Memorandum by the Air Law Group of the
Royal Aeronautical Society (AS 22)
AIR SERVICE AGREEMENTS BETWEEN THE UNITED
KINGDOM AND THE UNITED STATES
The terms of reference raise principally economic
and political, as opposed to legal, issues, but we believe that
legal comment may be useful on three particular areas:
1. FIFTH FREEDOM
RIGHTS
One of the matters for consideration is stated
to be the benefits and disadvantages of granting increased numbers
of fifth freedom rights both in the United States and in Europe.
It may be well known to the sub-Committee, but it is worth pointing
out the difference which exists in practice, because of the legal
background, between fifth freedom rights in the United States
and fifth freedom rights in Europe.
Still fundamental to the regulation of international
air transport is the 1944 Chicago Convention, the first article
of which provides: "The contracting States recognise that
every State has complete and exclusive sovereignty over the airspace
above its territory" and which goes on to provide (in Article
6) that: "No scheduled international air service may be operated
over or into the territory of a contracting State, except with
the special permission or other authorisation of that State, and
in accordance with the terms of such permission or authorisation".
Self-evidently, the parties to the Chicago Convention
are States. It is worth pointing out that, whatever changes the
member states of the EU may have made among themselves with regard
to the regulation of air transport within the EU, this cannot
affect rights and obligations under agreements between EU member
states and the United States (all of which are parties to the
Chicago Convention). Indeed, the Treaty of Rome specifically preserves
member states' rights and obligations under pre-existing treaties.
In other words, while, for internal EU purposes,
flights between EU member states may seem akin to cabotage, they
are not, and, if operated by a US airline, they would constitute
fifth freedom operations. On the other hand, operations within
the United States by a non-US airline would clearly constitute
cabotage operations.
The practical consequence of this is that reciprocal
fifth freedom rights between the EU and the US would bring uneven
benefits. On the one hand, US airlines would be entitled to operate
between, for example, Paris and Rome and Frankfurt and Madrid.
On the other hand, EU airlines would not be entitled to operate
between any two points in the US, but only between US cities and
third countries (for example, between Miami and Caracas, or between
San Francisco and Tokyo).
Apart from the obvious operational and practical
differences, such fifth freedom rights would also be of potentially
much less value for EU airlines, because they would be entirely
dependent upon the consent of the third countries in question,
which would be far from guaranteed.
2. CHANGES TO
SLOT ARRANGEMENTS
The terms of reference suggest that steps which
might be taken to resolve the impasse could include changes to
the present arrangements for granting slots to air transport providers.
It is worth pointing out that, since the entry into force of Council
Regulation (EEC) 95/93 on common rules for the allocation of
slots at Community airports in 1993, the power which individual
EU member states have to make changes to arrangements for the
granting of slots at airports in their territory has been removed.
The Regulation sets out criteria by which slots must be allocated,
by a co-ordinator acting in an independent manner. Consequently,
it is no longer open to the UK Government to direct the co-ordinator
of Heathrow to allocate slots in a particular manner, or to introduce
legislation affecting arrangements for their allocation. Agreement
at an EU level, resulting in legislation amending the Regulation,
would be necessary.
3. EU/US NEGOTIATIONS
The terms of reference mention the role of the
EU in future negotiations with the United States over air service
agreements. As the sub-Committee might be aware, there is presently
a dispute between most of the EU member states and the Commission
over the question of competence for the negotiation of air service
agreements with third countries, and the Commission has commenced
infringement proceedings against a number of EU member states
(not including the UK, although the Commission is also pursuing
different proceedings against the UK in connection with the traditional
ownership/control clause in the Bermuda II agreement with the
US). The Commission's argument is essentially that aviation agreements
between member states and the US have implications for the operation
of the internal aviation market, and that, as a result, the Community,
rather than the member states, has the competence to conduct such
negotiations. The basis for this view is judgments of the European
Court of Justice (in the ERTA and WTO cases) which held that,
where the operation of EU legislation is affected by agreements
with third countries, then competence for the negotiation of such
agreements shifts from the member states to the Community.
This is a complex argument, the outcome of which
is not certain. We believe that the Commission's view is arguably
incorrect, or at least overstated, and that at present the competence
for negotiating air services agreements with the United States
in substantially all areas remains with the member states.
This position can be changed by legislation.
Indeed, in 1996 the EU Council gave the Commission a mandate to
negotiate on air services agreements with the Untied States, but
only in very limited terms, which has meant that the Commission
has been able to do very little with it.
In December last year the Association of the
European Airlines issued a paper on what it called the Transatlantic
Common Aviation Area. This goes much further than any previous
proposals in proposing an entirely common aviation area between
the EU and the US (ie with complete liberalisation, freedom of
movement and establishment etc). The initiative has been welcomed
by the Commission and also, although in more guarded terms, by
the US, and talks between the two sides about the matter commenced
in early April. As the initiative emanated from the major European
airlines, it is quite possible that there will be considerable
pressure on EU member states now to grant the Commission a mandate
to discuss this proposal.
11 April 2000
|
