Documents considered by the Committee on 2 July 2014 - European Scrutiny Committee Contents


5 Single European Sky

Committee's assessment Politically important
Committee's decision Not cleared from scrutiny; further information requested
Document details (a) Commission Communication about accelerating implementation of the Single European Sky

(b) Draft Regulation concerning aerodromes, air traffic management and air navigation services

(c) Draft Regulation consolidating and amending four Regulations concerning the Single European Sky

Legal base (a) —

(b) and (c) Article 100(2) TFEU; co-decision; QMV

Department Transport

Summary and Committee's conclusions

5.1 The Single European Sky (SES) initiative was launched in response to the growing problem in air traffic management (ATM) delays in the late 1990s. The principal objective of the SES is to deliver a seamless, safe, sustainable, efficient and interoperable European ATM system capable of meeting future capacity needs and not artificially constrained by national borders.

5.2 The legislative basis for the SES was established in April 2004 with the entry into force of four high-level Regulations, now termed "SES I". These Regulations were amended by Regulation (EC) No. 1070/2009 to introduce a performance scheme and network management function and to accelerate the formation of cross-border "functional airspace blocks" (FABs) involving two or more states collaborating to improve operational efficiency in their combined airspace. These amendments were part of the SES second package (SES II) aimed at expediting the delivery of SESAR (SES ATM Research), which is the technological/industrial complement to the SES and crucial to its realisation.[18]

5.3 The SES Framework Regulation requires the Commission to review the application of the SES legislation and report periodically on progress in the light of the original objectives and with a view to future needs and in its Communication, document (a), the Commission:

·  rehearsed the justification for, and the history of, the SES;

·  asserted the need to accelerate implementation of the SES and associated reform of the European ATM system;

·  discussed various aspects of the two Regulations it was proposing — document (b), to amend the Regulation establishing the European Aviation Safety Agency (EASA), and document (c), to recast (consolidate and amend) the four SES I Regulations; and

·  discussed the changing role of Eurocontrol (the European Organisation for the Safety of Air Navigation).[19]

5.4 When we considered these documents in July 2013 we recognised the value of the developing SES system in providing better, more effective and reliable conditions for air travel across EU airspace and noted the Government's nuanced support for the present proposals. However, we said we would only consider the proposals further when we had accounts in due course of developments on the matters drawn to our attention, that is the ICAO NAT Region, National Supervisory Authorities, definition of core and non-core services, centralisation of services, FABs, the Network Manager, the balance between Delegated Acts and Implementing Acts, the EASA and the military, shortening of text on SES tools, scope in relation to 'Air Traffic Management' and 'Air Traffic Management and Air Navigation Services', EASA governance and any issues arising from the Government's consultations and further consideration of the financial implications and the impacts of the proposals. Meanwhile the documents remained under scrutiny.

5.5 The Government has now updated us on the documents and we heard first that:

·  the proposals were considered at the informal Transport Council on the SES on the 16 September 2013;

·  at this meeting all Member States supported the SES initiative and recognised the need to make further progress;

·  the vast majority said, however, that the SESII+ proposals were too much too soon and that the EU should not be adding more regulation before the current regulatory framework is fully implemented and has had time to deliver; and

·  no further Council working group discussions have taken place since then, but they are expected to commence during the Italian Presidency.

5.6 We learnt further that the European Parliament has, however, been considering the proposals and completed its first reading in March. We have been given a detailed explanation of the European Parliament's key amendments to the recasting draft Regulation, document (c) and the Government's view of them. We heard also, in relation to the draft Regulation, document (b), to amend the EASA Basic Regulation, that:

·  it was less controversial than the SES recast, dealing mainly with changes to incorporate SES safety provisions removed from the SES legislation in order to simplify and remove the current dual legal basis for ATM safety;

·  the proposal would, however, also introduce changes to governance arrangements and change a number of Implementing Acts to Delegated Acts; and

·  although the European Parliament amendments make some improvements on the issue of governance, they do not completely resolve the issue for the UK so the Government will be seeking further improvements once Council discussions commence.

5.7 We are grateful for this interim report and look forward to hearing how negotiations in the Council working group are developing, before we consider the documents again. Meanwhile they remain under scrutiny.

