L 300/34 EN Official Journal of the European Union 14.11.

2009

REGULATION (EC) No 1070/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 21 October 2009
amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004
in order to improve the performance and sustainability of the European aviation system
(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO­ (3) In response to strong demand from industry, Member
PEAN UNION, States and other stakeholders to simplify and increase the
effectiveness of the regulatory framework for aviation in
Europe, a high level group on the future of the European
Having regard to the Treaty establishing the European Commu­ aviation regulatory framework (the High Level Group) was
nity, and in particular Article 80(2) thereof, established in November 2006. The High Level Group,
made up of representatives of the majority of stakehold­
ers, submitted a report in July 2007 containing recommen­
Having regard to the proposal from the Commission, dations on how to improve the performance and
governance of the European aviation system. The High
Level Group recommended according the environment the
Having regard to the opinion of the European Economic and same importance as safety and efficiency in the aviation
Social Committee (1), system and insisted that industry and regulators should
work together to ensure that ATM contributes as much as
possible to sustainability.
Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251

of the Treaty (3), (4) At its meeting of 7  April 2008 the Council invited the
Commission to develop, in accordance with the recom­
mendations of the High Level Group, an overall system
Whereas: approach in line with the gate-to-gate concept to enhance
safety, improve ATM and to increase cost efficiency.

(1) Implementation of the common transport policy requires

an efficient air transport system allowing the safe, regular
and sustainable operation of air transport services, opti­ (5) In order to complete the creation of the single European
mising capacity and facilitating the free movement of sky, it is necessary to adopt additional measures at Com­
goods, persons and services. munity level, in particular, to improve the performance of
the European aviation system in key areas such as the envi­
ronment, capacity and cost-efficiency, all having regard to
(2) The adoption by the European Parliament and the Council the overriding safety objectives. It is also necessary to adapt
of the first package of the single European sky legislation, the single European sky legislation to technical progress.
namely, Regulation (EC) No 549/2004 of 10 March 2004
laying down the framework for the creation of the single
European sky (the framework Regulation) (4), Regulation
(EC) No 550/2004 of 10 March 2004 on the provision of
air navigation services in the single European sky (the ser­ (6) Council Regulation (EC) No  219/2007 of 27  February
vice provision Regulation) (5), Regulation (EC) 2007 on the establishment of a Joint Undertaking to
No 551/2004 of 10 March 2004 on the organisation and develop the new generation European air traffic manage­
use of the airspace in the single European sky (the airspace ment system (SESAR) (8) calls for the development and
Regulation) (6), and Regulation (EC) No  552/2004 of implementation of an ATM Master Plan. The implementa­
10 March 2004 on the interoperability of the European air tion of the ATM Master Plan requires regulatory measures
traffic management network (the interoperability Regula­ to support the development, introduction and financing of
tion) (7) laid down a firm legal basis for a seamless, interop­ new concepts and technologies. It should result in a sys­
erable and safe air traffic management (ATM) system. tem composed of fully harmonised and interoperable com­
ponents, which guarantee high performance air transport
(1)  OJ C 182, 4.8.2009, p. 50. activities in Europe. The schedule for implementation of
(2)  OJ C 120, 28.5.2009, p. 52. the single European sky should take into consideration the
(3)  Opinion of the European Parliament of 25 March 2009 (not yet pub­ timescale foreseen for the development and deployment
lished in the Official Journal) and Council Decision of 7  September phases of the SESAR programme as a part of the single
2009. European sky. Both processes should be closely
(4)  OJ L 96, 31.3.2004, p. 1. coordinated.
(5)  OJ L 96, 31.3.2004, p. 10.
(6)  OJ L 96, 31.3.2004, p. 20.
(7)  OJ L 96, 31.3.2004, p. 26. (8)  OJ L 64, 2.3.2007, p. 1.
14.11.2009 EN Official Journal of the European Union L 300/35

(7) The concept of common projects, aimed at assisting air­ the definition, implementation and enforcement of bind­
space users and/or air navigation service providers to ing performance targets in key performance areas in line
improve collective air navigation infrastructure, the provi­ with the policies of the International Civil Aviation Organi­
sion of air navigation services and the use of airspace, in sation (ICAO). An indispensable feature of such a frame­
particular those that may be required for the implementa­ work should be an appropriate mechanism for reporting,
tion of the ATM Master Plan, should not prejudice pre- examining, evaluating and disseminating performance data
existing projects decided by one or several Member States of ATM and ANS along with a relevant incentive scheme
with similar objectives. The provisions on financing of the to encourage achievement of the targets.
deployment of common projects should not prejudge the
manner in which these common projects are set up. The
Commission may propose that funding, such as Trans-
European Network or European Investment Bank funding, (13) National supervisory authorities should have the flexibility
may be used in support of common projects, in particular to reflect specific national or regional circumstances when
to speed up the deployment of the SESAR programme, formulating their national and regional plans. When
within the multiannual financial framework. Without approving or adopting national plans, Member States
prejudice to access to that funding, Member States should should be entitled to make appropriate modifications.
be free to decide how revenues generated by the auction­
ing of aviation sector allowances under the Emissions Trad­
ing Scheme are to be used and to consider in this context
(14) When establishing charges for air navigation services the
whether a share of such revenues might be used to finance
Commission and Member States should endeavour to use
common projects at the level of functional airspace blocks.
common forecasts. Some flexibility should be permitted in
those cases where traffic diverges significantly from fore­
casts, in particular by using appropriate alert mechanisms.

(8) In particular where common projects are deployed, care

should be taken, inter alia, through the application of com­
prehensive and transparent accounting, to ensure that air­ (15) The costs determined by the Member States at national
space users are not double-charged. Common projects level or at the level of a functional airspace block which are
should be deployed to the benefit of all stakeholders and intended to be shared among airspace users should take
should ensure equal treatment thereof. account of performance targets.

(16) For the cross-border provision of services, Member States

(9) To ensure the consistent and sound oversight of service
should ensure that the designation of an air traffic service
provision across Europe, the national supervisory authori­
provider is not prohibited by any national legal system on
ties should be guaranteed sufficient independence and
the grounds that it is established in another Member State
resources. This independence should not prevent those
or is owned by nationals of that Member State.
authorities from exercising their tasks within an adminis­
trative framework.

(17) The national supervisory authorities should take appropri­

ate measures to ensure a high level of safety including the
(10) National supervisory authorities have a key role to play in possibility of issuing an individual certificate for each type
the implementation of the single European sky and the of air navigation service, while respecting the need for cost-
Commission should therefore facilitate cooperation among efficiency and consistency and avoiding duplication.
them in order to enable the exchange of best practices and
to develop a common approach, including through
enhanced cooperation at regional level. This cooperation
should take place on a regular basis. (18) The functional airspace blocks are key enablers for enhanc­
ing cooperation between air navigation service providers in
order to improve performance and create synergies. Mem­
ber States should establish functional airspace blocks
within a reasonable time-frame. For that purpose and in
(11) The social partners should be better informed and con­
order to optimise the interface of functional airspace blocks
sulted on all measures having significant social implica­
in the single European sky, the Member States concerned
tions. At Community level, the Sectoral Dialogue should cooperate with each other and where appropriate
Committee set up under Commission Decision they should also cooperate with third countries.
98/500/EC (1) should also be consulted.

