> **ICAO LETTERHEAD**
>
> August 4, 2000
>
> Dear Mr. Newman,

I refer to the matter United States and 15 European States (2000). which
is before the Council of ICAO.

On 19 July 2000, I received a letter from the Representative of France
on the Council, advising that the Respondents decided to present a
common defence and to designate Mr. J.L. Dewost as their agent. The
letter transmitted a Statement of preliminary objections of the
Respondents filed in accordance with Article *5 of the rules for the
Settlement of Differences (Doc 7782/2).*

Further, on 31 July 2000, I received a letter from the Secretary General
of the Council of the European Union, confirming that the 15 respondent
European States decided, at a session of. the Council of the European
Union on 17 July 2000, to present a common defence and to designate Mr.
Dewost as agent. Additional letters of confirmation of the designation
were also received from the Governments of Greece and of the United
Kingdom.

I am transmitting, attached, a copy of the Statement of preliminary
objections filed by the Respondents. In accordance with Article 5,
paragraph 4, of the *Rules for the Settlement of Differences,*you *may*
provide comments on the Statement of preliminary objections within a
time‑limit of 6 weeks from the receipt of this letter, fixed by the
President of the Council under *Article 29 of the Rules for the
Settlement of Differences.*

Yours sincerely,

R.C. Costa Pereira

Attachments

Before the Council of the International Civil Aviation Organization
Under

its Rules for the Settlement of Differences (Doc.7782/2)

Disagreement with the United States arising under the Convention on

International Aviation done at Chicago on 7 December 1944

Preliminary Objections presented by the Member States of the European

Union

Montreal

18 July 2000

Table of Contents

1\. INTRODUCTION 1

2\. THE ABSENCE OF ADEQUATE NEGOTIATIONS 3

3\. NON-EXHAUSTION OF LOCAL REMEDIES 5

3.1. Local remedies available 7

3.2. The non-exhaustion of local remedies 8

4\. SCOPE OF THE REQUESTED RELIEF 8

4.1. Introduction 8

4.2. The US Application goes beyond seeking a declaration of precise

violations (second point of requested relief) 9

4.3. The third point of the requested relief 10

4.4. The fourth point of the requested relief 11

4.5. Conclusion 11

5\. CONCLUSION 12

ANNEX 1 - CONTACTS WITH THE US 13

**1. INTRODUCTION**

1\. On 14 March 2000, the United States of America (hereinafter referred
to as "the US") submitted pursuant to Article 84 of the Convention on
International Civil Aviation (hereinafter referred to as "the
Convention") and Article 2 of the Rules for the Settlement of
Differences (Doc..7782/2) (hereinafter referred to as "the Rules") a
disagreement relating to the interpretation and application of the
Convention and its Annexes to the Council of the International Civil
Aviation Organization (hereinafter referred to as respectively "the ICAO
Council" and "ICAO"). Attached to the Application was the Memorial
required by Article 2 of the Rules.

2\. The notification of the Application/Memorial by the Secretary
General pursuant to Article 3(1) of the Rules occurred on various days
between 31 March and 6 April 2000. On 2 June 2000 the ICAO Council,
pursuant to Article 3(1)(c) of the Rules, set the time‑limit for the
submission of the present Counter‑Memorial as 21 July 2000 (including
extension).

3\. The Memorial named as respondents the Member States of the European
Union and was directed against a legal act of the European Community
(hereinafter referred to as "the EC")[^1] known as "Council Regulation
(EC) n° 925/1999 on the registration and operation within the Community
of certain types of civil subsonic jet aeroplanes which have been
modified and recertificated as meeting the standards of Volume 1. Para
II, Chapter 3 of Annex 16 to the Convention on International Civil
Aviation, third edition (July 1993)" (hereinafter referred to as "the
Regulation").[^2]

4\. These Preliminary Objections to the Application and Memorial of the
US are

submitted by the Member States of the European Union (hereinafter
referred to

as "the Respondent") in accordance with Article 5 of the Rules.

5\. The US requests[^3] the ICAO Council to:

\(a\) determine that the Respondent is in violation of Articles 11, 15,

> 38, and 82 of the Convention and Annex 16, Volume 1, Standard
>
> 1.5;

\(b\) order the Respondent to comply with all provisions of the

> Convention;

\(c\) order the Member States of the EU to take immediate steps to

> procure their release from their obligations under the Regulation;
>
> and

\(d\) grant the US such other and further relief as the ICAO Council
deems

proper and just.

6\. These Preliminary Objections relate to the absence of adequate
negotiations between the parties, the non‑exhaustion of local remedies
and to the scope of the above requested relief.

7\. The EU fully recognises the leading role of ICAO in the development
of air transport world‑wide as well as in the establishment of the
necessary common framework enabling this development, including in the
environmental field. The EU also fully recognises the desirability of
developing policies for the further reduction of noise from aircraft at
international level within ICAO and is committed to pursuing its efforts
in this regard. It has endeavoured to reach an agreement on a new ICAO
noise stringency standard at CAEP/3 in December 1 995, on the
re‑prioritisation of the noise stringency issue within CAEP as well as
on the need for the recognition within ICAO of the diverging
environmental needs of different regions at CAEP/4 in April 1998 as well
as at the 32^nd^ ICAO Assembly in October 1998. Due to slow progress in
ICAO the Respondent felt compelled to adopt its own measures but took
care to ensure that they were in conformity with the binding rules of
the Convention.

8\. The Agent authorised to act for the Respondent is Mr. Jean‑Louis
DEWOST. His address for service at the seat of the Organization is c/o
Ambassador M‑Y. Peissik, Mission of France to the ICAO, 999 Universite,
bureau 15.15, Montreal, Quebec H3C 5J9

**2. THE ABSENCE OF ADEQUATE NEGOTIATIONS**

9\. Although the Parties have held technical discussions on the
Regulation and the need for stricter noise standards in ICAO, none of
the questions of interpretation and application of the Convention raised
by the US in its Memorial have been discussed.

10\. Article 84 of the Convention provides, in relevant part, as
follows:

> If any disagreement between two or more contracting States relating to
> the interpretation or application of this Convention and its Annexes
> cannot bee settled by negotiation, it shall, on the application of any
> State concerned in the disagreement, be decided by the Council.

11\. Article 84 therefore makes negotiations between the parties on the
disagreement to be submitted to the Council an essential pre‑condition
to be satisfied before the ICAO Council can be asked to assume the
quasi-judicial adjudicatory role which this provision provides for. This
obligation is designed to ensure that parties explore the scope of their
disagreement in detail and endeavour to resolve it by negotiation before
resorting to dispute settlement.