Full details of the documents: (a) Commission Communication: Accelerating the implementation of the Single European Sky: (35071), 11490/13, COM(13) 408; (b) Draft Regulation amending Regulation (EC) No. 216/2008 in field of aerodromes, air traffic management and air navigation services: (35072), 11496/13, COM(13) 409; (c) Draft Regulation on the implementation of the Single European Sky (recast): (35073), 11501/13 + ADDs 1-2, COM(13) 410.

Background

5.8 The EU aviation safety regulatory system is a partnership between a number of authorities — the Commission, the European Aviation Safety Agency (EASA), the Member States and their national aviation authorities (CAA in the UK) and affected stakeholders. The EASA's primary objective is to establish and maintain a high and uniform level of civil aviation safety in the EU covering its areas of competence, which are airworthiness, personnel licensing, aircraft operations, safety of third country aircraft, aerodromes, air traffic management and air navigation services.

5.9 We have described the key aspects of the Communication, document (a) earlier in this chapter. The key aspects of the draft Regulation to recast (consolidate and amend) the four SES I Regulations, document (c), which the Commission terms "SES II+", are:

·  extending the application of the SES to airspace outside Europe, in the ICAO NAT (International Civil Aviation Organisation North Atlantic) region where the UK and Ireland are jointly responsible for air traffic services;

·  a requirement for National Supervisory Authorities to be legally distinct and independent from air navigation service providers by 2020;

·  a requirement for National Supervisory Authorities to take part in an undefined collaborative network to pool and share resources, knowledge and best practice supported by the Commission and EASA. (There is a similar new provision in the amending EASA Regulation, document (b));

·  an existing requirement on Member States to consult stakeholders, which in the UK is currently exercised by the Department for Transport, would in future fall on National Supervisory Authorities;

·  the concept of support services as non-core air navigation services[20] is proposed, with requirements for core and non-core air navigation services to be delivered through separate undertakings by 2020 — the objective being to allow a contestable market for non-core services;

·  a number of non-core air navigation services currently being delivered at Member State or FAB level would be delivered centrally at EU level, with the Commission given power to expand the number of centralised services by way of Delegated Acts;

·  amendments to the SES Performance Scheme with the objective of speeding up decision making;

·  requirements for the SESAR programme, including some aspects from the Implementing Regulation for SESAR Common Projects and making clear the comitology role;

·  the obligation to form FABs would remain with Member States (the UK has formed one with Ireland) and provision for the Commission to develop detailed rules for FABs rather than just guidance material as now;

·  Eurocontrol currently performs the "Network Manager" role for the EU air traffic management network. The Network Manager would be given additional functions relating to centralised services. It is envisaged that the role of Network Manager will be removed from Eurocontrol and designated as a self-standing service provider on the basis of an industrial partnership by 2020; and

·  a new requirement for air navigation service providers to consult with airspace users on all major issues related to the services provided, with power for the Commission to produce Implementing Regulations in this area.

5.10 The key aspects of the EASA draft amending Regulation, document (b), are:

·  moving some elements of SES legislation into the EASA Regulation to make the legislative framework simpler and more consistent;

·  changes in the naming and governance of the EASA in line with an inter-institutional agreement covering all EU Agencies — the new name would be the "European Union Agency for Aviation";

·  development and adoption of new technical rules (on aircrew, operations, aerodromes and air traffic management and air navigation services) would be under Delegated Acts, with the Commission obliged to consult an expert committee;

·  a number of changes in relation to applicability to the military bringing the EASA into line with how SES addresses the military;

·  transfer of the safety aspects of the SES Regulations into the EASA system including interoperability and flexible use of airspace concepts; and

·  changes to the governance of the EASA, including creation of an Executive Board, as a sub-group of the Management Board.

5.11 When we considered these documents in July 2013 we recognised the value of the developing SES system in providing better, more effective and reliable conditions for air travel across EU airspace and noted the Government's nuanced support for the present proposals. However, we said we would only consider the proposals further when we had accounts in due course of developments on the matters drawn to our attention, that is the ICAO NAT Region, National Supervisory Authorities, definition of core and non-core services, centralisation of services, FABs, the Network Manager, the balance between Delegated Acts and Implementing Acts, the EASA and the military, shortening of text on SES tools, scope in relation to 'Air Traffic Management' and 'Air Traffic Management and Air Navigation Services', EASA governance and any issues arising from the Government's consultations and further consideration of the financial implications and the impacts of the proposals. Meanwhile the documents remained under scrutiny.

