Select Committee on European Scrutiny Thirty-Eighth Report







Recommendation from the Commission to the Council in order to authorise the Commission to open and conduct negotiations with the International Civil Aviation Organisation (ICAO) on the conditions and arrangements for accession by the European Community.

Recommendation from the Commission to the Council in order to authorise the Commission to open and conduct negotiations with the International Maritime Organisation (IMO) on the conditions and arrangements for accession by the European Community.

Legal base:


Document originated:

9 April 2002

Deposited in Parliament:

24 June 2002


Department for Transport

Basis of consideration:

EM of 8 July 2002

Previous Committee Report:


To be discussed in Council:

No date set

Committee's assessment:

Politically and legally important

Committee's decision:

Not cleared; request to be kept informed




    1. The International Civil Aviation Organisation (ICAO) was established by the Convention on International Civil Aviation adopted in Chicago in December 1944. The aims and objectives of the ICAO are to develop the principles and techniques of international air transport and to foster the planning and development of international air transport.[13] The ICAO consists of an Assembly of all the Contracting States,[14] a Council consisting of 33 members[15] and an Air Navigation Commission (ANC) composed of 15 members having suitable qualifications and experience in the science and practice of aeronautics.
    2. The Chicago Convention does not provide for accession by regional organisations of States (such as the European Community). An amendment of the Convention to permit accession by the Community would require the consent of two-thirds of the Contracting States.
    3. The International Maritime Organisation (IMO) is a specialised agency of the United Nations and was established by the 1948 Geneva Convention.[16] It promotes maritime safety and the protection of the environment in the event of pollution by ships. All the EC Member States and the applicant countries are IMO members. Like the Chicago Convention, the Geneva Convention does not provide for accession by regional groupings of states. An amendment to permit such accession would require the agreement of two-thirds of IMO members (currently the IMO has 162).
    4. The Commission recommendations

    5. In the two recommendations the Commission seeks authorisation from the Council to negotiate, on behalf of the Community, amendments to the Chicago and Geneva Conventions to permit the Community to become a member of the ICAO and of the IMO. The recommendations also concern the adoption of internal procedures to improve the effectiveness of the Community's participation in the two international organisations.
    6. In support of its recommendations, the Commission argues that the Member States do not always speak with one voice in international transport organisations and that this diminishes the Community's influence. The Commission claims that a considerable body of law relating to air and sea transport has been adopted under the EC Treaty and that this means it should have a stronger role within the ICAO and the IMO so as better to meet its obligations as regards external competence and to guarantee consistency between Community and international law[17].
    7. The Commission also advances a legal justification based on the 'ERTA' doctrine derived from a judgment of the European Court of Justice in 1971.[18] The Commission asserts that as the Community develops common internal rules, it also acquires authority over external negotiations which might affect those common rules. Relying on judgments of the Court in 1977[19] and 1994[20] the Commission argues that if the Community has an internal competence to achieve a specific objective, it implicitly holds the exclusive competence on that subject as far as such an external exercise of competence is necessary to achieve that objective. The Commission concludes that:
    8. "the Community has no other choice than to accede to the Chicago and Geneva Conventions, in order to meet its obligations arising both from secondary legislation and from the principles laid down in the case law of the ECJ."

      The Government's view

    9. In his Explanatory Memorandum of 8 July 2002 the Parliamentary Under-Secretary of State at the Department of Transport explains that the Government does not consider, either as matter of law or logic, that the 'ERTA' doctrine requires the Community to accede to the ICAO or the IMO in order for the Commission to meet its obligations as regards external competence, or that membership is necessary to guarantee consistency between Community and international law. The Minister explains that other means exist to ensure such consistency, that the Community has had internal competence for maritime safety for most of the last ten years without the Commission hitherto seeking to exercise authority over external negotiations and that this suggests that the Commission's claim that the Community must accede 'is something of an exaggeration'.
    10. The Minister also remarks that, even if a negotiating mandate were to be given to the Commission, it is always possible that the international organisations would simply decline to negotiate or would frustrate negotiations with unreasonable terms. The Minister also points out that Community accession would lead to practical difficulties, one of which would be the reduction of the membership of the ICAO Council from the present seven seats occupied by Member States to just one.
    11. The Minister summarises the policy implications of the proposal as follows:
    12. "The UK has strong reservations about Community membership of either organisation and informal sounding among other Member States reveal little support for the proposal. We question whether such membership is either desirable or practicable, even as a long-term aim and believe that Community membership would work against EU interests and reduce the effectiveness of EU Member States rather than enhance it. The Commission has no evidence that the other members of ICAO or IMO would allow the EU an additional vote for the Commission or the EU Presidency to deliver a bloc of votes on behalf of the EU states: far more likely is a counter-proposal that the EU be reduced to just one vote. In addition, Community membership could encourage other groups of countries to act more in blocs than they already do. In our view this would change the character of the organisations for the worse."

    13. Whilst the Minister is sceptical of the Commission's arguments for membership of the ICAO, he accepts that there are good arguments for strengthening joint action by the Community within that organisation and suggests that one method might be for the Commission to establish a permanent representation at the ICAO's headquarters in Montreal or to take as a model the co-ordinating machinery which it provides at the IMO (where the Commission has observer status).
    14. Conclusion

    15. We are grateful to the Minister for his clear and cogent Explanatory Memorandum. We entirely support the views which he has expressed.
    16. We do not find the Commission's somewhat dogmatic assertions at all persuasive. We believe they owe more to the desire of that institution to expand its powers than to any concern to improve the position of the Member States in international negotiations on air and maritime safety.
    17. We ask the Minister to keep us informed of any significant developments arising in the consideration of these recommendations, and we shall hold the document under scrutiny in the meantime.


13  Article 44 of the Chicago Convention. Back

14  There are 188 Contracting States, including all the EC Member States. Back

15  Of these, 6 are EC Member States (France, Germany, Ireland, Italy, Spain and the United Kingdom). The Commission's Explanatory Memorandum points out that Ireland also acts on behalf of Belgium, the Netherlands and Austria and that Norway also acts on behalf of Denmark, Sweden and Finland. Back

16  Initially known as the Inter-governmental Maritime Consultative Organisation (IMCO), it changed its name to the IMO in 1982. Back

17  The Commission also argues in relation to the IMO that 'stronger Community participation' in the IMO has become necessary in order to prevent infringements by the Member States against their Community obligations. This argument seems ill-founded: Community participation in the IMO could not affect the provisions of Article 226 and 227 EC on the bringing of proceedings for infringement of the EC Treaty. Back

18  Case 22/70 Commission v. Council [1971] ECR 263. Back

19  Opinion 1/76 on the draft agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741. Back

20  Opinion 1/94 on the competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994]ECR I- 5267. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 11 November 2002