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7.2.1 Joint designation of ATSPs
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|This page displays officially adopted European Commission Guidance Material for the Establishment and Modification of Functional Airspace Blocks (FAB), edition 2.0 of 08 December 2011, following the positive opinion (about Version 1.0) of the Single Sky Committee in its 38th session on 3 December 2010 and additional review processes by the FFPG and SSC (of intermediate Version 1.2) in August and November 2011. See the disclaimer agreed by the Single Sky Committee regarding the non-binding and evolving nature of the Guidance Material and its initial use.|
7.2.1 Joint designation of the ATS providers in a FAB
|Category:||FAB State Agreement|
|Content source:||European Commission|
FAB requirement (Mandatory)
Explanatory material (e.g. scope, context, key or relevant issues to be considered etc)
Where a FAB extends across the airspace under the responsibility of more than one Member State, joint designation is required by all the concerned States of the certified ATSP(s) providing services in the blocks of airspace of that FAB, at least one month before its implementation. Designation has the purpose of identifying and allocating responsibility for ATS provision to an ATSP on an exclusive basis.
‘Joint’ designation of ATSPs in a FAB, in order to give it meaning, may be interpreted as being one legal act signed by all FAB participating Member States for all ATS to be provided in the FAB airspace at any time.
The joint designation act should define specific rights and obligations accompanying the designation, either in the act of designation or a connected legal act.
In principle, the joint designation of ATSPs in a FAB should supersede all previous designations of ATSPs made individually by the Member States participating in that FAB with respect to the airspace now in the FAB - the FAB States therefore need to ensure that conflicting designations (e.g. in previous acts) are repelled. While this should be the logical way of doing it, the implications may need to be carefully thought through, particularly as in practice the national designation may be hedged around with numerous conditions, while the FAB one may be a simple authorisation.
For the provision of cross-border services, the FAB States must ensure that compliance with Article 8 SPR is not prevented by their national legal system requiring that ATSPs providing services in the airspace under responsibility of that Member State:
- are owned directly or through a majority holding by that Member State or its nationals; or
- have their principal place of operation or registered office in the territory of that Member State; or
- use only facilities in that Member State.
For this purpose, Member States should verify and, if necessary, amend their national law accordingly.
Member States have discretionary powers in choosing the ATS provider(s) in a FAB, on condition that they fulfil the certification requirements in accordance with Articles 7 and 8.1 SPR and with due consideration also to the requirements laid down in Articles 8.4 and 8.5 SPR. This raises the need to clarify if and how Member States may designate:
- an ATSP which has been exempted from certification by its State in accordance with Article 7(5) SPR;
- an ATSP from a third country participating in a FAB; or
- a certified ATSP which has been granted derogations in accordance with Article 4 CR-IR.
(a) - Non-certified ATSPs in accordance with Article 7(5) SPR:
An ATSP exempted from certification in accordance with Article 7(5) SPR nonetheless legally meets the requirements of Article 7 SPR and should therefore be eligible for designation, in accordance with Article 8.4. However, this interpretation is at present in contradiction with the explicit wording of Article 8.1 which requires that Member States designate only ATS providers holding a valid certificate in the Community, i.e. certified ATS providers. This is the situation irrespective if designation is discussed in the national context, for cross-border provision or at FAB level.
Article 8.1 requires that Member States shall ensure the provision of ATS on an exclusive basis within specific airspace blocks with respect to the airspace under their responsibility. An ATSP exempted from certification in accordance with Article 7(5) may continue to provide those services without being subject to designation within the SES framework. In order to ensure that ATS is provided on an exclusive basis in an airspace block serviced by such an ATSP, some form of national or local designation of that ATSP would nonetheless be needed.
As regards the joint designation of ATSPs in the FAB as per Article 8.5 SPR, a non-certified service provider in accordance with Article 7(5) may continue to provide those services in accordance with the decision made by the Member State which granted the exception. Such particular airspace block(s) within the FAB would be excluded from the requirement of joint designation but would normally remain part of that FAB. Considering the implications in terms of safety and compliance with the common requirements, such decision should involve consultation with and agreement by the other States in the FAB. I such case, before establishing the FAB, the Member States concerned must provide information on such arrangements in accordance with Part One 1(d) of the Annex to the FAB-IR.
