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Evolution of Air Navigation Services Providers LiabilityWithin the Performance & Risk Based Environment

International Air Law Conference85th Anniversary of the Warsaw Covention

Warsaw, 24 October 2014

Maciej Rodak

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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

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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

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The Commission Implementing Regulation No 1035/2011 (Common Requirements):

Initial and continuous compliance as the vehicle for certification

Liability perception within Common RequirementsLack of certificate v.s. State liabilityLiabilities v.s. ANSPs insuranceLiability sharing among ANSPsExternal suppliersThe Management System requirements and Performance

System requirements

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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

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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

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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 identifiedEnforcement 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

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The emerging Performance Based Regulations and Oversight System may drive to differentiation of liability between:

ANSPs in fully „corporatized” type of service provisionStates in the Compliance Based EnvironmentUndefined yet liability of international network

management entities where all of them are elements of the same value-chain within the Network

…unless liability agreed in advance

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Thank you for your attention