Citation and commencement

1. This Order may be cited as the Air Navigation (Single European Sky) (Penalties) Order 2009 and comes into force on 1st September 2009.

Interpretation

2. —(1) In this Order—

[^F1 “air traffic flow management regulation” means Commission Regulation ( EU ) No 255/2010 laying down common rules on air traffic flow management; ^F1]

“ authorised person ” means the CAA, any constable and any person authorised by the CAA (whether by name or by class or description) either generally or in relation to a particular case or class of cases;

^F2 ...

“ the common requirements regulation ” means [^F3 Commission Implementing Regulation ( EU ) No 1035/2011 laying down common requirements for the provision of air navigation services and amending Regulations (EC) No 482/2008 and ( EU ) No 691/2010 ^F3] ;

^M3 “ the interoperability regulation ” means Regulation (EC) No 552/2004 of the European Parliament and of the Council on the interoperability of the European Air Traffic Management network ;

“ notified ” has the same meaning as in [^F4 paragraph 1 of Schedule 1 to the Air Navigation Order 2016 ^F4] ;

^M4 “ the service provision regulation ” means Regulation (EC) No 550/2004 of the European Parliament and of the Council on the provision of air navigation services in the single European sky .

^M5 (2) Expressions used in this Order that are defined in article 2 of Regulation (EC) No 549/2004 of the European Parliament and of the Council laying down the framework for the creation of the single European sky have the same meaning in this Order as in that Regulation.

(3) Other expressions used in this Order have the same meaning as in the service provision regulation.

Provision of air navigation services

3. A person must not provide any air navigation services without the certification required for the provision of such services by article 7.1 of the service provision regulation.

Provision of air traffic services

4. Where the CAA designates an air traffic service provider to provide air traffic services on an exclusive basis within a specific airspace block under article 8.1 of the service provision regulation—

(a) it must ensure that the terms of that designation are notified, and

(b) no other air traffic services provider may provide air traffic services within that airspace block contrary to those notified terms.

Provision of meteorological services

5. A person must not provide any meteorological services in airspace for which a provider of meteorological services has been notified as having been designated on an exclusive basis under article 9.1 of the service provision regulation, unless he is the designated provider.

Relations between service providers

^F5 6. Air navigation service providers must not avail themselves of the services of other air navigation service providers that have not been certified ... under article 7.1 of the service provision regulation.

Safeguards relating to the use of the [^F6 United Kingdom air traffic management system ^F6]

7. A person must not make use of any system or constituent of the [^F7 United Kingdom air traffic management system ^F7] contrary to—

(a) a prohibition on its use, or

(b) a restriction on the area of its application,

established by the CAA under article 7.1 of the interoperability regulation and notified by it.

Compliance monitoring

^F8 8. — (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) For the purpose of monitoring compliance with the requirements laid down for the provision of air navigation services in the common requirements regulation, authorised persons have the right to undertake inspections and surveys using any of the powers described in article [^F9 7 ^F9] of that regulation.

(3) In order to facilitate inspections and surveys under [^F10 paragraph ^F10] (2) by an authorised person, an air navigation service provider must within a reasonable time after being requested to do so by an authorised person—

(a) ^F11 cause to be produced to that person documents, records, data or other material relevant to the provision of air navigation services ...;

(b) ^F12 make available such facilities and equipment that he possesses that may reasonably be required by that authorised person for the purpose of examining or taking copies of or extracts from documents, records, data or other material relevant to the provision of air navigation services ...; and

(c) provide such oral explanations as may be requested on site by that authorised person.

^F13 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offences in relation to documents, records and explanations etc.

9. —(1) A person must not, with intent to deceive—

(a) use any certificate or any designation issued or required by or under article 7, 8 or 9 of the service provision regulation which has been forged, altered, revoked or suspended, or to which he is not entitled;

(b) lend any certificate or any designation issued, having effect or required by or under article 7, 8 or 9 of the service provision regulation to, or allow it to be used by, any other person;

(c) make any false representation for the purpose of procuring for himself or any other person the issue of any such certificate or designation;

(d) make a declaration for the purpose of article 5.2 or 6.2 of the interoperability regulation that is false in any material particular; or

(e) ^F15 on the occasion of an inspection or survey under article [^F14 7 ^F14] of the common requirements regulation ..., provide false documents, records, data or other material or false oral explanations.

(2) In paragraph (1) a reference to a certificate or designation includes a copy or purported copy.

Obstruction of persons

10. A person must not intentionally obstruct or impede an authorised person using any of the powers referred to in article [^F16 8(2) ^F16] when undertaking an inspection or survey under that article.

