Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the enlarged Commission of Eurocontrol, regarding principles for establishing the cost-base for en route charges and the calculation of the unit rate and conditions of application of the route charges system and conditions of payment
Date: 2019-10-15
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: Eurocontrol, air freight rate, air safety, air space, air traffic, air traffic control, airport, charges for use of infrastructure

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   EUROPEAN COMMISSION  Brussels, 15.10.2019  COM(2019) 466 final 2019/0233 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the enlarged Commission of Eurocontrol, regarding principles for establishing the cost-base for en route charges and the calculation of the unit rate and conditions of application of the route charges system and conditions of payment (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
before  the  session  of  the  enlarged  Commission  of  Eurocontrol  on  28  November  2019  in 
connection with the envisaged adoption of the update to the Conditions of Application of the 
Route  Charges  System  (“Conditions  of  Application”)  and  the  update  to  the  Principles  for 
establishing  the  cost-base  for  en  route  charges  and  the  calculation  of  the  unit  rates  (“the 
Principles”), both later on referred to as “the envisaged acts”. 

2. 

CONTEXT OF THE PROPOSAL 

The Multilateral Agreement relating to Route Charges 

2.1. 
The Multilateral Agreement relating to Route Charges (‘the Agreement’)1 aims to establish a 
joint  system  of  en-route  charges.  In  accordance  with  Article  1  of  the  Agreement,  the 
Contracting  States  agreed  to  adopt  a  common  policy  in  respect  of  charges  for  en  route  air 
navigation  facilities  and  services,  hereinafter  called  "route  charges",  in  the  airspace  of  the 
Flight  Information  Regions  falling  within  their  competence.  They  accordingly  agreed  to 
create a joint system for the establishment and collection of route charges and to use for this 
purpose the services of Eurocontrol. In accordance with Article 3 of the Agreement, it is the 
enlarged Commission of Eurocontrol that undertakes the establishment of the joint system of 
route charges. 

The Agreement entered into force in 1986. 
All Member States are parties to the Agreement2. 

2.2. 

The enlarged Commission of Eurocontrol 

In accordance with Article 3(2) of the Agreement, the enlarged Commission of Eurocontrol:  

(1) 

(2) 

(3) 

(4) 

(5) 

establishes  the  principles  governing  the  assessment  of  the  costs  for  calculating  en 
route charges;  

establishes the formula to be applied in calculating the route charges;  

approves, for each charging period, the rate at which the costs are to be recovered;  

determines the unit of account in which the route charges are expressed;  

determines  the  conditions  of  application  of  the  system,  including  the  conditions  of 
payment, as well as the unit rates and tariffs and the period during which they are to 
apply;  

(6) 

determines the principles governing exemption from the route charges.  

Member  States  of  Eurocontrol  and  Contracting  States  that  are  not  Member  States  of 
Eurocontrol  have  each  one  vote.  In  accordance  with  Article  6(1)(a)  of  the  Agreement,  the 
enlarged Commission decides by unanimity on matters relating to the assessment of costs for 
the calculation of en route charges (Article 3.2 (a) of the Agreement) and the Conditions of 
Application  (Article  3.2  (e)  of  the  Agreement)  and  those  decisions  are  binding  on  all 

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https://www.eurocontrol.int/sites/default/files/article/attachments/multilateral-agreement-relating-to-
route-charges.pdf  
In  addition  to  the  Member  States  of  the  EU,  Albania,  Armenia,  Bosnia  and  Herzegovina,  Georgia, 
Republic  of  Moldova,  Montenegro,  Monaco,  Norway,  North  Macedonia,  Switzerland,  Turkey  and 
Ukraine are parties to the Agreement and have ratified it. 

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Contracting States. Failing a unanimous decision, the enlarged Commission takes a decision 
by  a  two-thirds  majority  of  the  votes  cast;  any  Contracting  State  which  is  unable  for 
overriding  national  considerations  to  apply  that  decision  shall  submit  to  the  enlarged 
Commission  an  explanatory  statement  of  the  reasons  therefor  (Article  6(1)(a)  of  the 
Agreement).  

2.3. 

The envisaged acts of the enlarged Commission 

By written procedure, but no later than during its 113th session on 20 and 21 November 2019, 
the enlarged Committee is to adopt decisionsregarding the envisaged acts. 

