Implementing regulation 2011/1035 - Common requirements for the provision of air navigation services - Main contents

EN

Official Journal of the European Union

L 271/23

Pursuant to Regulation (EC) No 216/2008, the Commission, assisted by the European Aviation Safety Agency (the Agency), is required to adopt implementing rules for the provision of air traffic management and air navigation services (ATM/ANS) throughout the Union. Article 8b(6) of that Regulation requires those implementing rules to be based on the regulations adopted under Article 5(3) of 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) (3).

The provision of air navigation services within the Union should be subject to certification by Member States or the Agency. Air navigation service providers which comply with the common requirements should be granted a certificate in accordance with Article 7 of Regulation (EC) No 550/2004 and Article 8b(2) of Regulation (EC) No 216/2008.

The application of the common requirements laid down pursuant to Article 6 of Regulation (EC) No 550/2004 and Article 8b of Regulation (EC) No 216/2008 should be without prejudice to Member States’ sovereignty over their airspace and to the requirements of the Member States relating to public order, public security and defence matters, as set out in Article 13 of Regulation (EC) No 549/2004. The common requirements should not cover military operations and training, as provided for in Article 1(2) of Regulation (EC) No 549/2004 and Article 1(2) of Regulation (EC) No 216/2008.

The definition of common requirements for the provision of air navigation services should take due account of the legal status of air navigation service providers in the Member States. Furthermore, when an organisation pursues activities other than the provision of air navigation services, the common requirements should not apply to such other activities or to resources allocated to activities outside the provision of air navigation services, unless provision is made to the contrary.

The application of the common requirements to air navigation service providers should be proportionate to the risks linked with the specific features of each activity such as the number and/or the nature and characteristics of processed movements. Should certain air navigation service providers elect not to avail themselves of the opportunity to provide cross-border services within the single European sky, a competent authority should be entitled to allow those providers to comply commensurately with, respectively, certain general requirements for the provision of air navigation services and certain specific requirements for the provision of air traffic services. Consequently, the conditions attached to the certificate should reflect the nature and the scope of the derogation.

In order to ensure the proper functioning of the certification scheme, Member States should provide the Commission and the Agency with all relevant information on the derogations granted by their competent authority in the context of their annual reports.

The different types of air navigation service activities are not necessarily subject to the same requirements. It is therefore necessary to adjust common requirements to the special features of each type of activity.

The onus of proving compliance with the applicable common requirements should lie with the air navigation service provider, for the period of validity of the certificate and for all the services covered by it.

In order to ensure the effective application of the common requirements, a system of regular supervision and inspection of compliance with those common requirements and with the conditions specified in the certificate should be established. The competent authority should examine the suitability of a provider prior to issuing a certificate and should assess the ongoing compliance of the air navigation service providers it has certified on a yearly basis. Consequently, it should establish and update annually an indicative inspection programme covering all the providers it has certified, on the basis of an assessment of the risks. That programme should allow the inspection of all relevant parts of the air navigation service providers within a reasonable time frame. When assessing the compliance of designated providers of air traffic services and meteorological services, the competent authority should be entitled to check relevant requirements stemming from the international obligations on the Member State in question.

Peer reviews of national supervisory authorities could further a common approach to the supervision of air navigation service providers throughout the Union. The Commission, in cooperation with the Member States and the Agency, may arrange these peer reviews, which should be coordinated with the activities undertaken within the framework of Articles 24 and 54 of Regulation (EC) No 216/2008 and any other international monitoring and oversight programmes. This would avoid duplication of work. In order to allow the exchange of experience and best practice during a peer review, the experts should preferably be from a competent authority.

Eurocontrol has developed Safety Regulatory Requirements (ESARRs) which have been of the highest importance for the safe provision of air traffic services. In accordance with Regulation (EC) No 550/2004, the Commission should identify and adopt the relevant provisions of ESARRs in Union regulations. The ESARRs incorporated in Commission Regulation (EC) No 2096/2005 of 20 December 2005 laying down common requirements for the provision of air navigation services (4) form the basis of these implementing rules.

When adopting Regulation (EC) No 2096/2005, the Commission concluded that it was not appropriate to repeat the ESARR 2 provisions on reporting and assessment of safety occurrences in ATM, which are covered by Regulation (EU) No 996/2010 of the European Parliament and the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC (5) and by Directive 2003/42/EC of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation (6). However, new provisions on safety occurrences should be introduced in order to require a competent authority, as defined by this Regulation, to check whether providers of air traffic services, and also providers of communication, navigation or surveillance services, meet the arrangements required to cover the reporting and assessment of such occurrences.