Penalties

11. —(1) Any person who—

(a) fails to comply with any obligation imposed upon him under a designation made under article 8 of the service provision regulation;

(b) fails to formalise, notify or secure the required approval of any working relationship under article 10 of the service provision regulation;

(c) contravenes article [^F17 6.1 or 6.2 ^F17] of the common requirements regulation;

(d) fails to take the corrective action imposed upon him by the CAA under article [^F18 6.3 ^F18] of the common requirements regulation

is guilty of an offence and is liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine or imprisonment for a term not exceeding two years or both.

(2) Any person who fails to comply with any obligation imposed upon him by—

(a) articles 3, 4(b), 6 or 9, or

(b) ^F19 article 8(3) ...,

is guilty of an offence and is liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine or imprisonment for a term not exceeding two years or both.

(3) Any person who fails to comply with any obligation imposed upon him by—

(a) article 5, or

(b) a designation made under article 9 of the service provision regulation,

is guilty of an offence and is liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

(4) Any person who fails to comply with any obligation imposed upon him—

(a) ^F20 by articles 7 ... or 10,

[^F21 (aa) by articles 6, 7, 8, 9.2, 10.2, 11.2 or 11.5 of the air traffic flow management regulation, ^F21]

(b) to provide [^F22 a ^F22] declaration of conformity or suitability for use as required by article 5.2 of the interoperability regulation,

(c) to provide [^F23 a ^F23] declaration of verification as required by article 6.2 of the interoperability regulation,

(d) ^F24 to submit to the CAA the declaration referred to in sub-paragraph (c) together with the technical file as required by the said article 6.2, ...

(e) to provide the CAA, within a reasonable time after being requested so to do, with such additional information as the CAA may require under the said article 6.2, [^F25 or ^F25]

[^F26 (f) by an implementing rule listed in the Schedule to this Order, ^F26]

is guilty of an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

[^F27 (4A) Any local air traffic flow management unit who, when requested by an airport slot coordinator or a managing body of a coordinated airport, fails to provide to the person making the request the accepted fight plan of a flight operating at that airport, before that flight takes place, is guilty of an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale. ^F27]

^F28 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defence

12. In any proceedings for an offence under article 11(1), (2), (3)(a), [^F29 (4)(a), (aa), (b), or (f), or (4A) ^F29] of this Order, it is a defence for the person charged to prove that person took all reasonable steps and exercised all due diligence to ensure that the article in question was complied with.

Offences by body corporate

13. —(1) Where a body corporate is guilty of an offence under this Order and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3) Where an offence under this Order is committed in Scotland by a Scottish partnership and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner as well as the partnership is guilty of that offence and is liable to be proceeded against and punished accordingly.

[^F30 Review

14. —(1) The Secretary of State must from time to time—

(a) carry out a review of The Air Navigation (Single European Sky) (Penalties) Order 2009,

(b) set out the conclusions of the review in a report, and

(c) publish the report.

^F31 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The report must in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by [^F32 this Order ^F32] ,

(b) assess the extent to which those objectives are achieved, and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this [^F33 Order ^F33] must be published before 11th December 2018.

(5) Reports under this Order are afterwards to be published at intervals not exceeding five years. ^F30]

Regulation 11(4)(f)

[^F34 SCHEDULE List of implementing rules

1. Commission Regulation (EC) No 1032/2006 of 6 July 2006 laying down requirements for automatic systems for the exchange of flight data for the purpose of notification, coordination and transfer of flights between air traffic control units.

2. Commission Regulation (EC) No 1033/2006 of 4 July 2006 laying down the requirements on procedures for flight plans in the pre-flight phase for the single European sky.

3. Commission Regulation (EC) No 633/2007 of 7 June 2007 laying down requirements for the application of a flight message transfer protocol used for the purpose of notification, coordination and transfer of flights between air traffic control units.

4. Commission Regulation (EC) No 29/2009 of 16 January 2009 laying down requirements on data link services for the single European sky.

5. Commission Regulation (EC) No 262/2009 of 30 March 2009 laying down requirements for the coordinated allocation and use of Mode S interrogator codes for the single European sky.

6. Commission Regulation (EU) No 73/2010 of 26 January 2010 laying down requirements on the quality of aeronautical data and aeronautical information for the single European sky.

7. Commission Decision of 20 May 2011 on exemptions under Article 14 of Commission Regulation (EC) No 29/2009 on data link services.

8. Commission Implementing Regulation (EU) No 1206/2011 of 22 November 2011 laying down requirements on aircraft identification for surveillance for the single European sky.

9. Commission Implementing Regulation (EU) No 1207/2011 of 22 November 2011 laying down requirements for the performance and the interoperability of surveillance for the single European sky.

10. Commission Implementing Decision of 9 December 2011 on exemptions under Article 14 of Commission Regulation (EC) No 29/2009 .

11. Commission Implementing Regulation (EU) No 1079/2012 of 16 November 2012 laying down requirements for voice channels spacing for the single European sky. ^F34]