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UNIVERSITÀ DI PISA
DIPARTIMENTO DI SCIENZE POLITICHE
CORSO DI LAUREA IN RELAZIONI INTERNAZIONALI
The role of EUROCONTROL in the adoption of new technologies
and its reaction in the process of standardisation related to air
transport with a focus on a vision 2050.
CANDIDATE:
MENTOR:
Virginie Tolio
Prof. Alberto Vannucci
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Table of content
INTRODUCTION ... 4
SECTION 1 – GOVERNANCE IN AIR LAW ... 6
1. SOME BASIC DEFINITION ... 6
1.1. Governance ... 6
1.2. Air Law, ATM and ANSP ... 8
1.2.1. Air Law ... 8
1.2.2. Air Traffic Management (ATM) ... 9
1.2.3. Air Navigation Services (ANS) ... 10
2. LINK BETWEEN POLICIES AND GOVERNMENT ... 10
2.1. International aviation law ... 10
2.2. EU aviation law and EU governance in air traffic management ... 11
2.2.1. The SES I and II regime – the regulatory framework ... 13
2.2.2. Main actors in the implementation of the SES Regulations... 15
2.2.2.1. Institutional structure ... 16
2.2.2.2. Rule-making and enforcement competencies ... 19
3. INTERCONNECTION BETWEEN THE EUROPEAN COMMUNITY,EUROCONTROL AND EASA ... 22
4. CONCLUSION ... 25
SECTION 2 – ADDRESSING THE ISSUE OF COMPLIANCE WITH STANDARDS AND LIABILITY IN AUTOMATED SYSTEMS ... 27
5. REGULATORY FRAMEWORK FOR LIABILITY AND ATS:INTERNATIONAL AND EU LEVEL ... 28
6. SESARWPE AND THE ALIAS PROJECT ... 29
6.1. Main objectives of the SESAR Programme (Single European Sky ATM Research) ... 29
6.2. SESAR and WPE ... 35
6.3. Contribution of ALIAS in the standardisation process ... 37
7. STANDARDISATION AND AIR TRAFFIC MANAGEMENT ... 38
7.1. From the definition of a standard to its implementation and its application ... 38
7.2. Objectives of standardisation ... 41
7.3. SESAR standardisation and regulatory roadmap ... 42
7.4. Standardisation, safety and liability ... 48
8. IMPLEMENTATION AND APPLICATION OF A STANDARD ... 49
8.1. An overview of the process of standardisation of avionics ... 49
8.2. EU certification mechanism and designation of the ATS providers in SES ... 50
8.3. Products certification and liability ... 52
9. STANDARDISATION ORGANISATIONS ... 53 9.1. ETSI ... 53 9.2. CEN-CENELEC ... 55 9.3. EUROCAE ... 60 9.4. EASA ... 62 9.5. ASD-STAN ... 68 9.6. ARINC/AEEC ... 69 9.7. RTCA ... 70 9.8. SAE ... 70 10. CONCLUSION ... 71
3 SECTION 3 – ROLE OF EUROCONTROL IN THE PROCESS OF STANDARDISATION AND THE
FUTURE OF ATM ... 72
11. EUROCONTROL:ORIGIN AND GOVERNANCE ... 73
12. ROLE OF EUROCONTROL IN THE PROCESS OF ADOPTION OF NEW TECHNOLOGIES AND STANDARDISATION ACTIVITIES ... 74
12.1. Essential Requirements, Implementing Rules and Community specifications ... 74
12.1.1. Rule drafting, standardisation and Single Sky support ... 76
12.1.2. Ongoing Mandates ... 77
12.1.3. Completed SES implementing rule mandates... 80
12.1.4. Other Mandates (regulatory and non-regulatory) ... 81
13. WHAT’S NEXT?EUROPE’S VISION FOR AVIATION TO 2050 AND THE OPTIMISATION OF THE FRAMEWORK IN AN UNCERTAIN FUTURE ... 82
13.1. ACARE SRIA and Horizon 2020 ... 83
13.2. IATA’s vision for 2050 ... 87
13.3. EREA report and research for the future of air transport system in 2050 ... 88
14. THE FUTURE OF THE ATM SYSTEM –TOTAL SYSTEM AND TOP-DOWN APPROACH ... 94
CONCLUSION ... 96
BIBLIOGRAPHY ... 98
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Introduction
This report aims to widen understanding and increase awareness within the air transport community of the political and industrial context in which decisions about air traffic management (ATM) and its regulation are being made in Europe. The air transport sector represents the fastest growing means of transport and performs a major function in the globalisation process being a significant feature of the modern world. Public policy regarding international air transport has undergone a big change in recent years as markets liberalised and airlines privatised, mainly focussing on security, safety, and environment. New management techniques, partly stimulated by enhanced information technology systems, have resulted in significant changes on the air services supply side. Aircraft and air traffic control systems have also improved. These developments pose new challenges for those responsible for overall policy and for those supplying air transport services. It is therefore important to start by studying the governance mechanism and by understanding the relations between politics and society in a very complex system inside which one tries to build-up the behaviour of various actors upon a specific question.
Until now, transport research and innovation policy did not adequately support the development and deployment of the key technologies that are needed to develop the EU transport system into a modern and efficient system. In response to the increasing traffic, safety and security are important priorities for aviation policymakers and legislators. Safety of air traffic management in Europe is mainly represented by both EUROCONTROL and the European Union. To meet future capacity, safety and performance needs, an-depth reform of the architecture of European ATM has been put into place through: the SES legislation, the introduction of the SESAR programme (the technical component of the SES), the creation of a SESAR Joint Undertaking and the extension of EASA competence. To build a single European air transport infrastructure based on multiple interests will require those involved to overcome the difficulties of establishing its governance, especially in the context of States’ liability. The fragmentation of the European airspace will be reduced by initiatives to create Functional Airspace Blocks (FAB) that follow operational needs. This can be done with the help of political commitment and monitoring performance parameters.
In the next 30 years to come and in the time horizon of SESAR, a new generation of air traffic management systems with higher levels of automation will raise new legal issues related to liability for accidents. It is about to bring a new allocation of the decision making tasks
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between the human and the machine. A critical revision of the allocation of roles and responsibilities in the context of complex socio-technical systems will be required in order to fulfil these tasks. Therefore, the successful implementation of SESAR will depend on a number of concepts as well as standardisation and management issues.