12\. These negotiations should therefore relate to the legal issues
dividing the parties (i.e. the dispute) and should lead to properly
articulated legal claims. The ICAO Council should not, in Article 84
proceedings, be asked to adjudicate political disputes between
individual contracting states.[^4]

13\. The meaning of the obligation to negotiate is explained in the
International Court of Justice Judgment on *North Sea Continental
Shelf*[^5] case where the Court stated that

> "the parties are under an obligation to enter into negotiations with a
> view to arriving at an agreement, and not merely to go through a
> formal process of negotiation as a sort of prior condition for the
> automatic application of a certain method of delimitation in the
> absence of agreement; they are under an obligation so to conduct
> themselves that the negotiations are meaningful, which will not be the
> case when either of them insists upon its own position without
> contemplating any modification of it."[^6]
>
> It went on to state that:
>
> "\...this obligation merely constitutes a special application of a
> principle which underlies all international relations, and which is
> moreover recognized in Article 33 of the Charter of the United Nations
> as one of the methods for the peaceful settlement of international
> disputes."[^7]

14\. The US has not attempted to demonstrate that it held negotiations
with the Respondent on the issues of interpretation and application of
the Convention raised in its Application and Memorial. It has simply
asserted that negotiations have taken place. The Respondent denies that
this condition has been fulfilled.

15\. Although it is for the US to prove that the condition has been
fulfilled, not for the Respondent to prove the contrary, an account of
the discussions that have been held with the CTS is contained in Annex
1.

16\. This account demonstrates:

-   First, that discussions cannot be considered negotiations as
    described in point 13;

• Second, that the discussions did not relate to what could be the
proper subject of this dispute (the interpretation and application of
binding obligations under the Convention) but rather to policy
questions;

• Third, the EC has proposed to amend the Regulation but the US has been
demanding its outright repeal;

• Finally, that the scope for arriving at a satisfactory solution has by
no means been exhausted.

Accordingly, the US cannot be considered to have satisfied the
pre‑condition for bringing a complaint under Article 84 of the
Convention before the ICAO Council.

17\. Annex 1 also shows that since the time that the Council of the
European Union introduced the Regulation with a one year phase‑in period
at the end of April 1999, there has been some progress on resolving the
policy dispute within ICAO. The first results came in June 1999 when the
ICAO Council decided to approve an additional mandate for CAEP enabling
it to deal with operating restrictions in the noise field.[^8]

> The CAEP set up in July 1999 a special Task Force, called Noise
> Scenario Group (NSG) whose task would be to prepare for CAEP
> recommendations on a new noise standard and rules for transition to
> the 5^th^ plenary CAEP meeting on January 2001 and finally, to the
> 33^rd^ ICAO Assembly in September 2001.

18\. In the course of these negotiations within CAEP and in particular
in November 1999 the US asked for the indefinite suspension of the
Regulation or otherwise it would consider other options including the
use of the ICAO dispute settlement system. The response of the EU was a
letter[^9] from the Vice‑president of *the European* Commission and
Commissioner for Transport saying that

> "I would like to confirm again that the European Commission is ready
> to propose a suspension of the application of this Regulation in the
> aim of negotiating together with the U.S.A. new noise standards within
> ICAO to be adopted by the next Assembly on September 2001".

19\. The Respondent Firmly believes that the scope for negotiation
within *and outside* ICAO has not been properly explored and believes
that a satisfactory solution to the problems which have given rise to
this dispute can only be achieved through further negotiations.

**3. NON‑EXHAUSTION OF LOCAL REMEDIES**

20\. The US is not bringing this case because it is concerned about the
noise situation around EU airports or even because it is concerned about
the operation of civil aviation services within and into the EU. It is
bringing the case because it claims that the Regulation "targets," that
is adversely affects, the US owners and manufacturers of aircraft, jet
engines and hushkits and that it is causing them loss. These US owners
and producers have however remedies available to them which they have
not exhausted. Accordingly the US Application is inadmissible because
available local remedies have not been exhausted.

21\. The requirement to exhaust local remedies before pursuing a claim
in art international forum is well‑established, in international law.
According to Brownlie, the existence of the rules is undoubted and its
application in practice is very common."[^10]^0^

> The rule applies where effective remedies are available in the
> national system and then requires the use of such local procedures as
> are available to protect interests which correspond as closely as may
> be and in practical terms with the interests involved in the
> international claim. In those cases that involve interests both of
> nationals and of a state itself it must be assumed that local remedies
> should be exhausted.[^11]^1^

22\. This position is supported by early arbitral awards[^12]^2^ but the
issue was clarified by the International Court of Justice in the ELSI
case.[^13]^3^ That case concerned a dispute in which the US claimed that
Italy, by its actions with respect to an Italian company, Elettronica
Sicula S.p.A. (ELSI), which was wholly owned by two US corporations, the
Raytheon Company ("Raytheon") and the Machlett Laboratories Incorporated
("Machlett"), had violated certain provisions of the Treaty of
Friendship, Commerce and Navigation between the two Parties, concluded
in Rome on 2 February 1948 ("the FCN Treaty") and the Supplementary
Agreement thereto concluded on 26 September 1951. The US claimed damages
from Italy for loss suffered because of the requisition of the company
by the Italian Administration. After rejecting the US claim that the
exhaustion of local remedies rule did not apply at all, the Court went
further to say that it was for Italy to show that there was a local
remedy available to the US companies, independently of ELSI and the
trustee to bankruptcy, before the Italian courts. It only rejected
Italy's objection because it did not discharge its burden of
proof.[^14]^4^

23\. Another example is *the Interhandel* case,[^15]^5^ where the
International Court of Justice rejected as inadmissible claims by
Switzerland against the US under the 1946 Washington Accord an the
return of property seized by the World War II allies for the return of
certain property to its nationals or, in the alternative, the submission
of the dispute to arbitration or conciliation.

> Although, the Swiss nationals whose interests were being defended by
> Switzerland had sought restitution of their property through
> litigation in the US Courts between 1948 and 1957, their claims had
> not been definitively rejected, the US Supreme Court having remanded
> the case back to the first instance court. Accordingly, the
> International Court of Justice considered that local remedies had not
> been exhausted and dismissed the claim.

**3.1. Local remedies available**

24\. Various remedies exist in the EU for the complaints of the US
against the Regulation. Article 234 (ex 177) of the EC Treaty provides a
procedure for claims brought before the courts of the EU Member States
in which the validity of the Regulation is challenged to be referred to
the Court of Justice of the European Communities. This procedure has
been invoked in at least two cases involving the Regulation.[^16]^6^
Additionally persons who believe they have been adversely affected by an
illegal act of the EC may bring an action for damages directly to the
Court of First Instance of the European Communities (with appeal
possible to the Court of Justice) under Article 288 (ex 215) of the EC
Treaty. This procedure has been invoked at least once.[^17]^7^ The
relationship between the treaty obligations of the EC Member States, for
example under the Convention, and EC law, including the Regulation, is
also exhaustively regulated by the EC Treaty and is a matter for
interpretation by the European Court of Justice (or Court of First
Instance).[^18]^8^

25\. Thus EC law provides effective remedies for persons who claim to be
adversely affected by the Regulation. In addition, the principles of
non‑discrimination and proportionality are well‑established in EC law
and are regularly invoked in disputes before the courts.[^19]^9^ The
invocation of these principles could lead to the Regulation being
declared invalid

> and even the award of damages, if the complaints of the US against it
> were to be well‑founded.