It should be recognised in particular that, firstly, safety management is that function of air navigation services which ensures that all safety risks have been identified, assessed and satisfactorily mitigated, and that, secondly, a formal and systematic approach to safety management and management systems, towards a total system approach, will maximise safety benefits in a visible and traceable way. The Agency should further evaluate the safety requirements of this Regulation and integrate them into a common regulatory structure for civil aviation safety.

Until the Agency has drawn up the implementing measures transposing the relevant standards of the International Civil Aviation Organisation (ICAO) into Union implementing measures, acceptable means of compliance, certification specifications and guidance material, air navigation service providers should operate in compliance with the relevant ICAO standards. With a view to facilitating the cross-border provision of air navigation services, and until the finalisation of the work of the Agency to draw up the relevant measures transposing the ICAO standards, the Member States, the Commission and the Agency, acting in close cooperation with Eurocontrol where relevant, should work towards minimising the differences notified by Member States in the application of ICAO standards in the field of air navigation services in order to reach a common set of standards between Member States within the single European sky.

Different national arrangements as to liability should not prevent air navigation service providers from entering into agreements on the cross-border provision of services, once the air navigation service providers have set up arrangements to cover losses for damages arising from liabilities under the applicable law. The method employed should comply with the requirements of national law. Member States which allow the provision of air navigation services in all or part of the airspace under their responsibility without certification in accordance with Regulation (EC) No 550/2004 should cover the liabilities of those air navigation service providers.

The Agency should further evaluate the provisions of this Regulation, in particular those related to the safety assessment of changes to the provision of air navigation services by the certified organisation and engineering and technical personnel, and issue an opinion to adapt them towards a total system approach, taking into account the integration of these provisions into a future common regulatory structure for civil aviation safety and the experience gained by stakeholders and competent authorities in the field of safety oversight.

Regulation (EC) No 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) (7) requires that specific functions called network functions are to be set up to allow optimum use of airspace and scarce resources, while allowing users maximum access to airspace as well as the ability to operate preferred trajectories. As provided for in Regulation (EC) No 551/2004, Commission Regulation (EU) No 677/2011 of 7 July 2011 laying down detailed rules for the implementation of air traffic management (ATM) network functions and amending Regulation (EU) No 691/2010 (8) lays down the rights, obligations and responsibilities of the entity involved in the provision of those functions.

For the safe execution of certain network functions, the entity involved is subject to certain requirements. These requirements aim to ensure that the entity or organisation operates in a safe manner and they are laid down in Annex VI Regulation (EU) No 677/2011. These are organisation safety requirements which are very similar to the general requirements for the provision of air navigation services laid down in Annex I to this Regulation but adapted to the safety responsibilities of the network functions.

Regulation (EC) No 2096/2005 should therefore be repealed.

Commission Regulation (EC) No 482/2008 of 30 May 2008 establishing a software safety assurance system to be implemented by air navigation service providers and amending Annex II to Regulation (EC) No 2096/2005 (9) and Commission Regulation (EU) No 691/2010 of 29 July 2010 laying down a performance scheme for air navigation services and network functions and amending Regulation (EC) No 2096/2005 laying down common requirements for the provision of air navigation services (10) should be amended in order to be adapted to this Regulation.

The measures provided for in this Regulation are in accordance with the opinion of the Single Sky Committee established by Article 5 of Regulation (EC) No 549/2004,

activities other than the provision of air navigation services by a provider of such services;

resources allocated to activities outside the provision of air navigation services.

