Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 228th session of the Council of the International Civil Aviation Organization (ICAO) as regards the envisaged adoption of Amendment 93 to Annex 10 - Aeronautical Telecommunications, Volume I - Radio Navigation Aids of the Convention on International Civil Aviation
Date: 2023-02-10
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Civil Aviation Organisation, air safety, air traffic, air traffic control, civil aviation, international convention, international standard, revision of an agreement, satellite navigation, technical specification

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   EUROPEAN COMMISSION  Brussels, 10.2.2023  COM(2023) 70 final 2023/0032 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 228th session of the Council of the International Civil Aviation Organization (ICAO) as regards the envisaged adoption of Amendment 93 to Annex 10 - Aeronautical Telecommunications, Volume I - Radio Navigation Aids of the Convention on International Civil Aviation  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns: 

(i) the position to be taken on the Union’s behalf in the 228th  session of the Council of the 
International Civil Aviation Organization (ICAO) for the envisaged adoption of Amendment 
93 to Annex 10 — Aeronautical Telecommunications, Volume I  — Radio Navigation Aids, 
and 

(ii) the position to be taken on the Union’s behalf after the ICAO announces the adoption of 
the  Amendment  93  to  Annex  10  —  Aeronautical  Telecommunications,  Volume  I  —  Radio 
Navigation Aids of the Convention on International Civil Aviation in respective State Letters, 
inviting  its  contracting  States  to  either  notify  their  disapproval,  to  notify  any  differences  or 
compliance with the adopted measures. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on International Civil Aviation 

The Convention on International Civil Aviation (‘the Chicago Convention’) aims to regulate 
international  air  transport.  The  Chicago  Convention  entered  into  force  on  4  April  1947  and 
established the International Civil Aviation Organization. 

All EU Member States are Parties to the Chicago Convention. 

2.2. 

The International Civil Aviation Organization 

The International Civil Aviation Organization is a specialized agency of the United Nations. 
The aims and objectives of the Organization are to develop the principles and techniques of 
international  air  navigation  and  to  foster  the  planning  and  development  of  international  air 
transport.  

The ICAO Council is a permanent body of ICAO with a membership of 36 contracting States 
elected by the ICAO Assembly for a period of three years. For the period of 2022-2025, there 
are six EU Member States represented in the ICAO Council. 

Mandatory  functions  of  the  ICAO  Council,  listed  in  Article  54  of  the  Chicago  Convention, 
include  the  adoption  of  international  standards  and  recommended  practices  (SARPs), 
designated as Annexes to the Chicago Convention. 

Pursuant to Article 90 of the Chicago Convention, any such Annex or any amendment of an 
Annex  shall  become  effective  within  three  months  after  its  submission  to  the  ICAO 
contracting  States,  or  at  the  end  of  such  longer  period  of  time  as  the  ICAO  Council  may 
prescribe,  unless  in  the  meantime  a  majority  of  contracting  ICAO  States  register  their 
disapproval. 

Following  the  adoption  of  such  measures,  ICAO  States  are  required  to  comply  with  those 
measures or to notify either their disapproval or any differences with these measures before 
they enter into force and become legally binding. 

Pursuant to Article 38 of the Chicago Convention, any State which finds it impracticable to 
comply in all respects with any such international standard or procedure, or to bring its own 
regulations  or  practices  into  full  accord  with  respect  to  any  such  international  standard  or 
procedures  or  which  deems  it  necessary  to  adopt  regulations  or  practices  differing  in  any 
particular  respect  from  those  established  by  an  international  standard,  shall  give  immediate 

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notification to the ICAO of the differences between its own practice and that established by 
the international standard. 

The envisaged act of ICAO and their relationship with the existing Union rules 

2.3. 
During its 228th or any consequent session, the ICAO Council is expected to adopt: 

- 

Amendment 93 to Annex 10, Volume I relating to the 

a)  support  of  the  introduction  of  dual-frequency,  multi-constellation  (DFMC)  global 
navigation satellite system (GNSS) by adding provisions for additional frequencies of 
operation  for  the  global  positioning  system  (GPS),  the  global  navigation  satellite 
system  (GLONASS)  and  the  satellite-based  augmentation  system  (SBAS),  and  by 
introducing  provisions  for  the  new  BeiDou  Navigation  Satellite  System  (BDS)  and 
Galileo system; 

and 

b)  support  of  ionospheric  gradient  mitigation  for  the  ground-based  augmentation 
system  (GBAS),  arising  from  the  sixth  meeting  of  the  Navigation  Systems  Panel 
(NSP/6). 

