Transposition of ESARRs into European Community Law

Transposition of ESARRs into European Community Law

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Background

The EUROCONTROL Safety Regulatory Requirements (ESARRs) were developed by the EUROCONTROL Safety Regulation Commission (SRC) with the objective to define and support the achievement of consistent safety levels in the European Civil Aviation Conference (ECAC) area.

At present there are six ESARRs:

According to the decisions of the EUROCONTROL Permanent Commission all Member States are required to implement the ESARR provisions. In addition, the ECAC states, which are not members of the EUROCONTROL organisation, are strongly encouraged to implement the ESARRs.

Within the framework of the Single European Sky (SES) initiative the European Commission transposed the great majority of these safety regulatory requirements into Community Law, thus giving them increased legal effect. Those requirements, which are not directly applicable in the EU Member Sates, should be integrated into the national regulatory framework through the appropriate legislative instruments.

The transposition process does not result in ESARRs and Community rules which are identical in all cases. Some differences in provisions and/or their scope continue to exist. These issues fall under the generic heading of “double regulation”, and continue to be addressed jointly by EUROCONTROL and the European Commission. Further details below.

Transposition of ESARRs into Community Law

ESARR 1

ESARR 1 ==> Commission Regulation (EC) No 1315/2007 of 8 November 2007 on safety oversight in air traffic management and amending [repealed] Regulation (EC) No 2096/2005

Commission Regulation (EC) 1315/2007 has been published in the EU Official Journal on 9 November 2007. This implementing rule transposes ESARR 1 into European Community law in accordance with Article 4 of Regulation (EC) 550/2004 (the Service Provision Regulation). ESARR 1 provides a set of safety regulatory requirements for the implementation of an effective safety oversight function in ATM. It was approved by the EUROCONTROL Permanent Commission in November 2004 for implementation into the regulatory frameworks of EUROCONTROL Contracting Parties by November 2007.

Commission Regulation (EC) 1315/2007 is directly applicable in EU Member States and entered into force on the day following its publication, with the exception of Article 9(3) whose application can be deferred by the Member States until 1st November 2008.

On 17 October 2011, Regulation (EC) 1315 was repealed and replaced by Regulation (EU) No 1034/2011 on safety oversight in air traffic management and air navigation services, which was repealed in 2020 by Regulation 2017/373.

ESARR 2

ESARR 2 ==> Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007

ESARR 2 ==> Council Directive 94/56/EC of 21 November 1994 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents

As indicated in the titles, the scope of the Regulation and Directive is not limited to ATM, but extends to all other sectors of civil aviations, such as aircraft operations, aerodromes etc. However, the ESARR 2 requirements on reporting and investigation of safety occurrences in ATM are covered to a great extent by the provisions of the two Directives.

In addition, Annex II of Regulation (EU) No 1035/2011 of 17 October 2011 laying down common requirements for the provision of air navigation services requires the ANS provider to:

  • 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);
  • Demonstrate that it has implemented the requirements on the reporting and assessment of safety occurrences in accordance with applicable national and Community law.

The full text of Regulation (EU) No 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation can be viewed here.

The full text of Directive 94/56 establishing fundamental principles governing the investigation of civil aviation accidents and incidents can be viewed here.

ESARR 3

ESARR 3 ==> Regulation (EU) No 1035/2011 of 17 October 2011 laying down Common Requirements for the Provision of Air Navigation Services

Regulation (EU) No 1035/2011 identifies and adopts the mandatory provisions of ESARR 3 on the use of safety management systems by air traffic management service providers, which is relevant for the certification of air navigation service provider. The Regulation recognises the need of safety management as a function of air traffic services which ensures that all safety risks have been identified, assessed and satisfactorily mitigated. The Common Requirements set specific requirements for air navigation service providers to develop and establish a formal and systematic approach to safety management which will maximise safety benefits in a visible and traceable way, notably through the implementation and operation of a safety management system (SMS).

The full text of Regulation (EU) No 1035/2011 laying down common requirements for the provision of air navigation services can be viewed here.

ESARR 4

ESARR 4 ==> Regulation (EU) No 1035/2011 of 17 October 2011 laying down Common Requirements for the Provision of Air Navigation Services

Regulation (EU) No 1035/2011 identifies and adopts the mandatory provisions of ESARR 4 on risk assessment and mitigation in ATM which is relevant for the certification of air navigation service provider. The Regulation mandates ANS providers to conduct risk assessment and mitigation to an appropriate level in order to ensure the highest possible level of safety of services provided. The Regulation also sets specific requirements for risk assessment and mitigation with regard to changes to the functional ATM system.

