Commission Implementing Regulation (EU) 2019/317Show full title

Commission Implementing Regulation (EU) 2019/317

of 11 February 2019

laying down a performance and charging scheme in the single European sky and repealing Implementing Regulations (EU) No 390/2013 and (EU) No 391/2013

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation)(1) and in particular Article 11(6) thereof,

Having regard to Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky(2), and in particular Article 15(4) thereof,

Whereas:

(1) The performance scheme referred to in Article 11 of Regulation (EC) No 549/2004 should improve the performance of air navigation services and network functions in the single European sky.

(2) The charging scheme for air navigation services referred to in Article 15 of Regulation (EC) No 550/2004 is instrumental to the successful implementation of the performance scheme and should therefore complement it. The charging scheme should contribute to greater transparency in the determination, imposition and enforcement of charges to airspace users and should contribute to the cost efficiency of providing air navigation services and to efficiency of flights, while maintaining an optimum safety level. The charging scheme should be consistent with the Eurocontrol's charging system for en route charges and with Article 15 of the 1944 Chicago Convention on International Civil Aviation (the ‘Chicago Convention’).

(3) In the interest of clarity, and in order to provide for an adapted regulatory framework for the third reference period of the performance scheme, it is necessary to revise the implementing rules governing the performance and charging schemes contained in Commission Implementing Regulation (EU) No 390/2013(3) and Commission Implementing Regulation (EU) No 391/2013(4) and to consolidate these provisions in a single Implementing Regulation.

(4) In accordance with Article 11(1) of Regulation (EC) No 549/2004, the performance scheme should cover air navigations services and network functions referred to in Article 6 of Regulation (EC) No 551/2004 of the European Parliament and of the Council(5). Therefore, this Regulation should apply to the Network Manager appointed in accordance with Article 4(3) of Commission Implementing Regulation (EU) 2019/123(6).

(5) The performance and charging schemes should enhance the performance of air navigation services through a gate-to-gate approach covering both en route and terminal air navigation services. They should foster long-term improvements in the performance of air navigation services, as reflected in the European ATM Master Plan(7) while having due regard to the overriding safety objectives. The performance scheme should contribute to the reduction of greenhouse gas emissions from aviation and should allow optimum use of airspace, taking into account air traffic flows in the European airspace.

(6) A Performance Review Body upon Commission's request may give independent advice to the Commission in all areas that affect the performance of air navigation services and network functions in the Union.

(7) National supervisory authorities should be able to obtain from all relevant parties, including air navigation service providers under their supervision, relevant data necessary for the purpose of ensuring the proper implementation and oversight of this Regulation at a local level. Air navigation service providers should facilitate inspections and surveys carried out by the national supervisory authorities for the purpose of monitoring the implementation of the performance and charging schemes.

(8) The Network Manager should provide relevant inputs to target setting at Union, national and functional airspace block levels, and should support the achievement of performance targets through measures and processes provided in the Network Operations Plan.

(9) In implementing the performance scheme, the Commission and Member States should coordinate with the European Union Aviation Safety Agency in order to ensure that safety aspects are properly addressed, in line with the safety objectives and requirements stemming from Regulation (EU) 2018/1139 of the European Parliament and of the Council(8).

(10) The duration of a reference period for the performance scheme should be such as to provide the certainty required to implement multi-annual capital expenditure programmes in order to achieve the expected return on investments in the form of performance improvements, while still allowing accuracy of forecasting.

(11) Key performance indicators should be defined in the key performance areas of safety, environment, capacity and cost-efficiency. These key performance indicators should be used for the purpose of setting achievable, sustainable, realistic and time-bound performance targets at Union level, national level or functional airspace block level. The key performance indicators should cover both en route and terminal air navigation services, as well as network functions, in order to improve the overall performance of the network.

(12) Union-wide performance targets should be set by the Commission, taking account of the level of performance achieved in the previous reference period or periods and of relevant inputs provided by the Performance Review Body, the Network Manager and the national supervisory authorities. The inputs from national supervisory authorities should include in particular initial cost and information about traffic forecasts for the reference period concerned. The Commission should substantiate Union-wide performance targets with a description of underlying assumptions and rationales. Drafting of the Union-wide performance targets should be subject to stakeholder consultation.

