Towards an optimised sharing of the ANS liability risk in the Single European Sky (SES)

Airspace is devolving into a scarce resource and the European airspace is poorly managed. The European Union is hoping to solve all of its current airspace management problems with its the Single European Sky (SES) project. The cornerstone idea of the SES Regulations is to create so-called functional airspace blocks or FABs. These FABs will normally satisfy the growing capacity requirements of all airspace users and minimise delays by managing air traffic more dynamically. This will immediately increase efficiency. At the same time, the liability regime applicable to the provision of air navigation services is not clearly established, making cross-border cases hard to solve.

This article defends the position that, for the SES to work efficiently with regard to liability, the air navigation service providers (ANSPs) should bear the risks of their activities. While acknowledging the advantages of approach whereby the State of occurrence bears responsibility, the article will point out the deficiencies of this approach and the unfair outcome it could create for airlines.

This article deals with the compensation of damages caused by a failure of an ANSP and is based on the hypothesis that, by switching doctrines, part of the problems the proposal raises would be eliminated. This, of course, is only relevant in case a cross-border dimension is involved.