BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

________________________________________ 

 ) 

Application of ) 

 ) 

NORWEGIAN AIR INTERNATIONAL LIMITED ) 

 ) Docket No. OST-2013-0204 

for an exemption under 49 U.S.C. § 40109 and ) 

a foreign air carrier permit pursuant to ) 

49 U.S.C. § 41301 (U.S.- EU Open Skies) ) 

_________________________________________ )

COMMENTS OF NORWEGIAN AIR INTERNATIONAL LIMITED, 

AND JOINT DECLARATION 

OF JOHN BYERLY AND DANIEL CALLEJA

 

Communications with respect to this document should be addressed to:

Asgeir Nyseth Josh Romanow 

Chief Executive Officer Peter Nelson

NORWEGIAN AIR PILLSBURY WINTHROP SHAW 

INTERNATIONAL LIMITED PITTMAN LLP

Ground Floor Imbus House 2300 N Street, N.W.

Dublin Airport, Co. Dublin, IRELAND Washington, D.C. 20037 

Tel: + 353 18 141851 Tel: (202) 663-8000 

E-mail: asgeir.nyseth@norwegian.com E-mail: romanow@pillsburylaw.com

E-mail: peter.nelson@pillsburylaw.com 

 

August 18, 2014 Counsel for NORWEGIAN AIR 

INTERNATIONAL LIMITED
1 

BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

________________________________________ 

 ) 

Application of ) 

 ) 

NORWEGIAN AIR INTERNATIONAL LIMITED ) 

 ) Docket No. OST-2013-0204 

for an exemption under 49 U.S.C. § 40109 and ) 

a foreign air carrier permit pursuant to ) 

49 U.S.C. § 41301 (U.S.- EU Open Skies) ) 

_________________________________________ )

COMMENTS OF NORWEGIAN AIR INTERNATIONAL LIMITED, 

AND JOINT DECLARATION 

OF JOHN BYERLY AND DANIEL CALLEJA

Norwegian Air International Limited (“Norwegian International”) welcomes the 

opportunity to comment on the Department’s Notice of August 4, 2014 (the “Notice”). 

The Notice summarizes the meeting held in Brussels on July 14, at the request of 

Secretary Anthony Foxx, between senior U.S. Government and European Commission

(“Commission”) officials. The purpose of the meeting was to obtain the views of the 

Commission on the legal meaning and applicability of Article 17 bis of the U.S.-EU 

Open Skies Air Transport Agreement (the “Open Skies Agreement” or the “Agreement”), 

and specifically on whether a Party to the Agreement may unilaterally deny an 

application for operating authorization based on Article 17 bis of the Agreement. The 

answer from the Commission is unequivocally “no.” Norwegian International 

respectfully submits that the Department should immediately approve its application, as 

no basis for further delay exists. 
2 

The unambiguous views expressed by the Director of Aviation on behalf of the 

Commission correspond fully to Norwegian International’s understanding of Article 17 

bis as described in its earlier pleadings, namely that Article 17 bis may not be unilaterally 

relied upon by a Party as a basis to deny Norwegian International’s application. These 

views are further confirmed by the attached Joint Declaration of the Chairmen of the 

United States and European Union delegations, John Byerly1 and Daniel Calleja, who led 

the negotiation of the historic Open Skies Agreement, including the 2010 Protocol 

containing Article 17 bis (the “Joint Declaration”).

The Commission’s position puts to rest once and for all the unfounded views 

advanced by opponents of Norwegian International’s application (referred to herein as 

the “Opposing Parties”) that seek to deny the public the benefits of: (1) new American 

jobs, (2) increased international tourism, (3) economic growth, (4) greater airline 

competition, (5) lower fares, and (6) new non-stop air service that Norwegian 

International will bring to the transatlantic market currently dominated by the three 

immunized legacy alliances. Norwegian International respectfully urges the Department, 

consistent with the timeframe established in 49 U.S.C. § 41710,2

 to grant its application

for an exemption together with an Order to Show Cause for the approval of a Foreign Air 

Carrier Permit no later than August 31, 2014. 