This report analyses the European system of air traffic management as a specific case study of EU regulation of standardisation and how it is changing towards a modernisation of the entire system. This paper is therefore articulated in three main parts:
- Section 1 presents a framework for addressing governance issues related to air traffic management, providing the description of the different types of regulations and the list of the different kinds of players in the implementation of the SES regulation.
- Section 2 gives some preliminary results from the ALIAS Project (Addressing the Liability Impact of Automated Systems), which addresses the legal implications of the automation – exploring the wide spectrum of relations between automation and liability, focusing on ATM. The analysis deals with the integration of the socio-technical perspective with the framework of liability in aviation in connection with the compliance of standards.
- Section 3 focuses on the application of the standardisation process to EUROCONTROL in air traffic management. In a vision 2050, standardisation is important in the development of highly automated systems. A lot of technologies are still under design and development. Therefore a proactive methodology to address liability aspects, in order to help preventing them to act as showstoppers for the development and the deployment of the concerned device, is necessary.
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Section 1 – Governance in Air Law
1. Some basic definition
1.1. Governance
Existing literature on governance is huge as it is a word with many uses. The concept of governance emerged in international relations in the late 1980s and it has always been a catch-all term sometimes associated with the notion of regime, or the concept of global order.
James Rosenau1 defines governance as a set of regulation mechanisms in a sphere of activity
which function effectively even though there are not endowed with formal authority. It differs from the idea of government in that it refers to activities backed by formal authority to ensure the implementation of duly constituted policies. In a sense, governance encompasses governmental institutions as well as non-governmental ones.
According to the Organisation for Economic Cooperation and Development (OECD), governance is the exercise of political, economic and administrative authority necessary to manage a nation’s affairs. It can be referred to the process by which decisions are made and implemented or on the contrary, not implemented. Within government, governance is the process by which public institutions conduct public affairs and manage public resources. It has also been widely accompanied by the following qualifier “good” governance which is characterised by participation, transparency, accountability, rule of law, effectiveness, equity, etc. It often refers to the management of government in a manner that is essentially free of
abuse and corruption, and with due regard for the rule of law2.
Governance is about running organisations, public and private, setting procedures for them to run, steering it and solving societal problems. Regulatory governance is grounded in the principles of democratic governance and engages a wider domain of players including the legislature, the judiciary, sub-national and supranational levels of government and
international standard setting activities, including those of the private sector3. Applying
1 Rosenau J. (1992), Governance without government, Cambridge Studies in International Relations, Cambridge
University Press, p.4
2
http://stats.oecd.org/glossary
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governance in a different context, like in a corporate context does not change the definition of
it as it is still about steering mechanisms.4
According to the World Bank, the term “governance” is defined as: “the manner in which power is exercised in the management of a country's economic and social resources for development.” The Worldwide Governance Indicators project of the World Bank defines
governance as: “the traditions and institutions by which authority in a country is exercised.”5
It thus shows that there exists a process to select, monitor and change government. In its turn, governments can formulate and implement policies.
According to the United Nations Development Programme's Regional Project on Local Governance for Latin America, “governance” has been defined as “the rules of the political system to solve conflicts between actors and adopt decision (legality)”. It has also been used to describe the "proper functioning of institutions and their acceptance by the public" (legitimacy). And it has been used to invoke the efficacy of government and the achievement
of consensus by democratic means (participation).”6
In a broad sense, governance refers to a complex process of interactions and decision-making among the actors involved in a collective problem, which leads to the creation, reinforcement or reproduction of social norms and institutions. It is useful to note a clear distinction between the concepts of governance which involves the administrative and process-oriented elements of governing and politics which involves processes by which a group of people reach collective decisions.
This leads us to the term “multi-level” governance which has been used to provide a simplified notion of what is pluralistic and highly dispersed policy-making activity. It implies spatial distinctions and geographical separation with multiple actors participating at various political levels (supranational, sub-national or local). Multi-level governance has been used in the context of globalisation. Scholars have observed a shift from national policy control to European level coordination. In the case of air transport sector, the term “governance” has been used to question the challenges posed by the distortion of territorial scales. Multi-level governance interacts with large number of different actors and creates new opportunities for the representation of interests and lobbying. With the disappearance of the national level, challenges should be shared on European and international levels.
4 Osborne S.P. (2010), The New Public Governance?: Emerging Perspectives on the Theory and Practice of
Public Governance, Routledge, p.94
5
http://www.worldbank.org/
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1.2. Air Law, ATM and ANSP
1.2.1.Air Law
There is a difference in opinion in academic circles regarding a common definition of “air law” even though the following definition is accepted by a broad public: “a body of rules governing the use of airspace and its benefits for aviation, the general public and the nations
of the world”.7 This body of rules encompasses the following:
Multilateral conventions (the primary source of air law), Bilateral agreements,
General principles of international law, National law,
Judicial decision,
Contract between States and airline companies, Contract between airline companies.
Air law involves many aspects of constitutional law, administrative law, civil law, commercial law and criminal law and adapts quickly to the technological progress, showing the flexibility of legal rules.
The difference between private law and public law on one side and between national and international law on the other side is applicable in air law. Private international law means the body of rules pertaining to the relations between private persons involved in the operation and use of aircraft. Public international law is the corpus of legal norms pertaining to the relations involving States and international organisations in relation to these activities. Regulations in the aviation sector cannot be exclusively dealt with on a national level as it mostly refers to international law (divided into public and private law):
7
I.H.Ph. Diederiks-Verschoor (2012), An introduction to air law, Kluwer, Ninth revised edition
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Public international aviation law
This category is composed of multilateral and bilateral agreements. The international community has concluded various multilateral agreements related to air traffic issues. One of the most important multilateral agreements is the Convention on the Regulation of Air
Navigation (Paris Convention, 1919). Article 18 of this Convention establishes the principle of
complete and exclusive sovereignty of the contracting States over the airspace above their territory.
States have also concluded a great number of bilateral agreements in the area of public aviation law. These agreements usually grant traffic rights over their designated carriers to the respective contracting parties based on the principle of reciprocity.
