On Wednesday 16 October, the European Commission and the ambassadors of the Member States to the EU (Coreper) discussed the negotiation of the EU’s aviation agreements with third countries. The two parties do not have the same interpretation of Article 218(11) of the Treaty on the Functioning of the European Union (TFEU) concerning the Commission’s mandate, which has asked the Court of Justice of the European Union (CJEU) for clarification of the EU’s powers with regard to international aviation agreements.
The Commission explained to the Member States that it had requested an opinion from the CJEU in the context of the planned aviation agreement with the Sultanate of Oman, initialled in December 2021 but not yet signed. According to the Commission’s response sent to Agence Europe on Tuesday 22 October, this request for legal clarification is “in the interests of the European institutions and the Member States”. “It will strengthen the EU’s future international aviation policy and benefit the Member States and stakeholders. Preventive clarifications could also help to avoid subsequent problems”, explained the Commission. It specifies that the existing aviation agreements between the Sultanate of Oman and the Member States will continue to apply until the Court has delivered its opinion and the agreement has been signed and ratified.
Connectivity and sovereignty issues. According to a European source contacted on Thursday 17 October, the Commission has emphasised the fact that mixed agreements have to be ratified by national parliaments, which means ratification periods of 10 years on average. “It regretted deficiencies and missed opportunities for the internal market, for citizens and for airlines”, the source reported.
According to this source, the Member States have expressed serious concerns about the political implications of such a procedure, as well as their surprise and disappointment that the Commission did not consult or inform them before referring the matter to the Court. They have expressed particular concern about the disruption to the competitiveness of the aviation sector and connectivity in the EU as well as the impact on the sovereignty of national airspace.
The delegations insisted on maintaining current practices based on loyal cooperation and trust, which have worked well in the past. Some also referred to the provisional application of agreements as a way of easing the lengthy ratification process.
“The Legal Service of the Council of the EU will seek the authorisation of the Council to submit observations in this opinion procedure on behalf of the Council”, said the first source. If the Council authorises the Legal Service to intervene, it will appoint agents to represent the Council, who will be in contact with the national legal advisers to enable them to comment on the draft observations.
The Commission firmly rejected delegations’ comments on the possible disruption to competitiveness and connectivity. It pointed out that the Treaty allowed any Member State or institution to request the Court’s opinion before concluding an international agreement, and that it was up to the Court to settle any dispute between the EU institutions. (Original version in French by Anne Damiani)