specialised in the field of air traffic management (ATM); 

WHEREAS  the  Parties  share  the  vision  of  achieving  an  optimal  and  integrated  European 
ATM  network,  offering,  through  all  phases  of  air  transport,  and  in  conjunction  with  other 
means  of  transport,  a  high  degree  of  safety,  cost-efficiency,  capacity  and  environmental 
protection, for the benefit of passengers and citizens; 

WHEREAS EU legislation entrusts the European Commission with a number of tasks related 
to the implementation of the SES, for which expert support is needed; 

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WHEREAS EUROCONTROL has evolved, since 1960, into a unique centre of expertise in 
the  domain  of  ATM,  bringing  as  added  value  pan-European  and  military  dimensions  and 
assistance to States in the performance of public domain services and functions, and should 
continue to assist its Member States, including in the implementation of SES and other related 
EU policies, and to provide a pan-European platform to facilitate the enhancement of military 
cooperation on ATM; 

WHEREAS EU legislation establishes that the European Commission may issue mandates to 
EUROCONTROL in order to develop implementing rules related to the establishment of the 
SES; 

WHEREAS the EU recognises the essential contribution of EUROCONTROL to support the 
EU in its role as regulator in order to implement the SES and other related EU policies. 

WHEREAS  the  North  Atlantic  Treaty  Organisation  (NATO)  and  EUROCONTROL 
concluded, on 8 May 2003, a Memorandum of Cooperation; 

WHEREAS  the  European  Commission  and  EUROCONTROL  concluded,  on  22  December 
2003, a Memorandum concerning a framework for cooperation; 

WHEREAS EUROCONTROL was designated by a decision of the European Commission of 
29  July  2010  as  the  Performance  Review  Body  of  the  SES,  in  accordance  with  Regulation 
(EU) No 691/2010, and EUROCONTROL accepted this designation by Directive No 10/74 of 
the Permanent Commission of 15 September 2010; 

WHEREAS EUROCONTROL was nominated by a decision of the European Commission of 
7  July  2011  as  the  Network  Manager  for  the  ATM  Network  Functions,  in  accordance  with 
Regulation (EU) No 677/2011, and EUROCONTROL accepted this nomination by Directive 
No 11/77 of the Permanent Commission of 1 September 2011; 

WHEREAS the Parties have a long-standing relationship and history of cooperation in ATM 
and  in  the  implementation  of  SES  and  other  related  policies,  and  wish  to  consolidate  this 
relationship and fully coordinate further actions; 

WHEREAS the Parties should ensure synergies and avoid duplication in safety-related ATM 
matters and environmental issues; 

WHEREAS  the  long-term  application  of  existing  arrangements  between  the  European 
Commission  and  EUROCONTROL  should  be  assessed  in  the  light  of  this  Agreement  and, 
where appropriate, confirmed and strengthened through this Agreement; 

WHEREAS the implementation of this Agreement should not lead to a duplication of funding 
of the cooperative activities referred to in this Agreement and therefore should not result in a 
nominal contribution of the EU to the budget of EUROCONTROL; 

CONSIDERING  that  the  EU  objective  is  to  extend  the  geographical  coverage  of  the  SES 
beyond the EU; 

CONSIDERING  that,  without  prejudice  to  the  relationships  between  the  Parties  and  their 
respective  membership  and  to  the  rights  and  obligations  of  the  Member  States  under  the 
EUROCONTROL  Convention  and  the  TFEU  respectively,  it  is  desirable  to  establish 
complementary  mutually  reinforcing  cooperation  and  coordination  mechanisms  between  the 

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EU  and  EUROCONTROL  in  the  implementation  of  SES  and  other  related  policies,  in 
particular  in  the  fields  of  environment,  including  climate  change,  and  research  and 
development  with  a  view  to  making  better  use  of  the  expertise  and  support  of 
EUROCONTROL; 

CONSIDERING  that  the  support  provided  by  EUROCONTROL  to  the  EU  should  comply 
with the principles of transparency, impartiality and independence; 

CONSIDERING  that  the  evolution  of  the  EUROCONTROL  organisation  whereby,  in 
particular,  it  progressively  aligns  itself  to  support  the  EU  in  the  implementation  of  the  SES 
with a view to improving the overall performance of the European ATM network should be 
facilitated; 

AGREE ON THE FOLLOWING: 

1. 

GENERAL SCOPE 

1.1 
The  Parties  agree  to  strengthen  and  consolidate  cooperation  between  the  EU  and 
EUROCONTROL  in  order  to  enable  EUROCONTROL  to  support  the  EU  in  the 
implementation of SES and related EU policies within the EU, and beyond the EU in those 
States that agree to be bound thereby. 