26\. There can be no better demonstration of the fact that local
remedies are available and are effective than the existence of the
pending cases before EU Member State Courts and the European Court of
Justice referred to above. These cases are brought in the name of an
Irish company, Omega Air., but could just also have been brought by the
US company which wishes to supply jet engines for re‑certificated
aircraft to Omega Air, Pratt & Whitney. Papers from the Omega Air court
proceedings are in an attachment to the US Memorial in this
dispute.[^20]^0^

**3.2. The non‑exhaustion of local remedies**

27\. The local remedies available in the EU in respect of the US'
complaints are far from having been exhausted, indeed they have only
just been invoked.

28\. The fact that the issues raised by the US in its Application and
Memorial are currently the subject of legal action in the EU
demonstrates that the US invocation of Article 84 in ICAO is premature
and inadmissible.

4.\_ **SCOPE OF THE REQUESTED RELIEF**

> **4.i . Introduction**

29\. Article 84 of the Convention gives the ICAO Council jurisdiction to
hear disagreements relating to the interpretation or application of the
Convention and its Annexes. This gives the ICAO Council authority to
take decisions concerning the correct interpretation of the Convention
and to find violations. This is what the US is asking the ICAO Council
to do in point 1 of the requested relief. Points 2 to 4 however go
further and seek to require the ICAO Council to act beyond its legal
authority, as the Respondent will explain in more detail below.

30\. In bringing this dispute the US is in fact seeking to create new
obligations under the Convention going beyond what has been agreed
between the parties and to impose on the Respondent obligations that
have not been contracted. The Respondent submits that this is an
incorrect application of and is unjustified under Article 84 of the
Convention and that points 2 to 4 of the requested relief should be
dismissed as inadmissible for this reason.

> **4.2. The US Application goes beyond seeking a declaration of precise
> violations (second point of requested relief)**

31\. In the second paragraph of its Application, the US already makes
clear that its allegation that the Respondent has violated its
international obligations under the Convention is combined with (and
depends on) an allegation of "violation" of "ICAO guidelines" and
"international practice."

32\. In particular, on pages 2 to 4 of its Memorial, the US makes a
number of general accusations that do not appear to be based on any
provision of the Convention, notably that:

• The Regulation violates the Convention since noise certification
standards must be non‑discriminatory and performance based.

• The Regulation violates the Convention because it allegedly "targets"
US aircraft and technology (hushkits). The US even goes so far as to
allege an "intent' by the Respondent to discriminate against US
interests.

• The Regulation has an adverse effect on airlines, distorts the resale
market and is "protectionist".

> It is not explained how these alleged instances of "discrimination"
> come within the scope of the obligations of the Convention.

33\. In connection with the last point summarised above, the US refers
to internal EU statements on the need for "safeguarding internal market
requirements and undistorted competition" within the EU in order to
support its claims.[^21]^1^ The US is in effect arguing that the
Convention creates similar obligations to those arising under a Regional
Integration Organisation such as the EU. But the two organisations are
of a very different nature. ICAO has been entrusted on a worldwide level
with tasks relating to civil aviation while the EU has been assigned on
a regional level with a much broader range of tasks. It must therefore
be borne in mind that due to the different legal framework of the ICAO
and the EU respectively, the obligations under the Convention are of a
different nature than those arising under the EU law.

34\. This attempt by the US to create new obligations seems to be the
motivation for the second request for relief which asks the ICAO Council
to go beyond simply finding a violation of alleged obligations under the
Convention (which is already requested under the first point) and "order
the Respondent to comply with all provisions of the Convention."

35\. The US request for the ICAO Council to go beyond the specific
obligations of the Convention for Contracting States must be rejected.

> **4.3\_ The third point of the requested relief**

36\. The third point of the requested relief [^22]^2^ asks the ICAO
Council to make another order that it has no power to make, that is to
order the Member States of the ELT to take immediate steps to procure
their release from their obligations under the Regulation.

37\. The Respondent submits that it results clearly from the text of
Article 84 of the Convention that the ICAO Council only has power to
rule on the interpretation and application of the Convention, not to
order specific remedies.

38\. This is confirmed by subsequent practice within the meaning of
Article 31 paragraph 3 (b) of the 1969 Vienna Convention on the Law of
Treaties (which provides that subsequent practice may be invoked to
assist to the interpretation of the provisions of a Treaty). There is no
precedent in ICAO Council practice for the kind of decision the US
seeks. On the contrary, all decisions of the ICAO Council are
declaratory of the violation and they do not go on to propose specific
remedies.

39\. Likewise, the International Court of Justice (which is vested with
much greater powers under its statute than the ICAO Council under
Article 84 of the Convention) in Gahaikovo‑Nagymaros Project[^23]^3^
case refused a request by Slovakia for specific performance. The Court,
having first identified the violations of the 1977 Treaty between the
parties, went on to state:

> "'The Court is of the opinion that the parties are under a legal
> obligation, during the negotiations to be held by virtue of Article 5
> of the Special Agreement, to consider, within the context of the 1977
> Treaty, in what way the multiple objectives of the Treaty can best be
> served, keeping in mind that all of them should be fulfilled."[^24]^4^

40\. The Court refrained from even ordering the parties to negotiate,
let alone order more demanding specific performance. It merely declared
what was the law and left the parties to carry out their obligations in
the way they thought most appropriate.

41\. Another noteworthy feature of the judgment is, again, the emphasis
on negotiations which, as the Respondent has already hart the occasion
to remark, have not been fully exploited in the present case.

42\. The US is asking the ICAO Council to deviate from its past practice
and go beyond its proper function as set out in Article 84 of the
Convention. Its request must be rejected as inadmissible.

**4.4. The fourth point of the requested relief**

43\. The fourth point of the requested relief[^25]^5^ asks the ICAO
Council to grant the US such other and further relief as the ICAO
Council deems proper and just.

44\. The Respondent objects that the ICAO Council is not a court of
equity with wide ranging general jurisdiction. It can only rule on
disagreements concerning the application arid interpretation of the
Convention and its Annexes, not order States to take any action that it
"deems proper and just".

45\. Again this attempt by the US to make the ICAO Council create new
obligations for Contracting States should be rejected.

> **4.5. Conclusion**

46\. The Respondent considers it to be of fundamental importance to
distinguish in dispute settlement under Article 84 of the Convention
between, on the one hand, the binding obligations that Contracting
States have undertaken and, on the other hand, the desirability of
continued cooperation between Contracting States under the guidance of
ICAO institutions and their "policy"[^26]^6^ To the extent that it
confuses these concepts and asks the ICAO Council to impose obligations
on the Respondent where none yet exist, the US Application is
inadmissible.

**5. CONCLUSION**

47\. For the reasons set out in Sections 2 and 3 above, the Respondent
considers that the failure of the US to seek to resolve this dispute by
proper negotiation, and the failure to exhaust local remedies render all
the US claims inadmissible and respectfully requests that the US claims
be dismissed for these reasons.

48\. For the reasons set out in Section 4 above, the Respondent
considers that points 2 to 4 of the relief requested by the US cannot be
granted by the ICAO Council and that this is an additional ground for
considering these points of requested relief inadmissible. The
Respondent therefore respectfully requests that these points of
requested relief be dismissed for these reasons.