 

1 As the Department and the Opposing Parties are aware, John Byerly is advising Norwegian International 

in this proceeding.

2 See, e.g., Joint Application of Air Canada et al., Order 2009-1-18 (January 28, 2009), at 1; Joint 

Application of Alitalia-Linee Aeree Italiane-S.P.A. et al., Order 2005-12-12 (December 22, 2005), at 2; 

Texas Air-TWA Acquisition Case, Order 85-8-25 (August 9, 1985), at 1; Texas Air-Eastern Acquisition 

Case, Order 86-4-24, at 1 (April 9, 1986); USAir-Piedmont Acquisition Case, Order 87-7-32 (July 15, 

1987), at 3. 
3 

I. THE EUROPEAN COMMISSION CORRECTLY INTERPRETS THE 

MEANING AND APPLICABILITY OF ARTICLE 17 BIS

At the July 14 meeting, the Director offered the Commission’s perspective on two 

key legal points. First, “Article 17 bis does not provide a legal basis for unilaterally 

denying an application under Article 4 because (1) Article 4 makes no reference to 

Article 17 bis and (2) Article 17 bis itself does not formulate a legal rule that can be 

applied unilaterally by one party.” 3 Second, “any unilateral decision to deny an 

application using Article 17 bis runs against the letter and spirit of the Agreement.”4

 

Indeed, the Commission’s statements mirror the comments of Norwegian International in 

its Consolidated Reply of December 31, 2013 (the “Reply”): “Article 17 bis does not 

define any mandatory or prohibited labor practices, nor does it empower a Party, on the

basis of allegations related to the ‘social dimension’ such as those asserted by the 

Answering Parties, to take unilateral action to deny operating authority to an airline

that satisfies the requirements of Article 4.” 5 These statements decisively support 

immediate approval of Norwegian International’s application. Because Norwegian 

International has fully satisfied the requirements set forth in Article 4, which mandates 

that a Party “shall grant appropriate authorizations and permissions with minimum 

 

3 Notice at 2.

4 Notice at 3. The support for approval of Norwegian International’s application voiced by the Government 

of the Republic of Ireland (See Letter dated February 13, 2014, from Leo Varadkar, Irish Minister for 

Transport, Tourism & Sport to Secretary Anthony Foxx; Letter dated July 30, 2014, from John Fearon, 

Director General of Civil Aviation, Irish Department of Transport, Tourism & Sport to Paul Gretch, 

Director, Office of International Aviation) and by the Commission at the Joint Committee meetings on 

January 8, 2014 and June 10, 2014 make clear that the hypothetical possibility mentioned in the Notice that 

the parties might “decide together to deny an application using Article 17 bis” is not applicable to the 

application of Norwegian International. See DOT Notice in Docket No. OST-2013-0204, dated January 

31, 2014.

5 Reply at 8.
4 

procedural delay,”6 the Department is obliged under international law to grant Norwegian 

International’s application. 

The Commission’s view on the legal meaning of Article 17 bis is supported by 

established legal norms of treaty interpretation and is confirmed in the Joint Declaration, 

which states: 

[T]he following two statements expressed by the Director, as 

reported in the Notice, are consistent in every respect with our 

intentions as Delegation Chairmen at the time of the negotiation of

the Air Transport Agreement, including the negotiation of the text 

of Article 17 bis, and with our view of the meaning and 

applicability of the Agreement, including Article 17 bis, as 

intended by the Parties: (1) “Article 17 bis does not provide a 

legal basis for unilaterally denying an application under Article 4”; 

and (2) “any unilateral decision to deny an application using 

Article 17 bis runs against the letter and spirit of the Agreement.”7

These accepted principles should be given far greater weight by the Department

than the Opposing Parties’ feeble attempts to interpret the Agreement to suit their own 

narrow special interests.

