COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Regulation of the European Parliament and the Council on the implementation of the Single European Sky
Date: 2024-09-27
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: Single European Sky, air safety, air space, air traffic control, common transport policy, performance measurement, provision of services

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   EUROPEAN COMMISSION  Brussels, 27.9.2024  COM(2024) 430 final 2013/0186 (COD)  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the position of the Council on the adoption of a Regulation of the European Parliament and the Council on the implementation of the Single European Sky (Text with EEA relevance)  
 
2013/0186 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Regulation of the European Parliament and 
the Council on the implementation of the Single European Sky 

(Text with EEA relevance) 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2013) 0410 final – 2013/0186 COD): 

11 June 2013. 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

11 December 2013 
(original proposal) and 
2 December 2020 
(amended proposal). 

Date of the position of the European Parliament, first reading: 

12 March 2014. 

Date of transmission of the amended proposal: 

22 September 2020. 

Date of adoption of the position of the Council: 

26 September 2024. 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The proposal  aims  to reform the Single European Sky legal  framework in order  to  improve 
the  overall  efficiency  of  the  way  in  which  European  airspace  and  the  provision  of  air 
navigation services is regulated, organised and managed. It also aims to align this Regulation 
with Regulation (EU) 2018/1139 (EASA Regulation), in particular to address overlaps. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

The  position  of  the Council  as  adopted  at  first  reading  fully  reflects  the  political  agreement 
reached  between  the  European  Parliament  and  the  Council  on  5  March  2024.  The 
Commission  accepts  the  overall  agreement.  The  main  points  of  this  agreement  are  the 
following: 

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National  Supervisory  Authorities  (NSA)  must  be  independent  in  particular  in 
decision-making terms from air navigation service providers (ANSPs). If they are not 
legally distinct from such providers but only functionally separated, Member  States 
must  inform  the  Commission  of  the  measures  taken  to  meet  independence 

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requirements.  NSAs  may  be  joined  with  the  national  competent  authority  provided 
that  their  decisions  are  taken  independently.  Member  States  must  ensure  that  staff 
comply  with  certain  independence  requirements.  Those  provisions,  although  less 
ambitious than the Commission’s proposal, nevertheless strengthen the requirements 
compared to the status quo. 

There  is  a  single  certificate  for  ANSPs,  covering  both  the  safety  and  economic 
requirements of certification. National competent authorities are in charge of issuing 
and  overseeing  the  certificate.  NSAs  must  provide  to  the  national  competent 
authority  their  assessment  of  the  fulfilment  of  the  economic  requirements  for  the 
certification of ANSPs. Member States may decide that such assessment is attributed 
to the national competent authority. Subject to the conditions set out by the existing 
EASA Regulation, Member States may allow the provision of air navigation services 
by  military  without  certification  where  military  offers  such  services  primarily  to 
military  traffic.  Those  provisions  therefore  maintain  the  existing  requirements  for 
certification, while at the same time provide for the possibility of a stronger role for 
the NSAs. 

Designated  air  traffic  service  providers  must  comply  with  requirements  of  EASA 
Regulation as regards certification. In addition, they must also comply with national 
security  and defence requirements, and with  requirements regarding  principal place 
of  business  and  ownership  and  control,  which  aligns  with  requirements  for  the 
procurement  of  other  air  navigation  services.  The  designation  of  air  traffic  service 
providers  may  not  be  subject  to  conditions  that  would  entail  a  restriction  of  the 
freedom to provide services or freedom of establishment which is not justified by a 
legitimate objective of general interest and is not proportionate to that objective. This  
reflects  the  Treaty  rules  and  related  case  law.  In  addition,  Member  States  must 
periodically assess the rights and obligations of the air traffic service providers and 
their  compliance  with  obligations,  which,  although  less  ambitious  than  the 
Commission’s  proposal,  nevertheless  strengthens  requirements  on  the  oversight  of 
ANSPs compared to the existing rules. 

ANSPs may avail themselves of the services of other ANSPs. This was not provided 
for  in  the  Commission’s  proposal.  It  is  however  conditioned  to  the  compliance  of 
those  other  ANSPs  with  the  requirements  of  EASA  Regulation.  Furthermore,  the 
cooperation  must  be  done  in  line  with  procurement  requirements  included  in  this 
Regulation, including  with  horizontal Union rules on procurement, where those are 
applicable.  

Member  States  may  designate  a  meteorological  service  provider  on  an  exclusive 
basis.  At  the  same  time,  the  Regulation  foresees  economic  oversight  over  those 
providers as part of the performance scheme in case of designation. 

