Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2018/1139 as regards the capacity of the European Union Aviation Safety Agency to act as Performance Review Body of the Single European Sky
Date: 2020-09-22
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: European Aviation Safety Agency, Single European Sky, air safety, air space, air traffic control, civil aviation, common transport policy, operation of the Institutions, performance measurement

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   EUROPEAN COMMISSION  Brussels, 22.9.2020  COM(2020) 577 final 2020/0264 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2018/1139 as regards the capacity of the European Union Aviation Safety Agency to act as Performance Review Body of the Single European Sky (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The Single European Sky (SES) initiative aims to improve the overall efficiency of the way in 
which  European  airspace  is  organised  and  managed  through  a  reform  of  the  industry 
providing air navigation services (ANS).  

The amended proposal for a Regulation of the European Parliament and of the Council on the 
implementation of the Single European Sky [COM(2020) 579] is aimed at updating, in light 
of experience, and recasting the current legislation regarding the Single European Sky. While 
the  original  objectives  and  principles  of  the  proposal  adopted  by  the  Commission  in  2013 
[COM(2013) 410]  remain 
the  amended  proposal  specifically  focuses  on 
accelerating  the  adaptation  of  the  air  navigation  services  in  light  of  those  principles  and 
objectives. 

the  same, 

One important element of the amendments proposed in this context consists in establishing a 
permanent Performance Review Body (PRB) function, to be exercised by the European Union 
Aviation Safety Agency (hereafter referred to as “the Agency”). The arrangements necessary 
for these purposes require that several amendments be made to Regulation (EU) 2018/1139, 
with  a  view  to  ensuring  that  the  PRB  functions  are  carried  out  with  the  necessary 
independence and expertise and with the required resources. Those amendments are set out in 
the present proposal. 

The amended recast proposal referred to above and the present proposal should be considered 
as a single and consistent package. 

Consistency with existing policy provisions in the policy area 

• 
The Commission’s Aviation Strategy for Europe of 20151 called for the immediate adoption 
of  the  SES2+  proposal  by  the  co-legislators.  Together  with  the  amendment  to  the  SES2+ 
proposal [COM(2020) 579], the present proposal is fully in line with the overall strategy for 
this policy area and, in particular, is expected to enable progress on this legislative file.  

• 

Consistency with other Union policies 

This  proposal  represents  the  necessary  complement  to  the  amended  proposal  on  SES2+.  As 
such, it participates in the improvement of the performance of air navigation services which in 
turn contributes to the reduction of CO2 emissions in the aviation sector to digitalisation and 
more generally to the smooth functioning of the internal market, all of which are Commission 
priorities. 

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https://ec.europa.eu/transport/modes/air/aviation-strategy_en 

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2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The legal basis for the proposed amendment is Article 100(2) of the Treaty on the Functioning 
of the European Union. 

• 

Subsidiarity (for non-exclusive competence)  

Article 100(2) of the Treaty on the Functioning  of the European Union gives the Union the 
right to act in this area, which is one of shared competence. 

Air traffic management, more specifically, has been covered since 2004 by Union law, which 
cannot be amended by Member States acting in their own right. On substance, and by nature, 
air  traffic  management  affects  the  airspace  of  the  entire  European  Union,  and  cross-border 
movements of persons, goods, services and capital are inherent to aviation.  

As  regards  more  specifically  the  amendments  to  Regulation  (EU)  2018/1139,  proposed 
herewith  as  a  necessary  component  part  of  the  package,  such  amendments  can  only  be 
brought about by the Union and not by its Member States. 

• 

Proportionality 

The proposal does not go beyond what is necessary to achieve its objectives, namely to ensure 
that PRB functions are exercised with the necesssary independence and expertise and with the 
necessary resources. Its main elements are supported by the various inputs listed in Annex IV 
of the accompanying Staff Working Document.  

• 

Choice of the instrument 

The amendments proposed concern Regulation (EU) 2018/1139 and should therefore equally 
take the form of a Regulation, to be adopted by the European Parliament and of the Council 
under  the  ordinary  legislative  procedure.  It  should  be  presented  separarately  from  the 
amended  recast  proposal  [COM(2020) 579]  since  Regulation  (EU)  2018/1139  is  not  among 
the acts to be recast. 

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

This proposal forms part and parcel of a package whose main element is the amended recast 
proposal figuring in document COM(2020) 579.  

For  the  entirety  of  the  package,  reference  is  made,  first,  to  the  impact  assessment  already 
carried out by the Commission for the 2013 SES2+ proposal: SWD(2013) 206 final. 

Second, the additional elements related to the PRB function have been assessed at present in 
SWD(2020) 187. Background are recommendations made in 2017 by the European Court of 
Auditors  in  the  Special  Report  on  the  Single  European  Sky,  and  in  the  Report  of  the  Wise 
Persons Group on the future of the Single European Sky in 2019. SWD(2020) 187 also takes 

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into account the  calls for action contained in the joint stakeholder declaration signed during 
the high-level conference on the future of the Single European Sky in September 2019. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications on the Union budget. The proposed new “PRB” function is 
to be financed by fees and charges and administratively integrated into the Agency. A reserve 
fund  covering  one  year  of  operational  expenditure  is  proposed,  in  order  to  ensure  the 
continuity  of  its  operations  and  of  the  execution  of  its  tasks.  In  addition,  it  is  proposed  to 
provide  for  annual  contributions  to  be  made  by  designated  air  traffic  service  providers 
concerned  by  the  Agency’s  tasks  and  powers  as  PRB,  for  the  built  up  of  the  new  function. 
Such annual contributions are proposed to be collected for five financial years following the 
entry into force of the amending Regulation, in order to cover the costs of setting up the new 
functions within the Agency.  

All in all, the Union’s budget will not be affected. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The amended recast proposal for an SES2+ Regulation [COM(2020) 579] provides in its draft 
Article  43  for  an  evaluation  of  the  terms  of  that  Regulation,  to  be  conducted  in  2030.  That 
evaluation should cover in particular the performance of the PRB function, having regard to 
the underlying objectives. Logically, it should encompass the amendments proposed herewith.  

• 

Detailed explanation of the specific provisions of the proposal 

The  rules  proposed  provide  for  a  permanent  structure  dedicated  to  performance  review,  in 
order to ensure the necessary independence and expertise. In order to allow for a timely legal 
review,  without  prejudice  to  the  competences  of  the  Court  of  justice,  it  is  proposed  that 
decisions taken by the Agency acting as PRB be subject to appeal before a dedicated body of 
the Agency, i.e. the Appeal Board for Performance Review.  

The  solution  whereby  the  PRB  functions  are  exercised  by  the  Agency,  albeit  through 
dedicated bodies and function holders, appears adequate also from a cost-efficiency point of 
view.  

The Regulation proposed lays down the composition of and relevant requirements regarding 
the  bodies  and  function  holders  provided  for  with  a  view  to  enabling  the  Agency  to  act  as 
PRB. The tasks and powers to be conferred upon the Agency for these purposes are those laid 
down  in  the  amended  recast  proposal  [COM(2020)  579].  They  include  the  assessment  and 
approval  of  performance  plans  of  designated  air  traffic  service  providers,  the  provision  of 
advice  to  the  Commission  regarding  the  Network  Performance  Plan,  the  monitoring  of 
performance, and the verification of unit rates of air traffic service providers.  

In order to optimise the functioning of the Agency as a Performance Review Body, it would 
be desirable for the Union to convene with Eurocontrol the transfer of technical expertise and 
relevant performance-related data, possibly by amending the existing High-Level Agreement 
between the two parties. 

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2020/0264 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU) 2018/1139 as regards the capacity of the European Union 
Aviation Safety Agency to act as Performance Review Body of the Single European Sky 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 

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

Having regard to the opinion of the Committee of the Regions, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

In  order  to  optimise  the  application  of  the  rules  regarding  the  Single  European  Sky, 
Regulation [amended SES2+] establishes the competence, for various tasks notably in 
respect  of  the  performance  and  charging  schemes,  of  a  specialised  Union  body,  the 
European  Union  Aviation  Safety  Agency  acting  as  Performance  Review  Body 
(hereafter the “Agency acting as PRB”).  

In  line  with  this  objective,  it  is  necessary  to  establish,  within  the  Agency,  a 
corresponding,  permanent  structure,  guaranteeing  that  the  tasks  conferred  upon  the 
Agency  acting  as  PRB  be  carried  out  with  the  required  expertise  as  well  as 
independence from public or private interests and that, in this context, the Agency can 
rely on dedicated resources. 
Regulation  (EU)  2018/1139  of  the  European  Parliament  and  of  the  Council2,  should 
therefore be amended, in a manner that separates the discharge of the tasks regarding 
the performance and charging schemes of the Single European Sky, functionally and 
hierarchically, from the Agency’s activity as a safety authority. 

For these purposes, a Regulatory Board for Performance Review should be established 
and  a  Director  for  Performance  Review  should  be  appointed  in  order  to  carry  out 
specifically the functions of the Agency acting as PRB. 

2  Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules 
in  the  field  of  civil  aviation  and  establishing  a  European  Union  Aviation  Safety  Agency,  and  amending 
Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 
2014/30/EU  and  2014/53/EU  of  the  European  Parliament  and  of  the  Council,  and  repealing  Regulations 
(EC)  No  552/2004  and  (EC)  No  216/2008  of  the  European  Parliament  and  of  the  Council  and  Council 
Regulation (EEC) No 3922/91 (OJ L 212, 22.8.2018, p. 1) 

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(5) 

(6) 

(7) 

(8) 

In  line  with  the  principles  set  out  above,  the  Regulatory  Board  for  Performance 
Review should act independently and should not seek or follow instructions or accept 
recommendations from a government of a Member State, from the Commission or any 
other public or private entity.  

The Management Board of the Agency should have the necessary powers in particular 
to appoint the Director for Performance Review.  

