Charging for Cross-Border Atm Services in the Single European Sky

The Single European Sky regulatory framework aims at providing air navigation services irrespective of national borders, optimizing routings, capacity, and costefficiency. The SES II Regulation of 2013 established Functional Airspace Blocks (FAB) which should have fomented cross border services. This has not happened. While some FABs elaborated joint performance plans, they did not go beyond this administrative coordination and did not establish wide-ranging permanent cross border operations, not even at times with low traffic or to relief congestions. Also, within the FABs, states maintained the fragmentation of airspace along national borders. Only in few cases, air navigation service providers (ANSPs) manage services in another member state, mostly for small pockets of air space or for take-offs and landings at airports close to the border. An exception is Maastricht where four EU member states agreed to task Eurocontrol with managing en-route services in their airspace. Cross-border services imply legal issues, namely with respect to the allocation of costs and service units as well as charging airspace users for those services. Liability can also be a difficult cross border issue. The article will focus on the allocation of costs and on the charging for cross border services. There are no specific rules how states should share costs for cross-border services and how users are charged. In some cases, the state who's ANSPs provides the service in another airspace, covers the cost with subsidies (e.g. Switzerland paying for the services Skyguide provides in German and French airspace). In other cases, where governments do not step in with subsidies, the allocation of the cost is less transparent. They may be integrated in the cost base of the providing ANSPs. This begs the question whether such arrangements adhere to the principle that ANSPs can and should charge for the costs in their charging zone in accordance with the EU Performance and Charging Regulation. In the case of Maastricht, an additional element comes into play, i.e. the question whether the performance and charging scheme of the EU is properly implemented in the MUAC states with respect to cost-efficiency. The Detailed Examination the European Commission conducted in 2022 of the draft performance plan of Belgium/Luxembourg identified several issues when taking a closer look how costs were allocated among the participating states and charged to airspace users. The article analyses the actual state of play for cross border services in the SES and the legal framework for such services, including the new SES III regulation. It will explain that the notion, cross border services imply a delegation of airspace is not accurate. The sovereignity over airspace is not affected when states agree that an ANSP of another country should be responsible for providing services in its airspace. The SES regulation is also only speaking about designating the ANSP of another state to provide services in its airspace. This clarification is important because it will allow to properly allocate the costs of crossborder services and make sure that airspace users are charged for the actual costs of the respective charging zones. With new technologies such as virtual centres, cross-border activities will increase, as they allow providing services irrespective of the physical controller working position and national borders. Some of these projects are advanced (for example FINEST for crossborder services between Estonia and Finland) as well as projects under the guidance of SESAR. The article will identify the learnings from the past and provide input how states can charge for the cost of cross-border services adhering to the principles of the SES economic regulation.