‘aerial work’ means an aircraft operation in which an aircraft is used for specialised services such as agriculture, construction, photography, surveying, observation and patrol, search and rescue or aerial advertisement;

‘commercial air transport’ means any aircraft operation involving the transport of passengers, cargo or mail for remuneration or hire;

‘functional system’ means a combination of systems, procedures and human resources organised to perform a function within the context of ATM;

‘general aviation’ means any civil aircraft operation other than aerial work or commercial air transport;

‘national supervisory authority’ means the body or bodies nominated or established by Member States as their national supervisory authority pursuant to Article 4(1) of Regulation (EC) No 549/2004;

‘hazard’ means any condition, event, or circumstance which could induce an accident;

‘organisation’ means an entity providing air navigation services;

‘operating organisation’ means an organisation responsible for the provision of engineering and technical services supporting air traffic, communication, navigation or surveillance services;

‘risk’ means the combination of the overall probability, or frequency of occurrence of a harmful effect induced by a hazard and the severity of that effect;

‘safety assurance’ means all planned and systematic actions necessary to provide adequate confidence that a product, a service, an organisation or a functional system achieves acceptable or tolerable safety;

‘safety objective’ means a qualitative or quantitative statement that defines the maximum frequency or probability at which a hazard can be expected to occur;

‘safety requirement’ means a risk-mitigation means, defined from the risk-mitigation strategy that achieves a particular safety objective, including organisational, operational, procedural, functional, performance, and interoperability requirements or environment characteristics;

‘services’ means either an air navigation service or a bundle of such services;

‘pan-European air navigation service’ means an air navigation service which is designed and established for users within most or all Member States and which may also extend beyond the airspace of the territory to which the Treaty applies.

‘air navigation service provider’ means any public or private entity providing ANS for general air traffic, including an organisation having applied for a certificate to provide such services.

for organisations having their principal place of operation and, if any, their registered office located in a Member State, the national supervisory authority nominated or established by that Member State;

for organisations providing air navigation services in the airspace of the territory to which the Treaty applies and having their principal place of operation and, if any, their registered office located outside the territory subject to the provisions of the Treaty, the Agency;

for organisations providing pan-European air navigation services in the airspace of the territory to which the Treaty applies, the Agency.

the general requirements for the provision of air navigation services set out in Annex I;

the additional specific requirements set out in Annexes II to V according to the type of service they provide.

Article 7 of Regulation (EC) No 550/2004;

Article 8b(2) and Article 22a(b) and (c) of Regulation (EC) No 216/2008.

aerial work;

general aviation;

commercial air transport limited to aircraft with less than 10 tonnes of maximum take-off mass or less than 20 passenger seats;

commercial air transport with less than 10 000 movements per year, regardless of the maximum take-off mass and the number of passenger seats; ‘movements’ being counted as the sum of take-offs and landings and calculated as an average over the previous three years.

technical and operational competence and capability (point 1);

safety management (point 3.1);

human resources (point 5);

open and transparent provision of air navigation services (point 8.1).

safety management responsibility and external services and supplies (point 3.1.2(b) and (e));

safety surveys (point 3.1.3(a));

safety requirements for risk assessment and mitigation with regard to changes (point 3.2).

specify the nature and the scope of the derogation in the conditions attached to the certificate by indicating its legal basis;

limit the validity of the certificate in time, where considered necessary for oversight purposes;

monitor whether the air navigation service providers continue to qualify for the derogation.

to examine the relevant records, data, procedures and any other material relevant to the provision of air navigation services;

to take copies of or extracts from such records, data, procedures and other material;

to ask for an oral explanation on site;

to enter relevant premises, lands or means of transport.

issue appropriate safety rules for engineering and technical personnel who undertake operational safety-related tasks;

ensure adequate and appropriate safety oversight of the engineering and technical personnel assigned by any operating organisation to undertake operational safety-related tasks;

on reasonable grounds and after due enquiry, take appropriate action in respect of the operating organisation and/or its technical and engineering personnel who do not comply with the requirements of point 3.3 of Annex II;

verify that appropriate methods are in place to ensure that third parties assigned to operational safety-related tasks comply with the requirements of point 3.3 of Annex II.

in Article 4(5), the reference to ‘Regulation (EC) No 2096/2005’ is replaced by a reference to ‘Commission Implementing Regulation (EU) No 1035/2011 (12).