The Director for Performance Review should in particular be the legal representative 
of  the  Agency  in  matters  of  performance  review  and  be  in  charge  of  the  day-to-day 
administration  in  respect  of  this  matter,  as  well  as  of  various  preparatory  tasks.  The 
Director  for  Performance  Review  should  also  draft  and  submit  the  section  on 
performance review of the programming document, the annual work programme and 
the  annual  activity  report  of  the  Agency.  The  Regulatory  Board  for  Performance 
Review as an independent body should be involved in those activities as necessary. 

Cooperation  between  national  supervisory  authorities  in  the  area  of  performance 
review is important to ensure smooth application of Union law in this area and should 
thus  be  facilitated,  namely  through  the  establishment  of  an  Advisory  Board  for 
Performance Review. 

(9)  Where  the  Agency  acting  as  PRB  has  decision-making  powers,  interested  parties 
should, for reasons of procedural economy, be granted a right of appeal to an Appeal 
Board  for  Performance  Review,  which  should  be  part  of  the  Agency  acting  as  PRB, 
but independent from its administrative and regulatory structure.  

(10)  The  Agency  acting  as  PRB  should  carry  out  any  necessary  consultations  and  act 

transparently. 

(11)  The  Agency  shall  account  the  revenue  and  expenditure  for  performance  review 
separately  from  other  revenue  and  expenditure.  In  line  with  the  principle  of 
independence  of  the  Agency  acting  as  PRB,  the  draft  statement  of  estimates  of  the 
revenue  and  expenditure  on  performance  review  to  be  presented  to  the  Executive 
Director should be prepared by the Director for Performance Review. Within this draft 
statement of estimates, changes to the revenue and expenditure on performance review 
should require the approval  of the Director for Performance Review.  In the event  of 
disagreement  between  the  Director  for  Performance  Review  and  the  Executive 
Director, the Director for Performance Review should be put in a position to state his 
or her views in an effective manner to the attention of the Management Board, before 
the  latter  adopts  the  provisional  draft  estimate  of  revenue  and  expenditure  of  the 
Agency. 

(12) 

It is appropriate that designated air traffic service providers contribute to the setting up 
of  the  operation  of  the  Agency  acting  as  PRB  and  its  continuous  functioning. 
Designated  air  traffic  service  providers  hold  natural  monopolies  in  respect  of  the 
services concerned, and those services are remunerated by airspace users. Because of 
this  specific  feature,  it  is  necessary  that  the  performance  and  charging  schemes  be 
applied to them, so as to optimise the provision of the services concerned on a number 
of points. The principal role of the Agency acting as PRB consists in the application of 
those schemes, and the funds necessary for its setting up can therefore be considered 
as necessary for reasons linked to the peculiar features and the peculiar position of the 
providers of the services concerned. 

(13)  Costs  related  to  the  supervision  of  designated  air  traffic  service  providers  by  the 

Agency acting as PRB can be divided into costs for its setting up and running costs.  

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(14)  The costs for the setting up of the Agency acting as PRB are short-term and limited to 
a  few  activities,  such  as  recruitment,  training  and  necessary  IT  equipment,  and  are 
necessary to initiate the supervision required for the reasons described. 

(15)  Those costs should be paid during five financial years by designated air traffic service 
providers  in  the  form  of  annual  contributions,  calculated  in  a  fair  and  non-
discriminatory  manner.  Individual  contributions  by  designated  air  traffic  service 
providers  should  be  determined  by  reference  to  their  size  in  order  to  reflect  their 
importance  in  the  provision  of  air  traffic  services  in  Europe  and  hence  the  relative 
benefits they draw from the supervised activity. Concretely, such contributions should 
be calculated based on the amount of actual revenues produced by the provision of air 
navigation  services  over  the  reference  period  preceding  the  reference  period  during 
which this Regulation enters into force. 

(16) 

In order to establish uniform rules regarding the calculation of annual contributions, in 
particular  the  methodology  to  allocate  the  estimated  expenditure  to  categories  of 
designated  air  traffic  service  providers  and  the  criteria  to  determine  the  level  of 
individual  contributions based  on  size,  implementing  powers  should  be  conferred  on 
the  Commission.  Those  powers  should  be  exercised  in  accordance  with  Regulation 
(EU) No 182/2011 of the European Parliament and of the Council3. 

(17)  Running  costs  relate  to  the  cost  of  the  activities  conducted  by  the  Agency  acting  as 
PRB, in respect of the performance and charging schemes, once the operation of this 
activity has been set up. Running costs of the Agency acting as PRB should equally be 
financed by designated air traffic services providers. However, the funding should be 
based on fees and charges, on account of interventions necessary for the application of 
the performance and charging schemes. This form of funding can also be expected to 
enhance the autonomy and independence of the Agency acting as PRB. 

(18)  No  revenue  received  by  the  Agency,  of  whatever  source,  should  compromise  its 

independence and impartiality. 

(19)  The Agency acting as PRB should also provide for a reserve fund covering one year of 
its operational expenditure to ensure the continuity of its operations and the execution 
of its tasks. 

(20)  The Agency acting as PRB should be open to the participation of third countries which 
have concluded agreements with the Union and which have adopted and are applying 
the relevant rules of Union law. 

(21)  Regulation (EU) 2018/1139 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Regulation (EU) 2018/1139 is amended as follows: 

(1) 

in Article 3, point 5 is replaced by the following: 

Article 1 

‘(5) ‘ATM/ANS’ means air traffic management and air navigation services and covers 
all  of  the  following:  the  air  traffic  management  functions  and  services  as  defined  in 
point  (9)  of  Article  2  of  [amended  SES2+];  the air  navigation  services  as  defined  in 

3  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying 
down  the  rules  and  general  principles  concerning  mechanisms  for  control  by  Member  States  of  the 
Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). 

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point (4) of Article 2 of that Regulation, including the network functions referred to in 
Article  26  of  that  Regulation,  as  well  as  services  which  augment  signals  emitted  by 
satellites  of  core  constellations  of  GNSS  for  the  purpose  of  air  navigation;  flight 
procedures  design;  services  consisting  in  the  origination  and  processing  of  data  and 
the  formatting  and  delivering  of  data  to  general  air  traffic  for  the  purpose  of  air 
navigation;  and  air  traffic  data  services  which  are  the  services  consisting  in  the 
collection,  aggregation  and  integration  of  operational  data  from  providers  of 
surveillance  services,  from  providers  of  meteorological  services  (MET)  and 
aeronautical information services (AIS) and network functions and from other relevant 
entities,  and/or  the  provision  of  processed  data  for  air  traffic  control  and  air  traffic 
management purposes;’; 

(2) 

Article 93 is replaced by the following: 

‘Article 93 

Implementation of Single European Sky 

1. The Agency acting as Performance Review Body (PRB) shall have the tasks and 
exercise the powers set out in [Amended SES2+]. 

2.  Where  it  has  the  relevant  expertise,  whether  or  not  in  its  capacity  as  PRB,  the 
Agency  shall,  upon  request,  provide  technical  assistance  to  the  Commission,  in  the 
implementation  of  the  Single  European  Sky,  including  on  the  performance  and 
charging scheme, in particular by:  

(a) conducting technical inspections, technical investigations, reviews of compliance, 
studies and projects;  

(b)  contributing  to  the  implementation  of  the  ATM  Master  Plan,  including  the 
development and deployment of the SESAR programme.’;  

(3) 

in Article 94, paragraph 5 is replaced by the following: 

‘5. The Agency shall be legally represented by its Executive Director. For matters related 
to the Agency acting as PRB, the Agency shall be legally represented by the Director 
for Performance Review.’; 

(4) 

(a) 

Article 98 is amended as follows: 

paragraph 2 is amended as follows: 

(i) 

point (f) is replaced by the following: 

‘(f)   carry out its functions relating to the Agency’s budget pursuant to Articles 120, 120a, 

121 and 125;’, 

(ii)  point (l) is replaced by the following: 

 ‘(l)  take  decisions  on  the  establishment  of  the  internal  structures  of  the  Agency  at 
directors’  level  and,  where  necessary,  their  modifications,  subject,  in  the  case  of 
internal structures concerning performance review, to a corresponding request by the 
Director for Performance Review and a positive opinion of the Regulatory Board for 
Performance Review. Any such decisions shall not affect the separation between the 
Regulatory Board for Performance Review, the Director for Performance Review, the 
Advisory Board for Performance Review, the Appeal Board for Performance Review 
and  the  staff  working  for  the  Agency  acting  as  PRB  on  the  one  hand,  and  the  other 
bodies and function holders of the Agency on the other hand;’, 

(iii)  point (o) is replaced by the following: 

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‘(o) adopt rules for the prevention and management of conflicts of interest in respect of its 
members,  as  well  as  of  the  members  of  the  Board  of  Appeal,  the  members  of  the 
Regulatory  Board  for  Performance  Review,  the  members  of  the  Advisory  Board  for 
Performance  Review  and  the  members  of  the  Appeal  Board  for  Performance 
Review;’; 

(b) 

the following paragraph 2a is inserted: 

‘2a. In respect of matters regarding performance review, the Management Board shall: 

(a) 

(b) 

(c) 

after  consulting  the  Regulatory  Board  for  Performance  Review  and  obtaining 
its  favourable  opinion,  appoint  the  Director  for  Performance  Review  in 
accordance  with  Article  114g  and  where  relevant  extend  his  or  her  term  of 
office or remove him or her from office; 

appoint  the  members  of  the  Regulatory  Board  for  Performance  Review  in 
accordance with Article 114c; 

after  consulting  the  Regulatory  Board  for  Performance  Review,  appoint  the 
members  of  the  Appeal  Board  for  Performance  Review  in  accordance  with 
Article 114l; 

(d)  decide,  after  obtaining  the  agreement  of  the  Commission,  and  as  regards  the 
revenue  and  expenditure  in  respect  of  performance  review,  whether  to  accept 
any  legacies,  donations  or  grants  from  other  Union  sources  or  any  voluntary 
contribution  from  the  Member  States  or  from  the  national  supervisory 
authorities referred to in Article 3 of [Amended SES2+]; 