Private international aviation law
These kind of multilateral agreements deal with liability issues between air carriers and their contracting partners or between operators of aircraft and third parties, referred in the Warsaw, Montreal or Rome Conventions accordingly.
In the aviation sector, it is also important to make a distinction between issues of political, legal, technical, economical, financial or social nature. In this study, we will mainly analyse the legal and political aspects of air transport and more precisely the sector of air traffic management.
1.2.2.Air Traffic Management (ATM)
According to EUROCONTROL (European Organisation for the Safety of Air Navigation), air traffic management is about the process, procedures and resources which come into play to make sure that aircraft are safely guided in the skies and on the ground. In Europe, it is the responsibility of the Member States, the aviation industry, the European institutions and EUROCONTROL. ATM is made of different airborne and ground-based systems that work together to ensure the safe and efficient movement of aircraft during all phases of operations. It includes airspace management, air traffic flow/capacity management, and air traffic control.
Airspace management is about airspace design and modelling. In order to safely handle each
flight, each aircraft needs a flight plan that meet available capacity. Therefore, this planning
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function has the primary objective of maximising the utilisation of available airspace by dynamic time-sharing as airspace is sometimes divided among various categories of airspace users on the basis of short-term needs. Air traffic flow management has the objective of contributing to a safe, orderly and expeditious flow of air traffic by ensuring that air traffic
control (ATC) capacity is utilised to the maximum extent possible, and that the traffic
volume is compatible with the capacities declared by the appropriate air traffic service providers. ATC is done by the air traffic control centres located in each European country. Their main task is to guide aircraft to and from airports, to prevent collisions and to maintain an orderly flow of air traffic.
1.2.3.Air Navigation Services (ANS)
According to the Framework Regulation9, which defines the objective of the SES, air
navigation services encompass air traffic services, communication navigation and surveillance services, meteorological services for air navigation, and aeronautical information services. ICAO (International Civil Aviation Organisation) does not introduce any formal definition of air navigation services but the term does cover four pillars: air traffic management, communication, navigation and surveillance, meteorological services and other supporting aviation services.
Air navigation services in the Framework Regulation refer to air traffic services whereas according to ICAO, it refers to air traffic management instead. It would be best to use the term air traffic management in the Framework Regulation instead of air traffic services to refer to air traffic management as it would have prevented it from misunderstandings or
complications.10
2. Link between policies and government
2.1. International aviation law
The Convention on International Civil Aviation (1944), or so called Chicago Convention, has
9 See Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying
down the framework for the creation of the single European sky (the framework Regulation)
10
Van Antwerpen N. (2008), Cross Border Provision of Air Navigation Services with Specific Reference to Europe, Kluwer, p.64
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established the International Civil Aviation Organisation (ICAO). It is a specialised agency of the United Nations which coordinates and regulates international air transport between States and does not give cause of actions to private persons to claim compensation for damage caused by air traffic service (ATS). It has laid down the basis for today’s worldwide civil aviation and expressed the key principles underlying the imposition of charges both for airports and air navigation services.
The Convention establishes rules of airspace, aircraft registration and details rights and responsibilities of States in relation to air transport. It aims at promoting a common framework for every State to participate in air transportation. The Chicago Convention explicitly recognises the fact that aircraft must comply with local rules and regulations of the underlying State whilst flying through its airspace. According to Article 1 of the Chicago Convention, every State has complete and exclusive sovereignty over airspace above its territory. Article 2 of the Convention states that the territory of a State shall be deemed the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.
Under this Convention, ICAO sets the minimum Standards and Recommended Practices
(SARPs)11 for international civil aviation. Individual States remain responsible for regulating
their aviation industries. The main standards that apply to airlines are set up in three of the 18 annexes:
- Annex 1 deals with personnel licensing including flight crew - Annex 6 deals with the operation of aircraft
- Annex 8 deals with airworthiness
The Convention also establishes rules of airspace, aircraft registration and safety.12
2.2. EU aviation law and EU governance in air traffic management
Air traffic management is composed of both human and technological procedures with the aim to safely guide aircraft in the skies and on the ground. To maximise the utilisation of the available airspace, various tasks have to be performed from an operational point of view and
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The safety management SARPs are intended to assist States in managing aviation safety risks, in coordination with their Service Providers.
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it includes the following:
- To build efficient skyways (airspace management)
- To provide a safe, orderly and expeditious flow of air traffic so that its capacity is utilised to the maximum extent compatible with the safety of flights (air traffic flow
and capacity management)
- To check that aircraft is safely separated into every operational process (air traffic
control)
- To supervise that aircraft is correctly informed about their position (air navigation
service provision)
Traditionally, air traffic management falls under the responsibility of States which control their airspace and which management is a fundamental part of national sovereignty. In order to make international flights possible, the Chicago Convention has established rules for the
safe use of airspace and it has given the responsibility for ATM to the contracting States.13
According to Article 28, dedicated to air navigation facilities and standard systems, “each
contracting State undertakes, so far as it may find practicable, to: (a) provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention;… (b) Adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules which may be recommended or established from time to time, pursuant to this Convention.”14 As a
consequence, States should have a good infrastructure with airports and air traffic control towers, human resources and rule-making functions. However, it is often seen as shortcomings of the regime set up by the Chicago Convention and ICAO, the fact that one relies upon State sovereignty and establishes minimum standards enforceable exclusively by States.
From a European perspective, EUROCONTROL has been the first organisation aimed at the management of air traffic on a regional level. The traditional fragmentation has turned out to
13 See, in particular, art. 28 Convention on International Civil Aviation 1944. In this regard see Huang, J. (2009),
Aviation Safety through the Rule of Law, ICAO’s Mechanisms and Practices, Kluwer Law International, p.34-42
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hinder the increasing volume of air traffic related to the growing mobility of both people and goods. The implementation of a good coordination and common approach to ATM has given birth to the European integration process highlighting the free movement of people and goods throughout Europe and laid down in the Treaties. The European Union has therefore developed regulation in the field of airspace and traffic management through the establishment of the Single European Sky (SES). This common European regulatory area for air navigation services aims to improve the management of airspace by developing consistent regulation. But ATM competence is still national with a European regulatory framework based on functional cooperation between national, supranational and international institutions. The different levels of government are therefore requested to provide common rules.
