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

SECTION V ATM/ANS

Article 40 Essential requirements

1. The provision of ATM/ANS referred to in point (g) of Article 2(1) shall comply with the essential requirements set out in Annex VIII and, if applicable, Annex VII.

2. Aircraft operating in the Single European Sky airspace, except those engaged in activities referred to in point (a) of Article 2(3), shall comply with the essential requirements set out in point 1 of Annex VIII.

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.

Article 42 Organisations involved in the design, production or maintenance of ATM/ANS systems and ATM/ANS constituents

1. Taking into account the objectives and principles set out in Articles 1 and 4, and in particular the nature and risk of the activity concerned, organisations involved in the design, production or maintenance of ATM/ANS systems and ATM/ANS constituents, may be required, in accordance with the implementing acts referred to in Article 43, to:

(a) declare their capability, and the availability to them of the means, to discharge the responsibilities associated with the activities performed in compliance with those implementing acts; or

(b) hold a certificate.

2. The certificate referred to in point (b) of paragraph 1 of this Article shall be issued upon application, when the applicant has demonstrated that it complies with the rules established by 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 point (b) of paragraph 1 of this Article shall specify the privileges granted. The certificate may be amended to add or remove privileges, in accordance with the implementing acts referred to in point (d) of the first subparagraph of Article 43(1).

4. The certificate referred to in point (b) of 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 (d) of the first subparagraph of Article 43(1).

Article 43 Implementing acts as regards ATM/ANS providers and organisations involved in the design, production or maintenance of ATM/ANS systems and ATM/ANS constituents

1. In order to ensure the uniform implementation of and compliance with the essential requirements referred to in Article 40, for the provision of ATM/ANS referred to in point (g) of Article 2(1), the Commission shall, on the basis of the principles set out in Article 4 and with a view to achieving the objectives set out in Article 1, adopt implementing acts laying down detailed provisions concerning:

(a) the specific rules and procedures for the provision of ATM/ANS in compliance with the essential requirements referred to in Article 40, including the establishment and implementation of the contingency plan in accordance with point 5.1(f) of Annex VIII;

(b) the rules and procedures for issuing, maintaining, amending, limiting, suspending or revoking the certificates referred to in Article 41(1);

(c) the rules and procedures for the declaration by providers of flight information services referred to in Article 41(5), and for the situations in which such declarations are to be permitted;

(d) the rules and procedures for issuing, maintaining, amending, limiting, suspending or revoking the certificates referred to in point (b) of Article 42(1), and for the situations in which such certificates are to be required;

(e) the rules and procedures for the declaration by organisations referred to in point (a) of Article 42(1), and for the situations in which such declarations are to be required;

(f) the privileges and responsibilities of the holders of certificates referred to in Article 41(1) and point (b) of 42(1) and of organisations making declarations in accordance with Article 41(5) and point (a) of Article 42(1).

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

2. The rules referred to in paragraph 1 shall take due account of the ATM Master Plan.

3. When adopting those implementing acts, the Commission shall ensure compliance with the essential requirements referred to in Article 40 of this Regulation and shall take due account of the international standards and recommended practices, in particular those set out in Annexes 2 to 4, 10, 11 and 15 to the Chicago Convention.

Article 44 Implementing acts as regards the use of airspace and the design of airspace structures

1. In order to ensure the uniform implementation of and compliance with the essential requirements referred to in Article 40, for the provision of ATM/ANS referred to in point (g) of Article 2(1), as well as for the design of airspace structures, the Commission shall, on the basis of the principles set out in Article 4 and with a view to achieving the objectives set out in Article 1, adopt implementing acts laying down detailed provisions concerning:

(a) the operating rules related to the use of airspace, aircraft equipment and ATM/ANS systems and ATM/ANS constituents required for the use of airspace;

(b) the rules and procedures for the design of airspace structures in order to ensure compliance with Article 46.

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

2. The rules referred to in paragraph 1 shall take due account of the ATM Master Plan.

3. When adopting those implementing acts, the Commission shall ensure compliance with the essential requirements referred to in Article 40 of this Regulation and shall take due account of the international standards and recommended practices, in particular those set out in Annexes 2, 3, 10, 11 and 15 to the Chicago Convention.

Article 45 ATM/ANS systems and ATM/ANS constituents

1. Where the delegated acts referred to in Article 47 so provide, the providers of ATM/ANS referred to in Article 41 shall be required to declare that the ATM/ANS systems and ATM/ANS constituents which are to be put into operation by those service providers comply with the detailed specifications established in accordance with the delegated acts referred to in Article 47 adopted to ensure compliance with the essential requirements referred to in Article 40.

2. Where the delegated acts referred to in Article 47 so provide, ATM/ANS systems and ATM/ANS constituents shall be subject to certification and shall be issued with a certificate.

That certificate shall be issued upon application, when the applicant has demonstrated that those systems and constituents comply with the detailed specifications established in accordance with the delegated acts referred to in Article 47 adopted to ensure compliance with the essential requirements referred to in Article 40.

By way of derogation from the first subparagraph, where the delegated acts referred to in Article 47 so provide, the organisation involved in the design, production or maintenance of ATM/ANS systems and ATM/ANS constituents shall be permitted to declare that those systems and constituents comply with the detailed specifications established in accordance with the delegated acts referred to in Article 47 adopted to ensure compliance with the essential requirements referred to in Article 40 and that those systems and constituents are suitable for use.

Article 46 Design of airspace structures

Member States shall ensure that airspace structures are properly designed, surveyed and validated before they can be deployed and used by aircraft, in accordance with the detailed rules adopted by the Commission pursuant to point (b) of Article 44(1).

Article 47 Delegated powers

1. For the ATM/ANS systems and ATM/ANS constituents the Commission is empowered to adopt delegated acts, in accordance with Article 128, laying down detailed rules with regard to:

(a) the conditions for establishing and notifying to an applicant the detailed specifications applicable to ATM/ANS systems and ATM/ANS constituents for the purposes of certification in accordance with Article 45(2);

(b) the conditions for issuing, maintaining, amending, limiting, suspending or revoking the certificates referred to in Article 45(2), and for the situations in which, with a view to achieving the objectives set out in Article 1 and while taking account of the nature and risk of the particular activity concerned, such certificates are to be required or declarations are to be permitted, as applicable;

(c) the privileges and responsibilities of the holders of certificates referred to in Article 45(2);

(d) the privileges and responsibilities of the organisations issuing declarations in accordance with Article 45(1) and (2);

(e) the conditions and procedures for the declaration by ATM/ANS providers, in accordance with Article 45(1), and for the situations in which, with a view to achieving the objectives set out in Article 1 and while taking account of the nature and risk of the particular activity concerned such declarations are to be required;

(f) the conditions for establishing the detailed specifications applicable to ATM/ANS systems and ATM/ANS constituents which are subject to a declaration in accordance with Article 45(1) and (2).

2. As regards the provision of ATM/ANS, the Commission is empowered to adopt delegated acts, in accordance with Article 128, to amend Annex VIII and, if applicable, Annex VII, where necessary for reasons of technical, operational or scientific developments or safety evidence related to the ATM/ANS, in order and to the extent required to achieve the objectives set out in Article 1.