An alternative way for such situation may be to exclude the respective block(s) of airspace from the FAB (i.e. making the FAB comprised only of blocks of airspace serviced by certified and jointly designated ATSP(s).
(b) - ATSPs from 3rd countries participating in a FAB:
Article 3(c) of Regulation (EC) No XXX/2011 (EASA/EC CR-IR) laying down common requirements for the provision of ANS and repealing Regulation (EC) No 2096/2005 stipulates that EASA is the competent authority for the purpose of this Regulation for the ANS providers providing services in the airspace within the EU but having their principal place of operation and, if any, their registered offices located outside the territory subject to the provisions of the Treaty. In terms of joint designation of the ATSPs in a FAB, there are two possible scenarios:
- either such provider becomes eligible for joint designation as a result of its certification by EASA;
- or the Member States and 3rd country or countries participating in the FAB may agree that the respective airspace block(s) serviced by such non-certified ATSPs are not included in the joint designation act, on condition that these blocks are outside EU territory (to avoid conflict with Art. 8.1).
Article 3(c) of Regulation (EC) No XXX/2011 (EASA/EC CR-IR) however does not concern those 3rd countries that, through separate agreements with the EU (such as ECAA, EEA or bilateral agreements) have committed to implement the SES legislation.
(c) - Certified ATSP which has been granted derogations in accordance with Article 4 CR-IR:
Such service providers have elected not to avail themselves of the opportunity to provide cross-border services and have waived the right to mutual recognition within the SES. Their certificates are limited to block(s) of airspace under the responsibility of the Member State referred to in Article 7(2) SPR. They are therefore not eligible to be designated for the provision of cross-border ATS in a FAB.
However, considering the limited catalogue of ANS these providers are allowed to provide, this category is not likely to be of much relevance for FABs. On the other side, as long as such ATSPs hold a valid certificate within the Community, the possibility of their joint designation cannot be ruled out, on condition that its designation, if agreed by all FAB States, is confined to the airspace of the certifying Member State.
However, the FAB States may elect to exclude those particular airspace blocks from the FAB airspace. All State-related responsibilities with respect to such provider and the airspace block(s) serviced by it would remain solely with the certifying Member State and its NSA. Their services cannot be used in Article 10 SPR agreements or other equivalent arrangements for cross-border provision of ATS and outside the airspace and territory under responsibility of that Member State.
Operational requirements and the increasing need of flexibility and optimisation may result in different designation models, i.e. considering the four dimensions – airspace delimitation and time, to allow for designation of more than one ATSP for the same portion of airspace. Nonetheless, designation in this case would still need to ensure exclusive provision of ATS per defined airspace block and within a specific timeframe. The designation of all ATSPs for the whole FAB airspace (i.e. not per specific airspace blocks) to allow for maximum flexibility according to operational needs in the arrangements between the ATSPs is not possible in the present legal context (Article 8 SPR would need to be amended).
FAB Stakeholder(s) concerned
Joint designation has to involve the national authorities responsible for designation of ATS providers. Wherever responsibility for ATM is shared with the military, joint designation should also involve the military authorities having responsibilities for ATM and civil-military coordination.
Obviously, the designation should also involve the ATS providers in the FAB, civil and military, since it should be important that the joint designation is made aiming to optimise and efficientise ATS provision in that FAB such as to meet the agreed FAB strategy, objectives and underlying operational requirements.
The arrangements aiming for optimisation of ATS provision in a FAB should also be a matter of consultation of stakeholders in the frame of Article 10 FR. In particular, the needs and requirements from the airspace users and social partners should be given attentive consideration.
Necessary and/or optional partnership arrangements, estimated feasibility and value-added
Member States concerned may opt to use the FAB agreement for making specific high-level legal provisions in regard to joint designation, e.g. establishing specific responsibilities at State and/or FAB levels. However, the designation act itself may be a separate legal act based on the MA.
