Evolution of Air Navigation Services Providers Liability

1. Evolution of Air Navigation Services Providers Liability Within the Performance & Risk Based Environment International Air Law Conference 85th Anniversary of the Warsaw Covention Warsaw, 24 October 2014 Maciej Rodak

2. State liability in case of negligence in the exercise of its responsibilities in light of Article 28 Chicago Convention • Along with separation of Service Provision and Regulatory Functions, civil and criminal liability incurred for negligence are staying in supervisory/oversight responsibilities • Regardless from a delegation of tasks to Air Navigation Services Providers the relevant States ultimately responsible under Article 28 of the Chicago Convention

3. The SES legislation as the current basis of the ANSPs liabiluty within the Single European Sky: • The Regulation 550/2004 – Provision of Air Navigation Services in SES: • National supervision of ANSPs and verification of compliance with the Regulations’s requirements • Common requirements for Air Navigation Service Providers • ANSPs certification and designation

4. The Commission Implementing Regulation No 1035/2011 (Common Requirements): • Initial and continuous compliance as the vehicle for certification • Liability perception within Common Requirements • Lack of certificate v.s. State liability • Liabilities v.s. ANSPs insurance • Liability sharing among ANSPs • External suppliers • The Management System requirements and Performance System requirements

5. Incentive scheme within Performance plans in accordance with the „Performance Regulation” No 691/2010: • Implemented to support improvements in the performance of the service provision • Shall drive behaviour of entitles subject to target setting to achieve high level of performance • Shall be of financial nature when applied to cost- efficiency targets • May be of financial nature or of other nature when applied to capacity targets

6. Performance/Risk Based Environment (PBE/RBE) as shift from prescriptive regulatory and supervisory regime towards a supervision of „selfdeterming” service providers • Performance Based Regulation sets goals for the desired outcomes (initially – safety objectives) and measures performance against them • PBE relies on the maturity of internal management systems (initially SMS) of ANSPs, identification of risk areas under their management and information sampling on trends and goals achievement

7. PBE/PBR enablers: • Mature Safety Management (ref. Reg 1035/2011) • Information Sharing (ibidem) • Safety Culture (ibidem) • Structure of the Rules – Authority and Organisational Requiremenst (new) • Accountabilities, Responsibilities and Enforcement (new – THE ESSENCE) • The essence of PBE/PBR: • Objectives given to organisations and individuals with the flexibility to meet them • Processes to assess goals acheivement and measure process performance coupled with rewards and proportionate corrective actions • Rights and obligations clearly identified • Enforcement strenght proportionate to the freedom granted within the PBR – up to complete shift of liability from State to the ANSP • Sole liability of the UK NATS or Nav Canada for damages caused to third parties – full transfer of State liability within the national legal system

8. Theemerging Performance BasedRegulations and Oversight System maydrive to differentiation of liabilitybetween: • ANSPs infully „corporatized” type of service provision • StatesintheComplianceBased Environment • Undefinedyetliability of international network management entitieswhereall of themareelements of the same value-chainwithinthe Network • …unlessliabilityagreedinadvance

9. Thank you for your attention