2.2.1.The SES I and II regime – the regulatory framework
The governance of the Single European Sky is based on the legislative and regulatory mechanisms, which led to the adoption of two packages, SES I and SES II. The Single Sky
Committee and the Industry Consultation Body15 represent two important structures in the
adoption of those two legislative packages. In order to be effectively implemented, a good coordination and interaction is required with other competent social and political organisation. In view of a better safety and efficiency of the European air transport, the first regulatory package was introduced in 2004 with the aim of developing a European policy in ATM. The European Community has therefore expanded its competencies to the field of air navigation services through the SES Regulations. This legislative package tries to restructure the airspace in Europe and to make it more competitive on a global market. It consists of four regulations, which lay down the foundations and principles of the SES, and namely address the gaps in European ATM and reinforce safety by restructuring European airspaces and air navigation services:
15 The Single Sky Committee (SSC) has been established to support the European Commission in the
implementation of the Single European Sky. The SSC, chaired by a representative of the European Commission is composed by EC Member States' representatives (civil and military) and observers from third countries as well as EUROCONTROL, SESAR Joint Undertaking, EASA and ICAO.
The Industry Consultation Body (ICB) has been created by the Single European Sky legislation with the strong support of stakeholders and provides technical advice to the European Commission. It is an important mechanism for the definition of the future ATM strategy and its implementation. It is an opportunity for all parts of industry to tell the European Commission what they expect from the Single European Sky and to give their views on options and timetables.
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the « Framework Regulation », EC No 549/2004, the « Service Provision Regulation », EC No 550/2004, the « Airspace Regulation », EC No 551/2004, and the « Interoperability Regulation », EC No 552/2004.
The objective of the Framework Regulation is to enhance safety standards and overall efficiency for general air traffic in Europe. In addition, it focuses on the capacity optimisation by meeting the demand of all airspace users and on the reduction of delays. This basic regulatory framework has been amended many times but the first report on the implementation of the first SES legislative package (SES I) was delivered in 2007. A second Single European Sky legislative package (SES II), amending the former legislation, was adopted in 2009 (Reg. EC No 1070/2009) with the aim to enhance the infrastructure for traffic management following a growing demand for air transport. It heralds a bigger challenge for ANSPs with increased responsibilities for both the European and national regulatory authorities. This new regulatory framework is designed to improve the performance of the European aviation system in the following key areas: safety, environmental sustainability, capacity and cost-efficiency and promotes the consultation of all relevant stakeholders (air navigation services providers, airport operators, airspace users, manufacturing industry and staff). To this end, this regulation introduces functional airspace blocks (FABs) that establish airspace areas based on operational requirements and not on national boundaries. FABs are established by defining operating regions where air navigation services should be delivered with a view to the optimisation of their performance, through either the cooperation among air service providers or the establishment of an integrated provider. The Commission is taking a greater role in setting and assessing performance with EUROCONTROL in the role of Performance Review Body to give advice to the Commission. The National Supervisory Authorities are required to set binding national targets in the areas of costs, delay, safety and environmental performance. The different States maintain their responsibility for the correct functioning of FABs and the European Union takes a regulatory role in the establishment of the common objectives. The latest is completely new to this area of air law.
The amendment to the above regulation sets common rules in the field of civil safety and the European Aviation Safety Agency (EASA), and it also brings additional major changes in the way to deal with the ATM business in Europe. Some of EASA’s competences have been extended to ATM/ANS which reviews the common requirements for the ANSPs and the rules
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on the NSA. The transposition of these new regulations into the EASA legal system is essential and it will represent the basis for EASA to propose further rules. Moreover, the SES regulations are complemented by implementing regulations, including Regulation EC No 2150/2005, which defines a series of actions on strategic airspace management. Another important concept of the regulatory structure is the EU certification mechanism and the requirement for air service providers to be certified to continue and provide a service (see
Regulation EC No 2096/2005). 16
At the ALIAS Network Conference that took place on 14-15 June 2012, Paul Verhoef, Head of Unit research and innovative transport systems at DG MOVE, confirmed that in the current framework programme, the EU is spending more than 4 billion on transport research and it is proposed to go up to around 7 billion depending on further decision by the Parliament and the Council. There is a lot in technology coming in aviation but there are often barriers in regulations or a lack of standardisation, so the main task is to anticipate these problems and to make sure it comes to the market and gets deployed. In aeronautics only, the EU foresees that somewhere between 40 to 50 percent of the future funding will be spent on aviation, that means it will be at around 500 million a year from the EU community and it is complemented
by funding of industry itself by the Member States. 17
2.2.2.Main actors in the implementation of the SES Regulations
The main actors engaged in the regulatory process are to be considered for a better understanding of the EU policies in ATM. States autonomously regulate aviation and in parallel they cooperate internationally by establishing specific organisations and signing important agreements on issues that need transnational coordination. In Europe, EUROCONTROL has played a leading role in transnational regulation for the implementation of air safety.
The European Union is thus working on a trilateral relationship with national and international institutions. On the international scene, ICAO has played a fundamental role by coordinating and regulating international air travel on behalf of the United Nations. On the EU side, the EU Commission cannot realise its Single European Sky without the EU Member States. Cooperation among EUROCONTROL, ICAO and the EU Member States is therefore
16
An I.H.Ph. Diederiks-Verschoor (2012), An introduction to air law, Kluwer, Ninth revised edition
17
Paul Verhoef at ALIAS Network Conference last 14-15 June 2012, http://www.youtube.com/watch?v=-CTB79h49X4
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essential as the EU Commission itself does not possess the technical expertise in the field of ATM. Since air transport is a dynamic sector, with a European and international dimension, the SES recognises the commitments of EU States in relation to the global framework set by the Chicago Convention and ICAO. The Member States have delegated their national rule-making and enforcement competencies in the field of air navigation services to three European bodies, the European Community, EUROCONTROL and ECAC.
The European Commission cooperates with other European bodies and institutions to implement its policies, namely the Single European Sky Committee and EASA. It is important that the increasing commitment of EASA should not overlap with the role of EUROCONTROL.