The Minister's letter of 24 June 2014

5.12 The Parliamentary Under-Secretary of State, Department for Transport (Mr Robert Goodwill) now updates us on the documents, noting that his comments about the Government's present views reflect further consultation with stakeholders. He first tells us that:

·  the proposals were considered at the informal Transport Council on the SES on the 16 September 2013;

·  at this meeting all Member States supported the SES initiative and recognised the need to make further progress;

·  the vast majority said, however, that the SESII+ proposals were too much too soon and that the EU should not be adding more regulation before the current regulatory framework is fully implemented and has had time to deliver; and

·  no further Council working group discussions have taken place since then, but they are expected to commence during the Italian Presidency.

5.13 The Minister continues that the European Parliament has, however, been considering the proposals and completed its first reading in March. He says that the Government has actively engaged with briefing MEPs and that the European Parliament incorporated a number of the amendments that it suggested. The Minister then explains the European Parliament's key amendments to the recasting draft Regulation, document (c) and the Government's view of them, as follows.

ICAO North Atlantic Region (NAT)

5.14 The Minister says that:

·  the Government believes that it is inappropriate to extend the scope of SES to cover the ICAO NAT region, as this is high seas airspace outside of the scope of the EU treaties,

·  additionally, the airspace is not complex, with services already provided in a cost efficient manner, so it would be disproportionate to apply SES rules to it; and

·  a European Parliament amendment helpfully excludes the NAT region.

National Supervisory Authorities

5.15 The Minister continues that:

·  the Government believes that it is appropriate to pursue the institutional independence of National Supervisory Authorities from air navigation service providers and to help them ensure they have sufficient resources;

·  it considers, however, that some of the Commission's provisions are excessive and could act as an impediment to National Supervisory Authorities' ability to bring in skills and experience from industry and vice versa, which is beneficial to the entire ATM system;

·  even those National Supervisory Authorities that are already institutionally independent rely heavily on the ability to recruit and second staff from industry and need current industry experience to provide effective oversight;

·  failure to address this might make it even more difficult for National Supervisory Authorities to recruit staff and could reduce their resources rather than benefit them;

·  an additional issue is that, in trying to ensure National Supervisory Authority separation from air navigation service providers, the Commission has also, apparently unintentionally, restricted the ability of Member States to have any input into the recruitment of senior National Supervisory Authority staff;

·  European Parliament amendments make some improvements but do not fully address the Government's concerns and in some respects increase them by substituting the EASA term "National Aviation Authorities" in place of "National Supervisory Authorities";

·  the European Parliament intention may be to ensure consistency between EASA and SES Regulations but it would actually result in a number of changes to national legislation and regulatory documents with no real benefit; and

·  furthermore, the Government does not support the amendment that staff from National "Aviation" Authorities should not be seconded from air navigation service providers or companies under their control.

Provision of support services

5.16 The Minister tells us that:

·  the Government supports market liberalisation where it can be demonstrated to be in the interests of the users of airspace;

·  the draft Regulation would, however, force the unbundling of support services without setting out a vision or a pathway for how these services should or could be delivered;

·  no evidence has been presented to suggest the current bundled model of provision is inefficient or presents harm to the users of airspace;

·  the proposal would also preclude the possibility of competition arising between integrated and specialist providers of support services;

·  there is a risk that the mandating of unbundled support services may increase costs to airspace users, create additional regulatory burdens, stifle innovation and potentially have a safety impact;

·  ultimately the Government might be able to support some unbundling of services, but a lot more work is needed to understand the market that could emerge;

·  the European Parliament adopted the amendment the Government proposed to MEPs, requiring an in-depth study into the feasibility of a market for support services, including an assessment of its likely impact on safety;

·  this does not appear, however, to preclude the Commission taking action before the study is complete or require it to take the conclusions into account;

·  the Government also suggested amendments aimed at providing greater structure on unbundling and greater understanding as to what the market might look like;

·  the European Parliament amendments have moved away from ensuring that provision of air traffic services is separated from the provision of support services to requiring air navigation service providers to call for offers from different service providers, with a view to choosing the financially and qualitatively beneficial provider; and

·  this is an improvement on the Commission's proposal, but the Government will need to work further on this in Council working group negotiations to ensure that there is a sound process and evidence base to proceed with mandating unbundling.