49\. The Respondent underlines its commitment to seeking a resolution of
the differences underlying this dispute within ICAO and reiterates its
willingness to enter into negotiations with the US for the purpose of
resolving this dispute.

50\. As a consequence, the ICAO Council has no jurisdiction to handle
the matter presented by the Applicant.

Jean-Louis DEWOST

Agent for the Respondent

**Annex 1 - Contacts with the US**

The US first raised objections to the proposed Regulation at the end of
1998. The US sought the withdrawal of the proposed Regulation or at
least a delay in its implementation. The main concerns expressed by the
US related to the trade impact of the proposed Regulation on US
manufactured and hushkitted or re‑engined aircraft and on hushkit
equipment itself, the need to preserve global aviation standards under
the ICAO umbrella as well as the impact of the proposed Regulation on
the ongoing ICAO/CAEP process.

On 17, 18 and 19 March 1999, 3 teleconferences took place between
delegations of the US and the EU (common conclusions in exhibit 1). In
their common conclusions

"both sides expressed their interest and willingness to pursue the
encouraging process of EC/US dialogue started during recent weeks."

On 24 March 1999 the US presented a demarche urging the EU

"to do everything possible to delay adoption of this regulation so that
discussion on a possible resolution of the issue may continue."
(demarche in exhibit 2).

On 25 March 1999 the charge d'affaires of the US mission to the EU sent
a letter to Commissioner Kinnock to which he attached

"a summary of ideas, cleared by Washington agencies, for developing
US‑EU cooperation on movement to Chapter 4 noise standards in ICAO as
well as problems posed by EU Regulations that need to be addressed
through clarification, interpretation or after adoption, by amendment.
It is our intention to use these thoughts as the starting point for a
negotiation which would be completed within 3 weeks, and prior to the
adoption of an EU regulation on hushkits." (letter in exhibit 3).

On 29 March 1999 the Council of the European Union decided to postpone
the adoption of the Regulation by one month in order to facilitate work
on an agreement, which would help to accommodate concerns, expressed by
the US. When the Regulation was finally adopted on 29 April 1999, it was
decided to introduce a phase‑in period of one year in order to
facilitate the continuation and the conclusion of the consultations with
the US. The European Commission was invited to report back to the EU
Council on these consultations by September 1999. In a statement issued
by US Commerce Secretary on the date of adoption of the Regulation it
was stated that

"The United States recognizes that the postponement of the application
of the Regulation by one year after its adoption on April 29, 1999 is
constructive and should be used for reaching a common understanding on
the remedies to noise concern expressed by the European Union."
(statement in exhibit 4).

In its Communication of 29 September 1999[^27]^7^ the Commission noted
that the ICAO/CAEP process was progressing along the right European
track and that the cooperation between the US and the EU seemed to be
moving in the right direction.

In a letter of 4 October 1999 addressed to the Commissioner for
Transport jointly by US Secretary of Commerce and US Secretary for
Transportation the US confirmed its commitment to the ICAO/CAEP process,
while urging the Commissioner to consider affirmatively withdrawal of
the Regulation (letter in exhibit 5).

In her reply of 16 December 1999 the Commissioner for Transport
indicated the willingness to replace the Regulation by the future ICAO
standard, thus paving the way for a postponement of the application of
the Regulation until after the next ICAO Assembly, if the new
international rules arc more favourable (letter in exhibit 6). This
compromise proposal was re‑iterated in a joint letter from the
Commissioner for Transport to US Secretary of Commerce and Secretary of
Transportation in which the Commissioner re‑confirmed its willingness to
make a proposal to suspend the Regulation on the basis of a joint
declaration establishing common US/EU goals to the ongoing CAEP process
(letter in exhibit 7). A positive reaction to this compromise proposal
was received on 16 February 2000, in a letter addressed to the
Commissioner for Transport by US representative to the European Union,
transmitting a joint letter from US Secretary of Commerce and Secretary
of Transportation (letter in exhibit 8). Both secretaries confirmed
their preference for a negotiated solution. They stated that they were
prepared to launch discussions with the Commission to reach a joint
declaration establishing common goals for a new ICAO noise standard, on
the basis of a satisfactory suspension of the Regulation. On that basis
the negotiations were resumed and on 23 February 2000 an agreement ***ad
referendum was*** reached between the Commissioner for Transport and US
under‑secretary of Commerce for international trade on a joint action
plan. In this action plan both patties agreed ***ad referendum*** on the
following compromise solution:

"Subject to agreement on a Joint Declaration establishing common
Commission/U.S. objectives for the 33^rd^ ICAO Assembly in 2001 on the
definition of a new standard on aircraft noise and rules for transition
towards this new standard and subject to suspension of any initiative
against the Regulation 925/99 incl. action on the basis of Article 84 of
the Chicago Convention, the Commission will make a legislative proposal
to the European Parliament arid the Council along the following lines:

1\. The application of the Regulation will be suspended to facilitate
agreement on more stringent standards on aircraft noise and related
roles for transition to he achieved within the ICAO process.

2\. Within 3 months after the end of the 33^rd^ ICAO Assembly the
Commission will present a report with an evaluation of the results.

3\. In case of satisfactory results this report will include legislative
proposals. Based on those proposals the legislative bodies of the
Community will review the suspension with a view to replacing the
Regulation 925/99 on the basis of newly agreed ICAO rules on aircraft
noise.

4\. In case of non‑satisfactory results or failure of negotiations the
suspension of the Regulation will cease after the appropriate
deliberations by the Community institutions.

In the event that Regulation 925/99 is applied, the US reserves the
right to take action in response, including action under Article 84."

US under-secretary of Commerce, after having agreed *ad referendum* to
the action plan undertook to get clearance for this agreement from the
US agencies involved. He also

undertook to come back to the Commissioner for Transport by 29 February,
in order to enable the Commissioner to report back to the Commission.

On 23 February it was also agreed between both parties that the
remaining technical issues concerning the draft joint declaration would
be addressed during a teleconference on 25 February. At his
teleconference agreement was reached on a number of technical issues and
both parties agreed to examine the question of the required level in the
hierarchy for the signature of the joint declaration. Further contacts
took place between a representative of the Department of Commerce arid
the services of the European Commission services whereby the US side
suggested some amendments to the joint action plan, which were
acceptable to the Commission. The amendments suggested by the US side
all focussed on a negotiated solution (i.e. a proposal by the European
Commission before a certain date and no action under Article 84 by the
US).

The European Commission took all the necessary steps with the EU Council
and the European Parliament in order to secure a fast track adoption of
the amending legislation. The US had asked for some additional time in
order to get industry approval for the action plan.

Finally on 13 March a meeting took place between the Commissioner for
Transport and US under-secretary of Commerce for International Trade. At
this meeting the US side indicated the internal difficulties which made
it impossible to agree formally to the action plan agreed *ad
referendum* on 23 February. The main new element presented by the US
side was the unacceptability of not filing an action under Article 84.
This was completely contrary to the action plan, defended with great
difficulties by the Commissioner for Transport in the other
institutions, in particular in the European Parliament.