The main actors involved in the implementation of the SES Regulations are thus a complex interaction made of:
European Commission (drafts and adopts implementing legislation)
Single Sky Committee (drafts the implementing rules and consider other non-legislative initiatives)
EUROCONTROL (plays an important role within the legislative process of implementing rules)
Industry Consultation Body (has an advisory role)
Employers and employees representative organisations in the field of air navigation services (provides a forum open for consultation and negotiation)
EU Member States (establishes a body or bodies as their national supervisory authority)
EASA (is expected to carry out more ATM related tasks in the future)
This total system approach considers all the aviation system components, products, operators, crews, aerodromes, ATM, ANS both on the ground and in the air as they are all part of a single network.
2.2.2.1.Institutional structure
The EU is an organisation with unique and specified supranational powers. EU legislation has an important role in the European and international scene as it also includes relations with
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non-EU States and with international organisations such as ECAC, EUROCONTROL, and ICAO. The EU institutions are involved in a wide spectre of areas including air traffic management and safety regulation. The European Treaty objectives state that these institutions must establish an air transport market in which the free movement of goods,
persons, services and capital is assured.18 The powers of the EU and of the EU institutions to
legislate and to conduct policies have been widened through time and its legislative powers have been enhanced after the entry into force of the Treaty on the Functioning of the European Union (TFEU) in 2009. Its ability to enact legislation depends upon the powers that are attributed to it by the Member States through the legal texts adopted by them, in cooperation with the European Parliament.
ECAC
The European Civil Aviation Conference (ECAC) is an intergovernmental, pan-European organisation which held its inaugural session in Strasbourg in 1955 and which currently counts 44 members. The main objective of the ECAC, which works closely with the ICAO and especially uses the Secretariat of the ICAO, is to promote a general development of a safe, efficient and sustainable air transport system in Europe. In this sense, it seeks to harmonise civil aviation policies and practices amongst the Member States and develop a common understanding on policy matters between the Member States and third countries. The functions of ECAC are consultative and there is no binding effect of ECAC decisions. It issues resolutions, recommendations, other conclusions and policy statements, all subject to
the approval of the Member States.19
The ECAC used to give practical solutions and working arrangements for EUROCONTROL until 1994. After that, the ECAC started to focus on the adoption of an institutional strategy for EUROCONTROL, emphasising the revision of its institutional structure.
EUROCONTROL
EUROCONTROL, the European Organisation for the Safety of Air Navigation, is an international organisation with its own legal personality and with an intergovernmental
18
I.H.Ph. Diederiks-Verschoor (2012), An introduction to air law, Kluwer, Ninth revised edition
19
Van Antwerpen N. (2008), Cross Border Provision of Air Navigation Services with Specific Reference to Europe, Kluwer, p.43
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character. It has been created through the EUROCONTROL International Convention relating to cooperation for the Safety of Air Navigation in 1960. Its conceptual design was that of a supranational organisation, with the Contracting Parties having to transfer aviation safety services to the Agency in the upper airspace. In order to implement this goal, in 1972, it then built the MUAC (Maastricht Upper Area Control Centre), representing the first air traffic control centre to manage air traffic of various states, namely Belgium, Luxembourg, the Netherlands and northern Germany.
Consequently, the Member States amended the Convention and extended its scope to include research and development, coordination activities and to consolidate the en-route charges system. With the rapid advance in technology and globality of air traffic, EUROCONTROL has expanded its tasks to the creation of a central flow management unit (CFMU) to assist air traffic managers in both ordinary and emergency situations.
Following the growth of air traffic, the Revised Convention has been designed with the aim to establish a uniform European air traffic management system focusing on a harmonious and integrated cooperation, giving EUROCONTROL a wider scope of activities and rule-making tasks. In addition, it has to develop, adopt and review common standards, specifications and practices for air traffic management systems and services.
The institutional structure of EUROCONTROL has changed over the years. It was firstly assisted by two bodies to execute its functions: the Permanent Commission and the Agency. The Revised Convention introduced a three-layer structure, with a General Assembly, a Council and an Agency. It has also introduced two advisory bodies, the Performance Review Commission and the Safety Regulation Commission, and the Civil/Military Interface Standing Committee.
With the assignment of this new fundamental regulatory function, the European Union with its regulation overcomes the functions of the relevant international organisations to integrate air law in the whole Europe. Therefore, the States maintain their sovereignty on air services at the same time as respecting EU regulation when implementing ATM regulation. On its side, EUROCONTROL acts as an expert assessing technical safety issues. The European Commission plays a leading role examining and evaluating air navigation performance by drawing upon the existing expertise of EUROCONTROL. More precisely, it holds rule-making powers for the implementation of efficient ATM regulations. It has helped the Commission in drafting the regulatory framework and providing support to rule-making standards, together to safety and environmental legislation.
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The European Community – JAA - EASA
The European Aviation Safety Agency (EASA) took over from the Joint Airworthiness Authorities (JAA) activities in 2003. The JAA was created in 1970 as an associated body of ECAC in order to harmonise technical requirements related to safety regulatory standards and procedures in Europe. The JAA ceased to work as an aviation body in 2008 and its activities are now carried out by the European Aviation Safety Agency.
The EASA is a European Agency that became operational in September 2003. Its main role is to develop the technical requirements, to assist the European Commission in preparing legislation on civil aviation safety and environmental compatibility, to monitor the performance of States and industry and to undertake technical audits. EASA also deals with all aspects of the certification, operation and maintenance of aircraft, the licensing of aviation personnel and the adoption of standards relating to air navigation infrastructure (aerodromes
and air traffic services) and environmental protection.20
2.2.2.2.Rule-making and enforcement competencies
The European Member States have delegated rule-making and enforcement competencies in the field of air navigation services to ICAO, EUROCONTROL and the European Community. Therefore the regulation of air navigation services in Europe is no longer within the exclusive domain of the state. From a global level, ICAO is only involved in the rule-making process at a high level but lacks enforcement competencies and thus relies on the individual states for purposes of national implementation.
According to the Revised Convention, EUROCONTROL is able to issue binding non-safety related rules (Standards) and safety-related rules (ESARRs). Both rules bind the international organisation and its contracting parties that should implement them in their own legal order. EUROCONTROL can also practice enforcement powers.
As the Member States have also delegated both rule-making and enforcement competencies in the field of air navigation services to the European Community, a close analysis of the inter-relationship between EUROCONTROL and the European Community is necessary and will be described below.