The  purpose  of  the  envisaged  acts  is  to  ensure  continued  consistency  with  EU  rules  on  the 
Single European  Sky performance and charging scheme, in  particular with Regulation (EU) 
No 2019/317 of 11 February 20193 which will apply from the third reference period (2020-
2024), starting on 1 January 2020.  

The draft Principles continue to  provide for two possible methods for the calculation of the 
costs and unit rates, either the full cost recovery method or the determined cost method. The 
proposed amendments include the statement that: “The Contracting States that apply the rules 
adopted  by  the  European  Union  on  the  Single  European  Sky  performance  and  charging 
scheme  are  considered  to  comply  with  the  rules  adopted  by  EUROCONTROL  on  these 
matters”.  The  envisaged  acts  do  not  address  the  following  issues,  details  of  which  are 
provided for in EU legislation:  

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

The  conditions  in  which  the  determined  costs  and  service  units  may  be  revised  in 
view of the possible revision of the performance plan ;  

The  obligation  to  deduct  the  public  funds  obtained  by  air  navigation  service 
providers  from  the  determined  costs  (a  requirement  under  Union  law  but  not  a 
common EUROCONTROL policy);  

The use of route charge revenues to finance common projects;  

The parameters and values of the traffic risk sharing mechanism;  

The  timing  and  modalities  of  some  carryovers, for  instance  the  adjustments  for the 
traffic risk sharing mechanism and for the cost risk mechanism;  

The details of the incentives for air navigation service providers;  

The set of conditions relating to performance that are required to establish and apply 
a simplified charging scheme.  

The draft Principles align to Article 22(4) of Regulation (EU) 2019/317, where air navigation 
service providers incur costs from leasing fixed assets, those costs shall not be included in the 
cost of capital.  

The  proposed  amendments  to  the  Conditions  of  Application  concern  Article  5  (distance 
factor),  Article  6  (weight  factor)  and  Article  8  (exemptions)  of  the  draft  Conditions  of 
Application,  in  particular  concerning  the  calculation  of  the  maximum  take-off  weight  per 
individual aircraft. The latter proposal would replace the current calculation based on average 
maximum take-off weigh per aircraft type per airspace user, with effect on 1 January 2020.   

In  addition,  the  Central  Route  Charges  Office  (CRCO)  of  Eurocontrol  proposes  two 
amendments  to  the  Conditions  of  Application.  The  first  one  is  the  introduction  of  a  new 

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Commission  Implementing  Regulation  (EU)  No  2019/317  of  11  February  2019  laying  down  a 
performance and charging scheme in the single European sky and repealing Implementing Regulations 
(EU) No 390/2013 and (EU) No 391/2013, OJ L 56, 25.2.2019, p. 1 

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clause  regarding  bank  charges  in  relation  to  the  payment  of  the  bills  by  airspace  users.  The 
second  one  relates  to  the  sequence  of  allocation  of  payments  to  bills  where  airspace  users 
communicate no instruction to the CRCO.  

The list of en route charging zones in Annex 1 to the Conditions of Application includes the 
following  updates:  editorial  amendments  to  the  descriptions  of  the  charging  zones  Bulgaria 
and  Romania,  new  name  of  North  Macedonia  and  a  new  description  of  the  charging  zone 
Ukraine.  

The said amendments reinforce the application of the ‘user pays’ principles which form part 
of the Union transport infrastructure charging policy.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The envisaged acts ensure continued consistency with EU rules on the Single European Sky 
performance and charging scheme and the Union should support them. It is proposed that the 
Member States acting jointly on behalf of the Union accept the proposed amendments to the 
envisaged acts. .  

The  envisaged  acts  will  become  binding  on  Contracting  States  in  accordance  with  Article 
6(1)(a) of the Agreement, which provides: “decisions on the matters referred to in Article 3.2 
(a) to (f) and (h) shall require a unanimous vote of all Contracting States and shall be binding 
on all Contracting States; failing a unanimous decision, the enlarged Commission shall take a 
decision by a two-thirds majority of the votes cast; any Contracting State which is unable for 
overriding  national  considerations  to  apply  that  decision  shall  submit  to  the  enlarged 
Commission an explanatory statement of the reasons therefore”. 

The subject matter of the envisaged acts is largely covered by Union legislation, specifically 
with  Regulation  (EU)  No  2019/317.  Those  acts  may  therefore  affect  common  rules  or  alter 
their  scope.  As  a  result,  the  Union  has  exclusive  external  competence  by  virtue  of  the  last 
limb of Article 3(2) TFEU.  