(19) When Member States establish a functional airspace block,

(12) To drive improved performance of ATM and air navigation other Member States, the Commission and other interested
services (ANS), it is necessary to establish a framework for parties have an opportunity to submit their observations
with the aim of facilitating an exchange of views. Those
observations should be merely of an advisory nature for
(1)  OJ L 225, 12.8.1998, p. 27. the Member State(s) concerned.
L 300/36 EN Official Journal of the European Union 14.11.2009

(20) In case of difficulties in the negotiation process with regard (25) In line with the Statement by the Member States on mili­
to the setting up of functional airspace blocks, the Com­ tary issues related to the single European sky accompany­
mission may designate a Functional Airspace Blocks Sys­ ing Regulation (EC) No  549/2004, civil-military
tem Coordinator (the Coordinator). The tasks of the cooperation and coordination should play a fundamental
Coordinator should aim at providing assistance in over­ role in the implementation of the single European sky, in
coming such difficulties without interfering with the sov­ order to move towards an enhanced flexible use of airspace
ereignty of the Member State(s) concerned and, where for the achievement of the single European sky perfor­
appropriate, that of third countries taking part in the same mance objectives, having due regard to military mission
functional airspace block. Costs incurred for the activities effectiveness.
of the Coordinator should not have any impact on Mem­
ber States’ national budgets.

(26) It is essential to achieve a common, harmonised airspace

structure in terms of routes, to base the present and future
(21) The reports of the Eurocontrol Performance Review Com­ organisation of airspace on common principles, to ensure
mission and the final report of the High Level Group con­ the progressive implementation of the ATM Master Plan,
firm that the route network and airspace structure cannot to optimise the use of scarce resources to avoid unneces­
be developed in isolation, as each individual Member State sary equipage costs, and to design and manage airspace in
is an integral element of the European Air Traffic Manage­ accordance with harmonised rules. To this end, the Com­
ment Network (EATMN), both inside and outside the Com­ mission should be responsible for adopting the necessary
munity. A progressively more integrated operating rules and implementing decisions with legally binding
airspace should therefore be established for general air effect.
traffic.

(27) The list of functions for network management and design

(22) In view of the creation of functional airspace blocks and
should be amended to integrate, if necessary, future net­
the setting up of the performance scheme, the Commission
work functions defined by the ATM Master Plan. In doing
should determine and take into account the necessary con­
so, the Commission should make the best possible use of
ditions for the Community to create a Single European
the expertise of Eurocontrol.
Flight Information Region (SEFIR), to be requested by the
Member States from the ICAO in accordance with both the
established procedures of that organisation and the rights,
obligations and responsibilities of Member States under the
Convention on International Civil Aviation, signed in Chi­
cago on 7  December 1944 (the Chicago Convention). By (28) The High Level Group has recommended building new or
encompassing the airspace under the responsibility of the enhanced functions upon existing foundations and
Member States, the SEFIR should facilitate common plan­ enhancing the role of Eurocontrol, while positioning the
ning and integrated operations in order to overcome Community as the single regulator and respecting the prin­
regional bottlenecks. Such a SEFIR should include the nec­ ciple of separation of regulation from service provision.
essary flexibility to reflect specific needs such as traffic den­ Accordingly, the Commission should entrust a reformed
sity and the level of complexity required. Eurocontrol, which has new governance arrangements in
place, with the execution of tasks related to various func­
tions, which do not involve the adoption of binding mea­
sures of a general scope or the exercise of political
discretion. The execution of these tasks by Eurocontrol
(23) Airspace users face disparate conditions of access to, and should be done in an impartial and cost-effective manner
freedom of movement within, Community airspace. This is and with the full involvement of the airspace users and air
due to the lack of harmonised Community rules of the air, navigation service providers.
and, in particular, the lack of a harmonised classification of
airspace. The Commission should therefore harmonise
such rules on the basis of ICAO standards.

(29) Adequate measures should be introduced to improve the

effectiveness of air traffic flow management in order to
assist existing operational units, including the Eurocontrol
(24) The EATMN should be designed and implemented with a Central Flow Management Unit, to ensure efficient flight
view to achieving the safety, environmental sustainability, operations. Furthermore, the Commission communication
capacity enhancement and improved cost-efficiency of the on an action plan for airport capacity, efficiency and safety
whole air transport network. As highlighted in the Euro­ in Europe highlights the need to ensure operational con­
control performance review Commission’s report entitled sistency between flight plans and airport slots. In addition,
‘Evaluation of functional airspace block initiatives and their the Community Observatory on Airport Capacity could
contribution to performance improvement’ of 31 October help in providing Member States with objective informa­
2008, this could be best ensured through coordinated air tion in order to align airport capacity with ATM capacity,
transport network management at Community level. without prejudice to their competences in this area.
14.11.2009 EN Official Journal of the European Union L 300/37

(30) The provision of modern, complete, high-quality and (36) When adopting implementing measures including stan­
timely aeronautical information has a significant impact on dards laid down by Eurocontrol, the Commission should
safety and on facilitating access to Community airspace ensure that the measures include all necessary improve­
and freedom of movement within it. Taking account of the ments to the original standards and take full account of the
ATM Master Plan, the Community should take the initia­ need to avoid double regulation.
tive to modernise this sector in cooperation with Eurocon­
trol and ensure that users are able to access those data
through a single public point of access, providing a mod­
ern, user-friendly and validated integrated briefing. (37) The simultaneous pursuit of the goals of augmentation of
air traffic safety standards and improvement of the overall
performance of ATM and ANS for general air traffic in
Europe require that the human factor be taken into
account. Therefore the Member States should consider the
(31) For the electronic portal on meteorological information, introduction of ‘just culture’ principles.
the Commission should take into account the various
sources of information including from designated service
providers, where relevant.
(38) In view of the proposed extension of the competences of
the EASA to include air traffic management safety, consis­
tency should be ensured between Regulations (EC)
No 549/2004, (EC) No 550/2004, (EC) No 551/2004, (EC)
(32) To avoid unnecessary administrative burden and overlap­ No 552/2004 and (EC) No 216/2008.
ping verification procedures, certificates issued in accor­
dance with Regulation (EC) No 216/2008 of the European
Parliament and of the Council of 20  February 2008 on
common rules in the field of civil aviation and establishing (39) The measures necessary for the implementation of this
a European Aviation Safety Agency (1) should be accepted Regulation should be adopted in accordance with Council
for the purposes of this Regulation, where they apply to Decision 1999/468/EC of 28 June 1999 laying down the
constituents or systems. procedures for the exercise of implementing powers con­
ferred on the Commission (2). Those measures should be
adopted within a suitable time-frame in order to meet the
deadlines set out in this Regulation and Regulations (EC)
No 549/2004, (EC) No 550/2004, (EC) No 551/2004, (EC)
(33) A certificate issued in accordance with Regulation (EC) No 552/2004 and (EC) No 216/2008.
No  216/2008 and used to demonstrate an alternative
means of compliance with the essential requirements of
Regulation (EC) No 552/2004, should be accompanied by
a technical file as required for the purposes of certification (40) In particular, the Commission should be empowered to
by the European Aviation Safety Agency (EASA). update measures due to technical or operational develop­
ments as well as to lay down the basic criteria and proce­
dures for the exercise of certain network management
functions. Since those measures are of a general scope and
are designed to amend non-essential elements of Regula­
(34) Certain requirements of Regulation (EC) No  552/2004
tions (EC) No  549/2004, (EC) No  550/2004, (EC)
should not apply to systems put into operation before
No  551/2004 and  (EC) No  552/2004 by supplementing
20 October 2005. National supervisory authorities and air
them with new non-essential elements, they must be
navigation service providers should have the freedom to
adopted in accordance with the regulatory procedure with
agree, at national level, the procedures and documentation
scrutiny provided for in Article  5a of Decision
required to demonstrate compliance of ATM systems in
1999/468/EC.
operation before 20  October 2005 with the essential
requirements of Regulation (EC) No  552/2004. Imple­
menting rules and Community specifications adopted after
the adoption of this Regulation should take account of this (41) When on imperative grounds of urgency the normal time
arrangement and this should not result in a retroactive limits for the regulatory procedure with scrutiny cannot be
requirement for documentary evidence. complied with, the Commission should be able to use the
urgency procedure provided for in Article  5a(6) of Deci­
sion 1999/468/EC.