20
ECAC
ECAC is not an international organisation and does not have any rule-making or enforcement competences. ECAC’s resolutions, recommendations and other conclusions should be
approved and implemented by governments as its functions are only consultative21. There is
no binding effect of ECAC decisions.
ECAC’s institutional strategy emphasised the revision of EUROCONTROL’s institutional structure. To ensure a consistent system of operation in the field of air traffic management, standards would cover operating procedures, protocols and specifications.
EUROCONTROL
EUROCONTROL has been delegated rule-making competences by the contracting States in the field of air navigation services on the basis of the Protocol consolidating the EUROCONTROL Convention (the "Revised Convention"). These rules developed through the EUROCONTROL rule-making mechanism can have either a direct binding effect on the organisation or its Member States or a non-binding effect. They are divided into non-safety related rules and safety-related rules, also called ESARRs. The latter are binding and must be implemented by Contracting States.
European Community – SES regulation
The European Community is also active in the field of European air navigation services and has been delegated rule-making powers and enforcement competences by its Member States for the implementation of an efficient ATM regulation.
The basic SES regulations entrusted the Commission firstly with the delegations of authority to adopt and update the technical implementing measures of a legislative Act and secondly with the delegations of implementing powers.
21
Van Antwerpen N. (2008), Cross Border Provision of Air Navigation Services with Specific Reference to Europe, Kluwer
21
National level: EU Member States
The implementation of EU regulation at national level is carried out by National Supervisory Authorities. Air navigation service provider (ANSP) are independent agencies, public or private authorised entities, designated by States, to implement EU regulation.
According to Reg. (EU) 550/2004, the Member States are responsible for monitoring the safe
and efficient provision of air navigation services. Moreover, they exercise the control of compliance by air navigation service providers with the common requirements established at Community level. National supervisory authorities shall issue certificates to air navigation service providers authorising the delivery of services.
EASA
EASA is embedded in the community framework which means that the regulations issued by the agency are directly applicable in the contracting States to the European Community. The role of EASA as safety regulator cover the area of airworthiness of aircraft and related products, parts and appliances, air navigation services as well as certification of design and production organisations. But this does not mean that all the activities are transferred from EUROCONTROL to EASA. Its role as safety regulator is to ensure that any technological solution, concept, equipment, personnel or organisation involved in civil aviation will be safe. EUROCONTROL’s role is to verify that air transport is efficient and ensure any other regulatory role related to air navigation services and other safety related rulemaking competences. EASA benefits from the regulatory and enforcement competencies under the umbrella of the European Community. The safety rules have a direct effect.
22
Figure 1 – EASA Rulemaking Regulation Structure22
3. Interconnection between the European Community, EUROCONTROL and EASA
The Member States of the European Community are independent subjects of international law, such as the contracting States to the Revised Convention of EUROCONTROL, and they are bound to international law and international obligations according to the Chicago Convention and the Revised Convention. Most of the Member States of EUROCONTROL are also a contracting party of the European Community.
The European Union has decided to integrate EUROCONTROL within its legal framework following the strong exchange of expertise in air traffic management and has therefore joined the Revised Convention as a contracting party on the basis of the Accession Protocol signed
by the European Community in October 200223. This Protocol on the Accession of the
European Community to the EUROCONTROL Convention is now in the process of being ratified by the European Union and the EUROCONTROL Member States. The
22
http://www.easa.europa.eu/regulations/docs/rulemaking_regulations_structure.pdf
23
See Council Decision 2004/636 on the conclusion by the European Community of the Protocol on the accession of the European Community to the Organisation for the safety of air navigation [2004] OJ L304/209
BASIC REGULATION Initial Airworthiness Part-21 Part-M Part-145 Part-66 Part-147 Part-FCL DEF Part-ARO Part-ORO Part-CAT Part-SPA Licenses of non-EU states Conversion of national licenses Part-MED Part-CC Part-ARA Part-ORA Continuing
Airworthiness Air Crew
GEN ATS Part-ACAS MET AIS CNS Air Operations ANS common req. Airspace usage req. REGULATIONS ANNEXES ATM/ANS safety oversight I II III IV V VI VII FULL TITLES Commission Regulation (EU) No 748/2012 of 03/08/2012 laying down
implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations
Commission Regulation (EC) No 2042/2003 on the
continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these
Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down
technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council
Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down
technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council
Commission Implementing Regulation (EU) No 1332/201 1 of 16 December 201 1 laying
down common airspace usage requirements and operating procedures for airborne collision avoidance
Commission Implementing Regulation (EU) No 1035/201 1 of 17 October 201 1 laying
down common requirements for the provision of air navigation services
Commission Implementing Regulation (EU) No 1034/201 1 of 17 October 201 1 on safety
oversight in air traf fic management and air navigation services
ATCO Licensing
Commission Regulation (EU) No 805/2011 for air
traffic controllers’ licences and certain certificates pursuant to Regulation (EC) No 216/2008 Rules of the air (RoA) SERA Commission Implementing Regulation (EU) No 923/2012 of 26/09/2011 laying down the
common rules of the air and operational provisions regarding services and procedures in air navigation
Rulemaking Regulations Structure Each Part to each implementing regulation has its own Acceptable Means of Compliance and Guidance Material (AMC/GM).
These AMC and GM are amended along with the amendments of the regulations. These AMC/GM are so-called ‘soft law’ (non-binding rules), and put down in form of EASA Decisions. A comprehensive explanation on AMC in form of questions and answers can be found here. For SERA and ANS implementing regulations, the respective AMC/GM will be added later . Furthermore, Certification Specifications are also related to the implementing regulations, respectively their parts. Like AMC/GM they are put down as Decisions and are non-binding.
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EUROCONTROL Member States and the European Community decided in 2003 to provisionally apply, pending their entry into force, certain provisions of the Protocol on the
Accession of the European Community to the revised Convention.24On the basis of this
Accession Protocol, the European Community can exercise within EUROCONTROL particular competences and is bound to the Revised Convention. As described in the Final Act, the European Community keeps exclusive competence on certain areas covered by the
Revised Convention.
The European Community accepts the role of EUROCONTROL in its own legal order, but only to a certain extent. The Member States of the European Community cannot transfer powers to EUROCONTROL if they have already been transferred to the European
Community.25 With regard to the Single European Sky regulations, EUROCONTROL’s
safety or non-safety related rules, have to be implemented in the national laws of its Member States to have full legal effect.