(e) 

(f) 

(g) 

(h) 

(i) 

after  consulting  the  Regulatory  Board  for  Performance  Review,  exercise 
disciplinary authority over the Director for Performance Review; 

after  consultation  of the  Regulatory  Board for Performance Review, establish 
procedures  for  issuing  opinions,  recommendations  and  decisions  by  the 
Agency acting as PRB as referred to in Article 119a(4); 

subject  to  the  favourable  opinion  of  the  Regulatory  Board  for  Performance 
Review,  and  on  the  basis  of  a  proposal  by  the  Director  for  Performance 
Review,  adopt  and  regularly  update  the  communication  and  dissemination 
plans on performance review referred to Article 119a(5);  

subject  to  the  favourable  opinion  of  the  Regulatory  Board  for  Performance 
Review, authorise the conclusion of working arrangements in accordance with 
Article 129a(4); 

subject  to  the  favourable  opinion  of  the  Regulatory  Board  for  Performance 
Review,  and  on  the  basis  of  a  proposal  by  the  Director  for  Performance 
Review, establish mechanisms and procedures for consultation of stakeholders 
referred  to  in  Article  38  of  [Amended  SES2+]  and  Article  119a  of  this 
Regulation.’; 

(c) 

paragraphs 3 and 4 are replaced by the following: 

‘3.  The  Management  Board  may  advise  the  Executive  Director  on  any  matter  related  to 

areas covered by this Regulation, except on matters of performance review. 

4. The Management Board shall establish an advisory body representing the full range of 
interested  parties  affected  by  the  work  of  the  Agency,  which  it  shall  consult  prior  to 
making decisions in the fields referred to in paragraph 2, points (c), (e), (f) and (i). The 

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Management  Board shall fully integrate the  contribution provided by the Director for 
Performance  Review  in  accordance  with  Article  114h  when  making  decisions  in  the 
fields referred to in paragraph 2, points (c) and (f). The  Management Board may also 
decide to consult the advisory body on other issues referred to in paragraphs 2 and 3, 
except the areas related to the function of the Agency acting as PRB. The Management 
Board shall not, in any case, be bound by the opinion of the advisory body.’; 

(d) 

paragraph 6 is replaced by the following: 

‘6.  The  Management  Board  shall  adopt,  in  accordance  with  Article  110  of  the  Staff 
Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 
of  the  Conditions  of  Employment  of  Other  Servants,  delegating  relevant  appointing 
authority powers to the Executive Director and defining the conditions under which that 
delegation of powers can be suspended. The Executive Director shall be authorised to 
sub-delegate those powers.  

Where  exceptional  circumstances  so  require,  the  Management  Board  may  decide  to 
temporarily suspend the delegation of the appointing authority powers to the Executive 
Director and those sub-delegated by the latter and exercise them itself or delegate them 
to one of its members or to a staff member other than the Executive Director. 

The first and second subparagraphs shall not apply to members of staff whose posts are 
attributed to the function of the Agency acting as PRB.’; 

(e) 

the following paragraph 7 is added: 

‘7.  The  Management  Board  shall  adopt,  in  accordance  with  Article  110  of  the  Staff 
Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 
of  the  Conditions  of  Employment  of  Other  Servants,  delegating  relevant  appointing 
authority powers to the Director for Performance Review as regards members of staff 
whose posts are attributed to  the function of the Agency acting as PRB,  and defining 
the conditions under which that delegation of powers can be suspended. The Director 
for Performance Review shall be authorised to sub-delegate those powers. 

Where  exceptional  circumstances  so  require,  the  Management  Board  may  decide  to 
temporarily suspend the delegation of the appointing authority powers to  the Director 
for Performance Review and those sub-delegated by the latter and exercise them itself 
or delegate them to one of its members or to a staff member other than the Director for 
Performance Review. A decision to this effect shall require a positive vote on the part 
of  the  representative  of  the  Commission  in  the  Management  board.  The  exceptional 
circumstances  shall  be  strictly  limited  to  administrative,  budgetary  or  managerial 
matters, without prejudice to the Director for Performance Review’s full independence 
concerning his or her tasks pursuant to point (d) of Article 114h(3).’; 

(5) 

in Article 99, paragraph 5 is replaced by the following: 

‘5.  The  advisory  body  referred  to  in  Article  98(4)  shall  appoint  four  of  its  members  to 
participate with observer status in the Management Board, except for matters related 
to  performance  review,  in  particular  areas  referred  to  in  Article  98(2a).  They  shall 
represent, as broadly as possible, the different views represented in the advisory body. 
The initial term of office shall be 48 months and shall be extendable.’; 

(6) 

(a) 

Article 101 is amended as follows:  

paragraph 3 is replaced by the following: 

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‘3. The Executive Director of the Agency shall take part in the deliberations, without the 
right to vote. Upon invitation of the Director for Performance Review, the Executive 
Director  of  the  Agency  may  be  invited  to  take  part  in  the  deliberations  on  matters 
related to the the function of the Agency acting as PRB, without the right to vote.’, 

(b) 

the following paragraph 3a is inserted: 

‘3a.  The  Director  for  Performance  Review  shall  take  part  in  the  deliberations  on  areas 
directly or indirectly related to the function of the Agency acting as PRB, without the 
right to vote.’; 

(7) 

in Article 102, paragraphs 2, 3 and 4 are replaced by the following: 

‘2. Each member appointed pursuant to Article 99(1) shall have one vote. In the absence 
of a member, his or her alternate shall be entitled to exercise his or her right to vote. 
Neither  observers  nor  the  Executive  Director  of  the  Agency  nor  the  Director  for 
Performance Review shall have the right to vote.  

3.   The Rules of Procedure of the Management Board shall establish more detailed voting 
arrangements, in particular the procedure for voting on urgent matters, the conditions 
under which a member may act on behalf of another member, as well as any quorum 
requirements, where appropriate. 

4.  In  order  for  them  to  be  adopted,  decisions  on  budgetary,  human  resources  or 
administrative matters, in particular matters referred to in Article 98(2), points (d), (f), 
(h),  (m),  (n),  (o)  and  (q),  Article  98(2a),  points  (a),  (b),  (c),  (e)  and  (f)),  and Article 
98(7)  require  a  positive  vote  from  the  representative  of  Commission  in  the 
Management Board.’; 

(8) 

(a) 

Article 104 is amended as follows:  

paragraph 1 is replaced by the following: 

‘1.  The  Executive  Director  shall  manage  the  Agency.  The  Executive  Director  shall  be 
accountable  to  the  Management  Board.  Without  prejudice  to  the  powers  of  the 
Commission  and  of  the  Management  Board,  the  Executive  Director  shall  be 
independent  in  the  performance  of  his  or  her  duties  and  shall  neither  seek  nor  take 
instructions  from  any  government  or  from  any  other  body.  The  Executive  Director 
shall  not  give  instructions  to  the  Director  for  Performance  Review  nor  to  staff 
dedicated to the function of the Agency acting as PRB.’, 

(b) 

paragraph 3 is amended as follows: 

(i) 

the introductory wording is replaced by the following: 

‘3. The Executive Director shall be responsible for the implementation of the tasks assigned to 
the Agency by this Regulation or other Union acts, except for matters related to the function 
of the Agency acting as PRB. In particular, the Executive Director shall be responsible for:’. 

(ii)  point (h) is replaced by the following: 

‘(h)preparing  the  Agency’s  draft  statement  of  estimates  of  revenue  and  expenditure 
pursuant to Article 120, integrating the draft estimate of the revenue and expenditure 
of  the  Agency  for  its  functions  as  PRB  prepared  by  the  Director  for  Performance 
Review  in  accordance  with  Articles  114h  and  120a,  and  implementing  its  budget 
pursuant to Article 121, except the budget of the Agency for its functions as PRB;’, 

(iii)  point (j) is replaced by the following: 

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‘(j) preparing the programming document referred to  in  Article 117(1) and, after having 
integrated  the  PRB’s  section  submitted  by  the  Director  for  Performance  Review  in 
accordance  with  point  (g)  of  Article  114h(3)and  Article  117a,  submitting  it  to  the 
Management  Board  for  adoption,  after  having  obtained  the  opinion  of  the 
Commission. Any change to the PRB’s section shall only be made upon approval of 
the Director for Performance Review;’, 

(iv) 

 point (l) is replaced by the following: 

‘(l) preparing an action plan following up conclusions of internal or external audit reports 
and evaluations, as well as investigations by OLAF, and reporting on progress twice a 
year  to  the  Commission  and  regularly  to  the  Management  Board.  The  Executive 
Director  shall  coordinate  with  the  Director  for  Performance  Review  to  ensure 
coherence  with  the  action  plan  prepared  by  the  Director  for  Performance  Review  as 
regards activities related to the function of the Agency acting as PRB;’, 

(v)  point (u) is replaced by the following: 

‘(u) taking all decisions on the establishment of the internal structures of the Agency and, 
where necessary, on any changes to them, except for those at directors’ level, which 
will  be  approved  by  the  Management  Board,  and  except  decisions  related  to  the 
internal structures concerning performance review. Decisions taken by the Executive 
Director shall not affect the separation between the Regulatory Board for Performance 
Review,  the  Director  for  Performance  Review,  the  Advisory  Board  for  Performance 
Review,  the  Appeal  Board  for  Performance  Review  and  the  staff  working  for  the 
Agency acting as PRB on the one hand, and the other bodies and function holders of 
the Agency on the other hand;’, 

(c) 

paragraph 4 is replaced by the following:  

‘4.  The  Executive  Director  shall  also  be  responsible  for  deciding  whether  it  is 
necessary  for  the  purpose  of  carrying  out  the  Agency’s  tasks  in  an  efficient  and 
effective manner to establish one or more local offices in one or more Member States 
or to co-locate staff in Union delegations in third countries subject to the appropriate 
agreements with the European External Action Service.  