The US counterproposal was to suspend this action under Article 84 as
soon as the Commission proposal aimed at suspending the Regulation was
tabled with the other Community institutions. Consideration of this
counterproposal was impossible given the position taken by the European
Parliament in a Resolution adopted on 13 March 2000. However, as laid
down in the EU Council conclusions of 28 March 2000 (see exhibit 9) the
Respondent remains willing to find a negotiated solution with the US
along the following lines:

-‑ Suspension of the application of certain provisions of the Regulation
concerning third countries in order to draw the conclusions from the
ICAO work in 2001

\-- Suspension of the U5 complaint under Article 84

‑- Adoption of the joint declaration concerning the co‑operation within
ICAO on the definition of a new noise standard and rules for transition.

By letter of 27 March 2000 (letter in exhibit 10) Dr. Kotaite
recommended further negotiation, and offered his assistance in
facilitating a satisfactory resolution of the matter.

**List of Exhibits**

EC‑1 Common conclusions of the teleconferences between US and EU of 17,
l 8 and 19 March 1999

EC‑2 US demarche of 24 March 1999

EC‑3 Letter from the US mission to the Commissioner for Transport of 25

March 1999

EC‑4 Statement issued by US Commerce Secretary of 29 April 1999

EC‑5 Letter from the US Secretary of Commerce arid US Secretary of
Transportation to the Commissioner for Transport of 4 October 1999

EC‑6 Letter from the Commissioner for Transport to the US Secretary of
Transportation of 16 December 1999

EC‑7 Letter from the Commissioner for Transport to the US Secretary of
Transportation and US Secretary of Commerce of 3 February 2000

EC‑8 Letter from the US Secretary of Commerce and US Secretary of
Transportation to the Commissioner for Transport of 16 February 2000

EC‑9 EU Council conclusions of 28 March 2000

EC‑10 Letter from Dr. Kotaite of 27 March 2000

EC‑1

Common conclusions of the teleconferences between US and EU of

17, 18 and 19 March 1999

*Summary of Telecons Between* Delegations

*of the*

United States and Europe Union

*March 17, 18 and 19,1999*

**COMMON CONCLUSIONS**

**Subject**: Proposed European Union regulation on the registration and
operation within the Community of certain types of civil subsonic jet
aircraft that have been recertificated to meet the noise standards of
Volume I, Part II, Chapter 3 of Annex 16 to the Convention on
International Civil Aviation.

**Background**: Delegations of the United States and European Union
participated is three 90‑minute telecons over the throe‑day period of
March 11, 18, and 19, 1999. The purpose was to explore common ground
upon which to bring continuing dialogue on the

proposed regulation.

The basic issues can be summarized as the European concern regarding
short‑term deterioration of the noise situation at Community airports
and the United States concern regarding the need to maintain uniform,
global aviation standards developed under the umbrella of the
International Civil Aviation Organization (ICAO). Each parry recognized
the importance of the other party's concerns.

**Agenda:**

[Uniform Standards through ICAO]{.underline}. The US stayed that
preserving uniform, global aviation standards developed under the ICAO
umbrella was of paramount importance. The US view is that adoption of
this regulation would make it politically difficult to pursue a dialogue
on the next‑generation noise standard and would be counterproductive to
the ICAO process. The EU stressed the urgent need for short‑term
measures in Europe not only to allow for continuous growth in air
transport, but also to allow the population to benefit from the most
modern noise technology or to conform with environmental policy
objectives. Both sides agreed to work cooperatively within the ICAO
framework to advance the next‑generation noise standard, although the EU
clearly separated that initiative from the need to urgently address the
immediate noise problem in Europe. The EU side considered that the
adoption of this regulation would not prejudice the ICAO process and
framework.

[Performance‑Based Standards]{.underline}. Both sides discussed the
merits of using engine by‑pass ratio to identify specific types of
completely re‑engined aircraft subject to the regulation. The EU
believes that, with all else being equal, by‑pass ratio is a reliable
indicator of relative noise from aircraft around the Chapter 2/Chapter 3
margins. The EU side expressed its willingness to discuss further this
issue. The US believes that by‑pass ratio is not a reliable indicator.
Further, the US believes that only a performance‑based standard such as
decibel level is a fair and accurate standard against which to measure
aircraft noise. The basic positions of both sides remain unchanged, both
sides agreed that discussions should continue, including within the ICAO
ambit.

[Risk Assessment:]{.underline} Undo this item, economic and trade
imbalance issues, potential hushkit operations within Europe, and the
risk of doing nothing were discussed. The cost of the regulation was at
issue. The EU aide questioned the method and magnitude of US estimates
of economic damage in the absence of US economic analysis of the
regulation's impact including the underlying assumptions. The US
repeated its request for the EU's cost and benefits analysis of the
regulation. Neither analysis was readily available during these
discussions, but each side will investigate the possibility of sharing
that data. The EU explained the impact of doing nothing to address
Europe's immediate noise problem pointing to the possibility of further
local restrictions and limits on slots at airports, as well as problems
and delays in increasing infrastructure capacity.

[Transferability]{.underline}. Both sides discussed the regulation's
provisions for changing registration of aircraft including those under
lease. The EU stated that the regulation treats the BU as one economic
market, much like the United States, and so the regulation is not
discriminatory. Further, while the regulation protects existing
investment, the transfer provision discourages new investment (sales or
leases) in the older hushkit technology. The US stated that the various
transfer provisions of the regulation raise serious issues of disparate
treatment and economic impact for third‑country versus EU operators and
are not necessary to accomplish the underlying intent of the regulation
as a non‑addition rule intended to "freeze" the total number of
recertificated aircraft in the EU. The EU side expressed its willingness
to look at specific options as they are identified.

**Common Conclusions**:

• Both sides agreed that ICAO is the preferred forum for establishing
environmental standards and confirmed their readiness to intensify
cooperation within ICAO with the objective to evaluate the most suitable
criteria for defining standards, to accelerate the standard‑setting
process, and to strive for more stringent environmental aviation
standards within a reasonable, adequate timeframe

• Both sides expressed their willingness to work in the ICAO process
under common conclusions to explore transition strategies that would
balance long‑term fleet‑value considerations and short‑term
environmental improvements.

• Taking account of the urgent need for effective short‑term measures in
Europe, and of the advanced EC legislative process, both sides expressed
their interest and willingness to pursue the encouraging process of
EC/US dialogue started during recent weeks.

• Mutual understanding of each side's views and political constraints
has improved

although the basic positions of both sides on a number of technical
issues remain unchanged.

EC‑2

US demarche of 24 March 1999

DEMARCHE: HUSHKITS

We are concerned that the EU Transport Council may adopt the
non‑addition rule for hushkitted and re‑engined aircraft on march 29.

While the United States strongly supports measures to protect the
environment, the proposed regulation is the wrong way to attempt
progress on aircraft noise, could seriously complicate bilateral trade
relations, and doesn't achieve its stated purpose. We have made clear
our position to the EU in meetings dating back to 1997.

At this juncture, we already have several contentious trade issues with
the EU. We are concerned that this regulation will add to an already
burdened trade dispute agenda. The mood in Congress is to respond to EU
legislation with actions of its own.

It is important for both sides to ensure that our environmental and
transportation authorities are fully cognizant of the effects of their
policies on U.S. industry and our overall trade relationship.