Non-safety related rules (mandates) (standards)
With respect to non-safety related rules, the European Community realised that the four regulations issued under the umbrella of the SES should be complemented and supplemented by implementing rules, that means more specific and detailed rules. These implementing
rules are developed through mandates by the European Community under
EUROCONTROL’s ENPRM-framework (EUROCONTROL Notice of Proposed Rule Making process). If approved and/or adopted, these EUROCONTROL’s standards are pursuant to the regulatory procedures under the convention and mandatory on the States.
Safety related rules (ESARRs)
For the safety related rules, the European Community can adopt ESARRs developed by EUROCONTROL and implement them in the European Community. These rules are mandatory and can be incorporated into Community law through comitology. If the European Community decides to adopt the ESARRs and to make them bound within the European
24http://ec.europa.eu/transport/modes/air/single_european_sky/co-operation_eurocontrol_en.htm
25Van Antwerpen N. (2008), Cross Border Provision of Air Navigation Services with Specific Reference to
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Commission, it has to use its own rule-making mechanism. That means that any amendment requires an amendment of existing Community directives or regulations. If EUROCONTROL revises its ESARRs, the European Community and the Member States are bound to amend the
applicable governing Community law. According to Van Antwerpen26, in order to avoid
conflicts, EUROCONTROL and EASA should find an understandable way to classify the various working tasks. EUROCONTROL would keep its regulatory role in the field of air navigation services and other rule-making competencies related to safety. The role of EASA is to ensure the safety of any technological solution, concept, equipment, personnel or organisation related to civil aviation. The European Commission would rather extend the mandate of EASA to safety regulation of air traffic services in the SES.
EUROCONTROL is assisting EASA, since its creation in 2002, with the drafting of its own safety-based implementing rules. Whereas the European Commission is giving the political lead in implementing the Single European Sky and establishing the legal framework, EUROCONTROL is providing the technical support. EUROCONTROL has recently restructured to align itself with the SES’s goals. It has separated its various functions and differentiated the regulatory activities from the service provision. The Agency has now three directorates:
- Single Sky for the regulatory support - Network Management
- SESAR Research
The EU has designated EUROCONTROL as the Performance Review Body to assist the European Commission in establishing and managing the performance scheme for air navigation services. It has also taken the role of Network Manager to expedite decision-making and draw up detailed plans for achieving performance objectives, which is a key feature for SES II. Moreover, the Network Manager is also responsible for monitoring
26Van Antwerpen N. (2008), Cross Border Provision of Air Navigation Services with Specific Reference to
25
progress and addressing difficulties from an operational perspective and thus optimises the
use of European airspace.27
The Commission has also established a working group made of representatives of EASA, EUROCONTROL and the Commission to further develop safety indicators (KPIs or Key Performance Indicators) and to produce a report on the metrics for safety management. This report amends performance schemes and constitutes the technical concept of Reg. (EU) No
1216/2011 and its associated Acceptable Means of Compliance and Guidance Material, laying
down a performance scheme for air navigation services and network functions.28
4. Conclusion
The EU has opened to competition most of its transport markets since the 1990’s, but barriers to a smooth functioning of the internal market persist. The objective for the future of aviation is to ease the process of integration and the emergence of multinational operators. Since 2004, the European Union gained competences in air traffic management thanks to the legislative framework of SES I and SES II. In order to correctly understand the nature of EU policies related to ATM and who the main actors engaged in the regulatory process are, the definition of the term “governance” has brought us to the concept of multilevel governance – a system of continuous negotiation among nested governments at several territorial tiers – supranational, national, regional and local, has been extended to decisions taken within the information networks in shaping public policies, enabling multiple actors to collaborate in a system in which power is dispersed. ATM competence is still national with a European regulatory framework based on functional cooperation between national, supranational and international institutions. The European Commission is giving the political lead in the implementation of the SES and establishing the legal framework. EUROCONTROL is providing the technical support.
The ATM development in Europe is supported by the regulatory framework governing the Single European Sky. In order to develop a more efficient and seamless European air traffic management system, its purposes are designed to reduce delays, costs and to increase the capacity of the European airspace. The SES regime is based on direct flight patterns and operational efficiency, eliminating thus national boundaries and airspaces. In addition to this
27
See Commission Decision C (2011) 4130 on the nomination of the network manager for the air traffic management (ATM) network functions of the single European sky
26
regulatory framework, there is the certification of the air navigation services providers, the progress in the field of FABs and, the definition phase and decisions preparing for the implementation of the SESAR programme. This vision is accompanied by goals intended to guide policy action in the next decade, to put the transport sector on a sustainable path and to bridge the gap between vision and reality. Collaborative decision-making remains the key feature of SESAR’s operational structure. There is a need to focus on the main challenges: a governance mechanism that ensures a timely and coordinated deployment of the SESAR concept, including the involvement of all stakeholders and the relevant EU bodies. All actors involved have clear responsibilities at the policy, management and implementation levels. Even though automation systems will keep providing the controllers with the support they need in order to handle the expected demand and traffic growth, a change in roles and responsibilities is expected. The humans will be in charge to choose between alternatives and to make decisions. The automation systems will manage complexity and expand information supporting it to humans.
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Section 2 – Addressing the issue of compliance with standards and
liability in automated systems
Air traffic management is a new policy area for the EU and the implementation of the Single European Sky is only a first step to modernise the aviation sector and its airspace. Careful preparation, broad interest by stakeholders, high level political support and transparent working methods have helped to make rapid progress, but adjustments still need to be done according to experience and success in improving the performance of air traffic management for the benefit of airspace users.
The deployment of the technological arm of the Single European Sky (SESAR) defines a new high-performance air traffic management system with new technologies, devices and high automation levels that will contribute to enhancing the safety level in air traffic all over Europe. Following these advances in automation and technology, it is important that adequate European legislation and regulation support its timely and effective deployment. Compatibility also needs to be ensured with standards developed worldwide, and notably with NextGen in the United States.