The  first  subparagraph  shall  not  apply  to  the  Agency  in  its  function  as  PRB.  In 
respect of those functions, the Director for Performance Review shall be responsible 
for deciding whether it is necessary for the purpose of carrying out the work of the 
Agency in an efficient and effective manner to establish one or more local offices in 
one or more Member States. 

The  decisions  referred  to  in  the  first  and  second  subparagraphs  require  the  prior 
consent  of  the  Commission,  the  Management  Board  and,  where  applicable,  the 
Member  State  where  the  local  office  is  to  be  established.  Those  decisions  shall 
specify the scope of the activities to be carried out at that local office or by that co-
located  staff  in  a  manner  that  avoids  unnecessary  costs  and  duplication  of 
administrative functions of the Agency.’; 

(9) 

the following section IIa is inserted: 

‘SECTION IIa 

Specific rules on the internal structure related to performance review 

Article 114a 

Structure of the Agency acting as PRB 

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For carrying out its tasks on performance review, the Agency acting as PRB shall have: 

(a)  A Regulatory Board for Performance Review; 

(b)  A Director for Performance Review; 

(c)  An Advisory Board for Performance Review; 

(d)  Appeal Board for Performance Review. 

Article 114b 

Functions of the Regulatory Board for Performance Review 

1. 

The Regulatory Board for Performance Review shall: 

(a) 

provide opinions and, where appropriate, comments on and amendments to the 
text  of  the  Director  for  Performance  Review’s  proposals  for  draft  opinions, 
recommendations and decisions related to the tasks listed in [amended SES2+], 
as  well  as  those  referred  to  in  Article  129a  of  this  Regulation  which  are 
considered for adoption; 

(b)  within  its  field  of  competence,  provide  guidance  to  the  Director  for 

Performance Review in the execution of his or her tasks; 

(c) 

(d) 

(e) 

(f) 

provide an opinion to the Management Board on the candidate to be appointed 
as  Director  for  Performance  Review  in  accordance  with  point  (a)  of  Article 
98(2a)  and  Article  114g(2),  and  where  applicable  his  or  her  removal  from 
office in accordance with Article 114g(6); 

approve  the  section  on  performance  review  activities  of  the  programming 
document  to  be  submitted  by  the  Director  for  Performance  Review  to  the 
Executive Director in accordance with point (g) of Article 114h(3) and Article 
117a; 

approve  the  independent  section  on  regulatory  activities  of  the  section  on 
performance review of the consolidated annual activity report to be submitted 
by  the  Director  for  Performance  Review  to  the  Executive  Director  in 
accordance with point (i) of Article 114h(3)and Article 118a; 

provide  an  opinion  to  the  Management  Board  on  the  procedures  for  issuing 
opinions,  recommendations  and  decisions  by  the  Agency  acting  as  PRB  in 
accordance with point (f) of Article 98(2a);  

(g)  provide an opinion to the Director for Performance Review on its proposal for 
the communication and dissemination plans on performance review referred to 
in Article 119a(5), in accordance with point (g) of Article 98(2a); 

(h)  provide  an  opinion  to  the  Director  for  Performance  Review  on 

the 
internal  structures  concerning 

establishment  or  modification  of 
performance review; 

the 

(i) 

(j) 

provide an opinion to the Management Board as regards potential actions to be 
taken pursuant to point (e) of Article 98(2a); 

provide  an  opinion  to  the  Management  Board  on  the  conclusion  of  working 
arrangements in accordance with Article 129a(4); 

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(k)  provide an opinion to the Director for Performance Review on its proposal for 
mechanisms  and  procedures  for  consultation  of  stakeholders  referred  to  in 
Article 38 of [Amended SES2+] and in Article 119a of this Regulation; 

(l) 

provide an opinion to the Management Board on the candidates to be appointed 
as members of the Appeal Board for Performance Review in accordance with 
article 114l. That opinion shall not be binding. 

Article 114c 

Composition and independence of the Regulatory Board for Performance Review 

1. 

2. 

3. 

The  Regulatory  Board  for  Performance  Review  shall  be  composed  of  9  voting 
members and one non-voting representative of the Commission. Each member shall 
have  an  alternate.  One  of  the  members  shall  be  the  Chairperson  of  the  Advisory 
Board for Performance Review. A member of the Management Board shall not be a 
member  of  the  Regulatory  Board  for  Performance  Review.  The  term  of  office  for 
members and their alternates shall be five years, and that term shall be extendable. 

The members of the Regulatory Board for Performance Review and their alternates 
shall  be  formally  appointed  by  the  Management  Board,  on  a  proposal  from  the 
Commission, after consultation of Eurocontrol, following a public call for expression 
of interest. The members of the Regulatory Board for Performance Review shall be 
appointed  on  the  basis  of  merit  as  well  as  skills  and  experience  relevant  to  the  air 
traffic management or economic regulation of network industries. In order for it to be 
adopted,  the  decision  on  the  appointment  of  the  members  of  the  Regulatory  Board 
for Performance Review requires a positive vote from the Commission representative 
in the Management Board. 

When  carrying  out  the  tasks  conferred  upon  it  by  this  Regulation,  the  Regulatory 
Board for Performance Review shall act independently and shall not seek or follow 
instructions from any government of a Member State, from the Commission, or from 
another public or private entity. 

Article 114d 

Chairperson of the Regulatory Board for Performance Review 

1. 

2. 

The  Regulatory  Board  for  Performance  Review  shall  elect  a  Chairperson  and  a 
Deputy  Chairperson  from  among  its  members  with  voting  rights  by  a  two-thirds 
majority. The Deputy Chairperson shall replace the Chairperson if the latter is not in 
a position to perform his or her duties.  

The term of office of the Chairperson and of the Deputy Chairperson shall be two-
and-a-half years and shall be renewable. If their membership of the Regulatory Board 
for Performance Review ceases at any time during their term of office, their term of 
office shall automatically expire on that date. 

Article 114e 

Meetings of the Regulatory Board for Performance Review 

1. 

Meetings of the Regulatory Board for Performance Review shall be convened by its 
Chairperson.  

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  EN 

2. 

3. 

4. 

5. 

The  Regulatory  Board  for  Performance  Review  shall  hold  at  least  two  ordinary 
meetings  a  year.  In  addition  it  shall  meet  at  the  request  of  the  Chairperson,  of  the 
Commission or of at least one third of its members. 

The Director for Performance Review shall take part in the deliberations, without the 
right to vote.  

The Regulatory Board for Performance Review may invite any person whose opinion 
might be of interest to attend its meetings with observer status.  

The Agency shall provide the secretariat for the Regulatory Board for Performance 
Review. 

Article 114f 

Voting rules of the Regulatory Board for Performance Review 

1. 

2. 

3. 

Unless otherwise specified in this Regulation, the Regulatory Board for Performance 
Review shall take decisions by a simple majority of the members with voting rights. 

Each member with voting rights appointed pursuant to Article 114c(2) shall have one 
vote. In the absence of a member, his or her alternate shall be entitled to exercise his 
or her right to vote. Neither observers nor the Director for Performance Review shall 
have the right to vote. 

The  Regulatory  Board  for  Performance  Review  shall  adopt  its  rules  of  procedure, 
which shall set out in greater detail the arrangements governing voting, in particular 
the conditions on the basis of which one member may act on behalf of another and 
also, where appropriate, the rules governing quorums. 

Article 114g 

Director for Performance Review 

1. 

2. 

3. 

The Director for Performance Review shall be engaged as a temporary agent of the 
Agency  under  Article  2,  point  (a)  of  the  Conditions  of  Employment  of  Other 
Servants.  

The Director for Performance Review shall be appointed by the Management Board 
following a favourable opinion of the Regulatory Board for Performance Review, on 
the  basis  of  merit  as  well  as  skills  and  experience  relevant  to  the  air  traffic 
management  or  economic  regulation  of  network  industries,  from  a  list  of  at  least 
three candidates proposed by the Commission and following an open and transparent 
selection procedure. In order for it to be adopted, the decision on the appointment of 
the Director for Performance Review requires a positive vote from the representative 
of  the  Commission  in  the  Management  Board.  For  the  purpose  of  concluding  the 
contract with the Director for Performance Review, the Agency shall be represented 
by the Chairperson of the Management Board. 

The  Director  for  Performance  Review’s  term  of  office  shall  be  five  years. In  the 
course  of  the  nine  months  preceding  the  end  of  that  period,  the  Commission  shall 
undertake  an  assessment.  In  the  assessment,  the  Commission  shall  examine  in 
particular: 

(a) 

(b) 

the performance of the Director for Performance Review; 

the  duties  and  requirements  concerning  performance  review  in  the  following 
years. 

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4. 

5. 

6. 

7. 

The Management Board, acting on a proposal from the Commission and giving the 
utmost  consideration  to  the  assessment  referred  to  in  paragraph  3  and  following  a 
favourable opinion of the Regulatory Board for Performance Review, may extend the 
term  of  office  of  the  Director  for  Performance  Review  once  by  no  more  than  five 
years. A Director for Performance Review whose term  of office has  been extended 
shall not participate in another selection procedure for the same post at the end of the 
extended period.  

If  his  or  her  term  of  office  is  not  extended,  the  Director  for  Performance  Review 
shall remain in office until the appointment of his or her successor. 

The  Director  for  Performance  Review  may  be  removed  from  office  only  upon  a 
decision of the Management Board, acting on a proposal from the Commission, after 
having  obtained  a  favourable  opinion  of  the  Regulatory  Board  for  Performance 
Review.  

The Management Board shall reach decisions on appointment, extension of the term 
of office or removal from office of the Director for Performance Review on the basis 
of  a  two-thirds  majority  of  its  members  with  voting  rights.  The  Director  for 
Performance Review shall not  hold  any professional  position or responsibility with 
any air navigation service provider after his or her term as Director for Performance 
Review, for at least a period of two years. 

Article 114h 

Responsibilities of the Director for Performance Review 

1. 