Over the last week, the United States and the European Commission have
conducted technical consultations on the regulation. We believe that
good progress was made.

To continue progress, we propose a four‑point plan which would lead to
an acceptable resolution that would satisfy U.S. and European political
and commercial needs:

A. A joint affirmation of ICAO as the preferred forum for establishing

environmental standards, and a willingness to intensify U.S.‑EU
cooperation with

ICAO with the objective of reaching a new Chapter 4 noise standard as
soon as

possible.

B. Consideration of ideas for preserving the EU's underlying objective
of

preventing the deterioration of the noise climate at EU airports while

mitigating the commercial impact on U.S. firms*.*

C. Continuing discussions, to be completed during the German Presidency,
to

resolve our differences.

D. A standstill by both sides to give our discussions a chance to
succeed. The

EU would defer adoption of the regulation and the U.S. would urge
Congress not to take further action on the bills banning the Concorde.

The adoption of the regulation on March 29 would make it politically
difficult for the United States to avoid taking measures in response.
The lateness of the hour should not move the Council to an action that
is in neither side's interest.

For this reason, we urge your government to do everything possible to
delay adoption of this regulation so that discussions on a possible
resolution of the issue may continue.

EC‑3

Letter from the US mission to the Commissioner for Transport

of 25 March 1999

Dear Commissioner Kinnock:

> Thank you very much for meeting with Secretary Slater and his
> delegation on March 24. As a result of his visit to Brussels, we
> believe we have established an improved framework for advancing
> U.S.‑EU cooperation as well as hopefully dealing effectively with the
> hushkit issue.
>
> I am attaching a summary of ideas, cleared by Washington agencies, for
> developing U.S.‑EU cooperation on movement to Chapter IV noise
> standards in ICAO as well as problems posed by EU regulations that
> need to be addressed through clarification, interpretation or, after
> adoption, by amendment. It is our intention to use these thoughts as
> the starting point for a negotiation which would be completed within
> three weeks, and prior to the adoption of an EU regulation on
> hushkits.
>
> We welcome the opportunity to continue to work with you and your
> colleagues in efforts to find a solution to this difficult question
> and stand ready to be of assistance in any way that we can.
>
> Sincerely,
>
> Donald B. Kursch
>
> Charge d'Affaires
>
> Mr. Neil Kinnock
>
> Member of the Commission
>
> of the European Communities
>
> Brussels
>
> U.S. PROBLEMS WITH THE EU HUSHKIT REGULATION

Problem: Proposed EU Rules discriminate .against U.S. re‑engined
aircraft (whole new engines) eliminating a significant market for U.S­
engine manufacturers.

> Problem: Proposed EU Rules do not allow U.S.‑registered hushkitted
> aircraft to be sold to a European carrier or a non‑European carrier
> operating to Europe after April 1, 1999, even if there is no addition
> to the European fleet.
>
> Problem: Proposed EU Rules, as they apply to hushkitted aircraft,
> should be governed by a noise-based performance standard, not the EU
> design standard (no hushkits).
>
> Problem: Implementation of the proposed EU Rules will hinder, through
> a loss of confidence by the U.S. Government and industry in the ICAO
> process, the ability to establish a future uniform international Stage
> 4 aircraft noise standards.

EC‑4

Statement issued by US Commerce Secretary of 29 April 1999

United States Department of Commerce Press Release

EU Adapts "Hushkit" Regulation Postponing Application for One Year

Secretary Daley said that the EU's decision to postpone the Regulation's
application for one year was a positive step forward: "We will use this
time to work in ICAO to develop an improved, multilateral noise standard
which will provide genuine noise relief and address the concerns that
underlie the Regulation," he added. He thanked Secretary Slater and
Under Secretary of Commerce David Aaron for their outstanding work. His
office released the enclosed statement.

Statement of Commerce Secretary William Daley on the EU's COREPER

Recommendation an the "Hushkit" Regulation

On April 29, 1999, the United States noted the decision of the Council
of the European Union regarding the Regulation on recertificated
aircraft.

The United States recognizes that the postponement of the application of
the Regulation by one year after its adoption on April 29, 1999 is
constructive and should be used for teaching a common understanding on
the remedies to noise concerns expressed by the European Union.

In this regard, the United States is prepared to work bilaterally and
multilaterally with the European Union towards joint initiatives within
ICAO. Our goal would be to reach an agreement on a new noise
certification standard and on transitional rules, in particular for the
noisiest aircraft. We will also continue the

examination of the Regulation to consider ways to achieve our mutual
environmental and market access goals.

The United States is prepared to give priority to the consultations that
have been opened by this postponement. This cooperative process provides
the conditions for positive bilateral and multilateral action that this
Administration supports and encourages. Consequently, the U.S.
Department of Transportation will take official notice of EU action arid
give due consideration to recommendations of other U.S. agencies with
regard to the pending complaint and the U.S. Administration will keep
Congress apprised of developments on these issues in an effort to hold
legislative responses in abeyance in order to support this cooperative
process.

EC‑5

Letter from the US Secretary of Commerce and US Secretary of

Transportation to the Commissioner for Transport of

October 1999

Ms. Loyola de Palacio

Member of the Commission

of the European Communities

200, rue de la Loi

Brussels

Dear Commissioner de Palacio:

We would like to congratulate you on your recent confirmation as a
member of the European Commission, and we look forward to working with
you in the coming months. Among the most important issues we must
address in Trans‑Atlantic trade and transportation relations are the
environmental and trade concerns that relate to the EU's "non‑ addition"
regulation restricting aircraft modified with hushkits and certain
replacement engines. In this connection, a key concern expressed by the
commission and some member states is the ability of the International
Civil Aviation Organization (ICAO) to develop and adopt the
next‑generation noise standard in a way that addresses both short-term
and long‑term noise problems in Europe.

We appreciate this concern **a**nd share a common interest with you in
developing a more stringent ICAO noise standard. Just as it is in the
European Union, aircraft engine noise is of growing environmental and
political importance in the United States. We want to assure you of the
unequivocal commitment of the United States to work cooperatively with
the community and other partners to achieve a new, more stringent noise
standard in ICAO as soon as possible, and in any event by September
2001. As part of the ICAO process, the United States will fully support
the development of measures to phase‑out Chapter 3 aircraft that do not
meet the new standard, including those of concern to the EU.

We are concerned, however, that the EU's non‑addition regulation
undercuts support among other countries and the private sector for our
joint initiative to develop a new noise standard in ICAO, and is
inconsistent with important principles which we believe are necessary to
move forward. We are also concerned that the EU regulation, which has
been adopted but not implemented, already has had a significant adverse
impact on fleet values and the market for aircraft, hushkits and
engines.

For these reasons we urge you to reconsider the need for continuation of
the non­-regulation. We urge you to consider affirmatively withdrawal of
the regulation as a means to enable us to continue to work together to
achieve our shared environmental goals, and to eliminate the adverse
economic impact this regulation is having on the aviation market.