II. INTERNATIONAL LAW SUPPORTS THE COMMISSION’S 

INTERPRETATION OF THE OPEN SKIES AGREEMENT

In interpreting an international agreement, the Department should apply the 

principles of customary international treaty law, as expressed in the Vienna Convention 

on the Law of Treaties (“VCLT”).8

 The VCLT establishes that what matters most is the

 

6 Open Skies Agreement art. 4.

7 See Joint Declaration of John Byerly and Daniel Calleja, attached hereto as Exhibit A. 

8 VCLT, opened for signature May 23, 1969, 1155 U.N.T.S. 331. Although the United States has not 

ratified the VCLT, the State Department considers it to reflect Customary International Law. See State 

Department, Vienna Convention on the Law of Treaties, http://www.state.gov/s/l/treaty/faqs/70139.htm

(“The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and 

consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the 

Law of Treaties to constitute customary international law on the law of treaties.”) (last accessed Aug. 5, 

2014); S. Exec. Doc. No. 65–118, at 1 (1971) (Secretary of State Rodgers emphasizing that VCLT “is 

already generally recognized as the authoritative guide to current treaty law and practice”). Certain U.S. 
5 

text: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning 

to be given to the terms of the treaty in their context and in the light of its object and 

purpose.”9 Here, the ordinary meaning of the terms of Article 17 bis in their context and 

the object and purpose of the Open Skies Agreement, including Article 17 bis, fully 

support the Commission’s position. 

A. THE ORDINARY MEANING AND CONTEXT OF ARTICLE 17 BIS

ESTABLISH NO SUBSTANTIVE OBLIGATIONS AND DO NOT 

EMPOWER A PARTY UNILATERALLY TO DENY OPERATING 

AUTHORITY TO AN AIRLINE OF THE OTHER PARTY

The ordinary meaning and context of Article 17 bis clearly align with the 

Commission’s and Norwegian International’s position that Article 17 bis (1) does not 

establish a legally binding rule and (2) does not enable a Party to unilaterally derogate 

from its obligations in Article 4.

1. Article 17 bis Does not Establish a Legally Binding Rule. 

As the Commission correctly stated, the text of Article 17 bis “does not formulate 

a legal rule” that would enable a Party to deny an application under Article 4. 10 

International Court of Justice cases distinguish as binding those texts that carry specific 

 Courts of Appeals follow the principles in the VCLT. See, e.g., Kreimerman v. Casa Verrkamp, 22 F.3d 

634, 638 (5th Cir. 1994). The Supreme Court, although not expressly endorsing the VCLT, does not 

diverge substantially from its approach. See, e.g., Abbott v. Abbot, 560 U.S. 1, 10-20 (2010) (analyzing a 

convention’s text, objects and purposes, subsequent state practice, and negotiating history). In interpreting 

international agreements, the Supreme Court also gives special deference to the views of the Executive 

Branch (which has not opined in this case), and “considerable weight” to the “opinions of ... sister 

signatories,” which in this case would include the opinion of the European Commission – the treaty 

representative of the European Union. See id. at 12. 9 VCLT art. 31(2) defines “context” as including text, preamble and annexes, as well as contemporaneous 

instruments and agreements made by the parties to the treaty “in connection with the conclusion of treaty.” 

Moreover, per VCLT art. 31(3), subsequent agreements and practice establishing agreement between the 

parties in interpretation, and relevant international law rules shall also be taken into account. In addition, 

supplementary means of interpretation, such as preparatory works, may also be used to confirm the 

meaning resulting from the text, or determine the meaning when textual analysis leads to an ambiguous or 

unreasonable result. See VCLT art. 32. 10 Notice at 2. 
6 

obligations or rights (binding) from text that is aspirational or “hortatory” (not binding).

11 

Where treaties intend to create obligations or rights, their text expresses as much through 

mandatory language, such as “the [Parties] undertake,” 12or “the Parties shall.” In this 

case, the ordinary meaning of the text of Article 17 bis is aspirational, e.g. “the Parties 

recognize the importance,” “the opportunities are not intended to.”13 The inclusion of

“the principles ... shall guide the Parties” — though it uses “shall” — is also aspirational. 

