The US offer of open skies dialogue to nine European states has not only highlighted the European Commission's inability to obtain a mandate from EU member states to negotiate external aviation agreements, but is also attracting interest from other countries.
The European countries that expressed initial interest in establishing separate, bilateral open skies accords with the US have yet to commit formally. But sources say that at least one other country - Hungary - has approached the US about following suit.
From this month, six of the original nine countries will be EU members and Commission officials are now unhappily contemplating a potential block of member states with fully liberalised aviation bilaterals with the US. Commission transport directorate official Heinz Hilbrecht said at an IIR airline conference: 'The EU member states should get together and decide what they want to do.' His comments reflect the European Council's refusal to give the Commission a negotiating mandate.
The legal position on the Commission's claim to have exclusive external competence to negotiate air transport agreements remains unclear. A mid-November ruling by the European Court of Justice went against the Commission by stating that Article 113, which gives the Commission exclusive competence to negotiate external trade deals, does not apply to transport. But Commission officials can still point to an earlier court ruling stating that external competence does apply if a deal would affect internal EU regulations. But the real problem is political. The larger member states have no desire to give up negotiating rights.
If several EU states have open skies with the US, Hilbrecht says there would be an 'impossible situation,' since a deal could distort the internal market or even go against existing EU legislation, especially if it included beyond rights and ownership and control provisions. While this could seriously dilute the Commission's negotiating power, it could have the reverse effect of forcing unwilling member states to cede a mandate to Brussels to avoid being left out.
The US offer has made for some interesting ironies. Switzerland may well get unfettered access to the US before it gets the same access to the EU. Swissair could then expect antitrust immunity for its Delta alliance, and would be able to codeshare with Delta to a wide range of US cities. Talks on Switzerland joining the EU's third package have yet to be scheduled.
The US offer has made for some interesting ironies. Switzerland may well get unfettered access to the US before it gets the same access to the EU. Swissair could then expect antitrust immunity for its Delta alliance, and would be able to codeshare with Delta to a wide range of US cities. Talks on Switzerland joining the EU's third package have yet to be scheduled.
Source: Airline Business
