Towards Post-Bilateralism

1. Towards Post-Bilateralism Project 2001 + Institute of Air and Space Law, Cologne, 9 June 2005

2. Post-bilateralism, 2000+ Liberalising international aviation with the ECJ Open Skies Judgement and the Community clause

3. Post-bilateralism, 2000+ • A legal minefield, a political battlefield • Approach: • The troublous 1990s • The ECJ case on Open Skies • 2000 +, a stirring era • From a common to an open market • Conclusions, final question

4. Post-bilateralism, 2000+ • The troublous 1990s • Definition of Community carrier in 1990 as a carrier which has its: “central administration and principal place of business in an EEC Member State, and whose shares are owned by Member States or their nationals, and which is effectively controlled by Member States or their nationals.”

5. Post-bilateralism, 2000+ • Battle between Commission and Member States on external competencies • Uruguay Round case before ECJ:(air) transport does not fall under the common commercial policy (then Art. 113 EC) • Conclusion (by Member States) of Open Skies agreements with the US (including ‘ traditional’ nationality clauses)

6. Post-bilateralism, 2000+ II. The ECJ cases on Open Skies • Fine tuning of implied powers doctrine • Only slot allocation, intra-Community pricing and operation of CRS fall under the Community’s exclusive competencies • Traditional nationality clause infringes freedom of establishment as national treatment is not respected

7. Post-bilateralism, 2000+ • Relationship between the Freedom of establishment and seventh Freedom of the Air, normally not exchanged under bilateral agreements (not even under Open Skies agreements) • Affecting position of third countries • Reluctance regarding sanctions (see however Adv. Gen. Tizzano)

8. Post-bilateralism, 2000+ III. A stirring follow up, in 2000 + • Attempts to create an Open Aviation Area (2004) • Grant of horizontal mandates by the Council to the Commission • Cooperation between Commission and EC Member States in external aviation relations under Reg. 847/2004

9. Post-bilateralism, 2000+ • Reluctance third countries re acceptance of the Community air carrier clause • No denunciations (yet) by EC Member States • Action undertaken by the Commission against EC Member States for infringing Community law principles • Preparation of mandates Russia, China, Balkan, Morocco

10. Post-bilateralism, 2000+ IV. From a common market to an open market Current process: from internal to common market Art. 4 EC: Objective of achieving an “open market with free competition”

11. Post-bilateralism, 2000+ Three approaches: • Freedom to provide (air) services • Freedom of establishment plus application of national treatment • Implementation of the competition law regime through Reg. 1/2003 (including external air services)

12. Post-bilateralism, 2000+ Concluding remarks/question: Convergence of three approaches into multilateral regulatory framework, WTO/GATS?