SES Performance Scheme

5.17 The Minister says that:

·  the Government has a number of concerns about the proposed amendments to the Performance Scheme, some of which have been addressed by the European Parliament;

·  the European Parliament has not amended the Commission's proposal to make local targets in national performance plans compliant with EU targets, rather than consistent with them, as is the case in current legislation;

·  the Government does not support this because the term 'compliance' could be interpreted as taking any local control out of the process;

·  it supports the aim of making the Performance Review Body (PRB) more independent, but thinks it is important to introduce some criteria for the appointment of members to ensure they have the appropriate expertise and independence;

·  this was not addressed by the European Parliament, although it did adopt the Government's suggested amendment to ensure that the PRB has the opportunity to give some input into national plans ahead of the single formal assessment process;

·  the Government is also concerned about the extensive use of Delegated Acts in this part of the draft Regulation, which could impact on the input Member States have into key decisions in the Performance Scheme — the European Parliament has not addressed this;

·  finally, the Performance Scheme focuses mainly on service providers as the main actors in the ATM system — however, other actors within the system have the capability to affect performance outcomes across the European ATM network, for example airports and airspace users; and

·  the Government is pleased, therefore, that the European Parliament adopted its suggested amendment that the Commission, supported by the PRB, should conduct a study to understand how other ATM actors' impact on network performance with a view to developing additional Key Performance Indicators and Performance Indicators for those actors for implementation in future Reference Periods of the Performance Scheme.

Functional Airspace Blocks (FABs)

5.18 The Minister continues that:

·  the Government supports the Commission's aim for a strategic redirection of FABs towards air navigation service provider led cooperative entities focused on performance outcomes;

·  however, the regulatory requirements in the draft Directive could act as a disincentive to air navigation service providers to drive improvements through FABs;

·  the proposals need to be reconsidered and scaled appropriately, depending on the nature of the FAB;

·  the Government will also seek more clarity on what must be demonstrated and by when to ensure that the requirements can be implemented at all;

·  if the outcomes are made clear, it should be for the air navigation service providers to decide how they achieve them, thus enabling FABs to become more performance orientated on a geographical and/or industrial partnership basis;

·  some of the European Parliament amendments address some of the Government's concerns, but it has introduced new provisions on industrial partnerships which the Government will need to consider further in liaison with stakeholders to ensure they are not too prescriptive and limiting; and

·  in addition, it will need to stress the importance of the overall supervisory arrangements by NSAs, which risk becoming more complex and fragmented with flexible service provision.

Use of Delegated Acts

5.19 The Minister tells us that:

·  the Government believes that the proposed use of Delegated Acts in some areas needs further consideration and might be inappropriate;

·  the European Parliament has extended the scope of the proposed Delegated Acts to include the adoption of EU-wide performance targets; and

·  the Government does not consider this appropriate and believes Member States are unlikely to support giving the Commission greater powers in this particular area.

Gibraltar

5.20 Finally on this draft Regulation, the Minister says that the Commission included Gibraltar within the scope of the SES II+ proposals, but the European Parliament has voted to replace the existing text, so suspending the application of the Regulation to Gibraltar airport until the arrangements set out in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 are applied. He comments that retaining the inclusion of Gibraltar within the scope of the SES legislation will be a key objective when the proposals are considered by the Council.

5.21 Turning to the draft Regulation, document (b), to amend Regulation (EC) No. 216/2008, the EASA Basic Regulation, the Minister says that:

·  it was less controversial than the SES recast, dealing mainly with changes to incorporate SES safety provisions removed from the SES legislation in order to simplify and remove the current dual legal basis for ATM safety;

·  the proposal would, however, also introduce changes to governance arrangements and change a number of Implementing Acts to Delegated Acts; and

·  although the European Parliament amendments make some improvements on the issue of governance, they do not completely resolve the issue for the UK so the Government will be seeking further improvements once Council discussions commence.

Previous Committee Reports

Ninth Report HC 83-ix (2013-14), chapter 5 (10 July 2013).


18   For SESAR see http://www.sesarju.eu/about. Back

19   For Eurocontrol see http://www.eurocontrol.int/about-eurocontrol. Back

20   The proposal refers to "the provision of communication, navigation and surveillance services, as well as meteorological and aeronautical information services". Back


 
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