The purposes of the envisaged acts are as follows: 

– 

Amendment 93 to Annex 10, Volume I concerning support of the introduction of 
dual-frequency,  multi-constellation  (DFMC)  global  navigation  satellite  system 
(GNSS) by adding provisions for additional frequencies of operation for the global 
positioning  system  (GPS),  the  global  navigation  satellite  system  (GLONASS)  and 
the satellite-based augmentation system (SBAS), and by introducing provisions for 
the new BeiDou Navigation Satellite System (BDS) and Galileo system 

The amendment concerning DFMC GNSS is intended to reflect the ongoing evolution of 
the global GNSS infrastructure and facilitate its fruition by international civil aviation. As 
part  of  the  evolution,  multiple  GNSS  constellations  offering  dual-frequency  signals  are 
being  introduced  into  service  by  the  United  States  (GPS  modernization),  the  Russian 
Federation  (GLONASS  modernization),  European  Union  (Galileo  constellation)  and 
China (BeiDou Navigation Satellite System (BDS) constellation). A number of States and 
regions also plan to deploy DFMC satellite-based augmentation systems (SBASs). DFMC 
GNSS offers an opportunity to further enhance GNSS robustness, navigation performance 
and operational benefits. The use of dual frequencies will help mitigate vulnerabilities in 
respect  of  ionospheric  disturbance  and  radio  frequency  interference.  The  availability  of 
multiple constellations will contribute to mitigating ionospheric scintillation and the risk 
technical 
insufficient  satellites  within  a  single  constellation.  These 
of  having 
improvements will enable operational  benefits  in  terms  of safety and efficiency, such as 
improved  operational  reliability  for  communications,  navigation  and  surveillance  (CNS) 
applications,  increased  deployment  of  3D  instrument  approach  operations  worldwide  in 
line  with  Performance  Based  Navigation  (PBN)  global  goals,  introduction  of  innovative 
operational  concepts  and  applications  and  continued  rationalization  of  conventional 
navigation aids. 

– 

Amendment 93 to Annex 10, Volume I concerning support of ionospheric gradient 
mitigation for the ground-based augmentation system (GBAS) 

This  amendment  is  intended  to  allow  airports  to  optimize  their  GBAS  service  volume 
coverage on the basis that the availability of the GBAS service remains acceptable. This is 
particularly  needed  in  case  of  a  large  airport  or  of  a  single  GBAS  ground  station 

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supporting  multiple  runways  because  current  SARPS  implicitly  limit  the  maximum 
distance allowed between the ground station and the runway threshold(s). 

The amendment is envisaged to become applicable on 02 November 2023.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3.1. 

Proposed Amendments and their relationship with the existing Union rules 

Amendment  93  to  Annex  10,  Volume  I  concerning  support  of  the  introduction  of  dual-
frequency,  multi-constellation  (DFMC)  global  navigation  satellite  system  (GNSS)  by 
adding provisions for additional frequencies of operation for the global positioning system 
(GPS),  the  global  navigation  satellite  system  (GLONASS)  and  the  satellite-based 
augmentation  system  (SBAS),  and  by  introducing  provisions  for  the  new  BeiDou 
Navigation Satellite System (BDS) and Galileo system 

This amendment to  ICAO Annex 10 Volume I,  has an effect on Commission  Implementing 
Regulation (EU) 2017/373 of 1 March 2017 laying down common requirements for providers 
of  air  traffic  management/air  navigation  services  and  other  air  traffic  management  network 
functions  and  their  oversight.  In  point  CNS.TR.100(a)  of  Annex  VIII  (Part-CNS)  of 
Regulation (EU) 2017/373 the reference shall be amended to the latest amendment of Volume 
I. 

Amendment  93  to  Annex  10,  Volume  I  concerning  support  of  ionospheric  gradient 
mitigation for the ground-based augmentation system (GBAS) 

This  amendment  to  ICAO  Annex  10  Volume  I,  also  has  an  effect  on  Commission 
Implementing  Regulation  (EU)  2017/373  of  1  March  2017  laying  down  common 
requirements  for  providers  of  air  traffic  management/air  navigation  services  and  other  air 
traffic management network functions and their oversight. In point CNS.TR.100(a) of Annex 
VIII  (Part-CNS)  of  Regulation  (EU)  2017/373  the  reference  shall  be  amended  to  the  latest 
amendment of Volume I. 

3.2. 

Position to be taken on Union’s behalf 

The  Union  acknowledges  the  need  to  establish  a  harmonised  regulatory  framework  at 
international level. 

