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1. Without prejudice to Directive 2014/24/EU of the European Parliament and of the Council and Directive 2014/25/EU of the European Parliament and of the Council , where applicable, designated air traffic service providers may decide to procure CNS, AIS or ADS, or MET services in cases where Member States have not designated a MET provider in accordance with Article 10, under market conditions, including by means of public procurements, or other forms of agreements in cases those Directives do not apply, taking into account specific situations such as lack of solutions available on the market and considerations relating to the public interest.

2. Member States may allow airport operators or a group of airport operators to procure air traffic services for aerodrome control and/or air traffic services for approach control under market conditions. To this end, Member States may require from the airport operators a proper justification that this will enable quality of service gains to be made for the benefit of airspace users, while maintaining the required level of safety.

3. Where the procurement referred to in paragraph 2 is allowed, the relevant airport operator or a group of airport operators shall ensure that the technical requirements in the tender specifications include requirements on service quality. Member States shall designate the service provider selected as a result of the procurement referred to in this paragraph.

4. Where air navigation services are procured under market conditions, procurement procedures for the provision of air navigation services shall be carried out in accordance with the principles of equal treatment, non-discrimination and transparency as well as of the applicable provisions of the Treaty and in accordance with Directives 2014/24/EU and 2014/25/EU, where applicable.

5. Member States shall take all necessary measures to ensure that the provision of en route air traffic services respects the requirement concerning the separation of accounts referred to in Article 36(3). In addition, where the air navigation service provider intends to participate in procurement procedures for the provision of air navigation services in accordance with paragraphs 1 and 2, the relevant Member State shall take appropriate measures to avoid cross-subsidisation with other air navigation services.

6. A provider of CNS, AIS, ADS, MET or air traffic services for aerodrome control or for approach control may only be selected and, if appropriate, designated to provide services in a Member State as a result of a procurement pursuant to paragraphs 1, 2 or 3, on the condition that it complies with the following cumulative conditions:

(a) holds a certificate pursuant to Article 41 of Regulation (EU) 2018/1139 or a valid declaration pursuant to Article 41(5) of Regulation (EU) 2018/1139, without prejudice to Article 7(4) of this Regulation;

(b) has its principal place of business located in the territory of a Member State;

(c) be more than 50 % owned by Member States or nationals of Member States and effectively controlled by them, whether directly or indirectly through one or more intermediate undertakings, except as provided for in an agreement with a third country to which the Union is a party; and (d) complies with national security and defence requirements. By way of derogation from this paragraph, a provider of global satellite services that was granted a certificate pursuant to Article 41 of Regulation (EU) 2018/1139 to provide services within the Union prior to the entry into force of this Regulation may be selected to provide services in the Union even if it does not comply with the conditions set out in points (b) and (c).

7. Articles 23, 24, 25 and 27 and the implementing rules relating to those Articles referred to in Article 28 shall not apply to the air traffic service providers designated as a result of a procurement procedure conducted in accordance with paragraphs 2 and 3 of this Article. The air traffic service providers concerned shall provide data on the performance of air navigation services in the key performance areas referred to in Article 21(3), point (a) and in safety area to the national supervisory authority. The national supervisory authority shall provide this information to the Commission without delay.

8. Without prejudice to Directive 2014/25/EU or 2014/24/EU, the first time that an air traffic service for approach or aerodrome control is procured at a given airport in accordance with paragraph 2 of this Article, and when essential conditions would require a change of tender specifications, Member States shall ensure the verification of the technical requirements on service quality included in the tender specifications for the specific service concerned.