(35) The High Level Group recommended in its final report to

the Commission that the SESAR programme should (42) The Ministerial Statement on Gibraltar Airport, agreed in
address specifically the definition of interoperable proce­ Córdoba on 18  September 2006 (the Ministerial State­
dures, systems and information exchange within Europe ment), during the first Ministerial meeting of the Forum of
and with the rest of the world. This should also include the Dialogue on Gibraltar, will replace the Joint Declaration on
development of relevant standards and the identification of the Airport made in London on 2 December 1987, and the
new implementing rules or Community specifications in full compliance with that Statement will be deemed to con­
the context of the single European sky. stitute compliance with the 1987 Declaration.

(1)  OJ L 79, 19.3.2008, p. 1. (2)  OJ L 184, 17.7.1999, p. 23.

L 300/38 EN Official Journal of the European Union 14.11.2009

(43) This Regulation applies in full to Gibraltar Airport in the 4. The application of this Regulation to the airport of
context and by virtue of the Ministerial Statement. With­ Gibraltar is understood to be without prejudice to the respec­
out prejudice to the Ministerial Statement the application tive legal positions of the Kingdom of Spain and the United
to Gibraltar Airport and all the measures related to its Kingdom of Great Britain and Northern Ireland with regard
implementation shall conform fully with that Statement to the dispute over sovereignty over the territory in which the
and all the arrangements contained therein. airport is situated.’;

(44) Regulations (EC) No  549/2004, (EC) No  550/2004, (EC) 2. Article 2 is amended as follows:
No 551/2004 and (EC) No 552/2004 should therefore be
amended accordingly,
(a) point 8 is replaced by the following:

HAVE ADOPTED THIS REGULATION: ‘8. “airspace users” means operators of aircraft oper­
ated as general air traffic;’;

Article 1 (b) point 10 is replaced by the following:

Regulation (EC) No 549/2004 shall be amended as follows: ‘10. “air traffic management (ATM)” means the aggrega­
tion of the airborne and ground-based functions
(air traffic services, airspace management and air
1. Article 1 is replaced by the following: traffic flow management) required to ensure the
safe and efficient movement of aircraft during all
phases of operations;’;
‘Article  1
Objective and scope
(c) the following point is inserted:

1. The objective of the single European sky initiative is to

enhance current air traffic safety tandards, to contribute to ‘13a. “ATM Master Plan” means the plan endorsed by
the sustainable development of the air transport system and Council Decision 2009/320/EC (*), in accordance
to improve the overall performance of air traffic manage­ with Article  1(2) of Council Regulation (EC)
ment (ATM) and air navigation services (ANS) for general air No 219/2007 of 27 February 2007 on the estab­
traffic in Europe, with a view to meeting the requirements of lishment of a Joint Undertaking to develop the
all airspace users. This single European sky shall comprise a new generation European air traffic management
coherent pan-European network of routes, network manage­ system (SESAR) (**);
ment and air traffic management systems based only on
safety, efficiency and technical considerations, for the benefit (*) OJ L 95, 9.4.2009, p. 41.
of all airspace users. In pursuit of this objective, this Regula­ (**) OJ L 64, 2.3.2007, p. 1.’;
tion establishes a harmonised regulatory framework for the
creation of the single European sky.
(d) point 15 is replaced by the following:

2. The application of this Regulation and of the measures

referred to in Article 3 shall be without prejudice to Member ‘15. “certificate” means a document issued by a national
States’ sovereignty over their airspace and to the require­ supervisory authority in any form complying with
ments of the Member States relating to public order, public national law, which confirms that an air navigation
security and defence matters, as set out in Article  13. This service provider meets the requirements for provid­
Regulation and the measures referred to in Article 3 do not ing a specific service;’;
cover military operations and training.

(e) point 21 is deleted;

3. The application of this Regulation and of the measures
referred to in Article 3 shall be without prejudice to the rights
and duties of Member States under the 1944 Chicago Con­ (f) point 22 is replaced by the following:
vention on International Civil Aviation (the Chicago Conven­
tion). In this context, an additional objective of this
Regulation is, in the fields it covers, to assist Member States ‘22. “flexible use of airspace” means an airspace man­
in fulfilling their obligations under the Chicago Convention, agement concept applied in the European Civil
by providing a basis for a common interpretation and uni­ Aviation Conference area on the basis of the “Air­
form implementation of its provisions, and by ensuring that space management handbook for the application of
these provisions are duly taken into account in this Regula­ the concept of the flexible use of airspace” issued by
tion and in the rules drawn up for its implementation. Eurocontrol;’;
14.11.2009 EN Official Journal of the European Union L 300/39

(g) the following points are inserted: 4. Member States shall ensure that national supervisory
authorities have the necessary resources and capabilities to
carry out the tasks assigned to them under this Regulation in
‘23a. “flight information service” means a service pro­ an efficient and timely manner.
vided for the purpose of giving advice and infor­
mation useful for the safe and efficient conduct of
flights; 5. Member States shall notify the Commission of the
names and addresses of the national supervisory authorities,
as well as changes thereto, and of the measures taken to
23b. “alerting service” means a service provided to ensure compliance with paragraphs 2, 3 and 4.’;
notify relevant organisations regarding aircraft in
need of search and rescue aid, and to assist such 4. Article 5(4) is replaced by the following:
organisations as required;’;

‘4. Where reference is made to this paragraph,

(h) point 25 is replaced by the following: Article  5a(1) to  (4) and Article  7 of Decision 1999/468/EC
shall apply, having regard to the provisions of Article  8
thereof.
‘25. “functional airspace block” means an airspace block
based on operational requirements and established
regardless of State boundaries, where the provision 5. Where reference is made to this paragraph,
of air navigation services and related functions are Article  5a(1), (2), (4),(6) and Article  7 of Decision
performance-driven and optimised with a view to 1999/468/EC shall apply, having regard to the provisions of
introducing, in each functional airspace block, Article 8 thereof.’;
enhanced cooperation among air navigation service
providers or, where appropriate, an integrated
provider;’; 5. Articles 6 to 11 are replaced by the following:

(i) point 37 is deleted; ‘Article  6

Industry consultation body
(j) the following point is added:
Without prejudice to the role of the Committee and of Euro­
control, the Commission shall establish an “industry consul­
‘41. “cross-border services” means any situation where tation body”, to which air navigation service providers,
air navigation services are provided in one Member associations of airspace users, airport operators, the manu­
State by a service provider certified in another Mem­ facturing industry and professional staff representative bod­
ber State.’; ies shall belong. The role of this body shall solely be to advise
the Commission on the implementation of the single Euro­
pean sky.
3. Article 4 is replaced by the following:

‘Article  4 Article  7
National supervisory authorities Relations with European third countries

1. Member States shall, jointly or individually, either The Community and its Member States shall aim at and sup­
nominate or establish a body or bodies as their national port the extension of the single European sky to countries
supervisory authority in order to assume the tasks assigned which are not members of the European Union. To that end,
to such authority under this Regulation and under the mea­ they shall endeavour, either in the framework of agreements
sures referred to in Article 3. concluded with neighbouring third countries or in the con­
text of agreements on functional airspace blocks, to extend
the application of this Regulation, and of the measures
2. The national supervisory authorities shall be indepen­ referred to in Article 3, to those countries.
dent of air navigation service providers. This independence
shall be achieved through adequate separation, at the func­
tional level at least, between the national supervisory authori­
ties and such providers. Article  8
Implementing rules
3. National supervisory authorities shall exercise their
powers impartially, independently and transparently. This 1. For the development of implementing rules the Com­
shall be achieved by applying appropriate management and mission may issue mandates to Eurocontrol or, where appro­
control mechanisms, including within the administration of priate, to another body, setting out the tasks to be performed
a Member State. However, this shall not prevent the national and the timetable for this and taking into account the rel­
supervisory authorities from exercising their tasks within the evant deadlines laid down in this Regulation. The Commis­
rules of organisation of national civil aviation authorities or sion shall act in accordance with the advisory procedure
any other public bodies. referred to in Article 5(2).
L 300/40 EN Official Journal of the European Union 14.11.2009