Sincerely,

William M. Daley Rodney E. Slater

Secretary o£ Commerce, Secretary of Transportation

EC‑6

Letter from the Commissioner for Transport to the US Secretary of
Transportation of 16 December 1999

Dear Mr. Secretary:

First I would like to thank you for the meeting we had during the
Chicago Conference and I wish to come back to the hushkit issue which we
discussed in that meeting.

As I had indicated to you, on my return from Chicago I reported to the
Council or the European Union on our discussions and other recent
developments on this issue. The Transport Ministers had the same
reaction as I had concerning a possible indefinite postponement of the
hushkit Regulation. However, they also confirmed their willingness to
replace this Regulation by the future ICAO standard, thus paving the way
for a postponement of the application of the Regulation until alter tile
next ICAO Assembly, if the new international rules are more favourable.

In this context the EU welcomes the commitment by the United States to
work cooperatively with the European Community to achieve a new noise
standard within ICAO, as confirmed in your letter of 4 October 1999
co-signed by Secretary Daley. This commitment is indeed considered as an
important element in order to secure the adoption of a new ICAO standard
in 2001 as well as a phasing out of chapter 3 aircraft that do not meet
the new standard including those which are of concern for us.

However, you will understand that it is difficult for the Commission to
present a legislative proposal aimed at postponing until after the next
ICAO Assembly the application of the hushkits Regulation under
continuous threat from the United States to initiate unilateral action
or action within international organisations.

The purpose of making such a Commission proposal will be to hold in
abeyance the implementation of the hushkits Regulation in order to allow
the implementation of the ICAO standard in 2001. Even though I have
difficulties in understanding your views on the economic impact of the
Regulation, I consider that any problem would for all practical purposes
be neutralised if we were to commit ourselves to implementing the new
ICAO standard.

The Honorable Rodney E. Slater

Secretary of Transportation

US Department of Transportation

Washington, D.C. 20590

If the United States reacts positively to such a compromise and commits
itself in an unambiguous way to forbearance of any legislative or
administrative initiative targeting retaliation measures, I am prepared
to request the Commission to activate the legislative process with the
Council of the European Union and the European Parliament in order to
have this legislation, postponing the date of application of the
hushkits Regulation until after the next ICAO Assembly in order to
enable the replacement of existing Community legislation by new and more
favourable international rules, which would enter into force prior to
the date of application of the hushkits Regulation.

I consider in this context that Congressman James L. Oberstar, in the
margins of the Chicago Conference, has made a very constructive
contribution. I am prepared to work along the lines of his draft
statement of intent which assists in finding a way forward to the
satisfaction of both sides.

I am sending a copy of this letter to Secretary Daley.

I would appreciate a very rapid reply on your side to this letter, in
view of the time constraints for the adoption by the Council and the
European Parliament of the Commission's proposal mentioned in this
letter.

Yours sincerely,

EC-7

Letter from the Commissioner for Transport to the US Secretary of
Transportation and US Secretary of Commerce of 3 February 2000

> Brussels, 3 February 2000

The Honorable Rodney E. Slater

Secretary of Transportation

The Honorable William M. Daley

Secretary of Commerce

USA ‑ Washington D.C. 20950

Dear Mr. Secretary,

As you know, extensive consultations have been undertaken in order to
reach a common understanding on a mutually acceptable way forward on the
question of so called hushkitted aircraft, most recently on the occasion
of the visit of Under Secretary Larson in Brussels on 31.1.2000.
Unfortunately, it has not been possible so far to find a way to resolve
this problem.

First of all, I should like to reiterate that we have tried to
accommodate the US concerns on the alleged consequences of this
Regulation for the US industry. I would like to confirm again that the
European Commission is ready to propose a suspension of the application
of this Regulation in the aim of negotiating together with the U.S.A.
new noise standards within ICAO to be adopted by the next Assembly on
September 2001. I am sure that you can understand that we cannot suspend
indefinitely or withdraw a Regulation whose aim is to address huge
environmental concerns around our airports. The announcement by the US
Administration of the intention to engage the ICAO dispute settlement
mechanism will do nothing to develop confidence nor to facilitate any
decision to suspend the application of the Regulation.

The result will be that in May 2000 the Regulation will enter into
force, making it more difficult then to find a solution. The European
Commission remains ready to make a proposal to suspend the application
of the Regulation on the basis of a Joint Declaration establishing
common US/EU goals to the ongoing ICAO process. Such Declaration should
include commitments on a new noise certification standard to ensure that
the latest available noise reduction technology is incorporated into
aircraft design; it should also include a confirmation of the need to
establish rules for transition towards such new standards that would
allow for phasing‑out the noisiest aircraft within a reasonable
time‑frame meeting the requirements of the most noise sensitive airports
for future capacity development. Your joint letter of 4 October already
contains key elements for the establishment of common U.S./EU goals. On
that basis, an agreement could be reached in the sense indicated above.

A Joint Declaration would allow the European Commission to rapidly
initiate legislative proposals aimed at further holding in abeyance the
application of the Council Regulation until a date allowing for its
replacement by newly agreed ICAO-rules in September/October 2001 on
aircraft noise without having applied it beforehand. It would also
create a positive framework for rapid approval by the legislative bodies
of the European Community.

By following this approach, we would contain the economic consequences
of the hushkit Regulation and we would secure the adoption of the new
ICAO standard before the new date of application of this Regulation. But
our decision process has to start now if we want to complete it by 4 May
2000.

However, as the Regulation provides for two different dates of entrance
into force, the first (4 May 2000) related to the application of the
rules only to aircrafts registered in the Union, the second (1 April
2002) to third countries companies. Therefore, if you decline the above
described solution, we could continue to negotiate within ICAO for the
definition of new noise standards, which would then be applicable to
third countries companies.

I hope that you will be in a position to support this approach which
would certainly go a long way to abating a disproportionate conflict.

> Yours sincerely,

Copy:

Under‑Secretary Larson

Ambassador Morningstar

Ambassador Aaron

EC‑8

Letter from the US Secretary of Commerce and US Secretary of

Transportation to the Commissioner for Transport of

16 February 2000

UNITED STATES REPRESENTATIVE

TO THE

EUROPEAN UNION

Brussels, February 16, 2000

Dear Madam Commissioner:

I have beer asked to transmit to you the attached joint letter from
Secretary of Commerce William H. Delay and Secretary of Transportation
Rodney E. Slater. This is in response to your letter of February 3 to
both Secretaries.

Please do not hesitate to contact me if I can be of assistance in this
matter.

Sincerely,

Richard L. Morningstar

Ambassador

Attachments:

As stated

Ms. Loyola de Palacio

Member of the Commission

of the European Communities

Brussels

The Honorable Loyola Dc Palacio

Vice President, Commission of the European Union

200 Rue de la Loi

B 1049 Brussels

Belgium

Dear Commissioner:

Thank you for your February 3 letter concerning the EU hushkit
regulation and the negotiation of more stringent aircraft noise
standards in ICAO. We appreciate your continued efforts to reach a
resolution to this issue, including the Commission's willingness to
propose suspending implementation of the regulation beyond May 2000.

Aircraft noise standards are of the highest priority for the U.S.
Administration, and we welcome continued opportunities to resolve our
differences in all available fora.

