Article published on February 2014 in Legal Eye and reproduced by courtesy of Stephenson Harwood
Following the failure of the first Single European Sky initiative (called SES I, launched in 2004), the European Commission launched a second package of legislation in 2009 called SES II, which was designed to remove the fragmentation caused by the inefficient use of 27 national airspaces, through the introduction of what are called "Functional Airspace Blocks" or FABs. These nine designated FABs were supposed to be operational by the end of 2012, but EU Member States have delayed dismantling their domestic air traffic monopolies in order to form these regional blocks, for political reasons. In early 2012, the EU Transport Commissioner Siim Kallas announced further new legislation proposals which he called "SES II plus", with the objective of accelerating implementation of the SES II reforms, and enabling enforcement measures to be taken against non-compliant EU Member States. Then, in June 2013 the European Commission laid out its proposals to update the four regulations creating the Single European Sky. The key proposals are as follows:
The Commission's June 2013 updated proposals
Better safety and oversight
The Commission is proposing full organisational and budgetary separation of national supervising authorities from the air traffic control organisations they oversee, in order to improve oversight and safety. Many supervisory authorities are currently under-resourced and dependent on the support of the entities they are supposed to oversee. Airlines will also have a new role in signing off air traffic control organisations' investment plans to ensure they are better focused in meeting customer needs.
Better air traffic management performance
The reform of Europe's air traffic management is driven by four key performance targets: safety, cost-efficiency, capacity and environment. Under the current system EU Member States can set their own performance targets and decide which corrective measures to apply if targets are not met. The Commission is proposing to strengthen the performance scheme by making the target-setting more independent, transparent and enforceable, by strengthening their own role in setting more ambitious targets and increasing the independence of the Performance Review Body as the key technical advisor, so as to enable sanctions to be applied when the performance targets are not met by Member States.
New business opportunities in support services
The Commission is proposing to open up business opportunities for more companies to provide support services to air traffic control organisations. Support services such as meteorology, aeronautical information, communication, navigation and surveillance services will have to be separated out under the new draft regulations, so they can be put out to competitive tender in an open and transparent way in accordance with normal EU procurement rules. Support services are the biggest driver of cost in air traffic management and these costs could be cut by 20% if they are put out to competitive tender.
Enabling industry partnerships
None of the nine Functional Airspace Blocks or FABs are fully operational, in spite of a deadline set in December 2012 for EU Member States to establish them. The Commission is currently examining infringement cases against all Member States, particularly where no progress towards reform is made in the next few months. However the Commission has recognised that the FABs are rather inflexible political constructs, so is proposing that service providers co-operate more flexibly by allowing the creation of "industry partnerships" – which will allow service providers to participate in more than one FAB.
Strengthening the role of the Network Manager
The proposed regulations seek to strengthen the role of the Network Manager, Eurocontrol, to ensure that co-ordination of air traffic flows between the national service provider, and tasks such as route design and co-ordination of radio frequencies are carried out more centrally. The proposals could also see the provision of a wider range of services by the Network Manager to air traffic control organisations, such as information networks, monitoring of technical systems, and airspace design. These services could be provided centrally or outsourced by the Network Manager.
The Commission's proposals to update the four regulations creating the Single European Sky will have to be approved by Member States and Parliament before they are passed into law, which could prove to be yet another stumbling block for the progress of these measures.
There has been considerable resistance to some of the measures proposed in the "SES II plus" package from some EU Member States, particularly France and Germany. The European Transport Workers Federation, which represents most of the air traffic controllers and air traffic management workers in Europe has rejected the "SES II plus" package, on the basis that it will only have negative effects on jobs and working conditions for their union members. French air traffic controllers went on strike at the beginning of October in protest at the proposed "SES II plus" package because they are concerned about losing their jobs if the Commission's proposals to deregulate the profession are passed into law. The Air Traffic Controllers European Unions' Co-ordination (ATCEUC) also called for a strike at the beginning of October across 26 European countries – the industrial action was only called off when the European Commission assured them they would take ATCEUC's views into consideration.
Although perhaps not the most exciting package of legislation being debated in Europe at the moment, it is nonetheless critically important for the industry. There are some nine million flights across European airspace annually, and EuroControl is forecasting a further 50% increase in flights over the next 10-20 years. The Commission has estimated that the EU's air traffic management inefficiencies caused by national airspace fragmentation add 42km to the average flight, waste fuel, increase emissions, and cost €4.6 billion per annum. The intransigence of EU Member States, which is rooted in the vested interests of labour protection, the revenue streams generated by national air traffic management bodies, and misplaced concerns over the protection of sovereignty over national airspace, is delaying critical progress in reforming what is a seriously inefficient system. The US controls a similar amount of airspace as Europe, with more traffic, at half the cost, and if and when the "SES II plus" measures are implemented, the European Commission says that safety will be improved by a factor of ten, airspace capacity will be tripled, the cost of air traffic management will be halved, and the impact on the environment of carbon emissions reduced by 10%.
IATA's Director General, Tony Tyler, said earlier this year that progress in the implementation of the "SES II plus" package of measures is critical to the competitiveness of the European aviation industry:
"The European Commission shares the industry's frustration with the failure of European states to progress the SES. Every year that SES languishes in limbo is a €5 billion knock to European competitiveness and costs the environment 8.1 million tonnes of wasted carbon emissions."
Author: Paul Phillips (Partner, Head of aviation litigation and regulation with Stephenson Harwood) / Publisher: SCMO