2. When the Commission intends to issue a mandate in (b) national plans or plans for functional airspace blocks,
accordance with paragraph 1 it shall endeavour to make the including performance targets, ensuring consistency
best use of existing arrangements for the involvement and with the Community-wide performance targets; and
consultation of all interested parties, where these arrange­
ments correspond to Commission practices on transparency
and consultation procedures and do not conflict with its
institutional obligations. (c) periodic review, monitoring and benchmarking of the
performance of air navigation services and network
functions.
Article  9
Penalties
2. In accordance with the regulatory procedure referred to
The penalties that Member States shall lay down for infringe­ in Article  5(3), the Commission may designate Eurocontrol
ments of this Regulation and of the measures referred to in or another impartial and competent body to act as a “perfor­
Article 3 in particular by airspace users and service providers mance review body”. The role of the performance review
shall be effective, proportionate and dissuasive. body shall be to assist the Commission, in coordination with
the national supervisory authorities, and to assist the national
supervisory authorities on request in the implementation of
Article  10 the performance scheme referred to in paragraph  1. The
Consultation of stakeholders Commission shall ensure that the performance review body
acts independently when carrying out the tasks entrusted to
1. The Member States, acting in accordance with their it by the Commission.
national legislation, shall establish consultation mechanisms
for appropriate involvement of stakeholders, including pro­
fessional staff representative bodies, in the implementation of
3. (a) The Community-wide performance targets for the
the single European sky.
air traffic management network shall be adopted
2. The Commission shall establish a consultation mecha­ by the Commission in accordance with the regu­
nism at Community level. The specific Sectoral Dialogue latory procedure referred to in Article  5(3), after
Committee set up under Decision 98/500/EC shall be taking into account the relevant inputs from
involved in the consultation. national supervisory authorities at national level or
at the level of functional airspace blocks.
3. Consultation of stakeholders shall cover, in particular,
the development and introduction of new concepts and tech­
nologies in the EATMN.
(b) The national or functional airspace block plans
referred to in point  (b) of paragraph  1 shall be
The stakeholders may include: drawn up by national supervisory authorities and
adopted by the Member State(s). These plans shall
— air navigation service providers, include binding national targets or targets at the
level of functional airspace blocks and an appro­
— airport operators, priate incentive scheme as adopted by the Member
State(s). Drafting of the plans shall be subject to
consultation with air navigation service providers,
— relevant airspace users or relevant groups representing
airspace users’ representatives, and, where relevant,
airspace users,
airport operators and airport coordinators.
— military authorities,

— manufacturing industry, and, (c) The consistency of the national or functional air­
space block targets with the Community-wide per­
formance targets shall be assessed by the
— professional staff representative bodies. Commission using the assessment criteria referred
to in point (d) of paragraph 6.
Article  11
Performance scheme
In the event that the Commission identifies that
one or more national or functional airspace block
1. To improve the performance of air navigation services targets do not meet the assessment criteria, it may
and network functions in the single European sky, a perfor­ decide, in accordance with the advisory procedure
mance scheme for air navigation services and network func­ referred to in Article 5(2), to issue a recommenda­
tions shall be set up. It shall include: tion that the national supervisory authorities con­
cerned propose revised performance target(s). The
(a) Community-wide performance targets on the key per­ Member State(s) concerned shall adopt revised per­
formance areas of safety, the environment, capacity and formance targets and appropriate measures which
cost-efficiency; shall be notified to the Commission in due time.
14.11.2009 EN Official Journal of the European Union L 300/41

Where the Commission finds that the revised per­ (e) monitoring of the national or functional airspace block
formance targets and appropriate measures are not performance plans, including appropriate alert
adequate, it may decide, in accordance with the mechanisms.
regulatory procedure referred to in Article  5(3),
that the Member States concerned shall take cor­
rective measures. The Commission may add to the list of procedures referred
to in this paragraph. These measures designed to amend non-
essential elements of this Regulation, by supplementing it,
Alternatively, the Commission may decide, with shall be adopted in accordance with the regulatory procedure
adequate supporting evidence, to revise the with scrutiny referred to in Article 5(4).
Community-wide performance targets in accor­
dance with the regulatory procedure referred to in
Article 5(3). 5. The establishment of the performance scheme shall
take into account that en route services, terminal services and
network functions are different and should be treated accord­
ingly, if necessary also for performance-measuring purposes.
(d) The reference period for the performance scheme
shall cover a minimum of three years and a maxi­
mum of five years. During this period, in the event 6. For the detailed functioning of the performance
that the national or functional airspace block tar­ scheme, the Commission shall by 4  December 2011 and
gets are not met, the Member States and/or the within a suitable time-frame with a view to meeting the rel­
national supervisory authorities shall apply the evant deadlines laid down in this Regulation, adopt imple­
appropriate measures they have defined. The first menting rules in accordance with the regulatory procedure
reference period shall cover the first three years referred to in Article  5(3). These implementing rules shall
following the adoption of the implementing rules cover the following:
referred to in paragraph 6.

(a) the content and timetable of the procedures referred to

(e) The Commission shall carry out regular assess­ in paragraph 4;
ments of the achievement of the performance tar­
gets and present the results to the Single Sky
Committee. (b) the reference period and intervals for the assessment of
the achievement of performance targets and setting of
new targets;
4. The following procedures shall apply to the perfor­
mance scheme referred to in paragraph 1:
(c) criteria for the setting up by the national supervisory
authorities of the national or functional airspace block
performance plans, containing the national or functional
(a) collection, validation, examination, evaluation and dis­ airspace block performance targets and the incentive
semination of relevant data related to the performance scheme. The performance plans shall:
of air navigation services and network functions from all
relevant parties, including air navigation service provid­
ers, airspace users, airport operators, national supervi­ (i) be based on the business plans of the air navigation
sory authorities, Member States and Eurocontrol; service providers;

(b) selection of appropriate key performance areas on the (ii) address all cost components of the national or func­
basis of ICAO Document No  9854 ‘Global air traffic tional airspace block cost base;
management operational concept’, and consistent with
those identified in the Performance Framework of the
ATM Master Plan, including safety, the environment, (iii) include binding performance targets consistent with
capacity and cost-efficiency areas, adapted where neces­ the Community-wide performance targets;
sary in order to take into account the specific needs of
the single European sky and relevant objectives for these
areas and definition of a limited set of key performance (d) criteria to assess whether the national or functional air­
indicators for measuring performance; space block targets are consistent with the Community-
wide performance targets during the reference period
and to support alert mechanisms;
(c) establishment of Community-wide performance targets
that shall be defined taking into consideration inputs (e) general principles for the setting up by Member States of
identified at national level or at the level of functional the incentive scheme;
airspace blocks;

(f) principles for the application of a transitional mecha­

(d) assessment of the national or functional airspace block nism necessary for the adaptation to the functioning of
performance targets on the basis of the national or func­ the performance scheme not exceeding 12 months fol­
tional airspace block plan; and lowing the adoption of the implementing rules.’;
L 300/42 EN Official Journal of the European Union 14.11.2009

6. Article 12 is amended as follows: navigation service providers which provide services relating
to the airspace falling under the responsibility of the Mem­
ber State which nominated or established the relevant
(a) paragraph 2 is replaced by the following: authority.

