Commission Delegated Regulation (EU) 2023/1768 of 14 July 2023 laying down detailed rules for the certification and declaration of air traffic management/air navigation services systems and air traffic management/air navigation services constituents

This Regulation lays down common technical requirements and administrative procedures for the certification and declaration of design compliance of ATM/ANS systems and ATM/ANS constituents. This Regulation lays down the rules on: (a) identifying ATM/ANS systems and ATM/ANS constituents which are either subject to certification, declaration, or a statement of compliance; (b) issuing certificates for ATM/ANS systems and ATM/ANS constituents; (c) issuing declarations of design compliance of ATM/ANS systems and ATM/ANS constituents by organisations involved in the design or production of ATM/ANS systems and ATM/ANS constituents and which were approved in accordance with Commission Implementing Regulation (EU) 2023/1769 to have the privileges to issue such declarations of compliance; (d) issuing statements of compliance of ATM/ANS systems and ATM/ANS constituents by ATM/ANS providers certified in accordance with Implementing Regulation (EU) 2017/373 or by organisations involved in the design or production thereof approved in accordance with Implementing Regulation (EU) 2023/1769; (e) issuing ATM/ANS equipment directives by the Agency.

For the purpose of this Regulation, the following definitions apply: (1) ‘ATM/ANS equipment’ means ATM/ANS constituents as defined by Article 3(6) of Regulation (EU) 2018/1139 and ATM/ANS systems as defined by Article 3(7) of that Regulation, excluding airborne constituents, which are subject to Commission Regulation (EU) No 748/2012 ; (2) ‘ATM/ANS equipment directive’ means a document issued by the Agency which mandates actions to be performed by ATM/ANS providers on ATM/ANS equipment to address an unsafe and/or insecure condition that has been identified and restore the performance and interoperability of that ATM/ANS equipment when evidence shows that the safety, security, performance or interoperability of that particular equipment may otherwise be compromised; (3) ‘European air traffic management network’ (EATMN) means the collection of systems, listed in point 3.1 of Annex VIII to Regulation (EU) 2018/1139, enabling air navigation services in the Union to be provided, including the interfaces at boundaries with third countries; (4) ‘functional system’ means a combination of procedures, human resources and equipment, including hardware and software, organised to perform a function within the context of ATM/ANS and other ATM network functions.

1 The competent authority responsible for issuing certificates for ATM/ANS equipment in accordance with Article 4, for accepting declarations of design compliance of ATM/ANS equipment issued in accordance with Article 5, and for the oversight of certificate and declarations, shall be the Agency. For that purpose, the Agency shall comply with the requirements laid down in Annex I.

2 The competent authority responsible for the oversight of the statement of compliance issued by an ATM/ANS provider in accordance with Article 6 shall be the same competent authority as the authority responsible for the certification and oversight of that ATM/ANS provider.

1 The following ATM/ANS equipment shall be issued with a certificate as set out in Annex II: (a) equipment supporting controller–pilot communications; (b) equipment supporting air traffic control (ATC) services when enabling the separation of aircraft or the prevention of collisions.

2 The certificate referred to in paragraph 1 shall be issued by the Agency.

3 The certificate referred to in paragraph 1 shall be issued for an unlimited duration. It shall remain valid indefinitely except where: (a) the certificate holder no longer complies with the requirements of this Regulation; or (b) as regards ATM/ANS equipment, there is no valid organisation approval issued by the Agency in accordance with Implementing Regulation (EU) 2023/1769; or (c) the ATM/ANS equipment no longer complies with its certification basis in accordance with point ATM/ANS.EQMT.CERT.025 of Annex II; or (d) the certificate has been surrendered by its holder or revoked by the Agency. Upon surrender or revocation of the certificate, if issued in a paper format, it shall be returned to the Agency without delay.

4 By way of derogation from paragraph 1, ATM/ANS equipment that is solely being used in a limited part of airspace outside of the ICAO EUR region with low traffic volume, and where that part of the airspace borders only with airspace under the responsibility of a third country, shall not be required to be issued with a certificate. In such a case, the ATM/ANS equipment shall be issued with a statement of compliance in accordance with Article 6.

