Air Transport World

The EU's 'historic judgment': The European Commission believes it now can claim a mandate to negotiate aviation bilaterals on behalf of the entire European union; others are not so sure, but aeropolitics is still in for a shakeup. (Aeropolitics).

The European Commission was quick to react to the Nov. 5 ruling by the European Court of Justice concerning open skies agreements between seven European countries and the US as well as the Bermuda II bilateral between the UK and US. Only an hour after the ruling, EU VP and Transport Commissioner Loyola de Palacio declared it a "historic judgment, which is going to have enormously positive consequences for the consolidation of the European aviation industry." In her view, the ruling opens the door to creation of the long-discussed US-Europe Transatlantic Common Aviation Area, an agreement that would be negotiated by Brussels on behalf of all 15 EU member stares.

However, while the ECJ was quite dear regarding a number of aspects of the bilaterals--most importantly that the nationality clauses that have been a part of nearly every international air service agreement in the modern era violate the Treaty of Rome--it was decidedly vague about the EC's 10-year quest to assume jurisdiction over air treaties from the member states.

"The Commission lost on its primary argument, namely that it should have sole authority to negotiate these aviation treaties to the exclusion of the individual member state governments," says Michael Holter, a partner at Wilmer, Cutler & Pickering, which counts among its aviation clients Lufthansa and United Airlines. Furthermore, the court's ruling did not invalidate the agreements, and as a nonsignatory the EC does not have authority to renounce them, nor can it order the US to make changes to render them consistent with EU law.

"The EC went to court in the late nineties because they couldn't get a political mandate on EU-US negotiations. They did not get the judicial mandate, but they're using the [court's] ruling on the nationality clause to argue that it's better to give them a mandate. …

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