Legal Eye: No Open Skies (at least not yet)
"Infringement proceedings have now been initiated against all the Member States which have bilateral agreements with the United States."
EU Commission, 16 March 2005.
Poland and 19 other member states face infringement proceedings for failure to renounce (or at least modify) their existing bilateral air service agreements, commonly referred to as Open Sky agreements, with the United States. In announcing its decision to take such action, the EU Commission declared that these Open Sky agreements represent a "flagrant breach of European law." At issue is the inclusion of nationality clauses in each of these Open Sky agreements, by which the air carriers of a signatory country receive preferential landing rights in violation of Art. 43 of the Treaty Establishing the European Union, by which "restrictions on the freedom of establishment of nationals of a member state in another member state shall be prohibited."
Ignoring the Court
The Commission's action comes only after the failure of each of these countries to abide by the earlier judgement of the European Court of Justice that such Open Sky agreements were in violation of EU law. The European Court of Justice, in 2002, declared that each of the Open Sky agreements represented a "failure to fulfill obligations under the Treaty Establishing the European Union." In addition to violating Art. 43 of the Treaty, these Open Sky agreements were found to be in breach of Council Regulations 2409/92 (fares and rates) and 3089/93 (computerized reservation systems). Moreover, the continued existence of such Open Sky agreements violates the EU's exclusive competence to regulate specific aspects of air service agreements with non-EU countries.
Less guilty
Poland, although not named as a defendant in the European Court of Justice's earlier ruling, is now subject to potential sanctions. Poland, however, is not alone, and in my opinion, is one of the least guilty of the 20 offending member states. Poland, together with Hungary, the Czech Republic, Malta and the Slovak Republic, concluded their respective Open Sky agreements with the United States prior to joining the EU, and are therefore not guilty of infringing on the competencies reserved in favor of the EU as opposed to individual member states. Other member countries, including Germany, France, Greece, Italy, Spain and Austria, knowingly violated the EU's exclusive power to conclude such agreements with non-EU countries. Former EU Commission Vice-President Loyola de Palacio declared in the summer of 2004 that "it is unacceptable for member states to continue to be party to agreements that deny consumers and airlines the benefits of the European single market more than one and a half years after the Court judgements."
Time for action
At the same time that the EU Commission has initiated infringement proceedings against the twenty offending member states, the Commission continues to negotiate a common air agreement with the United States, albeit with little success to show for it after nearly two years of discussion. In the near future the Commission plans to open similar negotiations with China and Russia in an effort to harmonize the current regulations governing these markets. Of particular interest to air carriers, the EU Commission hopes to convince Russia to abandon the current 'fly-over' fee assessed against airlines that pass through Siberian airspace.
EU Commission, 16 March 2005.
Poland and 19 other member states face infringement proceedings for failure to renounce (or at least modify) their existing bilateral air service agreements, commonly referred to as Open Sky agreements, with the United States. In announcing its decision to take such action, the EU Commission declared that these Open Sky agreements represent a "flagrant breach of European law." At issue is the inclusion of nationality clauses in each of these Open Sky agreements, by which the air carriers of a signatory country receive preferential landing rights in violation of Art. 43 of the Treaty Establishing the European Union, by which "restrictions on the freedom of establishment of nationals of a member state in another member state shall be prohibited."
Ignoring the Court
The Commission's action comes only after the failure of each of these countries to abide by the earlier judgement of the European Court of Justice that such Open Sky agreements were in violation of EU law. The European Court of Justice, in 2002, declared that each of the Open Sky agreements represented a "failure to fulfill obligations under the Treaty Establishing the European Union." In addition to violating Art. 43 of the Treaty, these Open Sky agreements were found to be in breach of Council Regulations 2409/92 (fares and rates) and 3089/93 (computerized reservation systems). Moreover, the continued existence of such Open Sky agreements violates the EU's exclusive competence to regulate specific aspects of air service agreements with non-EU countries.
Less guilty
Poland, although not named as a defendant in the European Court of Justice's earlier ruling, is now subject to potential sanctions. Poland, however, is not alone, and in my opinion, is one of the least guilty of the 20 offending member states. Poland, together with Hungary, the Czech Republic, Malta and the Slovak Republic, concluded their respective Open Sky agreements with the United States prior to joining the EU, and are therefore not guilty of infringing on the competencies reserved in favor of the EU as opposed to individual member states. Other member countries, including Germany, France, Greece, Italy, Spain and Austria, knowingly violated the EU's exclusive power to conclude such agreements with non-EU countries. Former EU Commission Vice-President Loyola de Palacio declared in the summer of 2004 that "it is unacceptable for member states to continue to be party to agreements that deny consumers and airlines the benefits of the European single market more than one and a half years after the Court judgements."
Time for action
At the same time that the EU Commission has initiated infringement proceedings against the twenty offending member states, the Commission continues to negotiate a common air agreement with the United States, albeit with little success to show for it after nearly two years of discussion. In the near future the Commission plans to open similar negotiations with China and Russia in an effort to harmonize the current regulations governing these markets. Of particular interest to air carriers, the EU Commission hopes to convince Russia to abandon the current 'fly-over' fee assessed against airlines that pass through Siberian airspace.