1 The following ATM/ANS equipment when it generates, receives, and transmits data and/or signals in space for the purpose of ensuring safe and interoperable air navigation shall be issued with a declaration of design compliance as set out in Annex III: (a) equipment supporting ground-to-ground communications; (b) equipment supporting navigation or surveillance.

2 Declarations of design compliance shall be issued by organisations involved in the design or production of ATM/ANS equipment and which are approved in accordance with Implementing Regulation (EU) 2023/1769.

3 Declarations of design compliance of the ATM/ANS equipment shall be issued for an unlimited duration. Declarations shall remain valid unless they have been deregistered in accordance with point DPO.AR.C.015(g)(6) of Annex I to Implementing Regulation (EU) 2023/1769 as a result of one of the following: (a) the ATM/ANS equipment no longer complies with the detailed specifications which enabled the declaration to be issued; (b) the issuer of the declaration no longer complies with the applicable requirements of Implementing Regulation (EU) 2023/1769 or its approval has been surrendered, suspended or revoked; (c) the ATM/ANS equipment has proved to give rise to unacceptable risk or unacceptable performance in service; (d) the organisation has withdrawn the declaration of design compliance.

4 By way of derogation from paragraph 1, ATM/ANS equipment that is solely being used in a limited part of airspace outside of the ICAO EUR region with low traffic volume, and where that part of the airspace borders only with airspace under the responsibility of a third country, shall not be required to be issued with a declaration of design compliance. In such a case, the ATM/ANS equipment shall be issued with a statement of compliance in accordance with Article 6.

5 As regards the ATM/ANS equipment of the European Geostationary Navigation Overlay Service (EGNOS) system, the declaration of design compliance as set out in Annex III to this Regulation shall be issued by the European Union Agency for the Space Programme (EUSPA) established by Regulation (EU) 2021/696, which shall be considered as an organisation involved in the design or production of EGNOS equipment.

6 Points ATM/ANS.EQMT.DEC.005 and ATM/ANS.EQMT.DEC.045 of Annex III shall not be applicable to EUSPA. EUSPA shall ensure that the Agency is given access to evidence from the different entities involved in the design and production of the ATM/ANS equipment of the EGNOS system, in order to determine continued compliance with the applicable technical specifications against which the ATM/ANS equipment declaration was made in accordance with Annex III.

1 The following ATM/ANS equipment shall be issued with a statement of compliance: (a) equipment that is neither subject to certification in accordance with Article 4 nor to a declaration of compliance in accordance with Article 5; and (b) it supports air traffic services, communication, navigation or surveillance services, airspace management, air traffic flow management, aeronautical information services or meteorological services. The statement of compliance shall confirm that the ATM/ANS equipment complies with the detailed specifications issued by the Agency in accordance with Article 76(3) of Regulation (EU) 2018/1139.

2 A statement of compliance for ATM/ANS equipment shall be issued by the ATM/ANS provider that integrates such ATM/ANS equipment in its functional system or, upon request of the ATM/ANS provider, by an organisation involved in the design or production of such ATM/ANS equipment approved in accordance with Implementing Regulation (EU) 2023/1769.

3 A statement of compliance for ATM/ANS equipment shall be issued for an unlimited duration. It shall remain valid unless any of the following applies: (a) the ATM/ANS equipment no longer complies with the essential requirements set out in Annex VIII and, if applicable, in Annex VII to Regulation (EU) 2018/1139; (b) the ATM/ANS provider no longer complies with the applicable requirements of Implementing Regulation (EU) 2017/373 or it has surrendered the certificate issued in accordance with Article 6 of Implementing Regulation (EU) 2017/373, or the certificate has been suspended or revoked; (c) the ATM/ANS provider has withdrawn the statement of compliance or enforcement measures have been taken in accordance with point ATM/ANS.AR.C.050(e) of Annex II to Implementing Regulation (EU) 2017/373.

