Evaluación de Riesgos

The ANSPs' first responsibility is the devel- opment of the contingency plan, the def- inition of the measures and alternative services needed in case of degradation or interruption of their services, and their inclusion into a consistent plan, in line with the requirements or targets set by the State.

The preparation phase includes the defi- nition of the measures and the coordina- tion with other actors, i.e. the State, the NSA(s), possibly the other ANSPs, the insurance companies (refer § 5.5.2 Insurance.) The ANSP is in particular responsible for developing the list of addressees to be notified in case an out- age occurs and the service is discontin- ued. It should also, in coordination with the regulator, fix the minimal set of infor- mation and time of delivery to be deliv- ered to neighbouring ACCs or States. The ANSP is also responsible for the implementation of the plan in appropri- ate cases.

II) PLAN

Coordination with other ANSPs

When the contingency measures envis- aged have an impact or depend on other service providers, the ANSP needs to ensure the adequate cooperation with them.

In States where European legislation applies, and where the nature of the con- tingency measures is such that it requires the use of other ANSPs services or facili- ties, the ANSP needs to comply with Articles 10.1 and 10.2 of Regulation No 550/2004 which provides:

“Air navigation service providers may avail themselves of the services of other service providers that have been certi- fied in the Community.

“Air navigation service providers shall formalise their working relationship by means of written agreements or equiv- alent legal arrangements, setting out the specific duties and functions assumed by each provider…” Contingency can be the subject of an ad- hoc agreement or part of a more generic arrangement between the ANSPs. In principle, an ANSP may sub-contract the provision of services to a third service provider provided that this sub-contrac- tor is certified, that the delegating ANSP (and the States concerned) formally approves the sub-contract, that this arrangements is supported by written agreements properly reflecting the allo- cation of liabilities.

It would be useful for the ANSP to address, where possible, contingency aspects in its relations with external providers and suppliers. The adequate safety verification of these services fore- seen in Regulation (EC) No 2096/2005, Annex II, § 3.1.2, can be best secured through contractual commitments and

obligations, which could address where possible, contingency aspects.

Coordination with the NSA

Necessary relations will take place between the ANSP and the NSA in the course of the verification foreseen in paragraph 8.2 of Annex I to Regulation No 2096/2005.

In addition, the ANSP has to formally noti- fy the NSA of its arrangements with other ANSPs.

Coordination with the State

As stated above, the State has the respon- sibility to make its requirements in the contingency domain known and binding on the ANSP.

As required by both the Chicago Convention and the SES legislation (in particular Article 10.3 of Regulation No 550/2004) the ATSP needs to communi- cate the intended plan to the State and obtain its approval, when the plan includes the use of other ATSPs' services. This approval can take several forms, depending on national circumstances and legislation: the approval can be given in advance, subject to communication of the subsequent plans; the approval can be expressed by the joint signature of the contingency plans or by a separate unilat- eral act by the State (e.g. letter of approval). The (State) approval of the con- tent of the plan can also be delegated to the NSA.

In many States, ATS at airports are provid- ed by other than the national administra- tion or the National ATS Provider. In strategic ATS contingency planning, it is often the National ATS Provider who will need to provide planning which assures that ATS continue to be provided at air- ports regardless of who normally pro-

vides this service at a specific airport. III) ACHIEVEMENT

The following actions/elements are part of the role of the ANSP:

Development and testing of contin- gency plans;

Coordination with other ANSPs and conclusion of appropriate agree- ments; communication of these agreements to the NSA;

Inclusion of appropriate provisions in contracts with other suppliers;

Inclusion of the contingency plan in the ANSP's insurance coverage;

Obtain the approval of the NSA, in accordance with requirements of Regulation No 2096/2005, and with requirements set by the State;

Obtain the State's approval for agree- ments between ATSPs;

Implement the Plan where necessary.

5.5 LEGAL ASPECTS

Main legal issues take place when two dif- ferent legal entities (i.e. two different States, two different ANSPs, civil and mili- tary ANSP) collaborate in contingency sit- uations (contractual liability), or when execution of contingency measures has an impact on third parties (third party lia- bility).

5.5.1 LIABILITIES I) POLICY

In application of Article 28 of the Chicago Convention, States are responsible for the (safe) provision of air navigation facilities and services in their airspace. Any failure to exercise fully and correctly this respon- sibility may incur the liability of the State. In a context where the service providers are separated from the State regulator,

the responsibility and associated poten- tial liabilities are also dissociated:

ANSPs, like every legal person, are responsible for their acts or negli- gence (or those of their staff ) and can be held liable for the damage they cause to third parties.

The State can be held liable for lack of proper oversight; considering the text of the Chicago Convention, it could be argued that the State could also be held directly liable for the non-avail- ability of the services, the inadequacy of the contingency plan or the failure to apply it.

Liability vis-à-vis third parties has to be distinguished from the contractual liabili- ties between the concerned parties in a service provision environment. The third parties' liability regime (i.e. actions by plaintiffs) is governed by national laws and sometimes public or private interna- tional law.

The allocation of liability between the cooperating parties, as well as possible recourse actions, place of jurisdiction, dis- pute settlement procedures between the players (e.g. States, NSAs, and ANSPs) can be organised through agreements, con- tracts or regulatory acts. This is of particu- lar importance in the context of contin- gency plans involving several ANSPs and/or cross-border cooperation (See 5.6 Cross-border Provision of Services and Sovereignty Issues below). However, if written agreements can arrange the lia- bility between the parties, they cannot arrange the right of actions of potential victims.

Delegations of services or arrangements between ANSPs do not lift/remove the responsibilities and potential liabilities of

the delegating ANSP (e.g. failing ANSP), which remains the one originally desig- nated by the State in which airspace the service is provided.

The liability of the ATCOs involved in an accident when working under degraded or contingency modes would remain, but the level of the due diligence exercised would probably be assessed against the particular context and help mitigating the liability exposure .

As a last remark, it should be outlined that the type of damage for which the liability of players can be invoked depends also from applicable national laws. National laws would help determine for instance whether economic damage suffered by airlines after the closing or restriction of airspace could be the subject of a claim. II) PLAN

All players involved in contingency plan- ning should know the extent of their potential liability, and where possible clar- ify and allocate them in writing.