Article 6 is deleted;

in Annex I, in points 1 and 2, the reference to ‘Regulation (EC) No 2096/2005’ is replaced by a reference to ‘Implementing Regulation (EU) No 1035/2011’.

the authority, duties and responsibilities of the nominated post holders, in particular of the management personnel in charge of safety, quality, security, finance and human resources related functions;

the relationship and reporting lines between different parts and processes of the organisation.

set out the overall aims and goals of the air navigation service provider and its strategy towards achieving them in consistency with any overall longer term plan of the air navigation service provider and with relevant Union requirements for the development of infrastructure or other technology;

contain appropriate performance targets in terms of safety, capacity, environment and cost-efficiency, as may be applicable.

information on the implementation of new infrastructure or other developments and a statement how they will contribute to improving the performance of the air navigation service provider, including level and quality of services;

performance indicators consistent with the national or functional airspace block performance plan referred to in Article 11 of Regulation (EC) No 549/2004 against which the performance level and quality of service may be reasonably assessed;

information on the measures foreseen to mitigate the safety risks identified in the safety plan of the air navigation service provider, including safety indicators to monitor safety risk and, where appropriate, the estimated cost of mitigation measures;

the air navigation service provider’s expected short-term financial position as well as any changes to or impacts on the business plan.

define the quality policy in such a way as to meet the needs of different users as closely as possible;

set up a quality assurance programme that contains procedures designed to verify that all operations are being conducted in accordance with applicable requirements, standards and procedures;

provide evidence of the functioning of the quality management system by means of manuals and monitoring documents;

appoint management representatives to monitor compliance with, and adequacy of, procedures to ensure safe and efficient operational practices;

perform reviews of the quality management system in place and take remedial actions, as appropriate.

operations manuals contain the instructions and information required by the operations personnel to perform their duties;

relevant parts of the operations manuals are accessible to the personnel concerned;

the operations personnel are expeditiously informed of amendments to the operations manual applying to their duties as well as of their entry into force.

the security of their facilities and personnel so as to prevent unlawful interference with the provision of air navigation services;

the security of operational data they receive or produce or otherwise employ, so that access to it is restricted only to those authorised.

the procedures relating to security risk assessment and mitigation, security monitoring and improvement, security reviews and lesson dissemination;

the means designed to detect security breaches and to alert personnel with appropriate security warnings;

the means of containing the effects of security breaches and to identify recovery action and mitigation procedures to prevent reoccurrence.

an assessment of the level of performance of air navigation services generated;

the performance of the air navigation service provider compared to the performance targets established in the business plan referred to in point 2.2.1, reconciling actual performance against the annual plan by using the indicators of performance established in the annual plan;

provide an explanation for differences with the targets, and identify measures for closing any gaps during the reference period referred to in Article 11 of Regulation (EC) No 549/2004;

developments in operations and infrastructure;

the financial results, as long as they are not published separately in accordance with Article 12(1) of Regulation (EC) No 550/2004;

information about the formal consultation process with the users of its services;

information about the human resources policy.

their legal status, their ownership structure and any arrangements having a significant impact on control over their assets;

any links with organisations not involved in the provision of air navigation services, including commercial activities in which they are engaged either directly or through related undertakings, which account for more than 1 % of their expected revenue; furthermore, they shall notify any change of any single shareholding which represents 10 % or more of their total shareholding.

ensures a formalised, explicit and proactive approach to systematic safety management in meeting their safety responsibilities within the provision of their services; operates in respect of all their services and the supporting arrangements under its managerial control; and includes, as its foundation, a statement of safety policy defining the organisation’s fundamental approach to managing safety (safety management);

ensures that everyone involved in the safety aspects of the provision of air traffic services has an individual safety responsibility for their own actions; that managers are responsible for the safety performance of their respective departments or divisions and that the top management of the provider carries an overall safety responsibility (safety responsibility);

ensures that the achievement of satisfactory safety in air traffic services shall be afforded the highest priority (safety priority);

ensures that while providing air traffic services, the principal safety objective is to minimise its contribution to the risk of an aircraft accident as far as reasonably practicable (safety objective).

ensure that personnel are adequately trained and competent for the job they are required to do, in addition to being properly licensed if so required and satisfying applicable medical fitness requirements (competency);

ensure that a safety management function is identified with organisational responsibility for development and maintenance of the SMS; ensure that this point of responsibility is independent of line management, and accountable directly to the highest organisational level. However, in the case of small organisations where a combination of responsibilities may prevent sufficient independence in this regard, the arrangements for safety assurance shall be supplemented by additional independent means; and ensure that the top management of the service provider organisation is actively involved in ensuring safety management (safety management responsibility);

ensure that, wherever practicable, quantitative safety levels are derived and are maintained for all functional systems (quantitative safety levels);

ensure that the SMS is systematically documented in a manner which provides a clear linkage to the organisation’s safety policy (SMS documentation);

ensure adequate justification of the safety of the externally provided services and supplies, having regard to their safety significance within the provision of its services (external services and supplies);

ensure that risk assessment and mitigation is conducted to an appropriate level to ensure that due consideration is given to all aspects of the provision of ATM (risk assessment and mitigation). As far as changes to the ATM functional system are concerned, point 3.2 shall apply;

ensure that ATM operational or technical occurrences which are considered to have significant safety implications are investigated immediately, and any necessary corrective action is taken (safety occurrences). They shall also demonstrate that they have implemented the requirements on the reporting and assessment of safety occurrences in accordance with applicable national and Union law.