1 The following transitional provisions shall apply to ATM/ANS equipment holding EC declarations issued in accordance with Articles 5 or 6 of Regulation (EC) No 552/2004 of the European Parliament and of the Council and that has been put into operation before the date of entry into force of this Regulation: (a) ATM/ANS equipment which falls within the category of ATM/ANS equipment that requires certification in accordance with Article 4 shall be deemed to have been issued with a certificate in accordance with Article 4 unless the Agency determines, following the evaluation referred to in paragraph 2, that such ATM/ANS equipment does not ensure a level of safety, security, performance and interoperability equivalent to that required by Regulation (EU) 2018/1139 and this Regulation; (b) ATM/ANS equipment which falls within the category of ATM/ANS equipment that is required to be declared in accordance with Article 5 shall be deemed to have been issued with a declaration of design compliance in accordance with Article 5 unless the Agency determines, following the evaluation referred to in paragraph 2, that such ATM/ANS equipment does not ensure a level of safety, security, performance and interoperability equivalent to that required by Regulation (EU) 2018/1139 and this Regulation; (c) as regards ATM/ANS equipment which is subject to a statement of compliance in accordance with Article 6, the EC declarations of verification of systems that have been issued or recognised in accordance with Article 6 of Regulation (EC) No 552/2004 shall continue to be valid for an unlimited duration and shall be deemed to have a statement of compliance pursuant to Article 6.

2 The Agency shall evaluate the ATM/ANS equipment referred to in paragraph 1, points (a) and (b), within 5 years from the date of entry into force of this Regulation and shall publish the results of that evaluation. For that purpose, the competent authorities responsible for the certification and oversight of the ATM/ANS providers referred to in Article 4(1) of Implementing Regulation (EU) 2017/373 shall provide the Agency with the relevant information to facilitate this evaluation. The objective of that evaluation shall be to determine whether the relevant ATM/ANS equipment ensures a level of safety, security, performance and interoperability equivalent to that required by Regulation (EU) 2018/1139 and this Regulation. The result of the evaluation shall be published and any measure to change the ATM/ANS equipment identified by the evaluation shall be applied after 5 years from the date of entry into force of this Regulation, regardless of the actual date when the evaluation takes place, unless the evaluation reveals a deficiency that may have a detrimental effect on safety. In the case a deficiency that may have a detrimental effect is detected, any measure to change the ATM/ANS equipment revealed by the evaluation shall be applied immediately. After 5 years from the date of entry into force of this Regulation, the ATM/ANS equipment referred to in paragraph 1, points (a) to (b), shall be deemed to comply with the requirements of this Regulation.

3 ATM/ANS equipment that is subject to certification in accordance with Article 4 or a declaration in accordance with Article 5 may be put into operation from the date of entry into force of this Regulation until 12 September 2028 on the basis of a statement of compliance made in accordance with Article 6. As from 13 September 2028, the following provisions shall apply to such ATM/ANS equipment: (a) ATM/ANS equipment which falls within the category of ATM/ANS equipment that requires certification in accordance with Article 4 and for which a statement of compliance was issued by the ATM/ANS provider shall be deemed to have been issued with a certificate in accordance with Article 4 unless the Agency determines, following the evaluation referred to in paragraph 4, that such ATM/ANS equipment does not ensure a level of safety, security, performance and interoperability equivalent to that required by Regulation (EU) 2018/1139 and this Regulation; (b) ATM/ANS equipment which falls within the category of ATM/ANS equipment that requires a declaration of design compliance in accordance with Article 5 and for which a statement of compliance was issued by the ATM/ANS provider shall be deemed to have been issued with a declaration of design compliance in accordance with Article 5 unless the Agency determines, following the evaluation referred to in paragraph 4 that such ATM/ANS equipment does not ensure a level of safety, security, performance and interoperability equivalent to that required by Regulation (EU) 2018/1139 and this Regulation.

4 The Agency shall evaluate the ATM/ANS equipment referred to in paragraph 3 not later than 12 September 2030. For that purpose, the competent authorities responsible for the certification and oversight of the ATM/ANS providers referred to in Article 4(1) of Implementing Regulation (EU) 2017/373 shall provide the Agency with the relevant information to facilitate this evaluation. The objective of that evaluation shall be to determine whether the particular ATM/ANS equipment meets a level of safety, security, performance and interoperability equivalent to that required by Regulation (EU) 2018/1139 and this Regulation.

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.