(13) Member States should be able to decide on whether their respective performance plans are established at national level or at the level of functional airspace blocks, taking account of local circumstances.

(14) National supervisory authorities should be responsible for the development of national or functional airspace block performance plans, including binding performance targets, based on key performance indicators applied at national level or at the level of functional airspace block. The national or functional airspace block performance plans should include initiatives to support cross-border cooperation between air navigation service providers, irrespective of their geographical scope.

(15) Performance plans should provide full transparency on the determined costs of new and existing investments in respect of the purchase, development or leasing of fixed assets. Major investments should be detailed and justified, as well as consistent with SESAR deployment and with expected performance gains.

(16) Consultations should take place at national or functional airspace block level in order to ensure that the views of stakeholders are taken into account in the establishment of performance plans and targets contained therein.

(17) Given the strong links between the different key performance areas, the interdependencies between performance targets should be duly taken into account for the purposes of target setting, having regard to the overriding safety objectives.

(18) Performance targets should be subject to incentives with a view to encouraging better performance, including the application of a traffic risk sharing mechanism in respect of the key performance area of cost-efficiency. Incentive schemes should be effective and should set parameters in a non-discriminatory and transparent manner for the purpose of rewarding or penalising actual performance in relation to the adopted performance targets. The safety key performance area should not be subject to any incentives due to its overriding nature. Member States should ensure that the implementation of incentive schemes does not adversely impact planned and ongoing investments aimed at delivering the adequate capacity and flight efficiency to users.

(19) Member States should adopt draft performance plans and submit them to the Commission for the Commission's assessment and review. In this respect, the Commission should first verify whether the performance plans are complete. If the plans are complete, the Commission should assess whether the proposed performance targets contained in the performance plans are consistent with the Union-wide performance targets. If the required consistency cannot be established, the Commission should request Member States to revise their performance plans and targets, or to take corrective measures.

(20) Member States should adopt and publish the final versions of their respective performance plans only after the Commission has found that the national performance targets or performance targets set at the level of functional airspace blocks (‘FAB performance targets’) contained therein are consistent with the Union-wide targets.

(21) The targets set in the draft performance plans should apply during the procedures for the assessment from the start of the reference period and, where appropriate, during the revision of performance targets set at national or functional airspace block level. Upon the adoption of the final performance plans, the performance targets in the key performance area of cost-efficiency should apply retroactively through an adjustment of unit rates in order to ensure that airspace users benefit from performance improvements from the start of the reference period.

(22) Member States should request permission from the Commission if they want to revise one or several performance targets during a reference period. Such a request can be made where alert thresholds are reached, or where the Member State demonstrates that the initial data, assumptions and rationales, including on investments, underpinning the performance targets are to a significant and lasting extent no longer accurate due to circumstances that were unforeseeable at the time of the adoption of the performance plan. The Commission should authorise the Member State concerned to proceed with the intended revision only if it is necessary and proportionate in light of the aforementioned circumstances, and where the revised performance targets ensure that consistency with the Union-wide performance targets is maintained.

(23) The introduction of new technologies and business models to stimulate integrated service provision should lead to significant cost reductions to the benefit of users over time but can lead to initial restructuring costs. If a Member State demonstrates that restructuring measures bring a net benefit to users, it should also be able to request a revision of local cost-efficiency targets in order to recover the associated restructuring costs through a revision of the determined costs contained in their performance plans, subject to the Commission's authorisation.

(24) The Commission should review the Union-wide performance targets during the reference period to determine whether they remain adequate. The Commission should consider a revision of Union-wide performance targets where it is demonstrated during a reference period that these targets are no longer adequate in light of changed circumstances, and that the revision of targets is necessary and proportionate. A revision of Union-wide targets during a reference period should trigger the start of a new reference period, including the establishment of associated performance plans and performance targets set at national or functional airspace block level.

(25) Network functions should also be subject to performance targets and should contribute to the achievement of the Union-wide performance targets. For this purpose the Network Manager should prepare the Network Performance Plan which should be verified and adopted by the Commission.

(26) An effective operational partnership and cooperative decision making between the principal stakeholders, such as air navigation service providers, functional airspace blocks, airports, civil and military airspace users and the Network Manager is of key importance for the achievement of performance targets of network functions.