‘2. The Commission shall periodically review the

application of this Regulation and of the measures 2. To this end, each national supervisory authority shall
referred to in Article  3, and shall firstly report to the organise proper inspections and surveys to verify compliance
European Parliament and to the Council by 4 June 2011, with the requirements of this Regulation, including human
and at the end of each reference period referred to in resources requirements for the provision of air navigation
Article  11(3)(d) thereafter. When justified for this pur­ services. The air navigation service provider concerned shall
pose, the Commission may request from the Member facilitate such work.
States information additional to the information con­
tained in the reports submitted by them in accordance
with paragraph 1 of this Article.’; 3. In respect of functional airspace blocks that extend
across the airspace falling under the responsibility of more
(b) paragraph 4 is replaced by the following: than one Member State, the Member States concerned shall
conclude an agreement on the supervision provided for in
this Article with regard to the air navigation service provid­
‘4. The reports shall contain an evaluation of the ers providing services relating to those blocks.
results achieved by the actions taken pursuant to this
Regulation including appropriate information about
developments in the sector, in particular concerning 4. National supervisory authorities shall cooperate closely
economic, social, environmental, employment and tech­ to ensure adequate supervision of air navigation service pro­
nological aspects, as well as about quality of service, in viders holding a valid certificate from one Member State that
the light of the original objectives and with a view to also provide services relating to the airspace falling under the
future needs.’; responsibility of another Member State. Such cooperation
shall include arrangements for the handling of cases involv­
7. the following Article is inserted: ing non-compliance with the applicable common require­
ments set out in Article  6 or with the conditions set out in
Annex II.
‘Article  13a
European Aviation Safety Agency
5. In the case of cross-border provision of air navigation
services, such arrangements shall include an agreement on
When implementing this Regulation and Regulations (EC) the mutual recognition of the supervisory tasks set out in
No  550/2004, (EC) No  551/2004, (EC) No  552/2004 and paragraphs  1 and  2 and of the results of these tasks. This
Regulation (EC) No  216/2008 of the European Parliament mutual recognition shall apply also where arrangements for
and of the Council of 20 February 2008 on common rules in recognition between national supervisory authorities are
the field of civil aviation and establishing a European Avia­ made for the certification process of service providers.
tion Safety Agency (*), Member States and the Commission,
in accordance with their respective roles as provided for by
this Regulation, shall coordinate as appropriate with the
European Aviation Safety Agency to ensure that all safety 6. If permitted by national law and with a view to regional
aspects are properly addressed. cooperation, national supervisory authorities may also con­
clude agreements regarding the division of responsibilities
regarding supervisory tasks.
(*) OJ L 79, 19.3.2008, p. 1.’

Article 2 Article  3
Qualified entities
Regulation (EC) No 550/2004 shall be amended as follows:

1. National supervisory authorities may decide to delegate

1. Articles 2 to 4 are replaced by the following: in full or in part the inspections and surveys referred to in
Article 2(2) to qualified entities that fulfil the requirements set
‘Article  2 out in Annex I.
Tasks of the national supervisory authorities
2. Such a delegation granted by a national supervisory
1. The national supervisory authorities referred to in authority shall be valid within the Community for a renew­
Article 4 of the framework Regulation shall ensure the appro­ able period of three years. National supervisory authorities
priate supervision of the application of this Regulation, in may instruct any of the qualified entities located in the Com­
particular with regard to the safe and efficient operation of air munity to undertake these inspections and surveys.
14.11.2009 EN Official Journal of the European Union L 300/43

Article  4 (c) use only facilities in that Member State.

Safety requirements
3. Member States shall define the rights and obligations to
be met by the designated air traffic service providers. The
The Commission shall, in accordance with the regulatory obligations may include conditions for the timely supply of
procedure referred to in Article 5(3) of the framework Regu­ relevant information enabling all aircraft movements in the
lation, adopt implementing rules incorporating the relevant airspace under their responsibility to be identified.
provisions of the Eurocontrol safety regulatory requirements
(ESARRs) and subsequent amendments to those require­
ments falling within the scope of this Regulation, where nec­ 4. Member States shall have discretionary powers in
essary with appropriate adaptations.’; choosing an air traffic service provider, on condition that the
latter fulfils the requirements and conditions referred to in
Articles 6 and 7.
2. Article 5 is deleted;

5. In respect of functional airspace blocks established in

3. in Article 7, paragraphs 6 and 7 are replaced by the following: accordance with Article  9a that extend across the airspace
under the responsibility of more than one Member State, the
Member States concerned shall jointly designate, in accor­
‘6. Without prejudice to Articles 8 and 9, the issue of cer­ dance with paragraph 1 of this Article, one or more air traf­
tificates shall confer on air navigation service providers the fic service providers, at least one month before
possibility of offering their services to Member States, other implementation of the airspace block.
air navigation service providers, airspace users and airports
within the Community.
6. Member States shall inform the Commission and other
Member States immediately of any decision within the frame­
7. National supervisory authorities shall monitor compli­ work of this Article regarding the designation of air traffic
ance with the common requirements and with the conditions service providers within specific airspace blocks in respect of
attached to the certificates. Details of such monitoring shall the airspace under their responsibility.’;
be included in the annual reports to be submitted by Mem­
ber States pursuant to Article 12(1) of the framework Regu­
lation. If a national supervisory authority finds that the holder 5. the following Articles are inserted:
of a certificate no longer satisfies such requirements or con­
ditions, it shall take appropriate measures while ensuring
continuity of services on condition that safety is not compro­ ‘Article  9a
mised. Such measures may include the revocation of the
certificate.’; Functional airspace blocks

1. By 4 December 2012, Member States shall take all nec­

4. Article 8 is replaced by the following:
essary measures in order to ensure the implementation of
functional airspace blocks with a view to achieving the
‘Article  8 required capacity and efficiency of the air traffic management
network within the single European sky and maintaining a
Designation of air traffic service providers high level of safety and contributing to the overall perfor­
mance of the air transport system and a reduced environ­
mental impact. Member States shall cooperate to the fullest
1. Member States shall ensure the provision of air traffic extent possible with each other, in particular Member States
services on an exclusive basis within specific airspace blocks establishing neighbouring functional airspace blocks, in
in respect of the airspace under their responsibility. For this order to ensure compliance with this provision. Where rel­
purpose, Member States shall designate an air traffic service evant, cooperation may also include third countries taking
provider holding a valid certificate in the Community. part in functional airspace blocks.

2. For the provision of cross-border services, Member 2. Functional airspace blocks shall, in particular:
States shall ensure that compliance with this Article and
Article 10(3) is not prevented by their national legal system
requiring that air traffic service providers providing services (a) be supported by a safety case;
in the airspace under the responsibility of that Member State:

(b) enable optimum use of airspace, taking into account air

(a) be owned directly or through a majority holding by that traffic flows;
Member State or its nationals;

(c) ensure consistency with the European route network

(b) have their principal place of operation or registered established in accordance with Article 6 of the airspace
office in the territory of that Member State; or Regulation;
L 300/44 EN Official Journal of the European Union 14.11.2009

(d) be justified by their overall added value, including opti­ 7. Without prejudice to paragraph 6, the agreements and
mal use of technical and human resources, on the basis declarations referred to in paragraphs 3 and 4 shall be noti­
of cost-benefit analyses; fied to the Commission for publication in the Official Journal
of the European Union. Such publication shall specify the date
of entry into force of the relevant decision.
(e) ensure a smooth and flexible transfer of responsibility
for air traffic control between air traffic service units;
8. Guidance material for the establishment and modifica­
tion of functional airspace blocks shall be developed by
(f) ensure compatibility between the different airspace con­ 4 December 2010 in accordance with the advisory procedure
figurations, optimising, inter alia, the current flight infor­ referred to in Article 5(2) of the framework Regulation.
mation regions;