The definition of “guide” — to “direct or lead” or “direct or influence the thoughts or 

behavior of”14 — makes clear that the paragraph is not a binding legal rule, but rather a 

guideline. Moreover, “the Parties” are the object in the provision, rather than the subject

taking on a legal obligation or right (in contrast with “the [Parties] undertake” or “shall 

apply”) above. If the Parties had wanted to establish a clear obligation, they could have 

easily done so in the text of Article 17 bis. They did not, and as confirmed in the Joint 

Declaration, this was not their intent.15

By contrast, the Parties did use such mandatory language in other contexts – for 

example, in Articles 4 and 6 bis. Unlike Article 17 bis, Article 4 and Article 6 bis both 

establish clear obligations. Article 4 states that “[t]he Party shall grant appropriate 

 

11 See, e.g., ICAO Council Case, 1972 ICJ 92, 107, fn. 1 (J. Dillard) (“treaties establishing functioning 

institutions frequently contain articles that represent ideals and aspirations which, being hortatory, are not 

considered to be legally binding except by those who seek to apply them to the other fellow. On the other 

hand there are other articles which are generally recognised as imposing definite legal obligations.”). 12 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos. v. 

Serb.), 2007 ICJ 43, 103-11 (Feb. 26) (Court identified ordinary meaning of “undertake” as a “formal 

promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a 

word regularly used in treaties setting out the obligations.”). 13 Open Skies Agreement art. 17 bis (as amended by June 2010 Protocol).

14 WEBSTER’S DICTIONARY, http://www.merriam-webster.com/dictionary/guide (last accessed Aug. 6, 

2014).

15 See Joint Declaration, ¶ 8.
7 

authorizations and permissions with minimal procedural delay.”16 Similarly Article 6 bis

states that “the . . . Party shall recognize any fitness and/or citizenship determination

made by the first Party with respect to that air carrier as if such a determination had been 

made by its own aeronautical authorities.”17

As the Commission articulated at the Brussels meeting,

18 Article 17 bis must be 

interpreted in light of Article 4 in connection with a Party’s decision to grant or deny a 

license application. Article 4 lays out clear criteria – all of which are met in this case – 

that obligate a Party to grant an authorization subject to specific exceptions (referring to 

ownership and control requirements, qualification to “meet the conditions prescribed 

under the laws and regulations normally applied,” and Articles 8 (safety) and 9 

(security)), which do not include Article 17 bis.19 Thus, were the Department to deny on 

the basis of Article 17 bis, the United States would be in breach of its binding obligations

under Article 4. 

Finally, context also clarifies that Article 17 bis creates no binding obligations for 

an airline. Consider, by way of contrast, Article 7, which expressly requires airlines to 

comply with “laws and regulations of a Party relating to the admission to or departure 

from its territory.”20 The language of Article 17 bis contains no such binding provision 

on airlines with respect to labor standards. 

 

16 Open Skies Agreement art. 4. 

17 Open Skies Agreement art. 6. 18 Notice at 2 (Director stating that “Article 4 makes no reference to Article 17 bis.”).

19 Were Opposing Parties’ views correct, one would also expect to see in Article 5 (Revocation of 

Authorization) a reference to Article 17 bis as grounds for unilateral revocation of the operating 

authorization of the Party’s airline, but Article 5 contains no such reference. Rather, Article 5 refers solely 

to Article 7 (Application of Laws, which includes various requirements for airlines with respect to

admission and departure from territory but no reference either to Article 17 bis or to any “social dimension” 

laws or principles), Article 8 (Safety), and Article 9 (Security). 

20 Open Skies Agreement art. 7, ¶ 1. 
8 

2. Article 17 bis Does not Empower a Party to Unilaterally Deny 

Operating Authority to an Airline of the Other Party.