2. 

3. 

The Director for Performance Review shall be accountable to the Management Board 
with  respect  to  administrative,  budgetary  and  managerial  matters,  but  shall  remain 
fully independent concerning his or her tasks under paragraph 3, point (d). Without 
prejudice to the respective roles of the Management Board and the Regulatory Board 
for  Performance  Review  in  relation  to  the  tasks  of  the  Director  for  Performance 
Review,  the  Director  for  Performance  Review  shall  neither  seek  nor  follow  any 
instruction  from  any  government,  from  the  Union  institutions,  or  from  any  other 
public or private entity or person.  

The  Director  for  Performance  Review  may  attend  the  meetings  of  the  Regulatory 
Board for Performance Review as an observer. 

The Director for Performance Review shall be responsible for the implementation of 
the  tasks  regarding  performance  review  carried  out  in  accordance  with  [Amended 
SES2+].  The  Director  for  Performance  Review  shall  take  account  of  the  guidance 
referred to in Article 114b(1), point (b) and, where provided for in this Regulation, 
the  opinions  of  the  Regulatory  Board  for  Performance  Review. In  particular,  the 
Director for Performance Review shall be responsible for: 

(a) 

ensuring  the  legal  representation  of  the  Agency  in  matters  of  performance 
review;  

(b) 

carrying out the day-to-day administration of the work on performance review; 

(c)  with respect to areas directly or indirectly linked to the work on performance 
review,  preparing  the  work  of  the  Management  Board,  participating,  without 
having  the  right  to  vote,  in  the  work  of  the  Management  Board  and 
implementing the decisions adopted by the Management Board on areas related 
to the function of the Agency acting as PRB; 

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(d)  drafting,  consulting,  adopting  and  publishing  opinions,  recommendations  and 
decisions in respect of the tasks laid out in [Amended SES2+] and in respect of 
the tasks referred to in Article  129a; 

(e) 

(f) 

(g) 

implementing the section on performance review activities of the programming 
document referred to in Article 117a; 

taking  the  necessary  measures,  in  particular  as  regards  adopting  internal 
administrative instructions and publishing notices, to ensure the functioning of 
Agency’s work on performance review in accordance with [amended SES2+]; 

each  year,  preparing  the  section  on  performance  review  activities  of  the 
programming document referred to in Article 117a, which shall be submitted to 
the  Executive  Director  and  integrated  in  the  Agency’s  draft  programming 
document  for  the  purpose  of  point  (j)  of  Article  104(3).  Any  change  to  the  
input related to performance review shall only be made upon approval  of the 
Director for Performance Review; 

(h)  drawing  up  a  provisional  draft  estimate  of  the  revenue  and  expenditure  in 
respect  of  performance  review  in  accordance  with  Article  120a(7)  and 
submitting it to the Executive Director for the purpose of Article 104(3), point 
(h)  and  implement  the  revenue  and  expenditure  in  respect  of  performance 
review  in  accordance  with  Article  121.  Any  change  to  the  input  related  to 
performance  review  shall  only  be  made  upon  approval  of  the  Director  for 
Performance Review; 

(i) 

preparing annually the draft section on performance review of the consolidated 
annual  activity  report  including  an  independent  section  on  the  regulatory 
activities  related  to  performance  review  and  a  section  on  financial  and 
administrative  matters,  and  submitting  it  to  the  Executive  Director  for  its 
integration in the consolidated annual activity report.  Any change to the input 
on  performance  review  shall  only  be  made  upon  approval  of  the  Director  for 
Performance Review; 

(j)  where  activities  of  the  Agency  acting  as  PRB  are  concerned,  preparing,  in 
coordination  with  the  Executive  Director,  an  action  plan  following  up  on  the 
conclusions of internal or external audit reports and evaluations, as well as on 
investigations  by  OLAF,  and  reporting  on  progress  twice  a  year  to  the 
Commission and report regularly on progress to the Management Board; 

(k)  preparing  a  proposal  for  mechanisms  and  procedures  for  consultation  of 
stakeholders referred to in Article 38 of [amended SES2+], to be submitted to 
the  Management  Board  for  adoption  following  a  favourable  opinion  of  the 
Regulatory Board for Performance Review; 

(l) 

following  a  favourable  opinion  of  the  Regulatory  Board  for  Performance 
Review, requesting the Management Board to establish or modify the internal 
structures concerning performance review; 

(m)  preparing  the  draft  communication  and  dissemination  plans  concerning 
performance  review  referred  to  Article  119a(5),  to  be  submitted  to  the 
Management  Board  for  adoption  following  the  favourable  opinion  of  the 
Regulatory Board for Performance Review. 

4. 

For the purposes paragraph 3, point (d), opinions, recommendations and decisions of 
the Agency  acting  as PRB referred to  in  [Amended SES2+] and in  Article 129a of 

EN 

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this Regulation shall be adopted only after having obtained the favourable opinion of 
the Regulatory Board for Performance Review. 

Before  submitting  draft  opinions,  recommendations  or  decisions  to  a  vote  by  the 
Regulatory  Board  for  Performance  Review,  the  Director  for  Performance  Review 
shall  submit  proposals  for  the  draft  opinions,  recommendations  or  decisions  to  the 
relevant working group for consultation sufficiently in advance. 

The Director for Performance Review shall take the comments  and amendments of 
the  Regulatory  Board  for  Performance  Review  into  account  and  shall  resubmit  the 
revised  draft  opinion,  recommendation  or  decision  to  the  Regulatory  Board  for 
Performance Review for a favourable opinion. Where the Director for  Performance 
Review  deviates  from  or  rejects  the  comments  and  amendments  received  from  the 
Regulatory  Board  for  Performance  Review,  the  Director  for  Performance  Review 
shall also provide a duly justified written explanation. 

The  Director  for  Performance  Review  may  withdraw  submitted  draft  opinions, 
recommendations  or  decisions  provided  that  he/she  submits  a  duly  justified  written 
explanation  where  he/she  disagrees  with  the  amendments  submitted  by  the 
Regulatory  Board  for  Performance  Review.  In  the  case  of  a  withdrawal  of  a  draft 
opinion,  recommendation  or  decision,  the  Director  for  Performance  Review  may 
issue a new draft opinion, recommendation or decision following the procedure set 
out in Article 114b(1), point (a) and in the second subparagraph of this paragraph.  

If the Regulatory Board for Performance Review does not give a favourable opinion 
on the resubmitted text of the draft opinion, recommendation or decision because its 
comments and amendments were not adequately reflected in the resubmitted text, the 
Director  for  Performance  Review  may  revise  the  text  of  the  draft  opinion, 
recommendation  or  decision  further  in  accordance  with  the  amendments  and 
comments  proposed  by  the  Regulatory  Board  for  Performance  Review  in  order  to 
obtain its favourable opinion, without having to provide additional written reasons. 

Article 114i 

Functions and operations of the Advisory Board for Performance Review 

1. 

The Advisory Board for Performance Review shall: 

(a) 

exchange  information  about  the  work  of  national  supervisory  authorities  and 
decision-making  principles,  best  practices  and  procedures  as  well  as  with 
regard to the application of [Amended SES2+];  

(b)  provide  opinions  and  recommendations  on  guidance  material  to  be  issued  by 
the Agency acting as PRB. The opinions and recommendations of the Advisory 
Board for Performance Review shall not be binding. 

The Advisory Board for Performance Review shall meet at regular intervals, in order 
to  ensure  that  national  supervisory  authorities  consult  and  work  together  in  a 
network.  

The Chairperson of the Regulatory Board for Performance Review and the Director 
for  Performance  Review  may  participate  in  meetings  of  the  Advisory  Board  for 
Performance  Review  and  may  make  recommendations  to  national  supervisory 
authorities convened as the Advisory Board for Performance Review, as appropriate, 
on matters related to their expertise on the performance and charging scheme referred 
to in [Amended SES2+]. 

2. 

3. 

EN 

17 

  EN 

4. 

Subject to the rules on data provided for in Article 31 of [Amended SES2+] and in 
Regulation  (EU)  2018/1725  of  the  European  Parliament  and  of  the  Council4,  the 
Agency shall provide the secretariat to the Advisory Board for Performance Review 
and shall support the exchange of the information referred to in paragraph 1 among 
the  members  of  the  Advisory  Board  for  Performance  Review,  respecting  the 
confidentiality  of  commercially  sensitive  information  of  air  navigation  service 
providers. 

Article 114j 

Composition of the Advisory Board for Performance Review 

1. 

The Advisory Board for Performance Review shall be composed of:  

2. 

(a) 

one  senior  representative  per  Member  State  from  the  national  supervisory 
authorities referred to in Article 3 of [Amended SES2+], and one alternate per 
Member State from the current senior staff of those authorities, both nominated 
by the national supervisory authority.  

(b)  one non-voting representative of the Commission, and one alternate. 

The  Advisory  Board  for  Performance  Review  shall  elect  a  Chairperson  and  a 
Deputy-Chairperson from among its members. The Deputy-Chairperson shall replace 
the Chairperson if the latter is not in a position to perform his or her duties. The term 
of office of the Chairperson and of the Deputy-Chairperson shall be two-and-a-half 
years  and  shall  be  renewable.  If  their  membership  of  the  Advisory  Board  for 
Performance  Review  ceases  at  any  time  during  their  term  of  office,  their  term  of 
office shall automatically expire on that date. 

Article 114k 

Powers of the Appeal Board for Performance Review 

1. 

2. 

The  Appeal  Board  for  Performance  Review  shall  be  responsible  for  deciding  on 
appeals against the decisions referred to in [Amended SES2+]. The Appeal Board for 
Performance Review shall be convened as necessary. 

The  decisions  of  the  Appeal  Board  for  Performance  Review  shall  be  adopted  by  a 
majority of at least four of its six members. 

Article 114l 

Members of the Appeal Board for Performance Review 

1. 

