Air service agreements between EU and non-EU countries

KEY POINTS

EU competence

• In November 2002, the Court of Justice of the European Union confirmed the EU’s exclusive right to negotiate, sign and conclude international ASAs with non-EU countries when they deal with matters within the EU’s exclusive competence.
• At the time of the Court’s ruling, a large number of ASAs existed which did not comply with EU law. Since then, a large number of these have been brought into conformity with EU law.

Objective

Those ASAs not complying with EU law need to be amended in order to:

• ensure legal certainty in such agreements for both parties;
• guarantee all EU airlines the right of establishment within the EU, including non-discriminatory market access to routes between all EU countries and non-EU countries where ASAs existed.

Amending an ASA

There are 2 ways to amend an ASA:

• Horizontal agreements — acting on behalf of the EU countries concerned which have bilateral ASAs with a non-EU country, the European Commission negotiates a single agreement with that non-EU country.
• Bilateral negotiations — amending or replacing each ASA individually.

Rules and procedure for bilateral negotiations

• An EU country can enter into bilateral negotiations to amend or replace an ASA which falls partly within the competence of the EU if it follows the rules and procedure set out in the regulation:
  • any relevant standard clauses, developed jointly between EU countries and the Commission, are included in such negotiations and the notification procedure is complied with;
  • it notifies the Commission of its intentions in writing.
• If, within 15 working days of receiving the notification, the Commission concludes that such negotiations are likely to undermine the objectives of EU negotiations already taking place with the non-EU country and/or lead to an agreement which is incompatible with EU law, it must inform the EU country accordingly.
• An EU country may not enter into any new arrangement with a non-EU country that reduces the number of EU air carriers allowed to provide services between its territory and that country.