The Links in the Laws: a necessary burden?

Written by: Fiona Ribbons
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The scope of Single European Sky (SES) legislation is intricate and expanding – characteristics that do not make for an easy time when it comes to interpreting interdependencies and stakeholder responsibilities. Trying to unravel the connections between the rules can sometimes feel like attempting to prise a necklace from a jumbled jewellery box: just when you think you've isolated one section, you find that another link ties in.

Naturally, establishing a simple, yet comprehensive set of legislation for the multifaceted and rapidly developing environment of the SES was never going to be an easy task. Legal complexity is an inevitable side-effect of ensuring thorough consideration of the whole EU aviation community. The mission therefore is to create 'targeted regulation that goes no further than required', as stated within the aims of the Commissions' Better Regulation Agenda. This should ensure the regulatory burden on businesses, citizens or public administrations is kept to a minimum.

This hints at a key point: legal complexity presents challenges on both the side of the law interpreter and the law creator. This has become increasingly apparent in the runup to the adoption of the next suite of SES implementing rules, developed in preparation for RP3 and the deployment of SESAR. Noteworthy impending regulations include: the new Network Functions Implementing Rule (NFIR); the RP3 Performance and Charging Schemes; the Performance Based Navigation interoperability Implementing Rule (PBN IR); the next Common Projects regulation (CP2), and the Pilot Common Project (PCP) review. The possibility to amend and update these elements places a large responsibility on the Commission, not just to update the scope of the SES regulatory package to acknowledge the evolution of technologies and services, but to iron out pre-existing areas requiring refinement.

Already, notable changes are on the cards this year. An early draft of the NFIR text suggested that the current financing mechanism of the Network Manager (NM) could change. Currently, EUROCONTROL is prefunded by States through airspace user charges before States recover their costs through the Central Route Charges Office (CRCO). Instead, a unit rate could be introduced from 2020 to increase transparency and accountability. Sounds simple, right?

Let's reconsider this. Fundamentally, the proposed unit rate calculation does not consider the contribution of service units in third countries outside the SES area. This would require adjustment, since third countries would benefit from NM services they were not contributing to. Another issue is that only ANSPs are currently subject to traffic-risk and cost sharing (1).The NM, which is not currently regarded as a service provider under SES, is not subject to these mechanisms. Therefore, the feasibility of a NM unit rate must be considered in the context of the Charging Regulation. Redevelopment of these Articles may be required alongside the update to the NFIR, but these changes were not included in the Commission's proposals (2) Furthermore, application of an administrative rate to the NM would necessitate the modification of the multilateral agreement for route charges; this cannot be done without unanimous agreement between the applicable States, since it is an alteration to the basic principles and details of the agreement.

Overshadowing these challenges is the question of whether there is even any value in introducing the NM unit rate. If the only benefit is cost recovery then the idea is ineffective, since the aim of the rate is to encourage NM cost-efficiency. A compromise could instead be achieved by using the unit rate as a performance indicator, which would contribute to increasing NM cost transparency.

Pinpointing all the 'hot spots' of subject cross-over is no small task. SES regulations are intrinsically linked. A prime example of this is in the setting of performance targets at Union-wide and local level. Rules for target setting are set out in the Performance Scheme (Article 10 of 390/2013), which applies to (and thus sets performance targets for the execution of) network functions in addition to individual States. These targets shape the content of the Network Strategy Plan (NSP), as set out in in Article 5 of the current NFIR (677/2011), which establishes the long-term vision for meeting the European ATM network requirements and Union-wide performance targets. The NSP then sets the framework for the Network Operations Plan (NOP), outlined in Article 6 of 677/2011, which is updated yearly to outline short to medium-term methods for reaching the Union targets and performance expectations at network and local level. Alongside this, the NM sets its own Network Performance Plan for the reference period, which describes the actions required to be undertaken to meet the targets for each KPA (Article 11 of 390/2013) consistent with the union-wide performance targets. Complications arise where the Performance Plans of entities which are subject to the Performance Scheme are not able to be aligned with actions attributed to those entities under the NOP due to a complex revision process.

Compounding the entire challenge of creating new SES law is that, even when interdependencies have been identified, finding an agreeable solution for distributing content between regulations can open a whole new realm of controversy – especially when legislations are updated or revised at different times. Take SESAR Deployment. NSAs are mandated within the PCP regulation (3) to perform their responsibilities of monitoring and reporting on implementation activities as outlined in previous regulations (i.e. oversight of changes (4) and of verifications of systems (5)). There has been recent debate in the NSA Coordination Platform (NCP) over whether this is sufficient, or if specific provisions for SESAR Deployment oversight should be provided in the PCP/CP2 regulation.

There are a few principles the Commission aims to follow when tackling the challenge of regulatory interdependency, as defined within the Better Regulation Agenda. Firstly, and perhaps most obviously, extensive planning and detailed analysis is imperative within the law-making process to avoid missing vital links. Secondly, there should be plenty of opportunity for stakeholders to share their opinion in sufficient detail throughout the policy and law-making process to guarantee thorough consultation. Thirdly, information provided from impact assessments and major evaluations should undergo a quality check by the Regulatory Scrutiny Board. Fourthly, laws should be comprehensively assessed for their ability to deliver results effectively, efficiently and at minimum cost via the Regulatory Fitness and Performance (REFIT) programme, and try to incorporate the principles of subsidiarity and proportionality. And lastly, attention should be given to ensuring cooperation between the three main EU institutions and with stakeholders outside the EU.

No matter how comprehensive the preparatory process, a degree of legislative complexity and controversy is clearly difficult to avoid. It remains to be seen how the new set of SES implementing rules will treat the links in their laws when they are released later this year.

1: As outlined in Article 13 and 14(2) of the Charging Regulation (Commission Implementing Regulation (EU) No 391/2013 of 3 May 2013 laying down a common charging scheme for air navigation services).
2: The Commission submitted "Proposed changes to the Charging Scheme for RP3" to SSC/67.
3: Commission Implementing Regulation (EU) No 716/2014 of 27 June 2014 on the establishment of the Pilot Common Project supporting the implementation of the European Air Traffic Management.
4: Found within Commission Implementing Regulation (EU) No 1034/2011 of 17 October 2011 on safety oversight in air traffic management and air navigation services.
5: Found within Regulation (EC) No552/2004 of the European Parliament and the Council of 10 March 2004 On the interoperability of the European Air Traffic Management network (the interoperability Regulation).

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