9. The Commission shall, by 4  December 2011 and in

(g) comply with conditions stemming from regional agree­ accordance with the regulatory procedure referred to in
ments concluded within the ICAO; Article 5(3) of the framework Regulation, adopt implement­
ing rules regarding the information to be provided by the
Member State(s) concerned before establishing and modify­
(h) respect regional agreements in existence on the date of ing a functional airspace block in accordance with para­
entry into force of this Regulation, in particular those graph 3 of this Article.
involving European third countries; and

(i) facilitate consistency with Community-wide perfor­ Article  9b

mance targets.
Functional airspace blocks system coordinator

3. A functional airspace block shall only be established by

mutual agreement between all the Member States and, where 1. In order to facilitate the establishment of the functional
appropriate, third countries who have responsibility for any airspace blocks, the Commission may designate a natural
part of the airspace included in the functional airspace block. person as functional airspace blocks system coordinator (the
Before notifying the Commission of the establishment of a Coordinator). The Commission shall act in accordance with
functional airspace block, the Member State(s) concerned the regulatory procedure referred to in Article  5(3) of the
shall provide the Commission, the other Member States and framework Regulation.
other interested parties with adequate information and give
them an opportunity to submit their observations.
2. Without prejudice to Article  9a(5) the Coordinator
shall facilitate at the request of all Member States concerned
4. Where a functional airspace block relates to airspace and, where appropriate, third countries taking part in the
that is wholly or partly under the responsibility of two or same functional airspace block, overcoming of difficulties in
more Member States, the agreement by which the functional their negotiation process in order to speed up the establish­
airspace block is established shall contain the necessary pro­ ment of functional airspace blocks. The Coordinator shall act
visions concerning the way in which the block can be modi­ on the basis of a mandate from all Member States concerned
fied and the way in which a Member State can withdraw and, where appropriate, third countries taking part in the
from the block, including transitional arrangements. same functional airspace block.

5. Where difficulties arise between two or more Member 3. The Coordinator shall act impartially in particular with
States with regard to a cross-border functional airspace block regard to Member States, third countries, the Commission
that concerns airspace under their responsibility, the Mem­ and the stakeholders.
ber States concerned may jointly bring the matter to the
Single Sky Committee for an opinion. The opinion shall be
addressed to the Member States concerned. Without preju­ 4. The Coordinator shall not disclose any information
dice to paragraph 3, the Member States shall take that opin­ obtained whilst performing his function except where autho­
ion into account in order to find a solution. rised to do so by the Member State(s) and, where appropri­
ate, third countries concerned.

6. After having received the notifications by Member

States of the agreements and declarations referred to in para­ 5. The Coordinator shall report to the Commission, to the
graphs 3 and 4 the Commission shall assess the fulfilment by Single Sky Committee and to the European Parliament every
each functional airspace block of the requirements set out in three months after his designation. The report shall include a
paragraph  2 and present the results to the Single Sky Com­ summary of negotiations and their results.
mittee for discussion. If the Commission finds that one or
more functional airspace blocks do not fulfil the require­
ments it shall engage in a dialogue with the Member States 6. The remit of the Coordinator shall expire when the last
concerned with the aim of reaching a consensus on the mea­ functional airspace block agreement is signed but no later
sures necessary to rectify the situation. than 4 December 2012.’;
14.11.2009 EN Official Journal of the European Union L 300/45

6. Article 11 is replaced by the following: by the Member State at national level or at the level of
functional airspace blocks either at the beginning of the
‘Article  11 reference period for each calendar year of the reference
period referred to in Article 11 of the framework Regu­
Relations with military authorities lation, or during the reference period, following appro­
priate adjustments applying the alert mechanisms set out
in Article 11 of the framework Regulation;
Member States shall, within the context of the common
transport policy, take the necessary steps to ensure that writ­
ten agreements between the competent civil and military
authorities or equivalent legal arrangements are established (b) the costs to be taken into account in this context shall be
or renewed in respect of the management of specific airspace those assessed in relation to the facilities and services
blocks.’; provided for and implemented under the ICAO Regional
Air Navigation Plan, European Region. They may also
include costs incurred by national supervisory authori­
7. Article 12(3) is replaced by the following: ties and/or qualified entities, as well as other costs
incurred by the relevant Member State and service pro­
vider in relation to the provision of air navigation ser­
‘3. When providing a bundle of services, air navigation
vices. They shall not include the costs of penalties
service providers shall identify and disclose the costs and
imposed by Member States according to Article 9 of the
income deriving from air navigation services, broken down
in accordance with the charging scheme for air navigation framework Regulation nor the costs of any corrective
services referred to in Article 14 and, where appropriate, shall measures imposed by Member States according to
keep consolidated accounts for other, non-air-navigation ser­ Article 11 of the framework Regulation;
vices, as they would be required to do if the services in ques­
tion were provided by separate undertakings.’;
(c) in respect of the functional airspace blocks and as part
of their respective framework agreements, Member
8. Article 14 is replaced by the following: States shall make reasonable efforts to agree on common
principles for charging policy;
‘Article  14
General
(d) the cost of different air navigation services shall be iden­
tified separately, as provided for in Article 12(3);
In accordance with the requirements of Articles  15 and  16,
the charging scheme for air navigation services shall contrib­
ute to greater transparency in the determination, imposition (e) cross-subsidy shall not be allowed between en-route ser­
and enforcement of charges to airspace users and shall con­ vices and terminal services. Costs that pertain to both
tribute to the cost efficiency of providing air navigation ser­ terminal services and en-route services shall be allocated
vices and to efficiency of flights, while maintaining an in a proportional way between en-route services and ter­
optimum safety level. This scheme shall also be consistent
minal services on the basis of a transparent methodol­
with Article 15 of the 1944 Chicago Convention on Interna­
ogy. Cross-subsidy shall be allowed between different air
tional Civil Aviation and with Eurocontrol’s charging system
navigation services in either one of those two categories
for en-route charges.’;
only when justified for objective reasons, subject to clear
identification;
9. Article 15 is replaced by the following:

‘Article  15 (f) transparency of the cost-base for charges shall be guar­

anteed. Implementing rules for the provision of informa­
Principles tion by the service providers shall be adopted in order to
permit reviews of the provider’s forecasts, actual costs
1. The charging scheme shall be based on the account of and revenues. Information shall be regularly exchanged
costs for air navigation services incurred by service providers between the national supervisory authorities, service
for the benefit of airspace users. The scheme shall allocate providers, airspace users, the Commission and
these costs among categories of users. Eurocontrol.

2. The following principles shall be applied when estab­ 3. Member States shall comply with the following prin­
lishing the cost-base for charges: ciples when setting charges in accordance with paragraph 2:

(a) the cost to be shared among airspace users shall be the

determined cost of providing air navigation services, (a) charges shall be set for the availability of air navigation
including appropriate amounts for interest on capital services under non-discriminatory conditions. When
investment and depreciation of assets, as well as the costs imposing charges on different airspace users for the use
of maintenance, operation, management and adminis­ of the same service, no distinction shall be made in rela­
tration. Determined costs shall be the costs determined tion to the nationality or category of the user;
L 300/46 EN Official Journal of the European Union 14.11.2009

(b) exemption of certain users, especially light aircraft and mechanisms for the deployment of such projects concerning
State aircraft, may be permitted, provided that the cost functional airspace blocks as agreed upon by the parties of
of such exemption is not passed on to other users; those blocks.