Furthermore, the adoption of such standards will enable the aeronautical use of the EU GNSS 
flagship  programmes  such  as  Galileo,  and  the  ongoing  modernization  of  the  European 
Geostationary Navigation Overlay Service (EGNOS) to support applications in all phases of 
flight, such as performance-based navigation, as foreseen in the ATM Master Plan. This will 
also increase the robustness of GNSS against interferences in line with resolutions from ICAO 
41st Assembly.  

The  representatives  of  EU  Member  States,  the  European  Commission,  and  the  European 
Union  Aviation  Safety  Agency  (EASA)  to  the  Navigation  Systems  Panel,  supported  by  the 
experts  of  EUROCONTROL  contributed  to  the  development  of  the  proposal  related  to  the 
amendment 93 to Annex 10, Volume I.  

The proposed position to be taken on behalf of the Union is then to support this amendment. 

Hence,  the  position  to  be  taken  on  the  Union’s  behalf,  provided  the  ICAO  Council  adopts 
without any substantial  change the proposed Amendments  to  the Chicago Convention,  shall 
be  not  to  notify  disapproval  and  to  comply  with  the  adopted  measures  in  reply  to  the 
respective ICAO State Letter. Where Union legislation would deviate from the newly adopted 
ICAO  Standards  after  an  envisaged  date  of  application  of  those  Standards  (02  November 

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2023),  the  Union  position  on  the  differences  with  those  particular  Standards  should  be 
notified to ICAO by Member States, on the basis of preparatory document submitted in due 
time  by 
to the Council  for  discussion  and  approval,  and  setting 
out the detailed differences for the time necessary to complete the implementation. 

the  Commission 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

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

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement1. 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’2. 

4.1.2.  Application to the present case 

The ICAO Council is a body set up by an agreement, namely the Convention on International 
Civil Aviation (‘Chicago Convention’). 

In  accordance  with  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  adopts 
international  Standards  and  Recommended  Practices,  designated  as  Annexes  to  the  Chicago 
Convention. These are acts having legal effects. Indeed, once adopted and effective, Standards 
and Recommended Practices adopted by ICAO are binding on all ICAO Contracting States. 
Certain  legal  effects  of these acts  could  depend  on the notifications regarding  a disapproval 
and regarding differences, and on the terms of those notifications.  

Further, to the extent possible, these Standards and Recommended Practices  are  reflected in 
Union law and therefore are capable of decisively influencing the content of Union legislation 
in the area of civil aviation, namely Commission Implementing Regulation (EU) 2017/373.  

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

Therefore,  the  procedural  legal  basis  for  the  proposed  Decision  position  in  respect  of  such 
notifications is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

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

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

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

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

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incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the adopted act relate to the common transport policy. 

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

4.3. 

Conclusion 

The legal basis of the proposed Council Decision is Article 100(2) TFEU, in conjunction with 
Article 218(9) TFEU. 

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2023/0032 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the 228th session of the 
Council of the International Civil Aviation Organization (ICAO) as regards the 
envisaged adoption of Amendment 93 to Annex 10 - Aeronautical Telecommunications, 
Volume I - Radio Navigation Aids of the Convention on International Civil Aviation 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The  Convention  on  International  Civil  Aviation  (‘the  Chicago  Convention’)  which 
regulates international air transport, entered into force on 4 April 1947. It established 
the International Civil Aviation Organization (ICAO). 

The Member States are Contracting States to the Chicago Convention and members of 
the ICAO, while the Union has observer status in certain ICAO bodies. There are six 
Member States represented in the ICAO Council. 

Pursuant  to  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  may  adopt 
international Standards and Recommended Practices (‘SARPs’), and designate them as 
Annexes to the Chicago Convention. 
The  ICAO  Council,  at  its  228th  session,  is  to  adopt  Amendment  93  to  Annex  10, 
Volume I to the Convention on International Civil Aviation. 

The  main  purpose  of    the  Amendment  93  to  Annex  10,  Volume  I  to  the  Chicago 
Convention  is  to  support  the  introduction  of  dual-frequency,  multi-constellation 
(DFMC)  global  navigation  satellite  system  (GNSS)  by  adding  provisions  for 
additional frequencies of operation for the global positioning system (GPS), the global 
navigation  satellite  system  (GLONASS)  and  the  satellite-based  augmentation  system 
(SBAS),  and  by  introducing  provisions  for  the  new  BeiDou  Navigation  Satellite 
System (BDS) and Galileo system. It is also to support ionospheric gradient mitigation 
for the ground-based augmentation system (GBAS). 

