Air Transport, Air & Space Law and Regulation Workshop Abu Dhabi, 12 14 April 2009 1
Dr. Peter van Fenema Adjunct professor of law McGill University Institute of Air & Space Law 2
See: Air Transport Portal of the European Commission: http://ec.europa.eu/transport/air_portal/index_ en.htm 3
Third package 1993: created intra European open skies with: - Free competition - Multiple designation - Free pricing - Free capacity - Non-discriminatory treatment for 4
.. Community air carriers Present definition:..an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II ( Air Service Regulation 1008/2008 of Sept. 2008) 5
Chapter II operating licence (OL) Member State grants OL to airline, provided: - Principal place of business in that M.State - Valid AOC (technical licence) from that M. State - Financially sound & insured - One or more a/c (owned or leased) - Main occupation is operating air services - Majority owned and effectively controlled by (nationals of) M.States Community carrier 6
majority owned and effectively controlled = Member States and/or nationals of Member States own more than 50 % of the undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings, except as provided for in an agreement with a third country to which the Community is a party N.B. EU US is such an agreement! 7
The ECJ open skies decision of 5 Nov 02 Parties: - Germany - Denmark - Sweden - Finland - Belgium - Luxemburg - Austria - U.K. (n.b.) 8
The ECJ open skies decision of 5 Nov 02: Decision: Community/Commission has exclusive competence in limited areas only National O&C clause in open skies bilateral violates freedom of establishment (= nondiscrimination) provision of Rome Treaty 9
Post ECJ 2002 Commission initiatives: 2003: Commission requested Council: a. Full mandate for negotiations with USA b. Global horizontal mandate (community clauses!) c. Regulation on the negotiation and implementation of bilaterals between member States and 3 rd countries 5 June 2003: Council agreed to requests a, b & c 10
a. EU US ( 1st stage ) Agreement 2008 11
EU US agreement ( 1 st stage ): - Community clause - Multiple designation - Open skies incl. LHR - Commitment to 2 nd stage negotiations (+sanction!): further liberalization of traffic rights and additional foreign investment opportunities 12
EU US agreement: effects - Community carriers (e.g. AF/KL, BA) - US carriers (LHR!) - 3 rd countries/carriers N.B. LHR slots for alliance partners! 13
b. global horizontal mandate 14
global horizontal mandate Negotiations with 3 rd countries on: - replacement of traditional national O&C clauses by Community designation clause; - provisions on safety, pricing (intra-eu 5 th freedom), taxation of aviation fuel, ground handling, competition 15
Community designation clause in bilaterals i.s.o. national O & C clause: Old: you may reject my designated airline if it is not a national carrier New: you may reject my designated airline if it is not a Community carrier 16
global horizontal mandate (cont d) EU Commission negotiations with - individual 3 rd countries (non-eu) - selected by Commission (in consultation with member states) - agreement? all bilaterals concluded by that 3 rd country with all member states amended & in conformity with EU law 17
EU horizontal agreement See: HA agreement with UAE - Preamble - General provisions - Designation - Safety - Taxation of aviation fuel - Tariffs for carriage within the Community - Compatibility with competition rules - Annexes 18
Horizontal agreement: BENEFITS for whom? Community clause may be accompanied by: (a) mirror clause (b) Free rider clause 19
The EU, Community carriers and 3rd countries global horizontal mandate (cont d) Result of EU horizontal negotiations: December 2008: 38 HA s 651 bilaterals 60 indiv. 134 bilaterals ------------------ 785 bilaterals (100 3rd countries) 20
c. Regulation re bilateral negotiations between EU members & 3 rd countries Regulation (EC) No. 847/2004 on the negotiation and implementation of air service agreements between Member States and third countries of 29 April 2004 21
Reg. (EC) No 847/2004 of 29 April 2004: - reflects division of responsibilities/areas of competence between Community and EU member States - allows member States to engage in bilateral negotiations as long as they comply with (post-2002) EU law, follow certain guidelines and use standard clauses 22
Reg. 847/2004: - Planned bilateral negotiations? notify Commission consult with stakeholders stakeholders may participate - Prohibition re restriction of designation (number of airlines) - Conclusion of agreement (standard clauses!) - Distribution of traffic rights - procedure 23
Special issue: National distribution of traffic rights Basis: Non-discriminatory and transparent procedure Member States shall inform the Commission without delay of the procedures that they shall apply 24
- The Commission s objectives & accomplishments - The Commission s ambitions ECAA, neighboring and other 3 rd countries 25
ECAA, neighboring & other 3 rd countries: - ECAA (2004) - Morocco (2004) - Russia (March 2006) - Siberian royalties - Ukraine (Dec 2006) - Canada (Oct 2007) agreement - Jordan (Nov 2007) - Australia + New Zealand (June 2008) - Lebanon (Oct 2008) Euromed Aviation Project 26