(27) The determined costs of air navigation services should be financed by charges imposed on airspace users. These charges should be levied in charging zones established for en route and terminal air navigation services. Member States should ensure that the geographical scope of these charging zones is clearly defined and that the charging zones are consistent with the provision of air navigation services. It may be necessary to modify a terminal charging zone during a reference period due to changes in the operation of airports.

(28) A cost base for charges, which comprises the determined costs of eligible air navigation services and facilities, should be established for each charging zone. Member States should also be allowed to include in these cost bases the determined costs incurred by their national supervisory authorities as well as other State costs related to the provision of air navigation services.

(29) The determined costs for en route and terminal charges should be established prior to the start of each reference period, as part of the performance plans. These determined costs shall be specified for each calendar year of the reference period concerned. National supervisory authorities should verify that the established determined costs only comprise cost items that are eligible under the performance and charging scheme.

(30) The determined costs included in a cost base for en route or terminal air navigation services should include staff costs, operating costs other than staff costs, depreciation costs, cost of capital, and exceptional costs. Actual costs incurred should be annually reported in accordance with the same categorisation in order to ensure consistency and transparency.

(31) National supervisory authorities should, before the start of each reference period, define the criteria used to allocate costs between en route and terminal services and inform the Commission accordingly. Those criteria should ensure the transparent setting of determined costs and guarantee that there are no cross-subsidies between en route and terminal services.

(32) Member States should annually calculate the unit rates for their en route and terminal charging zones. In calculating the unit rate, Member States should ensure that services or facilities funded through public funds including Union assistance programmes such as the Trans-European transport network, the Connecting Europe Facility and the Cohesion Fund, are not charged to airspace users. In calculating the unit rates, Member States should be allowed to adjust their determined costs for inflation.

(33) The performance and charging scheme should provide for a traffic risk sharing mechanism to incentivise the provision of services. National supervisory authorities should be allowed to adjust the values of the traffic risk sharing parameters as defined in this Regulation in order to take account of local circumstances and to better incentivise the provision of air navigation services. That adjustment should be done after consultation of air navigation service providers and airspace users. However, those adjustments should not reduce the risk exposure of the air navigation service provider or providers concerned in comparison with the default mechanism set out in this Regulation.

(34) Air navigation service providers should bear the cost risk with regard to differences between determined and actual costs, except for a limited number of cost items subject to specific requirements.

(35) Air navigation service providers should not be allowed to generate financial surpluses as a result of the cancellation or postponement of new and existing investments during a reference period. Air navigation service providers should be able to annually adjust the planned major investments during a reference period, subject to a detailed justification and provided that the requested changes are approved by the national supervisory authority concerned. Where the actual costs of new and existing investments exceed the corresponding determined costs over a reference period, national supervisory authorities should be responsible for verifying the detailed justifications provided by air navigation service providers and for authorising any subsequent recovery of additional costs from airspace users. Any material difference in those costs should not be charged to users, unless the national supervisory authority has established that the additional costs were exclusively due to new and existing investments required for operational changes consistent with the implementation of the European ATM Master Plan and in particular SESAR common projects.

(36) Unforeseeable changes in applicable legal provisions or financial conditions may lead, during a reference period, to significant deviations of actual pension costs from the determined pension costs set out in the performance plans. Subject to scrutiny by the national supervisory authority, those cost differences should be passed on to airspace users through unit rate adjustments.

(37) Member States should set annually a unit rate for each charging zone. Member States should be able to set their unit rates collectively, in particular when charging zones extend across the airspace of more than one Member State or when they are parties to a joint route charges system. The Commission should verify that the unit rates submitted by Member States comply with the provisions on unit rate calculation of this Regulation.

(38) The charging scheme should ensure complete and transparent information on the cost bases for charges, actual costs and unit rates. Before the start of a reference period, Member States should consult air navigation service providers, airspace users' representatives, and, where relevant, airport operators and airport coordinators on the planned determined costs, planned investments, service unit forecasts and the charging policy for the reference period concerned. During the reference period, Member States should ensure that these stakeholders are annually consulted on the intended unit rates and on the actual costs incurred in connection with the provision of air navigation services. Member States should make complete and adequate information available to all the consulted entities for the purpose of the consultations.