In our October 4 letter to you, we noted that the United States is
unequivocally committed to achieving a new aircraft noise standard in
ICAO with a target date of September 2001. We assure you of our
continued commitment to this new standard. Work at the technical level
has made excellent progress towards this goal.. Unfortunately, further
progress is threatened because the EU has not signaled a commitment to
the international process. The hushkit regulation, reinforced by the
December 1999 Commission communication on air transport and the
environment, make ICAO partners reluctant to invest in developing a new
international noise standard because they are not certain that the EU
will rely on the outcome of the ICAO negotiations.

The mere existence of the hushkit regulation has already cost U.S.
companies over \$2 billion according to industry. Because of this harm,
and because of the adverse affect the hushkit regulation has on
confidence in the ICAO system, the United States has been left with no
alternative but to pursue dispute settlement under Article 84 of ICAO.

Nonetheless, we would prefer a negotiated solution to our differences.
To this end, and on the basis of a satisfactory suspension of the
hushkit regulation, we are prepared to launch discussions with the
Commission to reach a joint declaration establishing common goals for a
new ICAO noise standard. Such a suspension, while entirely in the hands
of the EU, must take account of the fact that previous proposals
contained elements that would have had an unacceptably coercive effect
and that would nave failed to lift the cloud over the U.S. aviation
industry.

We look forward to a continued dialogue with you on an urgent basis
aimed at resolution of this issue.

> Sincerely,

William M. Daley Rodney E. Slater

Secretary of Commerce Secretary of Transportation

> EC‑9
>
> EU Council conclusions of 28 March 2000

EC‑10

Letter from Dr. Kotaite of 27 March 2000

SECRETARIAT GENERAL Bruxelles, le 28 Mars 2000

DU CONSEIL

Le Conseil a fait le point stir l'etat des discussions avec les
autorities americaines stir le dossier du bruit des avions.

Il reaffirme son engagement en faveur de I'adoption d'une nouvelle norme
en 2001 au sein de I et du retrait 'progressif des avions les plus
bruyants de facon a assuier tine reduction effective du bruit au niveau
des aeroports.

> Le Conseil invite la Commission A poursuivre ses discussions avec les
> autorites americaines pour assurer que les travaux au sein de I' se
> deroulent dons tin esprit de cooperation mutuelle.
>
> Compte tenu de Papplication du reglement 925/99 a partir du 4 Mai
> 2000, le Conseil prend note de l'intention do la Comission de
> rechercher tin comprornis avec les autorites americaines selon les
> orientations savants:
>
> ‑ suspension do l'application de certaines Modalities du reglement
> concernant lee pays tiers pour permettie de tirer les consequences des
> travaux de l'OACI en 2001;
>
> ‑ suspension de la plainte deposee par les Unit aupr6s do I'OACI;
>
> ‑ adoption de la declaration conjointe de cooperation au sein de
> l'OACI pour la definition d'un nouveau standard et des modalities de
> transition, stir base du prujet d'accord ad referendum du 24 fevrier
> entre la Commission et le representant de \]'administration americaine
>
> Le Conseil invite le President et la Commission a communiquer cette
> position au Parlement afin do rechercher tine convergence entre lea
> trots institutions. Le Conseil invite la Commission a tenir le COREPER
> informs des reactions du Parlement european et des autorites des Ems
> Unis.

27 March 2000

Dear Mrs. de Palacio:

I wish to acknowledge with thanks receipt of your letter dated 23 March
2000 concerning the possibility of the European Union's suspension of
the "hushkit" legislation, as well as the United States' suspension of
further action on the Article 84 case.

Please keep me informed of any development in this regard.

I remain toady to offer all possible assistance which would facilitate a
satisfactory resolution of this matter.

.

Yours sincerely,

Assad Kotaite

[^1]:
    > ^1^ The European Community is a constituent of the European Union
    > (hereinaafter \"the EU\").

[^2]:
    > ^2^ Official Journal of the European Communities No L120 of 8 May
    > 1999, page 47. A copy of the Regulation is included (with some
    > other docuemnts) in Attachment 3 to the US Memorial.

[^3]:
    > ^3^ See Section (f) of the US Memorial, the penultimate paragraph
    > of the Application and the last part of the Intrudciton on page 2
    > of the Memorial.

[^4]: ^4^ This principle has been recognised for example by the
    International Court of Justice *in Case concerning Border and
    Transborder armed actions (Nicaragua v Honduras)* ICJ Reports 1988
    pp. 69, 91.

[^5]: ^5^ *North-Sea Continental Shelf* Case, ICJ Rep. (1969). See also
    *Fisheries Jurisdiction* cases, ICJ Reports (1974) pp.3, 32.

[^6]: ^6^ *Ibid.*, paragraph 87

[^7]: ^7^ *Ibid.*, paragraph 88

[^8]: ^8^ The ICAO Council approved the additional mandate on 5 June
    1999 following a discussionin the ICAO Council on 4 June 1999.

[^9]: ^9^ Dated 3 February 2000

[^10]: ^10^ Brownlie, *Principles of Public Intdrnational Law,* Oxford
    University Press (fifth edition) at page 498.

[^11]: ^11^ M. Shaw, *Public International Law,* Grotius Cambridge
    Publications (third edition) at page 511.

[^12]: ^12^ *Ambatielos,* 12 RIAA (1956) p. 83; *Finnish Ships*. 12 RIAA
    (1934) p. 1479

[^13]: ^13^ *Elettronica Sicula S.p.A* (ELSI), ICJ Reports (1989) p. 15

[^14]: ^14^ *Ibid*, paras. 48-63

[^15]: ^15^ ICJ Reports (1959), 6.

[^16]: ^16^ There is a case pending before the High Court of England and
    Wales: *The Queen v The Secretary of State for the Environment,
    Transport and the Regions ex parte Omega Air Limited* and referred
    to the European Court of Justice as case C-27/00 and a case pending
    before the High Court of Ireland: *Omega Air Ltd. Aero Engines
    Ireland Ltd, Omega Aviation Services Ltd c/Irish Aviation Authority*
    referred to the European Court of Justice as case C-122/00.

[^17]: ^17^ Case 165/99, *Omega Air Limited, Seven Q Seven Inc. v EC
    Council.*

[^18]: ^18^ See esp. Article 307 (ex Article 234) of the EC Treaty.

[^19]: ^19^ For example, these principles have been invoked in the
    European Court of Justice and Court of First Instance cases referred
    to above.

[^20]: ^20^ Attachement 11 to the US Memorial.

[^21]: ^21^ See footnote 2 to the US Memorial and accompanying text.

[^22]: ^22^ Section (f) of the US Memorial.

[^23]: ^23^ *Gabeikovo-Nagymaros Project,* ICJ Reports (1997)

[^24]: ^24^ *Ibid,* parapgrah 139

[^25]: ^25^ Section (f) of the US Memorial.

[^26]: ^26^ See letter dated 22 March 1999 from Mr. Kotaite to the
    President of the Council of the European Union contained

    in Attachment 2 to the US Memorial.

[^27]: ^27^ COM(1999)452 final, ISSN 0254-1474, Catalogue
    number;CB-CO-99-463-EN-C