The Appeal Board for Performance Review shall be composed of six members and 
six  alternates  selected  from  among  current  or  former  senior  staff  of  the  national 
supervisory  authorities  referred  to  in  Article  3  of  [Amended  SES2+],  competition 
authorities  or  other  Union  or  national  institutions  with  relevant  experience  in  the 
aviation  sector.  The  Appeal  Board  for  Performance  Review  shall  designate  its 
Chairperson. 

4  Regulation  (EU)  2018/1725  of  the  European  Parliament  and  of  the  Council  of  23  October  2018  on  the 
protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, 
offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and 
Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39) 

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2. 

3. 

4. 

5. 

6. 

The  members  of  the  Appeal  Board  for  Performance  Review  shall  be  formally 
appointed by the Management Board, on a proposal from the Commission, following 
a  public  call  for  expression  of  interest,  after  consulting  the  Regulatory  Board  for 
Performance Review. 

The  members  of  the  Appeal  Board  for  Performance  Review  shall  undertake  to  act 
independently and in the public interest. For that purpose, they shall make a written 
declaration  of  commitments  and  a  written  declaration  of  interests  indicating  either 
the  absence  of  any  interest  which  might  be  considered  prejudicial  to  their 
independence or indicating any direct or indirect interest which might be considered 
prejudicial to their independence. Those declarations shall be made public annually. 

The  term  of  office  of  the  members  of  the  Appeal  Board  for  Performance  Review 
shall be five years. That term shall be renewable once. 

The members of the Appeal Board for Performance Review shall be independent in 
making their decisions. They shall not be bound by any instructions. They shall not 
perform any other duties in the Agency, in its Management Board or in the Advisory 
Board  for  Performance  Review.  A  member  of  the  Appeal  Board  for  Performance 
Review shall not  be removed during his  or her term  of office, unless he or she has 
been  found  guilty  of  serious  misconduct,  and  the  Commission,  after  receiving  the 
opinion of the Management Board, has taken a decision to that effect. 

The  Appeal  Board  for  Performance  Review  shall  adopt  and  publish  its  rules  of 
procedure.  Those  rules  shall  set  out  in  detail  the  arrangements  governing  the 
organisation and  functioning of the Appeal  Board for Performance Review and the 
rules  applicable  to  appeals  before  the  Appeal  Board  for  Performance  Review 
pursuant to Articles 114k to 114s. The Appeal Board for Performance Review shall 
notify  the  Commission  of  its  draft  rules  of  procedure  as  well  as  any  significant 
change to those rules. The Commission may provide an opinion on those rules within 
three months of the date of receipt of the notification.  

Article 114m 

Exclusion and objection in the Appeal Board for Performance Review 

1. 

2. 

3. 

4. 

The members of the Appeal Board for Performance Review shall not take part in any 
appeal proceedings if they have any personal interest therein, if they have previously 
been  involved  as  representatives  of  one  of  the  parties  to  the  proceedings  or  if  they 
participated in the adoption of the decision under appeal. 

If, for one of the reasons listed in paragraph 1 or for any other reason, a member of 
the Appeal Board for Performance Review considers that he or she should not take 
part  in  any  appeal  proceeding,  he  or  she  shall  inform  the  Appeal  Board  for 
Performance Review accordingly.  

Any party to the appeal proceedings may object to any member of the Appeal Board 
for  Performance  Review  on  any  of  the  grounds  given  in  paragraph  1,  or  if  the 
member  is  suspected  of  partiality.  Any  such  objection  shall  not  be  admissible  if, 
while being aware of a reason for objecting, the party to the appeal proceedings has 
taken a procedural step. No objection may be based on the nationality of members. 

The Appeal Board for Performance Review shall decide as to the action to be taken 
in the cases specified in paragraphs 2 and 3 without the participation of the member 
concerned. For the purposes of taking this decision, the member concerned shall be 
replaced on the Appeal Board for Performance Review by his or her alternate. If the 

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alternate  finds  him  or  herself  in  a  similar  situation  to  that  of  the  member,  the 
Chairperson shall designate a replacement from among the available alternates. 

Article 114n 

Decisions issued by the Agency acting as PRB subject to appeal 

1. 

2. 

3. 

An  appeal  may  be  brought  against  decisions  of  the  Agency  acting  as  PRB  taken 
pursuant to [Amended SES2+].  

An  appeal  lodged  pursuant  to  paragraph  1  shall  not  have  suspensory  effect.  The 
Appeal  Board  for  Performance  Review  may,  however,  if  it  considers  that 
circumstances so require, suspend the application of the contested decision. 

The Agency acting as PRB shall publish the decisions taken by the Appeal Board for 
Performance Review. 

Article 114o 

Persons entitled to appeal 

Any  natural  or  legal  person  may  appeal  against  a  decision  issued  by  the  Agency  acting  as 
PRB  addressed  to  that  person,  or  against  a  decision  issued  by  the  Agency  acting  as  PRB 
which,  although  in  the  form  of  a  decision  addressed  to  another  person,  is  of  direct  and 
individual  concern  to  the  former.  The  parties  to  proceedings  may  be  party  to  the  appeal 
proceedings. 

Article 114p 

Time limit and form 

The appeal shall include a statement of the grounds for appeal and shall be filed in writing to 
the Agency acting as PRB within two months of the notification of the decision to the person 
concerned,  or,  in  the  absence  thereof,  within  two  months  of  the  date  on  which  the  Agency 
acting as PRB published its decision. The Appeal Board for Performance Review shall decide 
upon the appeal within four months of the lodging of the appeal. 

Article 114q 

Interlocutory revision 

1. 

2. 

Before examining the appeal, the Appeal Board for Performance Review shall give 
the Agency acting as PRB the opportunity to review its decision. If the Director for 
Performance Review considers the appeal to be well founded, he or she shall rectify 
the  decision  within  two  months  from  being  notified  by  the  Appeal  Board  for 
Performance Review. That shall not apply where the appellant is opposed to another 
party to the appeal proceedings.  

If  the  decision  is  not  rectified,  the  Appeal  Board  for  Performance  Review  shall 
forthwith decide whether or not to suspend the application of the decision pursuant to 
Article 114n(2). 

Article 114r 

Examination of appeals 

1. 

The  Appeal  Board  for  Performance  Review  shall  assess  whether  the  appeal  is 
admissible and well founded.  

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2. 

When  examining  the  appeal  pursuant  to  paragraph  1,  the  Appeal  Board  for 
Performance Review shall act expeditiously.  

It  shall  as  often  as  necessary  invite  the  parties  to  the  appeal  proceedings  to  file, 
within specified time limits, written observations on notifications issued by itself or 
on communications from other parties to the appeal proceedings. The Appeal Board 
for Performance Review may decide to hold an oral hearing, either of its own motion 
or at the substantiated request of one of the parties to the appeal. 

Article 114s 

Decisions on appeal 

Where the Appeal  Board for Performance Review finds  that the appeal  is  not  admissible or 
that the grounds for appeal are not founded, it shall reject the appeal. Where the Appeal Board 
for Performance Review finds that the appeal is admissible and that the grounds for appeal are 
founded, it shall remit the case to the Agency. The Agency shall take a new reasoned decision 
taking into account the decision by the Appeal Board for Performance Review. 

Article 114t 

Actions before the Court of Justice  

1. 

2. 

Actions  for  the  annulment  of  a  decision  issued  by  the  Agency  acting  as  PRB 
pursuant  to  [Amended  SES2+]  and  actions  for  failure  to  act  within  the  applicable 
time limits may be brought before the Court of Justice only after the exhaustion of 
the appeal procedure referred to in Articles 114k to 114s.  

The  Agency  acting  as  PRB  shall  take  the  necessary  measures  to  comply  with  the 
judgments of the Court of Justice.’; 

(10) 

the following Article 117a is inserted: 

‘Article 117a 

1. 

2. 

Section  on  performance  review  activities  in  the  annual  and  multi-annual 
programming 

Each  year,  the  Director  for  Performance  Review  shall  draft  the  section  related  to 
performance  review  activities  of  the  programming  document  referred  to  in  Article 
117(1).  After  the  draft  being  approved  by  the  Regulatory  Board  for  Performance 
Review,  the  Director  for  Performance  Review  shall  submit  it  to  the  Executive 
Director  in  order  to  be  integrated  in  the  Agency’s  draft  programming  document  in 
accordance  with  Article  114h(3),  point  (g).  Any  change  to  the  section  on 
performance  review  shall  only  be  made  upon  approval  of  the  Director  for 
Performance Review. 

The  section  of  the  annual  work  programme  on  performance  review  in  the 
programming  document  shall  comprise  detailed  objectives  and  expected  results, 
including performance indicators. It shall also contain a description of the actions to 
be financed and an indication of the financial and human resources allocated to each 
the  principles  of  activity-based  budgeting  and 
action, 
management.  The  section  on  performance  review  of  the  annual  work  programme 
shall  be coherent  with  the section on performance review of the multi-annual  work 
programme  referred  to  in  paragraph  4.  It  shall  clearly  indicate  the  tasks  that  have 
been added, changed or deleted in comparison with the previous financial year. 

in  accordance  with 

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3. 

4. 

The Management Board shall amend the adopted section on performance review of 
the  annual  work  programme  where  a  new  task  is  assigned  to  the  Agency  acting  as 
PRB. Any substantial amendment to the section on performance review of the annual 
work programme shall be adopted by the same procedure set out for the initial annual 
work  programme.  The  Management  Board  may  delegate  the  power  to  make  non-
substantial  amendments  to  the  section  on  performance  review  of  the  annual  work 
programme document to the Director for Performance Review. 

The  section  on  performance  review  of  the  multi-annual  work  programme  in  the 
programming  document  shall  set  out  the  overall  strategic  programming,  including 
objectives, expected results and performance indicators. It shall also set out resource 
programming, including the multi-annual budget and staff.  

