UK letter regarding Draft SES implementing rule for flexible use of airspace

Letter to Andreas Boschen, The European Commission, 17 September 2004

Dear Andreas,

UK Comments on the Common Requirements for the Provision of Air Navigation Services

Thank you for the opportunity to comment on the latest version of the Common Requirements. The UK Government, following advice from the Civil Aviation Authority and consultation with our ATM stakeholders, has produced the attached list of comments. I would be grateful if you would take these into account when re-drafting the proposal.

The Common Requirements are a vitally important piece of legislation and we need to get the detail right. As you will recall, we felt that it was necessary to convene a small drafting group to assist in the development of the Common Requirements Regulation, but it is disappointing that no such group has been formed to date. We still believe that more detailed face to face discussion on the Common Requirements would help to secure a better outcome. We are therefore willing to come to Brussels to discuss our comments in detail with you should you consider this helpful or to participate in a drafting/review group.

Our overall view on the latest draft of the Common Requirements is that they are far from satisfactory from the UK perspective. Our stakeholders have expressed to us their grave concerns regarding what is being proposed. We have listened to their views and we agree that there is much substance in what they are telling us. So much so, in fact, that it is most unlikely that we could agree to accept the Common Requirements unless there are some significant amendments made to the latest draft.

Our primary concerns are:

Proportionality

We consider that the Common Requirements are casting their net too wide. Throughout the negotiations on Single Sky, the focus has been on Commercial Air Transport and the lack of capacity in the upper airspace. It was therefore something of a surprise that the Common Requirements would impact on all ANSPs regardless of their size, safety or operational relevance. For example, and notwithstanding the proposed derogations, the current draft of the Common Requirements include requirements for minor grass aerodromes where only a flight information service is provided. Our stakeholders have advised us that the Common Requirements will force the closure of some ANSPs and that jobs will be lost, since the additional requirements will make it uneconomic to continue to act as an ANSP. Moreover, the scale of the Common Requirements is likely to deter new entrants to the market. We thus expect that the Common Requirements will lead to a reduction in the overall number of ANSPs and is likely to have an adverse impact on air traffic costs. We do not believe that it is the Commission's aim to increase air traffic-related costs, force the closure of small to medium-sized ANSPs, or to deter new entrants into the ANSP market place. Nor do we feel that the Common Requirements as currently drafted are consistent with the Commission's general desire for contestable markets.

Similarly, the larger the number of ANSPs affected by the Common Requirements, then the greater the resources our NSA will need to devote to overseeing the implementation of the legislation and carrying out its certification and audit functions. This is a particularly difficult task given that the NSA is required to do this work inside a year of the Regulation becoming law.

We therefore wish to see some ANSPs exempted totally from the Common Requirements and others facing a much less stringent set of requirements.

Timescale for implementation

The proposed timescale to achieve full certification of ANSPs is totally unrealistic. Our NSA has advised us that it will take them at least a year to inspect and provide initial Met NSA certification to all affected units and companies. In addition, despite potential derogations and "exemptions", affected aerodromes that provide Met data (100+) and commercial Met service providers - all of which will need certification - will require at least two years to prepare for certification. It is therefore inconceivable that we could expect them to be prepared by 1 January 2006. This is just one aspect of the Common Requirements. It is a similar picture when we consider Safety Management Systems, Quality Management Systems, the numerous financial requirements and so on. Our stakeholders are naturally very concerned about the timescale, particularly what might happen if they do not receive a certificate in the time allowed.

We therefore wish to stress that there should be a rolling programme with the legislation implemented over a period of at least three years.

Balance between certification and designation

It is the UK's view that the Common Requirements are overly prescriptive in relation to the scale and type of information to be provided for certification. It is our view that the current requirements outlined for the certification process are too specific and unnecessary for a general "entry ticket" into the market. We believe strongly that some of the detailed requirements in the draft Regulation are more relevant to the designation stage once a contract is in place and should be left to a Member State's discretion.

Military

We consider that there should be a clear statement in the Common Requirements that preserves the exemption of the military as detailed in the Single Sky regulations. We suggest that Article 1.2 of the Framework Regulation could be used as a guide for a new preamble. Moreover, Article 7.5 of the Air Navigation Service Regulation allows Member States to decide not to certify a service provider in cases where they offer services primarily to aircraft movements other than general air traffic. We have therefore suggested an amendment to Article 3 of the Common Requirements to cover this point.

The Commission will recall the importance of this issue to the UK, and we hope that you will likewise agree to include our suggested amendments in the Common Requirements.

Safety

Safety is, of course, paramount, but the Common Requirements seem to miss this vital point. We consider that there should be a clear statement emphasising the over-arching importance of safety.

Cost of implementing this Regulation

The UK's Civil Aviation Authority has undertaken a study into how much it would cost to implement the Common Requirements, as currently drafted, in the UK. The initial start up cost is estimated at around £150 million with significant on-going costs once the Common Requirements have been fully implemented. These costs will be borne by airspace users and will lead inevitably to an increase in the unit rate. The UK has always considered that one of the key objectives of Single Sky was to reduce charges, but there is a genuine risk that this will not now happen. We are coming under very strong pressure from the UK's aviation industry to justify the extra regulatory burden and its related costs. However, we are finding it difficult to justify why these costs need to be borne, particularly by the smaller ANSPs. The exemption of some ANSPs and the minimising of the impact of the Common Requirements on some other ANSPs would go a long way to reducing industry's opposition to the Common Requirements.

Moreover, we would be interested to know whether the Commission is aware of the costs of what you are proposing and when we can see a Regulatory Impact Assessment (RIA) on the Common Requirements.

Conclusion

The UK, whilst a strong supporter of Single Sky, believes that the Common Requirements must be amended to minimise their impact on smaller ANSPs. At present, we are unable to agree the proposal and will oppose it in the Single Sky Committee unless we see the adoption of a more realistic approach. As always, we are willing to discuss with you our views and would welcome the opportunity of doing so, either bilaterally or as part of a review group.

Please let me know if you have any queries on our comments.

Yours sincerely,

Bruce Coombs