Designated  air  traffic  service  providers  may  decide  to  procure  support  services 
(communication,  navigation  and  surveillance  services,  aeronautical  information 
services,  air  traffic  data  services  and  meteorological  services)  under  market 
conditions,  or  other  forms  of  agreement  where  horizontal  rules  on  procurement 
(Directives  2014/24/EU  and  2014/25/EU)  do  not  apply.  Horizontal  rules  on 
procurement thus continue to prevail. As regards procurement of terminal air traffic 
services  for  both  aerodrome  and  approach  control,  Member  States  may  allow 
procurement  under  market  conditions.  In  that  case,  the  tender  specifications  must 
include  requirements  on  service  quality,  in  line  with  the  objectives  of  the 
Commission’s  proposal.  Member  States  must  take  appropriate  measures  to  avoid 

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cross-subsidisation  between  procured  services  and  other  services,  which  is  in  line 
with the Commission’s objectives to avoid distortion of competition. A derogation to 
the requirements  for ANSPs  on the place of business  and ownership  and  control is 
provided for certain providers of global satellite services, in order to account for the 
state of service provision in the Union at the time of adoption of the Regulation. In 
line  with  the  objectives  of  the  Commission’s  proposal,  air  traffic  service  providers 
designated  as  a  result  of  a  procurement  procedure  are  not  subject  to  certain 
provisions  of  the  performance  and  charging  schemes,  in  particular  they  are  not 
required to submit a performance plan with performance targets. 

Providers  of  Common  Information  Services  (CIS)  must  comply  with  national 
security  and  defence  requirements,  and  with  requirements  regarding  their  principal 
place of business and ownership and control, which are aligned to the requirements 
applicable to ANSPs. Where CIS are provided by a single provider, the price of those 
services  must  be  based  on  costs  and  may  include  a  mark-up.  Where  CIS  are  not 
provided  by  a  single  provider,  the  individual  CIS  must  be  provided  for  free.  This 
addresses the Commission’s proposal objective of regulating the monopoly service. 

Member  States  may  maintain  the  cooperation  within  the  airspace  of  already 
established Functional Airspace Blocks, provided that it does not affect the efficient 
implementation of the Regulation and that the related costs are reported separately. 

The  Regulation  establishes  an  independent  and  impartial  advisory  Performance 
Review Board (PRB) to assist the Commission in its tasks related to the performance 
and  charging  schemes.  The  Regulation  establishes  also  a  National  Supervisory 
Authorities Cooperation Board (NCB). The Commission must provide the secretariat 
of  the  PRB  and  of  the  NCB.  The  costs  related  to  the  PRB,  the  NCB  and  the 
secretariat are to be financed from the budget of the Union. This is a major departure 
from  the  Commission’s  proposal  which  proposed  a  set  up  for  a  regulatory  PRB 
within  the  European  Union  Aviation  Safety  Agency  and  a  different  role  of  the 
Commission  in  the  implementation/enforcement  of  the  performance  and  charging 
schemes. Nevertheless, it should bring some improvements in the enforcement of the 
performance  scheme  and  provide  for  a  needed  stability  in  the  regulation  of  air 
navigation services.  

As a consequence of such set up for the PRB and NCB, the relevant amendments to 
the EASA Regulation were removed. EASA Regulation is now amended to provide 
for some limited corrections of cross-references to the SES Regulation, alignment of 
definitions  between  the  two  Regulations,  and  to  the  update  of  rules  on  the 
certification of ANSPs.  

As  regards  the  performance  and  charging  schemes,  the  Regulation  maintains  the 
various roles and responsibilities of Member States, NSAs, the Commission and the 
PRB, and the main elements of the existing legal framework, including those in the 
implementing  rules.  The  agreement  brings  some  added-value  to  the  existing 
legislation, and it clarifies the existing legal framework. In particular, the assessment 
process  is  streamlined  compared  to  the  existing  legislation.  Subject  to  the  adoption 
by  the  Commission  of  adequate  indicators,  the  national  performance  plans  would 
also  include  binding  performance  targets  for  terminal  services  in  the  key 
performance  area  of  climate  and  environment.  The  Commission  must  conduct  a 
feasibility  study  on  modulation  of  en  route  air  navigation  charges  to  support 
improvements in  climate and environmental performance by airspace users. On the 

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basis of this study, the Commission will determine whether to adopt an implementing 
act for a uniform application of such modulation.  

The  Regulation  lists  nine  network  functions:  design  and  utilisation  of  airspace 
structures; air traffic flow management; coordination of scarce resources; facilitation 
of  delegation  of  service  provision;  delivery  of  air  traffic  control  capacity; 
management  of  network  crises;  air  traffic  flow  management  delay  attribution; 
management  of  planning,  monitoring  and  coordination  of  implementation  activities 
of the deployment of infrastructure in the European ATM network; monitoring of the 
functioning  of  the  European  ATM  network  infrastructure.  The  list  of  network 
functions  is  exhaustive  and  covers  all  aspects  needed  in  relation  to  the  network 
management. The Regulation clarifies that such network functions are to be executed 
by Member States and all relevant stakeholders with the contribution of the Network 
Manager.  It  lists  the  tasks  of  the  Network  Manager  and  sets  its  main  working 
methods,  including  the  cooperative  decision-making  process.  It  establishes  the 
Network  Management  Board  for  the  governance  of  the  execution  of  the  network 
functions.  Those  provisions  clarify  the  various  roles  and  responsibilities,  and  an 
appropriate  empowerment  is  provided  for  the  Commission  to  adopt  detailed 
implementing rules. 