Even if Article 17 bis were deemed to embody a legal rule, that rule would be 

limited to joint action by the Parties and thus would not be a basis for unilateral denial. 

The text of Article 17 bis contemplates joint action only. As the Commission observed in 

the Notice, the text refers solely to the plural: “Parties as they implement” and “regular 

consideration by the Joint Committee, pursuant to Article 18, of the social effects of the 

Agreement and the development of appropriate responses found to be legitimate.”21 The 

text of Article 17 bis explicitly references Article 18, which – using the same language as 

Article 17 bis – charges the Joint Committee to “develop cooperation by: ... considering 

the social effects of the agreement as it is implemented and developing appropriate 

responses to concerns found to be legitimate.”22 Nothing in Article 17 bis refers to action 

by “a Party,” and nothing in Article 17 bis empowers “a Party” to take unilateral action. 

Rather, the references to “the Parties” and to “the Joint Committee” — which “shall 

operate on the basis of consensus”23 — thus exclude unilateral actions.24

Furthermore, where the Open Skies Agreement intends to distinguish between 

joint action or views of “the Parties” as opposed to unilateral actions by “a Party,” the 

Agreement uses precisely those terms. For example, in paragraph 1 of amended Article 

15, similar to Article 17 bis, the text states “[t]he Parties recognizee the importance” of 

protecting the environment.

25 Paragraph 2 of Article 15 then states that “[w]hen a Party

 

21 Open Skies Agreement art. 17 bis (as amended by June 2010 Protocol).

22 Open Skies Agreement art. 18(4)(b) (as amended by June 2010 Protocol art. 5).

23 Open Skies Agreement art. 18, ¶ 6. 24 Expressio unius est exclusio alterius (“The expression of one thing is the exclusion of another”). 25 Open Skies Agreement art. 15 bis (as amended by June 2010 Protocol).
9 

is considering ... it should evaluate ...”26 In other words, had the United States and 

European Union wished for Article 17 bis to authorize unilateral action by “a Party,” they 

could easily have done so – the Agreement, however, reflects a different conclusion. 

B. THE OBJECT AND PURPOSE OF THE OPEN SKIES AGREEMENT 

SUPPORT THE COMMISSION’S VIEWS

The central goal of the Open Skies Agreement was to open air service markets. 27

This core “object and purpose” of the Agreement fully supports the textual analysis 

above that precludes one Party from unilaterally limiting market access on the basis of 

Article 17 bis. The preamble expresses the desire to “promote . . . competition among 

airlines in the marketplace with minimum government interference and regulation,” 

expand “international air transport opportunities,” and enable airlines “to 

offer...competitive prices and open markets.” Indeed, three former Secretaries of 

Transportation — Andrew Card, Norman Mineta, and Mary Peters — have confirmed

that these guiding principles of breaking down barriers and increasing competition are the 

core values the U.S. has sought to promote in Open Skies agreements.28

 

26 Id.

27 See Answer of Federal Express Corporation (Feb. 12, 2014), at 3-4 (“There is not a single labor law 

standard in the [Agreement] under which all carriers must operate. The history of the agreement clearly 

demonstrates that it was intended to permit application of the individual national laws governing 

employee/employer relationships, rather than to set up a single trans-Atlantic labor standard. While some 

participant in the talks did seek for the U.S. to submit itself to a single labor standard along with Europe, 

that view did not prevail.”). 28 See Norman Mineta and Mary E. Peters, Open the Skies to Norwegian Air, THE HILL (April 9, 2014), 

available at http://thehill.com/opinion/op-ed/202974-open-the-skies-to-norwegian-air (“Recognizing the 

benefits of deregulation for consumers and the U.S. airline industry, in the early 1990s, the George H.W. 

