Article 35 — Terminal air navigation services and CNS, MET and AIS services and ATM data services subject to market conditions

1.       Subject to the provisions of this Article, Member States may decide, either before or during a reference period, that the provision of some or all of the terminal air navigation services, CNS, MET, AIS services or air traffic management (‘ATM’) data services provided in their charging zones established in accordance with Article 21 is subject to market conditions.

2.       Where a Member State or Member States decide to apply paragraph 1, for the upcoming reference period or, as the case may be, for the remaining duration of the reference period and in respect of the services concerned they shall not:

(a)      apply cost-efficiency targets, including the setting of determined costs, for the key performance indicators referred to in point 4.1 of Section 2 of Annex I;

(b)     apply traffic risk sharing and cost sharing mechanisms in accordance with Articles 27 and 28;

(c)      set financial incentives in the key performance areas of capacity and environment in accordance with Article 11;

(d)      calculate terminal charges in accordance with Article 31(2);

(e)     set terminal unit rates in accordance with Article 29;

(f)      be subject to the consultation requirements specified in Article 24(3).

Points (d) to (f) apply only to terminal air navigation services.

Where, during a reference period, a Member State decides to apply paragraph 1, it shall also revise its performance plan in accordance with Article 18(1) in respect of the services concerned.

3.       A Member State shall decide to apply paragraph 1 only after having completed all of the following steps:

(a)      its national supervisory authority has found, on the basis of a detailed assessment in accordance with the conditions laid down in Annex X, that the provision of the services concerned is subject to market conditions;

(b)     it has consulted the airspace users' representatives concerned on the intended decision and on that assessment, and has taken account of their comments where appropriate;

(c)      it has made its intended decision and that assessment publicly available;

(d)     it has submitted its intended decision and that assessment to the Commission and received the agreement of the Commission.

As regards point (d), the Member State shall submit the assessment no later than 12 months before the start of a reference period or, in the event of an assessment during the reference period, without undue delay upon having completed the assessment. The Commission shall notify the Member State concerned whether it agrees that the assessment has been carried out in accordance with the conditions laid down in Annex X. The Commission shall do so without undue delay. Where necessary, the Commission shall request additional information from the Member State concerned, which that Member State shall provide without undue delay.

4.       If a Member State decides to apply paragraph 1, its national supervisory authority shall assess regularly whether the conditions laid down in Annex X continue to be met.

If the national supervisory authority finds that those conditions are no longer met, the Member State shall, without undue delay, revoke its decision, after having completed the steps set out in points (b) to (d) of paragraph 3.

Upon that revocation, the Member State shall, for the upcoming reference period or, as the case may be, for the remaining duration of the reference period, not apply the exemptions listed in the first subparagraph of paragraph 2 in respect of the services concerned. If the revocation occurs during the reference period, the Member State concerned shall also revise its performance plan in accordance with Article 18(1).

5.       If the services subject to the application of paragraph 1 are provided in a common charging zone set up in accordance with Article 21(4), the Member States concerned may decide to establish that the provision of some or all of those services are subject to market conditions only jointly. In that case, they shall jointly ensure that the requirements of this Article are respected.

6.       If a Member State decides to apply paragraph 1, it shall submit to the Commission the information specified in Annex XI in the first year of each reference period. The Commission shall not make that information publicly available.