The  Agreement  shall  be  without  prejudice  to  the  rights  and  obligations  of  Member 

1.2 
States as members of EUROCONTROL or of the EU. 

2. 

OBJECTIVES 

The objectives of this Agreement are: 

– 
to establish the main elements for enhanced cooperation between the Parties in order 
to contribute to timely and consistent implementation of the SES within the EU, and beyond 
the EU in those States that agree to be bound by the SES, and the establishment of an efficient 
air transport system through activities reflecting the respective tasks and responsibilities of the 
Parties; 

– 

to facilitate the necessary civil-military cooperation on ATM in the SES; 

– 
the recognition and utilisation of EUROCONTROL expertise including civil-military 
cooperation  to  support  the  EU  in  the  implementation  of  SES  and  other  related  policies  in 
particular  in  the  fields  of  environment,  including  climate  change,  and  research  and 
development, in order to improve the performance of the European ATM network; 

to acknowledge the value of EUROCONTROL continuing to perform, as appropriate, 

– 
support activities and functions for the implementation of the SES; 

– 
to establish the necessary cooperation to support and facilitate the involvement of non-
EU  Member  States  in  the  SES,  with  a  view  to  extending  the  implementation  of  the  SES 
beyond  the  EU  and  to  progressively  achieving  the  application  of  the  SES  legislative 
framework by EUROCONTROL’s entire membership; 

to  ensure  synergies  and  avoid  duplication  of  EASA’s  work  in  safety-related  ATM 
– 
matters and environmental issues, including, where appropriate, through the development of 

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robust  cooperation  mechanisms  between  EASA  and  EUROCONTROL,  taking  into  account 
EUROCONTROL’s pan-European responsibilities . 

3. 

AREAS OF COOPERATION 

The  areas  of  cooperation  under  this  Agreement  are  those  necessary  for  the 
3.1 
implementation  of  the  SES,  including  SESAR,  and  other  related  EU  policies,  in  particular 
environment, including climate change, and ATM research and development policies. 

3.2 

The cooperation shall address the following subjects: 

a) 

b) 

Functional Airspace Blocks; 

National Supervisory Authorities; 

Support  in  the  field  of  Air  Traffic  Management  and  Air  Navigation  Services 

c) 
(ATM/ANS) safety, including to EASA, as set out in Article 2; 

d) 

Civil-military cooperation and coordination; 

International coordination, in particular towards ICAO and States other than Member 

e) 
States of the Parties; 

Air  Traffic  Management  and  Communication/Navigation/Surveillance  Services 

f) 
(ATM/CNS), including space; 

g) 

h) 

i) 

Air transport-related data and statistics; 

Aviation environmental issues; 

Airport policy. 

3.3 

Further subjects of cooperation may address in particular: 

a) 

b) 

c) 

ATM security; 

Spectrum policy; 

Unmanned Aircraft Systems (UAS). 

The  subjects  and  modalities  of  cooperation  shall  be  defined  further  in  separate 

3.4 
Annexes to this Agreement. 

4. 

FORMS OF COOPERATION 

4.1 

The Agreement shall be executed through the following forms of cooperation: 

a) 

provision of mutual support; 

mechanisms  for  enhanced  cooperation,  liaison  mechanisms  and  offices,  and  the 

b) 
coordination of studies and programmes and joint activities; 

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mechanisms  for  the  collection  and  mutual  exchange  of  information,  data,  and 

c) 
statistics, as appropriate; 

coordination  of  cooperation  on  technical  matters  at  working  level  in  the  context  of 

d) 
ICAO. 

4.2  With regard to military aspects of the SES, the Parties shall ensure the best use of the 
relevant stakeholder consultation processes. 

The coordination and facilitation of cooperative activities under this Agreement shall 
4.3 
be accomplished on behalf of EUROCONTROL by its Agency and on behalf of the EU by 
the  European  Commission.  EUROCONTROL  may  also  support  other  EU  bodies,  as 
appropriate, through specific instruments, with a view to optimising and integrating existing 
expertise and resources. 

5. 

CONSULTATION AND INFORMATION 

5.1 
The  Parties  shall  consult  each  other  regularly  in  order  to  coordinate  to  the  fullest 
extent  their  activities  related  to  this  Agreement.  Each  Party  shall  inform  the  other  of  any 
initiative  pertinent  to  this  Agreement  without  prejudice  to  their  respective  decision-making 
processes, in the areas of cooperation under Article 3, which may be of interest to the other 
Party. 

5.2 
The Parties shall exchange information that may be required for the implementation of 
this Agreement, subject to their respective rules. Except when otherwise provided, the Parties 
shall  not  disclose  any  information  exchanged  in  connection  with  this  Agreement  to  any 
persons other than those employed by them or officially entitled to handle such information 
nor shall they use it for commercial purposes. Such disclosure shall extend only so far as may 
be necessary for the purpose of this Agreement and shall be in strict confidence. 