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) TFEU provides for decisions establishing ‘the positions to be adopted on the 
Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts 
having  legal  effects,  with  the  exception  of  acts  supplementing  or  amending  the  institutional 
framework of the agreement.’ 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement4. 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’5. 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraph 64.  
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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4.1.2.  Application to the present case 

The enlarged Commission is a body set up by the Agreement and the acts that the  enlarged 
Commission  is  called  upon to  adopt constitute  acts having legal effects. The envisaged acts 
will be binding under international law on the Contracting States in accordance with Article 
6(1)(a) of the Agreement.  

The  envisaged  acts  do  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's  behalf.  If  the envisaged act  pursues  two  aims  or  has  two  components  and  if  one  of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The  main  objective  and  content  of  the  envisaged  act  relate  to  Transport  (Title  VI  of  the 
TFEU). 

Therefore, the substantive legal basis of the proposed decision is Article 100(2) TFEU. 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 100(2) TFEU, in conjunction with 
Article 218(9) TFEU. 

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2019/0233 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union within the enlarged 
Commission of Eurocontrol, regarding principles for establishing the cost-base for en 
route charges and the calculation of the unit rate and conditions of application of the 
route charges system and conditions of payment 

(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(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The Multilateral Agreement relating to Route Charges (‘the Agreement’) 6 entered into 
force in 1. January 1986.  

Pursuant to Article 3(2) of the Agreement, the enlarged Commission adopts principles 
governing the assessment of costs for the calculation of air navigation charges and the 
conditions of application and payment of such charges. 

The enlarged Committee, before or during its 113th session on 20 and 21 November 
2019,  is  to  adopt  by  written  procedure  decisions  on  an  update  to  the  Principles  for 
establishing the cost-base for en route charges and the calculation of the unit rates and 
on  an  update  to  the  Conditions  of  Application  of  the  Route  Charges  System  and 
Conditions of Payment (‘the decisions’). 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
enlarged  Commission  of  Eurocontrol,  as  the  subject  matter  of  those  decisions  is 
largely  covered  by  Union  legislation,  namely  Commission  Implementing  Regulation 
(EU) 2019/3177. Those acts may therefore affect common rules or alter their scope and 
the Union has exclusive external competence by virtue of Article 3(2) of Treaty on the 
Functioning of the European Union 

(5) 

The purpose of the decisions is to ensure continued consistency with Union rules on 
transport, in particular Regulation (EC) No 549/2004 of the European Parliament and 

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https://www.eurocontrol.int/sites/default/files/article/attachments/multilateral-agreement-relating-to-
route-charges.pdf  
Commission Implementing Regulation (EU) 2019/317 of 11 February 2019 laying down a performance 
and  charging  scheme  in  the  single  European  sky  and  repealing  Implementing  Regulations  (EU)  No 
390/2013 and (EU) No 391/2013 (OJ L 56, 25.2.2019, p. 1). 

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of  the  Council8and  Implementing  Regulation  (EU)  2019/317.  It  is,  therefore, 
appropriate to support the adoption of those decisions. 

(6) 

The  Union's  position  is  to  be  expressed  by  the  Member  States  of  the  Union  that  are 
members of the enlarged Commission of Eurocontrol, acting jointly, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the written procedure before or during the 
session of the enlarged Commission of Eurocontrol to be held on 28 November 2019 shall be 
the following: 
(a) to support the updated Principles for establishing the cost-base for en route charges9; 

(b)  to  support  the  updated  Conditions  of  Application  of  the  Route  Charges  System  and 
Conditions of Payment10. 

The  position  referred  to  in  Article  1  shall  be  expressed  by  the  Member  States  of  the  Union 
that are members of the enlarged Commission of Eurocontrol, acting jointly. 

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying 
down the framework for the creation of the single European sky (the framework Regulation) (OJ L 096, 
31.3.2004, p.1) 
https://ext.eurocontrol.int/ftp/?t=93085cefad506a898b74bf51ae9f2ec6  Eurocontrol  Document  No 
19.60.01  
https://ext.eurocontrol.int/ftp/?t=5db7f9ad4dda0c0a7803388ca46b101e  Eurocontrol  Document  No 
19.60.02-1 

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