The  resource  programming  shall  be  updated  annually.  The  strategic  programming 
shall  be  updated  where  appropriate,  in  particular  to  address  the  outcome  of  the 
evaluation referred to in Article 124(4).’; 

(11) 

the following Article 118a is inserted: 

‘Article 118a 

Section on performance review in the consolidated annual activity report 

1. 

2. 

The Director for Performance Review shall draft the section related on performance 
review of the annual activity report referred to in Article 118(1). After the draft being 
approved  by  the  Regulatory  Board  for  Performance  Review,  the  Director  for 
Performance  Review  shall  submit  it  to  the  Executive  Director  in  order  to  be 
integrated  in  the  consolidated  annual  activity  report  in  accordance  with  Article 
114h(3),  point  (i).  Any  change  to  the  section  on  performance  review  of  the 
consolidated annual activity report shall only be made upon approval of the Director 
for Performance Review. 

The  section  on  performance  review  of  the  consolidated  annual  activity  report  shall 
include an independent section on regulatory activities and a section on financial and 
administrative matters. The Regulatory Board for Performance Review shall approve 
the  independent  section  on  regulatory  activities  prior  to  the  submission  to  the 
Executive Director, in accordance with Article 114b(1), point (e).’; 

(12) 

the following Article 119a is inserted: 

‘Article 119a 

Transparency, 

communication 

and 

procedures 

for 

issuing 

opinions, 

recommendations and decisions by the Agency acting as PRB 

1. 

In  carrying  out  its  tasks,  the  Agency  acting  as  PRB  shall  extensively  consult  at  an 
early stage the stakeholders listed in Article 38(3) of [Amended SES2+] and, where 
relevant, competition authorities, without prejudice to their respective competence, in 
an  open  and  transparent  manner.  In  accordance  with  Article  38  of  [Amended 
SES2+],  the  Agency  acting  as  PRB  shall  establish  consultation  mechanisms  for 
appropriate involvement of those stakeholders.  

For  this  purpose,  the  Director  for  Performance  Review  shall  draft  a  proposal  for 
those  mechanisms  and,  after  having  obtained  the  favourable  opinion  of  the 

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2. 

3. 

4. 

5. 

Regulatory  Board  for  Performance  Review  on  the  draft,  shall  submit  it  to  the 
Management Board for adoption.  

The Agency acting as PRB shall ensure that the public and any interested parties are, 
where  appropriate,  given  objective,  reliable  and  easily  accessible  information,  in 
particular with regard to the results of its work. 

All documents and minutes of consultation meetings shall be made public. 

The Agency acting as PRB shall make public, on its website, at least the agenda, the 
background  documents  and,  where  appropriate,  the  minutes  of  the  meetings  of  the 
Regulatory Board for Performance Review and of the Appeal Board for Performance 
Review. 

The  Agency  acting  as  PRB  shall  adopt  and  publish  adequate  and  proportionate 
procedures  for  issuing  opinions,  recommendations  and  decisions  by  the  Agency 
acting as PRB, in accordance with the procedure set out in Article 98(2a), point (f). 
Those procedures shall:  

(a) 

(b) 

ensure  that  the  Agency  acting  as  PRB  publishes  documents  and  widely 
consults  interested  parties,  in  accordance  with  a  timetable  and  a  procedure 
which  includes  an  obligation  on  the  Agency  acting  as  PRB  to  give  a  written 
response to the consultation process; 

ensure  that  before  taking  any  individual  decision  as  provided  for  in  this 
Regulation and in [Amended SES2+], the Agency acting as PRB informs any 
party concerned of its intention to adopt that decision, and shall set a time limit 
within which the party concerned may express its views on the matter, taking 
full  account  of  the  urgency,  complexity  and  potential  consequences  of  the 
matter; 

(c) 

ensure that individual decisions of the Agency acting as PRB states the reasons 
on which they are based for the purpose of allowing an appeal on the merits; 

(d)  where the Agency  acting as PRB issues a decision, provide for the natural  or 
legal  person  to  whom  the  decision  is  addressed,  and  any  other  parties  to 
proceedings, to be informed of the legal remedies available to them under this 
Regulation;  

(e) 

specify  the  conditions  under  which  decisions  are  notified  to  the  persons 
concerned,  including  information  on  the  available  appeal  procedures  as 
provided for in this Regulation.  

The  Agency  acting  as  PRB  may  engage  in  communication  activities  on  its  own 
initiative within its field of competence on performance review, and in doing so shall 
be represented by the Director for Performance Review. The allocation of resources 
to  communication activities shall not  be detrimental to  the effective exercise of the 
tasks  and  powers  referred  to  in  [Amended  SES2+].  Communication  activities  shall 
be  carried  out  in  accordance  with  relevant  communication  and  dissemination  plans 
adopted by the Management Board in accordance with point (g) of Article 98(2a).’; 

(13) 

Article 120 is amended as follows:  

(a) 

in paragraph 1, the introductory wording is replaced by the following: 

‘1. Without prejudice to other revenues, the revenues of the Agency, excluding those 
for its functions as PRB, shall comprise:’. 

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(b) 

paragraph 3 is replaced by the following: 

‘3.  Revenue  and  expenditure  for  all  activities  not  covered  by  Article  120a(1)  shall  be  in 
balance.’, 

(c) 

paragraph 5 is replaced by the following: 

‘5. The Agency shall, during the financial  year,  adapt  its staff planning and management of 
activities financed from  resources related to fees and  charges for certification activities in  a 
manner that enables it to swiftly respond to work load and fluctuations of those revenues.’; 

(d) 

in paragraph 6, the first subparagraph is replaced by the following: 

‘Each  year,  the  Executive  Director  shall  draw  up  a  draft  statement  of  estimates  of  the 
Agency’s  revenue  and  expenditure  for  the  following  financial  year,  including  a  draft 
establishment  plan,  and  shall,  after  having  integrated  the  draft  estimate  of  the  revenue  and 
expenditure for performance review and the list of posts for performance review referred to in 
Article 120a(7), send it to the Management Board together with explanatory material on the 
budgetary situation. That draft establishment plan shall, in relation to posts financed from fees 
and charges referred to in paragraph 1, be based on a limited set of indicators approved by the 
Commission to measure the Agency’s workload and efficiency, and shall set out the resources 
required to  meet  demands for certification and other activities of the Agency in  an efficient 
and  timely  manner,  including  those  resulting  from  reallocations  of  responsibility  in 
accordance with Articles 64 and 65.’; 

(14) 

the following Article 120a is inserted: 

‘Article 120a 

Budget of the Agency for its functions as PRB 

1. 

2. 

The  Agency  shall  account  the  revenue  and  expenditure  for  performance  review 
separately from other revenue and expenditure. Such revenue and expenditure shall 
be in balance, in accordance with and subject to paragraph 2. 

Surpluses shown in the account referred to in paragraph 1 shall be transferred to the 
reserve  fund  established  in  accordance  with  paragraph  6.  Losses  shown  in  the 
account  referred  to  in  Article  paragraph  1  shall  be  covered  through  transfers  from 
that  reserve  fund.  Where  a  significant  positive  or  negative  budget  result  becomes 
recurrent, the level of fees and charges referred to in paragraph 3 points (a) and (d) 
and Article 126a shall be revised. 

3. 

The revenues of the Agency for its functions as PRB shall comprise: 

(a) 

(b) 

(c) 

(d) 

fees  levied  by  the  Agency  acting  as  PRB  on  designated  air  traffic  service 
providers  for  services  related  to  performance  plan  assessment,  target-setting 
and monitoring;  

annual contributions from designated air traffic service providers, based on  the 
annual  estimated  expenditure  relating  to  the  activities  on  performance  review 
to  be  carried  out  by  the  Agency  acting  as  PRB  as  required  by  [Amended 
SES2+] for each category of designated air traffic service providers; 

any  voluntary  financial  contribution  from  the  Member  States  or  the  national 
supervisory authorities referred to in Article 3 of [Amended SES2+];  

charges for publications and any other service provided by the Agency acting 
as PRB;  

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4. 

5. 

6. 

7. 

(e) 

any  contribution  from  third  countries  or  other  entities,  provided  that  such  a 
contribution  does  not  compromise  the  independence  and  impartiality  of  the 
Agency acting as PRB.  

All  revenue  and  expenditure  of  the  Agency  for  its  functions  as  PRB  shall  be  the 
subject  of  forecasts  for  each  financial  year,  coinciding  with  the  calendar  year,  and 
shall be entered in its budget.  

The revenue received by the Agency for its functions as PRB shall not compromise 
its neutrality, independence or objectivity. 

The  Agency  acting  as  PRB  shall  establish  a  reserve  fund  covering  one  year  of  its 
operational expenditure to ensure the continuity of its operations and the execution of 
its tasks. It shall be reviewed each year to ensure that it is limited to annual needs. 

The Director for Performance Review shall draw up each year a draft estimate of the 
revenue and expenditure for performance review for the following year together with 
the  list  of  posts  for  performance  review  and  shall  submit  them  to  the  Executive 
Director  for  its  integration  in  the  draft  statement  of  estimates  of  the  Agency’s 
revenue and expenditure referred to in Article 120(6).  

The  Executive  Director  or  the  Management  Board  may  make  changes  to  the  draft 
estimate of the revenue and expenditure and the list of posts for performance review 
upon approval of the Director for Performance Review. 

Where the Executive Director and the Director for Performance Review do not come 
to an agreement on the draft estimate of the revenue and expenditure for performance 
review,  the  Director  for  Performance  Review  shall  draft  an  opinion  which  the 
Executive  Director  shall  annex  to  the  draft  statement  of  estimates  of  the  Agency’s 
revenue and expenditure referred to in Article 120(6). The Director for Performance 
Review shall in that case also have the right to present its opinion to the Management 
Board before the Management Board adopts the provisional draft estimate of revenue 
and  expenditure  of  the  Agency  in  accordance  with  the  second  subparagraph  of 
Article 120(6). 

8. 