The  Regulation  includes  requirements  and  conditions  for  sharing  and  making 
available operational data for civil traffic. The Commission is empowered to provide 
further  details  in  implementing  rules.  The  empowerment  covers  the  adoption  of 
general  principles  and  common  rules  for  setting  prices,  and  requirements  for 
identification of prospective market entrants, referred to as entities having a proven 
interest in considering the provision of air navigation services, who also need access 
to such data. 

The  Commission  must  adopt  rules  related  to  the  uniform  implementation  of  the 
ICAO airspace classification. This corresponds to an already existing empowerment 
for the Commission. 

Member  States  may  temporarily  suspend  the  application  of  the  Flexible  Use  of 
Airspace  under  certain  conditions.  The  condition  for  suspension  are  better  defined 
compared to the existing rules. 

the  needs  for 
The  Commission  may  set  up  common  projects  based  on 
synchronisation  amongst  stakeholders  for 
implementing  essential  operational 
changes identified in the European ATM Master Plan, having a network-wide impact 
and  having  reached  sufficient  maturity  for  implementation.  Those  additional 
conditions are in line with the Commission’s proposal objectives. 

As  regards  the  committee  procedure,  where  an  examination  procedure  applies  and 
the committee delivers no opinion, the Commission cannot adopt the implementing 
act. This reflects the current legislation. 

Several  provisions  have  a  delayed  date  of  application.  In  the  meantime,  the 
corresponding  legal  provisions  currently  in  force  continue  to  apply.  Such  delayed 
start remains reasonable in relation to the modifications being introduced. 

4. 

CONCLUSION 

The  Commission  accepts  the  results  of  the  inter-institutional  negotiations  and  can  therefore 
accept the Council's position at first reading. 

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DECLARATIONS FROM THE COMMISSION  

The Commission has made two unilateral declarations, which can be found in the appendix. 

APPENDIX 

Declarations from the Commission  

I  -  Unilateral  statement  regarding  the  institutional  autonomy  of  the  Commission  in 
relation to the Secretariat supporting the Performance Review Board  

‘The  Commission  will  provide  the  Secretariat  of  the  PRB,  taking  into  account  the  needs 
indicated by the PRB so that the PRB can effectively perform its functions as laid down by 
the Regulation.   The Commission  will  ensure that  the Secretariat has  sufficient resources to 
carry  out  these  tasks.    The  Commission  fully  recognises  the  need  for  the  PRB  to  work 
independently. The requirement that the Secretariat  provides its support to the PRB without 
taking  any  directives  except  from  the  PRB  to  enable  it  to  fulfil  its  role  for  the  purposes  of 
preparing the content and orientation of the opinions, recommendation, reports, and guidance 
material  of the PRB, must  be understood as  a corollary of this  framework of independence.  
The set-up of the Secretariat cannot therefore encroach upon the principles of organisational 
autonomy and of independence of the Commission.’ 

II - Unilateral statement on the financing of human resources for the Single European 
Sky and location of the Secretariat for Performance Review 

‘The  Commission  recalls  that  the  final  agreement  reached  by  the  co-legislators  on  the 
Amended  proposal  for  a  Regulation  on  the  implementation  of  the  Single  European  Sky  has 
significantly  modified  the  attribution  of  tasks  of  the  Performance  Review  Body  and  of  the 
Commission,  as  well  as  the  governance  for  the  Performance  Review  Body.  The 
Commission’s tasks are more extensive compared to the Commission’s initial proposal as the 
Commission (and not the PRB set out in an Agency) would be in charge of all decisions and 
would  rely  on  the  advice  of  the  Performance  Review  Board.  Furthermore,  the  Commission 
would  have  to  provide  a  Secretariat  to  the  Performance  Review  Board  and  to  the  NSA 
Cooperation Board. As a consequence, the Commission requires a significant amount of staff 
and resources. 

The human resources required by the final agreement endorsed by the co-legislators will not 
allow  the  Commission  to  respect  the  principle  of  stable  staffing  and  will  require  additional 
resources,  to  be  authorised  by  the  European  Parliament  and  the  Council  during  the  annual 
budgetary procedure along with the related budgetary appropriations.  

Without  any  additional  means,  the  options  to  finance  the  necessary  administrative  costs  for 
staff of the Secretariat for Performance Review cannot be found. Heading 7 European Public 
Administration of the multiannual financial framework 2021-2027 was built on the principle 
of stable staffing, and there is no margin to finance additional officials and external staff. The 
Commission will internally redeploy the officials required for this initiative. However, for the 
additional staff needed, the new budget line would have to be created under the Connecting 
Europe Facility to finance them beyond the limit of the principle of stable staffing.   

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The  Commission  will  seek  to  establish  agreements  with  Eurocontrol  and  EASA  for  a 
programme  of  regular  secondments  of  staff  to  the  Secretariat.  Finally,  the  Commission  will 
seek  to  establish  appropriate  arrangements  with  Eurocontrol  for  the  provision  of  relevant 
information.’ 

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