In the current operational scenario of ATM, liability is mainly allocated to the air traffic control and air navigation operators. In addition, the legal framework does not take into account the relation between humans and automated systems, to become more and more relevant in the future of ATM. Some issues, related to highly automated systems that perform actions without explicit human intervention, may shift liability for accidents from operators to technology (manufacturers, organisations and system developers). The ALIAS project, which addresses the liability impact of automated systems, will lead the development of a methodological tool to support the introduction of any technology in complex systems and to take all the relevant legal aspects into consideration at the right stage of the design, development and deployment process. Fundamental issues in human-technology interaction will be explored and a governance mechanism that enables the enhancement of the functioning of the ATM may be viewed through a better standardisation.
This chapter will analyse the role of the EU towards the development of an efficient European air traffic management with a view on its American counterpart. Therefore common rules on safety should be defined and EU common standards should be developed coherently with worldwide standards.
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The literature study on standards and standardisation systems will also be described. It will commence by analysing the various definitions of standards, and by reviewing the various organisations dealing with standards with a focus on their objectives and challenges. The collection of this information was performed through existing reports by standardisation bodies, deliverables and studies by EC research projects, reports and manifestos by major ATM stakeholders and EC regulations.
5. Regulatory framework for liability and ATS: International and EU level
The regulatory structure of ATM does not take much into consideration liability issues as it continues to be based on existing national and international regimes. The main regulatory framework for liability on an international level is the following:
- The Warsaw and Montreal Conventions are both fundamental instruments governing liabilities of air carriers. They both deal with liability of carriers for damages caused to passengers, baggage or goods during international journeys. The Montreal Convention replaces the system of liability originally envisaged by the Warsaw Convention.
- The Rome Convention is an international treaty on damage caused by foreign aircraft to third parties on the surface. More precisely, it provides general principles for the compensation of damages caused to the people on the ground by aircraft in flight or by persons or thing falling therefrom.
No comparable international or regional liability regime exists to cover the liability of ANSPs. No State has implemented any specific law to cover the liability for their ANS agencies and the European Union has only introduced a regulation based on the principles of the Montreal Convention. The fragmentation of liability is therefore the main hurdle to legal certainty in the development of the regulatory package. In the SES regulatory package, liability is addressed only indirectly by deferring their settlement to agreements between their involved parties at national level. Liability profiles are thus met in a bottom-up approach based on national and international law agreements. The role of the EU is to achieve efficiency of European ATM without interfering with nation sovereignty on the airspace but this is not enough to address liability issues. There is a need to define common rules on
29
safety, liability and cooperation between National Supervisory Authorities and this could be achieved by developing EU common standards related to the above.
6. SESAR WPE and the ALIAS project
6.1. Main objectives of the SESAR Programme (Single European Sky ATM Research)
The SESAR programme is the technological and operational dimension of the Single European Sky initiative which aims at giving Europe a high performance air traffic control infrastructure. In order to eliminate the fragmented approach to European ATM and thus modernise it, to meet future capacity and air safety needs and to synchronise all the aviation players, the project is composed of 3 phases as expressed in Figure 2 (the definition, the development and the deployment phase).
Figure 2 – A three phases based programme (the SESAR programme)29
The definition phase (2005-2007) succeeded in bringing all actors together to decide in record time on technological choices and ensured the modernisation of air traffic with the
implementation of the ATM Master Plan30 that deals with the different technological stages,
priorities and timetables.
29 http://ec.europa.eu/transport/modes/air/sesar/
30 http://www.sesarju.eu/sites/default/files/documents/reports/European_ATM_Master_Plan.pdf
More precisely, “ATM Master Plan” means the plan endorsed by Council Decision 2009/320/EC, in accordance with Article 1(2) of Council Regulation (EC) No 219/2007 of 27 February 2007 on the establishment of a Joint Undertaking to develop the new generation European air traffic management system. It therefore provides the
30
The European Commission launched the development phase (2008-2013) which would develop the tools, technologies, and operational procedures to further become standards. For these standards to reach the right level of technological maturity and to be then promulgated through the Single European Sky legislation, a substantial amount of research and development would be needed with the aim to make available the basic technologies for the new generation of systems. Both the European Union and EUROCONTROL boosted their co-operation by creating a new institutionalised partnership, the SESAR JU (Single European Sky ATM Research Joint Undertaking) in 2007, which manages this phase and coordinates all relevant research and development activities with the purpose of implementing a common
ATM system for Europe.31
The next challenge for the Commission, started in January 2014, relates to the implementation of the technologies in the operations. The deployment phase (2014-2020) will see the deployment of products of the development phase and the large-scale installation of the new systems. This is when the private sector will enter into force. The Single Sky legislation will set the deadlines for installation of new SESAR standards on board aircraft and on the ground.
These implementing rules are promulgated through a comitology32 regulatory procedure. It is
important for the European institutions to find the right governance and the right balance between preservation of public interest, increased efficiency, safety, environmental impact and competitiveness for the European industry as they are all interconnected.
The safety target for the SESAR programme is to “improve the safety performance by a factor of 10” while traffic increases 3-fold. SESAR should therefore deliver a “total system
design”, in which all types of sub-system including equipment, procedural and human, must
be taken into account. Part of the evidence in design completeness will be the forward and
roadmap for the development and deployment phases of the SESAR programme. It also includes the regulatory and the standardisation roadmaps and will identify the essential deployments.
31 SESAR JU is the first ATM public-private partnership set up as an EU body with the EU and EUROCONTROL as its founding members. Its mission is to ensure the modernisation of the European ATM system by coordinating and concentrating all the relevant research and development efforts. The SJU will develop and validate the new generation of ATM technologies and procedures
32
http://europa.eu/legislation_summaries/glossary/comitology_en.htm:
In accordance with the Treaty on the Functioning of the European Union (TFEU), Member States implement European law by adopting measures for implementing legal acts into their national legislations. In exercising its implementing powers, the Commission is assisted by representatives of the Member States through committees, in accordance with the “comitology” procedure. The committees are forums for discussion consisting of representatives from Member States and are chaired by the Commission. They enable the Commission to establish dialogue with national administrations before adopting implementing measures. Regulatory committees are responsible when the implementing measures relate to legislation applicable in the whole of the European Union (EU) whereas regulatory committees with scrutiny must allow the Council and the European Parliament to carry out a check prior to the adoption of measures of general scope designed to amend non-essential elements of a basic instrument adopted by codecision.