The full text of Regulation (EU) No 1035/2011 laying down common requirements for the provision of air navigation services can be viewed here.

ESARR 5

ESARR 5 ==> Directive 2006/23/EC of the European Parliament and of the Council of 5 April 2006 on a Community Air Traffic Controller Licence

ESARR 5 ==> Regulation (EU) No 1035/2011 of 17 October 2011 laying down Common Requirements for the Provision of Air Navigation Services

  • Directive 2006/23/EC on ATCO Licensing

Directive 2006/23/EC of the European Parliament and of the Council provides more detailed legislation concerning the licensing of air traffic controllers, in order to ensure the highest standards of responsibility and competence, to improve the availability of air traffic controllers and to promote the mutual recognition of licences, as envisaged in Article 5 of Regulation (EC) No 550/2004 on the provision of air navigation services in the Single European Sky, while pursuing the objective of an overall improvement in air traffic safety and competence of personnel.

  • Competency Requirements for Engineering and Technical Personnel

The common requirements for the provision of air navigation services, including requirements on competency of staff involved in the delivery of such services, are established in accordance with the procedure referred to in Article 5(3) of the SES Framework Regulation. Annex II, paragraph 3.3 of Regulation (EU) No 1035/2011 sets the safety requirements for ATM services’ engineering and technical personnel undertaking operational safety related tasks.

In addition, Regulation (EU) No 1035/2011 of 17 October 2011 extends the competency requirements to other categories of staff, not covered more generally by ESARR 5 Section 5.1 - General Requirements. Annex III sets the specific competency requirements for personnel providing meteorological services. Annex IV sets competency requirements for personnel providing aeronautical information services. Annex V sets competency requirements for personnel providing communication, navigation or surveillance services.

The full text of Regulation (EU) No 1035/2011 laying down common requirements for the provision of air navigation services can be viewed here.

ESARR 6

ESARR6 ==> Regulation (EC) N° 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 [repealed] Regulation (EC) N° 2096/2005. Regulation (EC) 482/2008 was ammended by Commission Implementing Regulation (EU) No 1035/2011 of 17 October 2011 laying down common requirements for the provision of air navigation services

This implementing rule transposes ESARR 6 into European Community law in accordance with Article 4 of Regulation (EC) 550/2004 (the Service Provision Regulation). ESARR 6 provides a set of safety regulatory requirements for the use of software in ATM systems. It was approved by the EUROCONTROL Permanent Commission in November 2003 for implementation into the regulatory frameworks of EUROCONTROL Contracting Parties by November 2006.

The full text of Regulation (EU) No 1035/2011 and in particular Section 5 establishing a software safety assurance system to be implemented by air navigation service providers can be viewed here.

Relationship between ESARRs and EC Regulations

Double Regulation

The arrival of the Single European Sky (SES) regulations and the transposition of ESARRs into EC legislation presented the States with the issue of “Double Regulation”. SRC set up the Double Regulation Ad-Hoc Group (DRAHG) to address this issue, and the Group’s recommendations were agreed by the Provisional Council in November 2007 and by the Single Sky Committee (SSC) in January 2008. The Provisional Council also invited the EUROCONTROL Safety Regulation Commission (SRC) to further develop those recommendations that concern ESARRs and return to the Permanent Commission for approval at an appropriate time. The recommendations include: -

In the case of ESARR 1, an amendment at achieving full alignment with the text of its transposing regulation, Commission Regulation (EC) 1315/2007, thus removing potential double-regulation issues with regard to safety oversight in EUROCONTROL Member States where EC regulations are directly applicable. For EUROCONTROL Member States who are not members of the EU, ESARR 1 provides the means to ensure the implementation of an appropriate ATM safety oversight function. SRC is to submit proposals in that regard to the EUROCONTROL Permanent Commission in December 2009.

The publication of Commission Regulation (EC) 482/2008 transposing ESARR 6 into EC law has opened the door to the implementation of a similar course of action to apply the recommendations of DRAHG to ESARR 6.

Additionally, actions are also foreseen as regards ESARRs 2, 3, 4 and 5. In these cases, in accordance with the DRAHG recommendations, the process to achieve a single text for ESARRs 2, 3, 4 and 5 with their corresponding EC rules is to be initiated by means of the introduction of measures by the EC to address the DRAHG recommendations related to those rules. The associated proposals for amendment of ESARR will be submitted to the PC in due course.

It should also be noted that with the expansion of the EASA role to ATM/ANS, new Implementing Rules will be developed on the basis based on the SES safety-related provisions which transposed the ESARRs into EC law. These new Implementing Rules should be put in place by 31st December 2012. This will provide the opportunity to address the DRAHG recommendations.

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