Luxembourg, 31/01/2002 (Agence Europe) - For Advocate General Antonio Tizzano, contrary to the Commission, "the claimed exclusive competence of the Community" to conclude an "open skies" type agreement with the United States cannot be founded on its alleged necessity". However, he stipulates, Member States may not conclude international agreements in matters covered by common rules. These spheres, which therefore come within the Community's exclusive external competence, are the following: air fares of United States air carriers on Community routes and computerised reservation systems.
The Advocate General also proposes to the Court that the nationality clause provided in these agreements be judged contrary to the rules in matters of the right of establishment: Member States that have concluded such agreements do not grant companies of other Member States established on the territory the same treatment as that reserved for national companies. Yet, only these national companies have the right in any event to obtain from the United States the authorisations required to operate the air transport services provided for in the bilateral agreements, he stipulates.
Advocate General Tizzano has just issued his conclusions in eight joint cases concerning the legality, disputed by the Commission, of so-called "open skies" bilateral agreements concluded respectively between the United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria and Germany and the United States in the sphere of civil aviation.
On the first point, Atonio Tizzano states that in the absence of an appropriate basis in an "express legislative provision, the necessity to conclude an international agreement in order to attain one of the objectives of the Treaty may give rise to an exclusive external competence of the Community only where such necessity is formally affirmed by the competent Community institutions." Yet, the Council discarded the need to conclude an "open skies" type agreement at Community level with the United States.
Conversely, the Advocate General explains, by virtue to the case-law of the Court of Justice, whenever the Community adopts common rules in a given sphere (on the internal level), the Member States lose the power to contract with non-member countries obligations which affect those rules.
The Commission accused these eight countries of having infringed: - the principles relating to the division of external powers between the Community and Member States; - the provisions of the Treaty on the right of establishment by inserting in the agreements a "nationality clause". In addition, it accuses them of having failed to do everything possible to render those provisions fully compatible with the Community legislation (the first and last complaints do not concern the United Kingdom).
These appeals were lodged in 1998, and the verdict is not expected before 5 to 6 months
Commission reaction: satisfied but cautious
A Commission spokesperson said that were the Court to follow the Advocate General, the Commission would have been followed on the essential aspects. Playing down the part of the conclusions that went against the Commission, the spokesperson said that "the simplest and most rational would be a European agreement", should the ruling follow the opinion of Advocate General Tizzano to the letter.