It is appropriate to establish the position to be taken on the Union's behalf within the 
ICAO  Council  as  Amendment  93  to  Annex  10,  Volume  I  to  the  Convention  on 
International Civil Aviation will be binding under international law and is capable of 
decisively  influencing  the  content  of  Union  law,  namely  Commission  Implementing 
Regulation (EU) 2017/373(3). 

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Commission Implementing Regulation (EU) 2017/373 of 1 March 2017 laying down common requirements for 
providers of air traffic management/air navigation services and other air traffic management network functions 
and  their  oversight,  repealing  Regulation  (EC)  No  482/2008,  Implementing  Regulations  (EU)  No  1034/2011, 
(EU) No 1035/2011 and (EU) 2016/1377 and amending Regulation (EU) No 677/2011 (OJ L 62, 8.3.2017, p. 1) 

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(7) 

(8) 

(9) 

The Union's position during the 228th session of the ICAO Council or any consequent 
session  with  regard  to  the  adoption  of  the  envisaged  Amendment  93  to  Annex  10, 
Volume I to the Chicago Convention as outlined in the State Letter 2021/41 should be 
to  support  and comply  with  these amendments  in  their entirety. This  position should 
be  expressed  by  the  Member  States  of  the  Union  that  are  members  of  the  ICAO 
Council, acting jointly in the interest of the Union. 

Once  adopted  and  effective,  Amendment  93  to  Annex  10,  Volume  I  to  the  Chicago 
Convention will be binding on all ICAO Member States, including all Member States 
of the Union. 

Pursuant  to  Article  38  of  the  Chicago  Convention,  any  State  which  finds  it 
impracticable  to  comply  in  all  respects  with  any  such  international  standard  or 
procedure, or to bring its own regulations or practices into full accord with any such 
international standard or procedures or which deems it necessary to adopt regulations 
or  practices  differing  in  any  particular  respect  from  those  established  by  an 
international  standard,  should  give  immediate  notification  to  the  ICAO  of  the 
differences between its own practice and that established by the international standard. 

(10)  Pursuant to Article 90 of the Chicago Convention, any such Annex or any amendment 
of  an  Annex  shall  become  effective  within  three  months  after  its  submission  to  the 
ICAO  contracting  States,  or  at  the  end  of  such  longer  period  of  time  as  the  ICAO 
Council may prescribe, unless in the meantime a majority of contracting ICAO States 
register their disapproval. 

(11)  The Union’s position after the adoption of Amendment 93 to Annex 10, Volume I to 
the  Chicago  Convention  by  the  ICAO  Council,  to  be  announced  by  the  ICAO 
Secretary  General  via  an  ICAO  State  Letter  procedure,  should  be  not  to  register 
disapproval  and  to  comply  with  the  amendments.  Where  Union  legislation  would 
deviate from the newly adopted SARPs after an envisaged date of application of those 
SARPs,  a  difference  with  those  particular  SARPs  should  be  notified  to  ICAO.  The 
Union position with respect of such difference should be based on a written document 
submitted by the Commission to the Council for discussion and approval.  

(12)  This  position  should  be  expressed  by  all  the  Member  States  of  the  Union,  acting 

jointly in the interest of the Union 

HAS ADOPTED THIS DECISION: 

(1) 

(2) 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the  228th  session  of  the  ICAO 
Council,  or  in  one  of  the  consequent  sessions,  shall  be  to  support  the  proposed 
Amendment 93 to Annex 10, Volume I to the Chicago Convention in their entirety. 

The position to be taken on the Union’s behalf, provided the ICAO Council adopts 
without any substantial change the proposed Amendment 93 to Annex 10, Volume I 
to  the  Chicago  Convention  referred  to  in  paragraph  1,  shall  be  not  to  register 
disapproval and to comply with the adopted measure in reply to the respective ICAO 
State Letter. Where Union legislation would deviate from the newly adopted SARPs 
after  the  envisaged  date  of  application  of  those  SARPs,  a  difference  with  those 
accordance  with 
particular  SARPs 
Article 38 of the Chicago Convention. 

shall  be  notified 

ICAO, 

to 

in 

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In such a case, the Commission shall, in due time and at least two months before any deadline 
set by the ICAO for the notification of differences, submit to the Council, for discussion and 
approval, a preparatory document setting out the Union position on the detailed differences to 
be notified to the ICAO on the Union’s behalf by the Member States. 

Article 2 

The position referred to in Article 1(1) shall be expressed by the Member States of the Union 
that are members of the ICAO Council, acting jointly in the interest of the Union. 

The  position  referred  to  in  Article  1(2)  shall  be  expressed  by  all  the  Member  States  of  the 
Union, acting jointly in the interest of the Union. 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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