Regulation (EU) 2018/1139 of the European Parliament and of the CouncilShow full title

Article 41 ATM/ANS providers

1. Providers of ATM/ANS shall be required to hold a certificate.

2. The certificate referred to in paragraph 1 of this Article shall be issued upon application, when the applicant has demonstrated that it complies with the implementing acts referred to in Article 43 adopted to ensure compliance with the essential requirements referred to in Article 40.

3. The certificate referred to in paragraph 1 of this Article shall specify the privileges granted. That certificate may be amended to add or remove privileges, in accordance with the implementing acts referred to in point (b) of the first subparagraph of Article 43(1).

4. The certificate referred to in paragraph 1 of this Article may be limited, suspended or revoked when the holder no longer complies with the rules and procedures for issuing and maintaining such certificate, in accordance with the implementing acts referred to in point (b) of the first subparagraph of Article 43(1).

5. By way of derogation from paragraph 1 of this Article, in accordance with the implementing acts referred to in Article 43, Member States may decide that providers of flight information services are to be allowed to declare their capability, and the availability to them of the means, to discharge the responsibilities associated with the services provided in compliance with the essential requirements referred to in Article 40. In that case, the Member State concerned shall inform the Commission, the Agency and the other Member States of its decision.

6. By way of derogation from paragraph 1, Member States may grant exemptions to providers of ATM/ANS from the requirement to hold a certificate, where all of the following conditions have been met:

(a) the provider has its principal place of business located outside the territories for which Member States are responsible under the Chicago Convention;

(b) the provision of ATM/ANS by that provider concerns air traffic of small volume in a limited part of the airspace for which the Member State granting the exemption is responsible and where that part of the airspace borders with an airspace under the responsibility of a third country;

(c) requiring the provider to demonstrate compliance with the rules referred to in paragraph 1 would involve a disproportionate effort from that provider in light of the nature and risk of the particular activity that it carries out within that airspace;

(d) the Member State concerned has set rules and procedures applicable to the provision of ATM/ANS by the provider which ensure, in accordance with international standards and recommended practices and taking account of the specific circumstances of the case in question, an acceptable level of safety and compliance with the essential requirements referred to in Article 40, and has established appropriate and effective means and arrangements for oversight and enforcement to ensure compliance with those rules and procedures;

(e) the scope of the exemption is clearly defined and the exemption remains limited to what is strictly necessary; where its duration exceeds five years, the exemption is subject to regular review at suitable intervals; and the exemption is applied in a non-discriminatory manner.

Where a Member State intends to grant such an exemption, it shall notify the Commission and the Agency of its intention, setting out all relevant information.

After consulting the Agency, the Commission shall adopt implementing acts containing its decision whether the conditions set out in the first subparagraph of this paragraph have been met. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 127(2). Those implementing acts shall be published in the Official Journal of the European Union and included by the Agency in the repository referred to in Article 74.

The Member State concerned shall only grant the exemption if the implementing acts referred to in third subparagraph contain a positive decision. It shall withdraw the exemption where it becomes aware, in particular through the regular review referred to in point (e) of the first subparagraph, that the conditions set out in the first subparagraph are no longer fulfilled. It shall inform the Commission and the Agency without delay of the granting of any exemption and, where applicable, the outcome of those reviews and any withdrawals.