The annual contributions referred to in paragraph 3, point (b) shall be collected for 
five financial  years. To this effect, they shall be due for the first time by 31 March 
[XXXX  -  year]  –  OP  please  insert  the  first  financial  year  beginning  after  the  entry 
into force of this Regulation)], in respect of that financial year, and on 31 March of 
each of the four subsequent financial years, for those financial years respectively.  

The Commission shall adopt implementing acts setting out detailed rules determining 
how the annual contributions by designated air traffic service providers referred to in 
paragraph 2, point (b) are to be calculated, in accordance with Article 126b. 

Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination 
procedure referred to in Article 127(3).’; 

(15) 

Article 121 is amended as follows: 

(a) paragraph 1 is replaced by the following: 

‘1. The Executive Director shall implement the budget of the Agency. However, in respect of 
the  revenues  and  expenditure  related  to  the  Agency’s  function  as  PRB,  it  shall  be 
implemented by the Director for Performance Review.’; 

(b) paragraph 8 is replaced by the following: 

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25 

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‘8. The Executive Director shall send the Court of Auditors a reply to its observations by 30 
September  following  each  financial  year.  He  or  she  shall  also  send  that  reply  to  the 
Management  Board  and  the  Commission.  Where  activities  on  performance  review  are 
concerned, that reply shall be prepared together with the Director for Performance Review.’; 

(c) paragraph 10 is replaced by the following: 

‘10. The European Parliament, on a recommendation from the Council acting by a qualified 
majority, shall, before 15 May of year n + 2, decide on the discharge to the Executive Director 
in respect of the implementation of the budget for year n and on the discharge to the Director 
for  Performance  Review  in  respect  of  the  implementation  of  the  budget  of  the  Agency  on 
performance review for year n.’; 

(16) 

in Article 124, the following paragraphs 4, 5 and 6 are inserted: 

‘4. Paragraphs 1, 2 and 3 shall not apply to the Agency acting as PRB. In conjunction with the 
evaluation  referred  to  in  Article  43  of  [Amended  SES2+],  the  Commission  shall,  by  the 
deadline  defined  in  that  Regulation,  carry  out  an  evaluation  to  assess  the  Agency’s 
performance  as  PRB  in  relation  to  its  objectives,  tasks  and  powers.  The  evaluation  shall  in 
particular address the possible need to modify the tasks and powers of the Agency acting as 
PRB, and the financial implications of any such modification. 

5.  Where  the  Commission  considers  that  the  continued  existence  of  the  PRB  function  is  no 
longer justified with regard to its assigned objectives, tasks and powers, it may propose that 
this Regulation and [Amended SES2+ ] be amended accordingly. 

6. The Commission shall forward the evaluation findings related to the activity of the Agency 
acting as PRB, together with its conclusions, to the European Parliament, the Council and the 
Management Board. The findings of the evaluation and the recommendations shall be made 
public.’; 

(17) 

in Article 126, the following paragraph 5 is added: 

‘5.  The  provisions  of  this  Article  shall  not  apply  to  the  activities  of  the  Agency  acting  as 
PRB.’; 

(18) 

the following Articles 126a and 126b are inserted: 

‘Article 126a 

Fees and charges of the Agency acting as PRB 

1. 

(a) 

(b) 

Fees of the Agency acting as PRB shall be levied for: 

the  assessment  of  the  allocation  of  costs  between  en  route  and  terminal  air 
navigation services, in accordance with Article 13(6) of [amended SES2+]; 

the assessment, for each initial or revised draft performance plan presented to 
the Agency acting as PRB, carried out in accordance with Article 13(7) to (9) 
of [amended SES2+]; 

(c)  where  the  Agency  acts  as  a  supervisory  authority  in  accordance  with  Article 
3(8)  of  [amended  SES2+],  the  assessment,  for  each  initial  or  revised  draft 
performance  plan  presented  to  the  Agency  acting  as  PRB,  carried  out  in 
accordance with Article 14(6) to (8) of [amended SES2+]; 

(d) 

the  establishment  of  performance  targets  of  designated  air  traffic  service 
providers in accordance with Article 13(9) of [amended SES2+]; 

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26 

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(e)  where  the  Agency  acts  as  a  supervisory  authority  in  accordance  with  Article 
3(8)  of  [amended  SES2+],  the  establishment  of  performance  targets  of 
designated  air  traffic  service  providers  in  accordance  with  Article  14(8)  of 
[amended SES2+]; 

(f) 

(g) 

(h) 

(i) 

the  assessment  of  requests  for  permissions  to  revise  targets  and  performance 
plans of air traffic service providers in accordance with Article 17(3) and (4) of 
[amended SES2+];  

the verification of unit rates in preparation of the setting of those rates by the 
national  supervisory  authorities,  in  accordance  with  Article  21  of  [amended 
SES2+]; 

the issuance of reports, in respect of individual air traffic service providers, on 
the monitoring of performance in accordance with Article 13(11) of [amended 
SES2+]  and,  where  the  Agency  acts  as  a  supervisory  authority  in  accordance 
with  Article  3(8)  of  [amended  SES2+]  in  accordance  with  Article  14(10)  of 
[amended SES2+]; 

the  adoption  of  corrective  measures  in  accordance  with  Article  13(11)  of 
[amended  SES2+],  and,  where  the  Agency  acts  as  a  supervisory  authority  in 
accordance with Article 3(8) of [amended SES2+], in accordance with Article 
14(10) of that Regulation; 

(j) 

the processing of appeals. 

2.   The charges  levied for publications and the provision  of any other service by 
the  Agency  acting  as  PRB  as  referred  to  in  Article  120a(3)  shall  reflect  the 
actual cost of each individual service provided. 

3. 

4. 

The  amount  of  the  fees  and  charges  shall  be  fixed  by  the  Commission  in 
accordance with paragraph 4.  They shall be fixed at such a level as to ensure 
that the revenue in respect thereof covers the full cost of the activities related to 
the services delivered, and to avoid a significant accumulation of surplus. All 
expenditure  regarding  members  of  staff  whose  posts  are  dedicated  to  the 
function  of  the  Agency  acting  as  PRB,  in  particular  the  employer’s  pro-rata 
contribution to the pension scheme, shall be reflected in that cost. The fees and 
charges shall be assigned revenues for the Agency acting as PRB for activities 
related to services for which fees and charges are due. 

The  Commission  shall  adopt  implementing  acts  laying  down  detailed  rules 
relating  to  fees  and  charges  levied  by  the  Agency  for  its  function  as  PRB, 
specifying  in  particular  the  amount  of  the  fees  and  charges  and  the  way  in 
which they are paid. Those implementing acts shall be adopted in accordance 
with the examination procedure referred to in Article 127(3). 

Article 126b 

Implementing  acts  regarding  the  calculation  of  annual  contributions  by  designated 

air traffic service providers 

The implementing acts referred to in Article 120a(8) , shall establish the following:  

(a) 

a methodology to allocate the estimated expenditure to categories of designated 
air  traffic  service  providers,  as  a  basis  for  determining  the  share  of 

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contributions  to  be  made  by  designated  air  traffic  service  providers  of  each 
category; 

(b) 

appropriate and objective criteria to determine the annual contributions payable 
by individual designated air traffic service providers based on their size so as to 
approximately reflect their importance in the market. 

The categories referred to in point (a) of the first paragraph shall be firstly  en route 
air traffic service providers, secondly terminal air traffic service providers subject to 
the oversight of the Agency acting as PRB, and thirdly providers offering both types 
of  services.  The  criteria  to  be  established  in  accordance  with  point  (b)  shall  in 
particular ensure equal treatment of the providers concerned, in respect of each type 
of service. The size of the air traffic service providers shall be calculated based on 
the amount of actual revenues produced by the provision  of air navigation services 
over  the  reference  period  preceding  the  reference  period  during  which  this 
Regulation enters into force.’; 

(19) 

in Article 129, the following paragraph is added: 

‘The provisions of this Article shall not apply to the activities of the Agency acting as PRB.’; 

(20) 

the following Article 129a is inserted: 

‘Article 129a 

Cooperation agreements on performance review 

1. 

2. 

3. 

Insofar  as  the  activities  of  the  Agency  acting  as  PRB  are  concerned,  the 
Agency  shall  be  open  to  the  participation  of  third  countries  which  have 
concluded  agreements  with  the  Union  and  which  have  adopted  and  are 
applying the relevant rules of Union law in the field of air traffic management 
including,  in  particular,  the  rules  on  independent  national  supervisory 
authorities and on performance scheme and charging scheme. 

Subject to the conclusion of an agreement to that effect between the Union and 
third  countries  as  referred  to  in  paragraph  2,  the  Agency  acting  as  PRB  may 
also exercise its tasks under [Amended SES2+] with regard to third countries, 
provided that those third countries have adopted and apply the relevant rules in 
accordance with paragraph 2 and have mandated the Agency acting as PRB to 
coordinate the activities of their national supervisory authorities with those of 
the national supervisory authorities of Member States. 

The agreements referred to in paragraph 2 shall specify the nature, scope and 
procedural  aspects  of  the  involvement  of  those  countries  in  the  work  of  the 
Agency  acting  as  PRB  and  shall  include  provisions  relating  to  financial 
contributions and to staff. Those agreements may provide for the establishment 
of working arrangements.’; 

(21) 

in Annex VIII, the following point 2.3a is inserted: 

‘2.3a. Air traffic data services  

2.3a.1. The air traffic data collected shall be of sufficient quality, complete, current, from 

a legitimate source and provided in a timely manner.  

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2.3a.2. The air traffic data services shall achieve and maintain sufficient performance with 
regard to  their availability, integrity,  continuity and timeliness to  meet  the user’s 
needs.  

2.3a.3 The systems and tools providing air traffic data services shall be properly designed, 
produced and maintained to ensure that they are fit for their intended purpose. 

2.3a.4.  The  dissemination  of  such  data  shall  be  timely  and  use  sufficiently  reliable  and 
expeditious means of communication protected from intentional and unintentional 
interference and corruption.’. 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 2 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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