Who has the final say on air traffic matters: the EU Commission in Brussels or the block’s 27 member states? The Luxembourg-based Court of Justice of the European Union (CJEU) must now clarify this controversial and hotly debated issue, once and for all, following an advance of the Commission. To outsiders, what may look like an academic dispute over legal issues has considerable consequences for the existing air traffic regime in Europe.
This can best be illustrated by the example of Emirates (EK), among others. For years, the Gulf carrier has been trying to gain permission to fly to the German capital city, Berlin. Without success because the German government refuses to grant the traffic rights to EK. The policymaker’s argument is that with Frankfurt, Dusseldorf, Hamburg and Munich, Emirates already has four German domestic destinations where it can offer the market passenger and cargo services. There will not be a fifth. Period! Why? Because in return, Emirates can only offer German airlines Dubai as a sole destination, which – with all due respect – is only of limited interest to Lufthansa, AeroLogic, Condor or Eurowings.
Swapping routes might be possible
This situation could change if the judges at the European Court of Justice follow the Commission’s arguments. In this case, Brussels would be given the right to negotiate traffic rights to EU destinations with third countries and their designated carriers, such as Emirates, Ethiopian Airlines, Air India, among others. If based on the currently applicable procedures for EU negotiations of comprehensive aviation agreements, the Commission may still need to get relevant negotiation mandates from the Member States but, in the end, the result of such EU dealings would be binding for all member states. To illustrate this: Emirates currently serves 25 destinations in the EU, not counting the 5 airports in the UK. If the EU lawmakers consent to the Commission’s advance, a future EU – UAE aviation agreement might enable Emirates to swap the Dubai-Bologna route for Dubai-Berlin, for example. The network between Dubai and the EU would remain the same, only it would be linked differently.
It is understandable that the EU member states are resisting Brussels’ dirigisme. In a harsh reaction they emphasize that a shift of competences in favor of the EU, would disrupt the existing well-practiced cooperation in aviation matters between the block’s member states and the Commission, and lead to disruptions of the existing well-balanced traffic right scheme.
Cargo traffic affected as well
Meanwhile, the issue has been brought to a political level and was on the agenda of the latest meeting of the Council of EU transport ministers in December, last year. In addition, airline associations have addressed this important subject in official letters to the EU Commission, combined with warnings against the shifting of competencies.
The move by the Commission could also have a serious impact on the services of EU cargo operators and consequently on the logistics sector, as well as on the development of freighter flights to/from European airports. The current air traffic system protects national airlines from the dominance of carriers from third countries, with most of them heavily state aided which distorts the playing field. Furthermore, EU members support their carriers in continuing to serve foreign markets by taking into account the interest of external airlines to increase passenger or cargo frequencies based on bilateral traffic rights.
A decision by the EU Court of Justice in favor of an exclusive competence of the European Commission would overthrow the current system and have consequences both for the passenger and air freight markets. Those consequences are difficult to assess at this stage, aviation experts warn. This throws up many questions such as whether an exclusive and centralized competence of the EU Commission would be in favor of a dynamic and flexible development of external air services rendered to passenger and cargo clients in EU member states.
CargoForwarder Global will keep you updated on developments!
