The Future of the Open Skies Agreements after the ECJ judgements - Legal and Economic Aspects

Thèse de Master , 2006 , 71 Pages , Note: A

Politique - Sujet: Union européenne

Even though aviation is one of the driving forces of globalization, the airline industry itself remains far from being globalized: A framework of bilateral aviation agreements with rather restrictive national control on cross-border investment and competition mainly governs the civil airline industry. The Open Skies agreements between 11 EU Member States and the US can be seen as an attempt to introduce various liberal elements to the bilateral aviation agreements, while preserving the strict provisions on cross-border investment. However, the existence of the Open Skies agreements was put into question when on 5thNovember 2002 the European Court of Justice (ECJ) judged these agreements between the EU Member States and the US illegal under EU law, as they infringed both primary and secondary EU legislation. Moreover by declaring a mixed competence between the European Commission and the Member States in the field of external air transport, the ECJ judgment marked a decisive turn in the EU´s history of air transport policy. The ECJ judgement thus entailed significant legal and economic consequences for the international civil aviation between the EU and the US. As to the precise future of the Open Skies agreements however, the ECJ remained evasive, imposing on the involved parties the burden of legal incertainty. Economically a sort of free trade area for air transport between the EU and the US, the two biggest aviation markets, seems the most reasonable solution, being of utmost importance in order to restructure the airlines operating in a context of market globalization and growing international competition. Politically though, the aviation sector has ever since been a sensitive issue, regarded as an instrument of foreign policy, national defense and national prestige. The future of the Open Skies has thus has been a topic of heated debate, not only in the scientific arena but as well in political and business circles. Particularly in view of the economic leverage of the EU and US aviation market, the decision about the future of the Open Skies agreements is likely to have a major impact on the way the international aviation industry will develop in the next decades. [...]

Inhaltsverzeichnis (Table of Contents)

• Introduction
• The Chicago Convention of 1944: The foundations of international civil aviation
  • The doctrine of airspace sovereignty and bilateralism
  • Exceptions to the doctrine of airspace sovereignty: The five freedoms of the air
    • The doctrine of cabotage
    • The doctrine of nationality
  • The International Civil Aviation Organization
  • Evaluating the outcomes of the Chicago Convention
• Beyond the Chicago Convention
  • The practical application of the Chicago Convention: Bermuda I and II
  • The emergence of the Open Skies policy
  • The Structure of the Open Skies agreements
• The emergence of the Common European aviation market
  • The role of the European Commission in the air transport agreements with third countries
  • The impact of the ECJ Judgement of 5th Nov. 2002 on the Open Skies agreements
  • Developing a common EU approach towards Open Skies
    • The dilemma of the Member States
    • A new role for the European Commission- Pro´s and Con's for a Commission negotiation mandate
• Approaches for reconceptualizing the air transport regime between the European Union and the United States
  • A Transatlantic Common Aviation Area versus a multilateral Open Skies agreement
    • Selected economic aspects of a TCAA
    • The failure of a first step agreement
  • The tentative accord of November 2005
  • Future scenarios
  • Including international aviation in the General Agreement on Trade in Services (GATS): Alternative, supplement or unrealistic vision?
• Conclusion

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This paper aims to explain the difficulties of reforming the transatlantic civil aviation and to evaluate possible scenarios for the future of the Open Skies agreements. It does so by exploring the foundations of the international civil aviation and the reasons for the emergence of the Open Skies agreements. The paper also traces the emergence of the EU’s common internal aviation market, exploring the conflicts arising from the disparity between a harmonized intra-European aviation policy and a fragmented external aviation policy conducted by individual EU Member States. The resulting Open Skies cases are analyzed in terms of major arguments brought forward by the EU Commission and consequences for the following renegotiations between the US and the EU. The paper also examines the new role of the Commission in shaping the future of the Open Skies agreements. Finally, the possibility and challenges of including international civil aviation into the General Agreement on Trade in Services (GATS) are presented. The key themes of the paper include:

• The evolution of international civil aviation policy
• The legal and economic implications of the ECJ judgement on Open Skies agreements
• The role of the European Commission in shaping external aviation policy
• The challenges of reconceptualizing the air transport regime between the EU and the US
• The potential for a multilateral approach to open skies agreements

Zusammenfassung der Kapitel (Chapter Summaries)

• Introduction: The paper introduces the topic of the Open Skies agreements between the EU and the US and highlights the legal and economic challenges posed by the ECJ judgment.
• The Chicago Convention of 1944: The foundations of international civil aviation: This chapter explores the foundational principles of international civil aviation, including the doctrine of airspace sovereignty, the five freedoms of the air, and the role of the International Civil Aviation Organization (ICAO).
• Beyond the Chicago Convention: This chapter examines the practical application of the Chicago Convention through bilateral agreements, the emergence of the Open Skies policy, and the structure of Open Skies agreements.
• The emergence of the Common European aviation market: This chapter traces the development of the EU's internal aviation market and explores the conflicts arising from the disparity between a harmonized intra-European aviation policy and a fragmented external aviation policy.
• Approaches for reconceptualizing the air transport regime between the European Union and the United States: This chapter examines various approaches for reconceptualizing the air transport regime between the EU and the US, including a Transatlantic Common Aviation Area (TCAA) and a multilateral Open Skies agreement. It also discusses the tentative accord of November 2005 and the potential for including international aviation in the GATS.

Schlüsselwörter (Keywords)

This paper focuses on the legal and economic aspects of the Open Skies agreements between the EU and the US, particularly in the wake of the ECJ judgment. Key concepts include: international civil aviation, bilateral air service agreements, Open Skies policy, EU aviation policy, Transatlantic Common Aviation Area (TCAA), General Agreement on Trade in Services (GATS), airspace sovereignty, five freedoms of the air, cabotage, and the role of the European Commission in negotiating international air transport agreements.

• Université: University of Hamburg
• Note: A
• Auteur: Joanna Mastalerek (Auteur)
• Année de publication: 2006
• Pages: 71
• N° de catalogue: V58623
• ISBN (ebook): 9783638527637
• ISBN (Livre): 9783656789529
• Langue: anglais
• mots-clé: Future, Open, Skies, Agreements, Legal, Economic, Aspects