An airspace structure independent from political boundaries and based on operational performance is a fundamental requirement for the success of the Single European Sky (SES). Achieving such a goal necessarily requires a more extensive use of arrangements for the cross-border provision of Air Traffic Services (ATS). Such practices raise a number of sensitive legal issues related to the nature, scope and effect of the designation, by States, of ATS providers (ATSP). The liability, regulatory and supervisory aspects of cross-border service provision are also the subject of unresolved legal questions.
This article investigates the legal aspects of cross-border service provision and the institutional models available to formalize such practices. Under the SES Regulations, the classical ATS delegation model, which establishes a state-to-state relationship, is slowly acquiring historical interest and new kinds of institutional arrangements are proposed. These arrangements are primarily based on a State-to-service provider relationship or even on a relationship between service providers themselves. Within the context of Functional Airspace Blocks (FABs) promoted by the European Commission, they may result in a departure from the model based on legacy national service providers and rely on the emergence of common multinational ATSP. Such innovative constructions will also raise a number of legal challenges.Air and Space Law