(39) Member States should be able to decide to modulate air navigation charges to provide incentives to equip aircraft with systems included in the SESAR common projects. Member States should be able to further modulate charges, taking into account the level of congestion of the network in a specific area or on a specific route at specific times, to increase the efficiency of air navigation services and to promote their optimised use.

(40) Member States should be able to collect en route charges collectively through a single charge per flight within a joint route charges system, in order to improve the efficiency of the charging scheme and to reduce the administrative and accounting workload.

(41) Enforcement measures should be provided for in order to ensure the prompt and full payment of air navigation charges by airspace users.

(42) Air navigation charges for any specific flight should be calculated, in respect of each charging zone, as a product of applicable unit rate and the number of service units. The level of charges imposed, in particular on light aircraft, should not discourage the use of facilities and services necessary for safety or the introduction of new techniques and procedures. Member States should cover the costs for the services that air navigation service providers have provided to flights exempted from air navigation charges.

(43) Member States should have the possibility, where there is no historical evidence of operational issues, to apply a simplified charging scheme in order to incentivise air navigation service providers and to reduce the administrative burden for the air navigation service providers and national supervisory authorities concerned.

(44) Where terminal air navigation services or communication, navigation and surveillance services, meteorological services for air navigation and aeronautical information services (‘CNS, MET and AIS’) or ATM data services are provided under market conditions, Member States should be allowed to exempt those services from certain provisions pertaining to the charging scheme and from target setting on cost-efficiency. Member States should be able to establish such market conditions during a reference period.

(45) The provision of adequate data and information by national supervisory authorities, air navigation service providers, airport operators, airport coordinators, airspace users and the Network Manager, is essential for the purpose of performance target setting and monitoring at Union-wide level and at national or functional airspace block level.

(46) The national supervisory authorities should regularly monitor the progress made in achieving the performance targets contained in the performance plans. Where the targets are not met, the Member State or national supervisory authority concerned should apply the appropriate measures that they have defined in order to address the situation.

(47) The Commission should monitor the performance of air navigation services and network functions, and regularly assess the achievement of performance targets. The Commission should present the results of that monitoring annually to the Single Sky Committee.

(48) Without prejudice to confidentiality requirements pertaining to market conditions, the essential information and final reports required under this Regulation should be made publicly available in order to guarantee adequate transparency and enable the proper consultation of stakeholders.

(49) Implementing Regulation (EU) No 390/2013 and Implementing Regulation (EU) No 391/2013 should be repealed with effect from 1 January 2020, but should continue to apply beyond that date in respect of obligations related to the second reference period.

(50) This Regulation should apply in respect of the third reference period and to the subsequent reference periods. In order to allow for the adoption of Union-wide targets and the preparation and adoption of performance plans before the beginning of the third reference period, this Regulation should apply with immediate effect from the date of its entry into force.

(51) The measures provided for in this Regulation are in accordance with the opinion of the Single Sky Committee,

HAS ADOPTED THIS REGULATION:

(1)

OJ L 96, 31.3.2004, p. 1.

(2)

OJ L 96, 31.3.2004, p. 10.

(3)

Commission Implementing Regulation (EU) No 390/2013 of 3 May 2013 laying down a performance scheme for air navigation services and network functions (OJ L 128, 9.5.2013, p. 1).

(4)

Commission Implementing Regulation (EU) No 391/2013 of 3 May 2013 laying down a common charging scheme for air navigation services (OJ L 128, 9.5.2013, p. 31).

(5)

Regulation (EC) N o 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation) (OJ L 96, 31.3.2004, p. 20).

(6)

Commission Implementing Regulation (EU) 2019/123 of 24 January 2019 laying down detailed rules for the implementation of air traffic management (ATM) network functions and repealing Commission Regulation (EU) No 677/2011 (OJ L 28, 31.1.2019, p. 1).

(7)

As defined in Article 3 of Commission Implementing Regulation (EU) No 409/2013 of 3 May 2013 on the definition of common projects, the establishment of governance and the identification of incentives supporting the implementation of the European Air Traffic Management Master Plan Text with EEA relevance (OJ L 123, 4.5.2013, p. 1).

(8)

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).