5.3 

The relevant bodies of the Parties shall convene if necessary to exchange views. 

6. 

CONFIDENTIALITY 

6.1 
Each  Party  shall  take  all  reasonable  precautions  necessary  to  protect  information 
received under this Agreement and its Annexes from unauthorised disclosure. A Party may, 
upon providing information to the other Party, designate the portions of the information that it 
considers to be exempt from disclosure. 

The Parties agree to safeguard, to the extent required under their respective rules, the 
6.2 
protection of classified information, if any, received from the other Party in application of this 
Agreement. 

6.3 
In particular, subject to their respective rules the Parties shall not disclose information 
received  from  each  other  under  this  Agreement  that  is  considered  proprietary.  Such 
information shall be appropriately marked as such in accordance with their respective rules. 

6.4 
The  Parties  shall  agree  on  working  arrangements  on  further  procedures  for  the 
protection  of  classified  information  provided  pursuant  to  this  Agreement  as  required.  Such 
procedures  shall  include  the  possibility  for  each  Party  to  verify  which  protection  measures 
have been put in place by the other Party. 

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7. 

MANAGEMENT OF THE AGREEMENT 

7.1 
A Joint Committee is established, composed of one representative of each Party, who 
may be accompanied by observers from Member States of the Parties and experts. The Joint 
Committee shall be responsible for the effective functioning of this Agreement. 

7.2 
A meeting of the Joint Committee shall be convened at least once a year to evaluate 
and  review  the  implementation  of  this  Agreement  and  shall  be  organised  cost-effectively. 
Either Party may request a meeting of the Joint Committee at any time. 

The  Joint  Committee  may  consider  any  matter  related  to  the  functioning  and 

7.3 
implementation of this Agreement. In particular, it shall be responsible for: 

resolving  any  question  relating  to  the  application  and  implementation  of  this 

a) 
Agreement; 

considering  ways  to  enhance  the  implementation  of  this  Agreement  and  make,  as 

b) 
appropriate, recommendations to the Parties for its amendment; 

c) 

identifying new subjects for cooperation; 

adopting  and  amending  Annexes  and  working  arrangements  within  the  scope  of  this 

d) 
Agreement; 

resolving any difference or dispute concerning the interpretation or application of this 

e) 
Agreement. 

The  Joint  Committee  shall  operate  on  the  basis  of  agreement  between  the 

7.4 
representatives of the Parties. 

7.5 

The Joint Committee shall adopt its rules of procedure. 

8. 

FINANCING 

8.21  A  Party  requesting  support  activities  to  be  performed  under  this  Agreement  by  the 
other Party shall ensure the funding of such activities. 

8.12  Financial aspects related to the cooperation under this Agreement shall be defined in 
accordance  with  the  rules  applicable  to  the  Parties’  respective  budgets.  The  Parties  shall 
conclude separate arrangements, where appropriate. 

9. 

EXTERNAL RELATIONS AND COOPERATION 

Each  Party  shall  inform  the  other  of  its  activities  of  an  international  dimension 

9.1 
pertinent to this Agreement which may be of interest to the other Party. 

9.2  Whenever  appropriate  a  Party  may,  in  relation  to  any  matters  relevant  to  its 
international activities, consult the other Party. 

10. 

DISPUTE RESOLUTION 

10.1  The  Parties  shall  make  every  effort  to  resolve  any  differences  between  them  arising 
from their cooperation under this Agreement. 

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10.2 
In the event that any difference is not resolved, either Party may refer the dispute to 
the  Joint  Committee,  which  shall  consult  on  the  matter  with  a  view  to  resolving  it  by 
negotiation. 

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EXCHANGE OF PERSONNEL 

Subject  to  their  respective  rules  and  procedures,  the  Parties  may  exchange  and  second 
personnel  as  required  to  pursue  the  activities  described  in  this  Agreement  or  in  Annexes 
thereto.  All  such  exchanges  shall  be  in  accordance  with  the  terms  and  conditions  as  agreed 
between the Parties. 

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ANNEXES 

The Annexes to this Agreement shall form an integral part of this Agreement. 

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ENTRY INTO FORCE AND TERMINATION 

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

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

13.3  This Agreement may be terminated at any time by either Party. Such termination shall 
be  effected  by  six  months’  written  notification  from  one  Party  to  the  other  Party  unless  the 
said  notice  of  termination  has  been  withdrawn  by  mutual  consent  of  the  Parties  before  the 
expiry of this period. 

Done in Brussels on 

For the European Union 

For the European Organisation for the Safety of Air Navigation 

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