safety surveys are carried out as a matter of routine, to recommend improvements where needed, to provide assurance to managers of the safety of activities within their areas and to confirm compliance with the relevant parts of the SMS (safety surveys);

methods are in place to detect changes in functional systems or operations which may suggest any element is approaching a point at which acceptable standards of safety can no longer be met, and that corrective action is taken (safety monitoring);

safety records are maintained throughout the SMS operation as a basis for providing safety assurance to all associated with, responsible for or dependent upon the services provided, and to the competent authority (safety records).

all personnel are aware of the potential safety hazards connected with their duties (safety awareness);

the lessons arising from safety occurrence investigations and other safety activities are disseminated within the organisation at management and operational levels (lesson dissemination);

all personnel are actively encouraged to propose solutions to identified hazards, and changes are made to improve safety where they appear needed (safety improvement).

the complete life cycle of the constituent part of the ATM functional system under consideration, from initial planning and definition to post-implementation operations, maintenance and decommissioning;

the airborne, ground and, if appropriate, spatial components of the ATM functional system, through cooperation with responsible parties;

the equipment, procedures and human resources of the ATM functional system, the interactions between these elements and the interactions between the constituent part under consideration and the remainder of the ATM functional system.

a determination of the scope, boundaries and interfaces of the constituent part being considered, as well as the identification of the functions that the constituent part is to perform and the environment of operations in which it is intended to operate;

a determination of the safety objectives to be placed on the constituent part, incorporating:

the derivation, as appropriate, of a risk mitigation strategy which:

verification that all identified safety objectives and safety requirements have been met:

complete arguments are established to demonstrate that the constituent part under consideration, as well as the overall ATM functional system are, and will remain tolerably safe by meeting allocated safety objectives and requirements. This shall include, as appropriate, specifications of any predictive, monitoring or survey techniques being used;

all safety requirements related to the implementation of a change are traceable to the intended operations/functions.

identify the accountable managers for safety-related functions;

record the relevant qualifications of technical and operational personnel, against required skills and competence requirements;

specify the locations and duties to which technical and operational personnel are assigned, including any rostering methodology.

Annex 2 on rules of the air in its 10th edition of July 2005, including all amendments up to No 42;

Annex 10 on aeronautical telecommunications, Volume II on communication procedures including those with PANS Status in its sixth edition of October 2001, including all amendments up to No 85;

Annex 11 on air traffic services in its 13th edition of July 2001, including all amendments up to No 47-B.

operators and flight crew members for pre-flight and in-flight planning;

providers of air traffic services and flight information services;

search and rescue services units;

aerodromes.

Annex 3 on meteorological service for international air navigation in its 17th edition of July 2010, including all amendments up to No 75;

Annex 11 on air traffic services in its 13th edition of July 2001, including all amendments up to No 47-B;

Annex 14 on aerodromes in the following versions:

flight operating personnel, including flight crew, as well as flight planning, flight management systems and flight simulators;

providers of air traffic services which are responsible for flight information services, aerodrome flight information services and the provision of pre-flight information.

Commission Regulation (EU) No 73/2010 (1);

the following Annexes to the Convention on International Civil Aviation as far as they are relevant for the provision of aeronautical information services in the airspace concerned:

Volume I on radio navigation aids in its sixth edition of July 2006, including all amendments up to No 85;

Volume II on communication procedures including those with PANS status in its sixth edition of October 2001, including all amendments up to No 85;

Volume III on communications systems in its second edition of July 2007 including all amendments up to No 85;

Volume IV on surveillance radar and collision avoidance systems in its fourth edition of July 2007, including all amendments up to No 85;

Volume V on aeronautical radio frequency spectrum utilisation in its second edition of July 2001, including all amendments up to No 85.