(c) charges shall be set per calendar year on the basis of the 3. The Commission may also decide, in accordance with
determined costs, or may be set under conditions estab­ the regulatory procedure referred to in Article  5(3) of the
lished by Member States for determining the maximum framework Regulation, to set up common projects for
level of the unit rate or of the revenue for each year over network-related functions which are of particular importance
a period not exceeding five years; for the improvement of the overall performance of air traffic
management and air navigation services in Europe. Such
common projects may be considered eligible for Community
(d) air navigation services may produce sufficient revenues funding within the multiannual financial framework. To this
to provide for a reasonable return on assets to contrib­ end, and without prejudice to Member States’ competence to
ute towards necessary capital improvements; decide on the use of their financial resources, the Commis­
sion shall carry out an independent cost-benefit analysis and
appropriate consultations with Member States and with rel­
(e) charges shall reflect the cost of air navigation services evant stakeholders in accordance with Article  10 of the
and facilities made available to airspace users, taking into framework Regulation, exploring all appropriate means for
account the relative productive capacities of the differ­ financing the deployment thereof. The eligible costs of
ent aircraft types concerned; deployment of common projects shall be recovered in accor­
dance with the principles of transparency and
non-discrimination.’;
(f) charges shall encourage the safe, efficient, effective and
sustainable provision of air navigation services with a
view to achieving a high level of safety and cost-
efficiency and meeting the performance targets and they 11. Articles 16 to 18 are replaced by the following:
shall stimulate integrated service provision, whilst reduc­
ing the environmental impact of aviation. To that end,
and in relation to the national or functional airspace ‘Article  16
block performance plans, national supervisory authori­ Review of compliance
ties may set up mechanisms, including incentives con­
sisting of financial advantages and disadvantages, to
encourage air navigation service providers and/or air­
space users to support improvements in the provision of 1. The Commission shall provide for the ongoing review
air navigation services such as increased capacity, of compliance with the principles and rules referred to in
reduced delays and sustainable development, while Articles  14 and  15, acting in cooperation with the Member
maintaining an optimum safety level. States. The Commission shall endeavour to establish the nec­
essary mechanisms for making use of Eurocontrol expertise
and shall share the results of the review with the Member
4. The Commission shall adopt detailed implementing States, Eurocontrol and the airspace users’ representatives.
rules for this Article in accordance with the regulatory pro­
cedure referred to in Article  5(3) of the framework
Regulation.’; 2. At the request of one or more Member States that con­
sider that the principles and rules referred to in Articles  14
and 15 have not been properly applied, or on its own initia­
10. the following Article is inserted: tive, the Commission shall carry out an investigation into any
allegation of non-compliance or non-application of the prin­
ciples and/or rules concerned. Without prejudice to
‘Article  15a Article  18(1), the Commission shall share the results of the
Common projects investigation with the Member States, Eurocontrol and the
airspace users’ representatives. Within two months of receipt
of a request, after having heard the Member State concerned
1. Common projects may assist the successful implemen­ and after consulting the Single Sky Committee in accordance
tation of the ATM Master Plan. Such projects shall support with the advisory procedure referred to in Article 5(2) of the
the objectives of this Regulation to improve the performance framework Regulation, the Commission shall take a decision
of the European aviation system in key areas such as capac­ on the application of Articles  14 and  15 of this Regulation
ity, flight and cost efficiency as well as environmental sustain­ and as to whether the practice concerned may continue.
ability, within the overriding safety objectives.

3. The Commission shall address its decision to the Mem­

2. The Commission may, in accordance with the regula­ ber States and inform the service provider thereof, in so far
tory procedure referred to in Article  5(3) of the framework as it is legally concerned. Any Member State may refer the
Regulation, develop guidance material concerning the way in Commission’s decision to the Council within one month. The
which such projects can support the implementation of the Council, acting by a qualified majority, may take a different
ATM Master Plan. Such guidance material shall not prejudice decision within a period of one month.
14.11.2009 EN Official Journal of the European Union L 300/47

Article  17 Article  3
Revision of Annexes
Regulation (EC) No 551/2004 shall be amended as follows:
Measures, designed to amend non-essential elements of the
Annexes in order to take into account technical or opera­ 1. Article 2 is deleted;
tional developments, shall be adopted in accordance with the
regulatory procedure with scrutiny referred to in Article 5(4)
of the framework Regulation. 2. Article 3 is replaced by the following:

On imperative grounds of urgency, the Commission may use ‘Article  3

the urgency procedure referred to in Article  5(5) of the European Upper Flight Information Region (EUIR)
framework Regulation.
1. The Community and its Member States shall aim at the
Article  18 establishment and recognition by the ICAO of a single EUIR.
To that effect, for matters which fall within the competence
Confidentiality of the Community, the Commission shall submit a recom­
mendation to the Council in accordance with Article 300 of
1. Neither the national supervisory authorities, acting in the Treaty at the latest by 4 December 2011.
accordance with their national legislation, nor the Commis­
sion shall disclose information of a confidential nature, in 2. The EUIR shall be designed to encompass the airspace
particular information about air navigation service providers, falling under the responsibility of the Member States in accor­
their business relations or their cost components. dance with Article  1(3) and may also include airspace of
European third countries.
2. Paragraph  1 shall be without prejudice to the right of
disclosure by national supervisory authorities or the Com­ 3. The establishment of the EUIR shall be without preju­
mission where this is essential for the fulfilment of their dice to the responsibility of Member States for the designa­
duties, in which case such disclosure shall be proportionate tion of air traffic service providers for the airspace under their
and shall have regard to the legitimate interests of air navi­ responsibility in accordance with Article  8(1) of the service
gation service providers, airspace users, airports or other rel­ provision Regulation.
evant stakeholders in the protection of their business secrets.

4. Member States shall retain their responsibilities towards

3. Information and data provided pursuant to the charg­
ing scheme referred to in Article  14 shall be publicly the ICAO within the geographical limits of the upper flight
disclosed.’; information regions and flight information regions entrusted
to them by the ICAO on the date of entry into force of this
Regulation.’;
12. the following Article is inserted:

‘Article  18a 3. the following Article is inserted:

Review ‘Article  3a

The Commission shall submit a study to the European Par­ Electronic aeronautical information
liament and to the Council no later than 4 December 2012
evaluating the legal, safety, industrial, economic and social 1. Without prejudice to the publication by Member States
impacts of the application of market principles to the provi­ of aeronautical information and in a manner consistent with
sion of communication, navigation, surveillance and aero­ that publication, the Commission, working in cooperation
nautical information services, compared to existing or with Eurocontrol, shall ensure the availability of electronic
alternative organisational principles and taking into account aeronautical information of high quality, presented in a har­
developments in the functional airspace blocks and in avail­ monised way and serving the requirements of all relevant
able technology.’; users in terms of data quality and timeliness.

13. Annex I is amended as follows: 2. For the purpose of paragraph 1, the Commission shall:

(a) the title shall be replaced by the following: (a) ensure the development of a Community-wide aeronau­
tical information infrastructure in the form of an elec­
‘REQUIREMENTS FOR QUALIFIED ENTITIES’; tronic integrated briefing portal with unrestricted access
to interested stakeholders. That infrastructure shall inte­
grate access to and provision of required data elements
(b) the introductory wording shall be replaced by the such as, but not limited to aeronautical information, air
following: traffic services reporting office (ARO) information,
meteorological information and flow management
‘The qualified entities must:’. information;
L 300/48 EN Official Journal of the European Union 14.11.2009

(b) support the modernisation and harmonisation of the The functions listed in the first subparagraph shall not
provision of aeronautical information in its broadest involve the adoption of binding measures of a general
sense in close cooperation with Eurocontrol and the scope or the exercise of political discretion. They shall
ICAO. take into account proposals established at national level
and at the level of functional airspace blocks. They shall
be performed in coordination with military authorities
3. The Commission shall adopt detailed implementing in accordance with agreed procedures concerning the
rules for this Article in accordance with the regulatory pro­ flexible use of airspace.
cedure referred to in Article  5(3) of the framework
Regulation.’;
The Commission may, after consultation of the Single
Sky Committee and in conformity with the implement­
4. Article 4 is replaced by the following: ing rules referred to in paragraph 4, entrust to Eurocon­
trol, or another impartial and competent body, the tasks
‘Article  4 necessary for the execution of the functions listed in the
first subparagraph. These tasks shall be executed in an
Rules of the air and airspace classification impartial and cost-effective manner and performed on
behalf on Member States and stakeholders. They shall be
subject to appropriate governance, which recognises the
The Commission shall, in accordance with the regulatory separate accountabilities for service provision and regu­
procedure referred to in Article 5(3) of the framework Regu­ lation, taking into consideration the needs of the whole
lation, adopt implementing rules in order to: ATM network and with the full involvement of the air­
space users and air navigation service providers.
(a) adopt appropriate provisions on rules of the air based
upon ICAO standards and recommended practices;
3. The Commission may add to the list of the functions in
paragraph 2 after proper consultation of industry stakehold­
(b) harmonise the application of the ICAO airspace classifi­ ers. Those measures, designed to amend non-essential ele­
cation, with appropriate adaptation, in order to ensure ments of this Regulation by supplementing it, shall be
the seamless provision of safe and efficient air traffic ser­ adopted in accordance with the regulatory procedure with
vices within the single European sky.’; scrutiny referred to in Article  5(4) of the framework
Regulation.

