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Who Negotiates Open Skies Agreements

The combination of the number of “open skies” agreements between the Us and the various EU Member States and the growing dominance of US airlines throughout Europe has led the European Commission to seek a mandate for the negotiation of a bilateral air services agreement between the US and the EU. However, the Commission was unable to obtain such a broad mandate and decided in 2002 to take legal action against Member States that had negotiated and concluded “open skies” agreements independently with the United States. Although the European Court of Justice did not appear to invalidate existing “open skies” agreements, it found that certain specific provisions were discriminatory and were therefore contrary to EU law. These include provisions relating to the allocation of slots at airports and prices, fares and fares for intra-European air services; Agreements on computerized reservation systems; “Nationality clauses” that allow the United States to deny access to airlines whose home state has not signed an agreement.28 This decision called into question the legal status of existing “open skies” agreements29 and EU member states gave the Commission a mandate to negotiate a civil aviation agreement with the United States. The United States has stated publicly that “the current agreements will remain in force as a legal basis for air services between the United States and certain Member States.” See “U.S. Says “Open Skies” Pact with U.U. Nations in Force,” Agence France Presse, November 5, 2002 (quote from Leonardo Alcivar, DOT spokesman). EU Vice-President Loyola de Palacio then reminded Member States that they should “initiate procedures to terminate these agreements to ensure that they meet their obligations under EU law.” See EU press release 116/04, “The Commission is taking steps to enforce open-air court decisions,” 20 July 2004, available in www.eurunion.org/news/press/2004/200400116.htm. Much of the Civil Aviation Act was developed by a combination of national laws and international agreements between the United States and other nations. In 1992, the U.S. Department of Transportation (DOT) launched the Open Skies initiative and began negotiations and conclusion of modern civil aviation agreements with foreign countries and individual members of the European Union (EU).

On the basis of a 2002 ruling by the European Court of Justice that several parts of these “open skies” agreements are contrary to EU law, the US and the EU are negotiating a new open skies agreement. It appears that there is a preliminary agreement between the parties, which would allow, among other things, any European and American airline to fly between every city in the European Union and every city in the United States, and that would allow American and European airlines to determine the number of flights, their routes and their fares according to market demand. The Office of International Aviation and the U.S. Department of State negotiate bilateral and multilateral air transport agreements with U.S. foreign air partners. Such agreements provide the basis for airlines in the countries concerned to provide international air services to passengers, freight and mail.

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