Similar arrangement may be opted for as regards the designation of certified MET service providers in accordance with Article 9 SPR (which, contrary to the designation of ATS providers, is only optional).
Feasibility and value-added should be assessed on a case-by-case basis (see Chapter 5.3).
Impacts or implications of arrangements, e.g. on FAB operations, stakeholders, performance, flexibility etc
The impact of the joint designation of ATSPs in a FAB on FAB operations, stakeholders, performance etc may range from very low up to very high and complex and can be assessed only on a case-by-case basis by the Member States concerned. Where only little or no changes are made in the joint designation compared to the previous national ones, the impact may be low or negligible; however, in such cases one should expect only negligible benefits and value-added to that FAB in what improvements to ATS provision are concerned.
A higher impact should be expected if/where joint designation were made in the spirit required by the new FAB definition, i.e. by focusing specifically on performance-driven and optimised provision of ANS and related functions, with a view to enhanced cooperation among the ANSPs or, where appropriate and agreed by those States, an integrated provider.
Dependencies and relation to other requirements or conditions
Relation to Article 2.25 FR: The joint designation of ATSPs in a FAB should consider the shift of focus by SES II in the definition of a FAB (Article 2.25 FR) specifically on performance-driven and optimised provision of ANS and related functions, with a view to enhanced cooperation among the ANSPs or, where appropriate, an integrated provider.
Relation to Article 10.3 SPR: The approval by the Member States concerned is required for any written agreements or equivalent legal arrangements formalising working relationships among service providers in relation to the provision of ATC in the frame of Article 10 SPR.
As regards cross-border areas included in a FAB, ATS provision which is carried out exclusively on the basis of arrangements under Article 10.3 SPR cannot be considered as circumvention of joint designation under Article 8.4 SPR. Arrangements established between service providers in accordance with Article 10.3 SPR cannot address issues of importance which go beyond the actual service provision. This is partly why an approval must be obtained for such arrangements from the Member States concerned.
It will ensure that those Member States will grant such approval only when they are satisfied that other issues of concern have been properly addressed (e.g. with respect to the required supervision, etc). Article 10 SPR allows more flexibility between the ATSPs complementary to the joint designation made by the States. Letters of agreement (LoA) between the ATSPs in such circumstances should be seen as complementary legal instruments, not as circumventing ones.
Designation has a different purpose. It identifies and allocates responsibility for ATS provision on one or several specific ATSP(s). When that provider establishes arrangements with another provider under Article 10 SPR, it does not change the responsibility towards the designating State. Responsibility rests with the designated provider (and ultimately with the designating State). Responsibility cannot be passed on to another provider unless the State(s) concerned change the designation.
As regards the impact of joint designation in the FAB on arrangements between the ANSPs in the frame of Article 10 SPR, Member States maintain all possibilities to cater for their concerns before allowing for arrangements between ATSPs under Art. 10.3 to enter into force.
Relation to Article 7(5) SPR: This is already addressed in the explanatory material.
Recommended actions and supporting evidences
As per item 2.1 of the FAB Guidance check-list. The FAB States should base their joint designation decisions on feasibility/ risk and impact assessments and cost-benefit analyses demonstrating the benefits and impact of an agreed designation solution over other possible solutions.
Joint designation of the ATSP(s) in a FAB should be a result of a well-balanced joint decision process by the Member States concerned that considers primarily operational than political aspects, in particular the need to.improve performance and meet user requirements.
Further to the joint designation, the ATSPs and Member States in the FAB should make best use of the opportunities offered by the legal provisions in Article 10 SPR to further optimise ATS provision in that FAB.
Reference material for implementation
- Letter ref. DG MOVE/E2/TS/cg D(2010) 55906 addressed to the DGCA Slovak Republic (available from the FFPG Library on OneSky Teams);
- There is currently no other known advisory material referring to the designation of ATSPs or joint designation in a FAB.