5. Article 5 is deleted;
4. Detailed rules for the implementation of the measures
referred to in this Article, except for those referred to in para­
6. Article 6 is replaced by the following: graphs 6 to 9, shall be adopted in accordance with the regu­
latory procedure referred to in Article 5(3) of the framework
Regulation. Those implementing rules shall address in
‘Article  6 particular:
Network management and design
(a) the coordination and harmonisation of processes and
1. The air traffic management (ATM) network functions procedures to enhance the efficiency of aeronautical fre­
shall allow optimum use of airspace and ensure that airspace quency management including the development of prin­
users can operate preferred trajectories, while allowing maxi­ ciples and criteria;
mum access to airspace and air navigation services. These
network functions shall be aimed at supporting initiatives at
national level and at the level of functional airspace blocks (b) the central function to coordinate the early identification
and shall be executed in a manner which respects the sepa­ and resolution of frequency needs in the bands allocated
ration of regulatory and operational tasks. to European general air traffic to support the design and
operation of European aviation network;

2. In order to achieve the objectives referred to in para­

graph  1 and without prejudice to the responsibilities of the (c) additional network functions as defined in the ATM
Member States with regard to national routes and airspace Master Plan;
structures, the Commission shall ensure that the following
functions are carried out:
(d) detailed arrangements for cooperative decision-making
between the Member States, the air navigation service
(a) design of the European route network; providers and the network management function for the
tasks referred to in paragraph 2;

(b) coordination of scarce resources within aviation fre­

quency bands used by general air traffic, in particular (e) arrangements for consultation of the relevant stakehold­
radio frequencies as well as coordination of radar tran­ ers in the decision-making process both at national and
sponder codes. European levels; and
14.11.2009 EN Official Journal of the European Union L 300/49

(f) within the radio spectrum allocated to general air traffic — priority rules regarding access to airspace for gen­
by the International Telecommunication Union, a divi­ eral air traffic, particularly during periods of conges­
sion of tasks and responsibilities between the network tion and crisis.
management function and national frequency managers,
ensuring that the national frequency management func­
tions continue to perform those frequency assignments 9. When developing and adopting the implementing rules
that have no impact on the network. For those cases the Commission shall, as appropriate and without prejudice
which do have an impact on the network, the national to safety, take into account consistency between flight plans
frequency managers shall cooperate with those respon­ and airport slots and the necessary coordination with adja­
sible for the network management function to optimise cent regions.’;
the use of frequencies.

7. Article 9 is deleted.
5. Aspects of airspace design other than those referred to
in paragraph 2 shall be dealt with at national level or at the
level of functional airspace blocks. This design process shall
take into account traffic demands and complexity, national Article  4
or functional airspace block performance plans and shall
include full consultation of relevant airspace users or relevant
groups representing airspace users and military authorities as Regulation (EC) No 552/2004 shall be amended as follows:
appropriate.

1. the following Article is inserted:

6. Member States shall entrust Eurocontrol or another
impartial and competent body with the performance of air
traffic flow management, subject to appropriate oversight ‘Article  6a
arrangements. Alternative verification of compliance

7. Implementing rules for air traffic flow management, A certificate issued in accordance with Regulation (EC)
including the necessary oversight arrangements, shall be No 216/2008 of the European Parliament and of the Coun­
developed in accordance with the advisory procedure referred cil of 20 February 2008 on common rules in the field of civil
to in Article 5(2) of the framework Regulation and adopted aviation and establishing a European Aviation Safety
in accordance with the regulatory procedure referred to in Agency (*), where it applies to constituents or systems, shall
Article 5(3) of the framework Regulation, with a view to opti­ be considered, for the purposes of Articles  5 and  6 of this
mising available capacity in the use of airspace and enhanc­ Regulation, as an EC declaration of conformity or suitability
ing air traffic flow management processes. These rules shall for use, or as an EC declaration of verification, if it includes a
be based on transparency and efficiency, ensuring that capac­ demonstration of compliance with the essential requirements
ity is provided in a flexible and timely manner, consistent of this Regulation and the relevant implementing rules for
with the recommendations of the ICAO Regional Air Navi­ interoperability.
gation Plan, European Region.
(*) OJ L 79, 19.3.2008, p. 1.’;
8. The implementing rules for air traffic flow manage­
ment shall support operational decisions by air navigation
2. Article 9 is replaced by the following:
service providers, airport operators and airspace users and
shall cover the following areas:
‘Article 9

(a) flight planning; Revision of Annexes

Measures, designed to amend non-essential elements of the

(b) use of available airspace capacity during all phases of
Annexes, in order to take into account technical or opera­
flight, including slot assignment; and
tional developments, shall be adopted in accordance with the
regulatory procedure with scrutiny referred to in Article 5(4)
of the framework Regulation.’;
(c) use of routings by general air traffic, including:

3. in Article 10 the following paragraph is inserted:

— the creation of a single publication for route and
traffic orientation,
‘2a. For the purposes of paragraph 2 of this Article, Mem­
ber States may declare systems and constituents of the
— options for diversion of general air traffic from con­ EATMN as compliant with the essential requirements and
gested areas, and exempt from the provisions of Articles 5 and 6.’;
L 300/50 EN Official Journal of the European Union 14.11.2009

4. Annex II is amended as follows: new sources of surveillance information in

such a way as to improve the overall quality
(a) in Part A, the first paragraph of point  2, is be replaced of service, in particular as envisaged in the
by the following: ATM Master Plan.’;

‘The EATMN, its systems and their constituents shall (iii) point 4.2 is replaced by the following:
support, on a coordinated basis, new agreed and vali­
dated concepts of operation that improve the quality,
sustainability and effectiveness of air navigation services, ‘4.2. Support for new concepts of operation
in particular in terms of safety and capacity.’;
Communication systems shall support the
(b) Part B is amended as follows: implementation of advanced, agreed and vali­
dated concepts of operation for all phases of
(i) the first paragraph of point 3.1.2, is replaced by the flight, in particular as envisaged in the ATM
following: Master Plan.’

‘Flight data processing systems shall accommodate

the progressive implementation of advanced, agreed Article  5
and validated concepts of operation for all phases of
flight, in particular as envisaged in the ATM Master Entry into force
Plan.’;
This Regulation shall enter into force on the 20th day following
(ii) point 3.2.2 is replaced by the following: its publication in the Official Journal of the European Union.

‘3.2.2. Support for new concepts of operation Article 6(2) and (6) of Regulation (EC) No 551/2004, as amended
by this Regulation, shall apply from the date specified in their
Surveillance data processing systems shall respective implementing rules but no later than 4  December
accommodate the progressive availability of 2012.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 21 October 2009.

For the European Parliament For the Council

The President The President
J. BUZEK C. MALMSTRÖM