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

Table of Contents

1. The Chicago Convention of 1944: The foundations of international civil aviation

1.1. The doctrine of airspace sovereignty and bilateralism

1.2. Exceptions to the doctrine of airspace sovereignty: The five freedoms of the air

1.2.1. The doctrine of cabotage

1.2.2. The doctrine of nationality

1.3. The International Civil Aviation Organization

1.4. Evaluating the outcomes of the Chicago Convention

2. Beyond the Chicago Convention

2.1. The practical application of the Chicago Convention : Bermuda I and II

2.2. The emergence of the Open Skies policy

2.3. The Structure of the Open Skies agreements

3. The emergence of the Common European aviation market

3.1. The role of the European Commission in the air transport agreements with third countries

3.2. The impact of the ECJ Judgement of 5th Nov. 2002 on the Open Skies agreements

3.3. Developing a common EU approach towards Open Skies

3.3.1. The dilemma of the Member States

3.3.2. A new role for the European Commission- Pro´s and Con´s for a Commission negotiation mandate

4. Approaches for reconceptualizing the air transport regime between the European Union and the United States

4.1. A Transatlantic Common Aviation Area versus a multilateral Open Skies agreement

4.1.1. Selected economic aspects of a TCAA

4.1.2. The failure of a first step agreement

4.2. The tentative accord of November 2005

4.3. Future scenarios

4.4. Including international aviation in the General Agreement on Trade in Services (GATS): Alternative, supplement or unrealistic vision?

Research Objectives and Core Themes

This thesis examines the legal and economic complexities of reforming transatlantic air transport, specifically focusing on the shift from bilateral "Open Skies" agreements to a unified EU-US aviation regime. It aims to evaluate the obstacles to liberalization, the institutional role of the European Commission following the 2002 European Court of Justice (ECJ) ruling, and the potential for a Transatlantic Common Aviation Area (TCAA).

• The historical legacy of the 1944 Chicago Convention and its impact on modern aviation regulation.
• The legal conflict between national bilateral aviation agreements and the EU's internal single market.
• The economic and political dynamics driving US and EU negotiation positions.
• The potential for integrating international aviation into the General Agreement on Trade in Services (GATS).

Excerpt from the Book

Summary of Chapters

1. The Chicago Convention of 1944: The foundations of international civil aviation: This chapter analyzes the historical origins of international aviation law, focusing on the doctrine of airspace sovereignty and how it established the foundational framework for bilateral air service agreements.

2. Beyond the Chicago Convention: This chapter traces the evolution of aviation policy from the Bermuda I and II agreements to the rise of the US "Open Skies" policy, highlighting the transition toward market-oriented liberalization.

3. The emergence of the Common European aviation market: This chapter explores the EU's internal liberalization process and the resulting legal conflict with existing bilateral agreements between Member States and third countries, specifically addressing the 2002 ECJ landmark ruling.

4. Approaches for reconceptualizing the air transport regime between the European Union and the United States: This chapter evaluates potential future models for transatlantic aviation, including the Transatlantic Common Aviation Area (TCAA) and the complexities of integrating aviation into GATS.

Keywords

Open Skies, Chicago Convention, Airspace Sovereignty, European Commission, ECJ Judgment, Bilateralism, Transatlantic Common Aviation Area, TCAA, Liberalization, Aviation Law, International Air Transport, GATS, Airline Alliances, Nationality Clause, Cabotage.

Frequently Asked Questions

What is the primary focus of this thesis?

The thesis explores the evolution, legal challenges, and economic implications of international air transport agreements, specifically examining the transition from fragmented bilateral "Open Skies" deals to a potential unified transatlantic framework.

What are the core thematic areas discussed?

The work covers the history of aviation regulation (Chicago Convention), the conflict between EU single market laws and bilateral agreements, the legal impact of the 2002 ECJ ruling, and the strategic negotiation landscape between the US and the EU.

What is the central research question?

The research evaluates the difficulties of reforming transatlantic civil aviation and analyzes potential future scenarios for the "Open Skies" agreements, given the conflicting interests of the EU and the US.

Which scientific methodology is employed?

The study utilizes a legal and economic analysis, incorporating historical policy reviews, an examination of court case law (specifically ECJ rulings), and expert interview insights to assess recent developments.

What is covered in the main body of the work?

The main body examines the foundations of international civil aviation, the emergence of the EU common market, the impact of ECJ judgments on Member State negotiations, and the debate surrounding the Transatlantic Common Aviation Area (TCAA).

How would you define the key terms characterizing this work?

The work is defined by terms such as "Airspace Sovereignty," "Bilateralism," "ECJ Judgment," and "Liberalization," which collectively describe the transition from restrictive national frameworks to more globalized market structures.

Why was the 2002 ECJ judgment so critical for the aviation industry?

The judgment declared that existing "Open Skies" agreements between individual EU Member States and the US infringed upon EU law, mandating a shift in competence and requiring a collective approach to negotiations.

What role does the US "Fly America" policy play in the negotiations?

The "Fly America" policy requires US government-funded travel to be conducted on US carriers, a protectionist measure that the EU Commission sought to eliminate to ensure fair competition within a proposed TCAA.

Why is the "ownership and control" clause considered a major obstacle?

The clause restricts foreign investment in airlines. Liberalizing this rule would allow for greater cross-border consolidation, but the US views its maintenance as essential for national security and its Civil Reserve Air Fleet (CRAF) program.