Bush Administration announced an initiative to pursue the equivalent of domestic deregulation in the 

international arena through a policy called Open Skies. True to its name, this policy opens international 

aviation markets through air service agreements that remove restrictions on the destinations, the frequency 

and capacity of flights, and the fares that American and foreign airlines may offer their customers.”); 

Andrew Card, Don’t Let the Big Guys Block Norwegian, AVIATION WEEK (June 9, 2014) (“As 

transportation secretary under President George H.W. Bush, I was honored to participate in the negotiation 

of the first open-skies treaty, signed in 1992 with the Netherlands. Since then, my successors at DOT in the 

Clinton, George W. Bush and Obama administrations have continued to break down barriers in the 
10

The Parties expected the opening and large-scale economic deregulation of the 

transatlantic market to benefit not only consumers and economic development but also all 

sectors of the air transport industry itself, “including airline workers.”29 Article 17 bis’s 

specific language concerning “opportunities” “not intended to undermine labor 

standards” is noticeably absent from both the 2007 preamble and the preamble to the

2010 protocol, showing such “intentions” to be even more peripheral from the

Agreement’s central objective.

In the Open Skies Agreement of 2007, the Parties provided in paragraph 4 of 

Article 18 that “[t]he Joint Committee shall also develop cooperation by: ... (b) 

considering the social effects of the Agreement as it is implemented and developing 

appropriate responses to concerns found to be legitimate.” 30 This language, as noted 

above, is focused solely on “cooperation” between the two Parties and creates no legal 

basis for unilateral action to deny authorization for an airline of the other side. This

proscription of unilateral action was left untouched by the 2010 Protocol, concluded at 

the end of the second stage of negotiations. 

The focus in 2007 on cooperation and the absence of any authorization for 

unilateral action were not changed by the addition of Article 17 bis in 2010. The object 

and purpose of Article 17 bis was not to reverse the liberalization of the transatlantic 

market and the encouragement of vigorous airline competition achieved in 2007. Rather, 

the purpose was to give formal expression to the Parties’ intention, as they moved 

 

international aviation marketplace by concluding open-skies agreements with over 100 countries

worldwide.”).

29 Open Skies Agreement, pmbl. 30 Open Skies Agreement art. 18, ¶ 4.
11

forward to “implement the agreement,” to be “guided” by principles linked to the social 

dimension of the Agreement. 

In particular, Article 17 bis recognized the concerns of labor regarding the future 

implementation of the Parties’ new commitment, added to Article 21 in 2010, “to the 

shared goal of continuing to remove market access barriers ... including enhancing the 

access of airlines to global capital markets.”31 As noted in Norwegian International’s 

Consolidated Reply of December 31, 2013, 32 the European Union had sought in the 

second-stage negotiations to liberalize U.S. law requiring that air carriers be owned and 

controlled by U.S. citizens, a proposal strongly opposed by U.S. labor unions. Although 

the United States did not accept the EU proposal to seek immediate changes to U.S. 

statutes, it did agree to the language in Article 21 (“Further Expansion of Opportunities”), 

which was understood as a reference to liberalization of these statutory restrictions on 

foreign investment.33

It was the European Union, not the United States, that proposed the inclusion of a 

“social dimension” article in the Open Skies Agreement. This occurred at the 

penultimate round of the second-stage negotiations, by which time it was clear that the 

United States would not agree to seek immediate changes to U.S. statutory restrictions. 

The object and purpose of these amendments in 2010 was to link the “further expansion 

of opportunities” envisioned in Article 21 with the “guidance” to the Parties on the 

“social dimension” in Article 17 bis. As both articles make clear, the Joint Committee 

would bear responsibility for defining how to achieve expanded opportunities in a 

 

31 Open Skies Agreement art. 21, ¶ 1. 32 Reply at 10-12. 33 Id.
12

manner consistent with social dimension concerns. The Joint Committee is itself 

required to “operate on the basis of consensus”34 – in other words jointly, not unilaterally. 

The Director confirmed that “any unilateral decision to deny an application using 

Article 17 bis runs against the letter and spirit of the Agreement.” 35 The reasons 

underpinning this position with respect to the letter of the Agreement have been 

examined in depth above. As to the spirit of the Agreement, from the perspective of the 

European Union, the primary and motivating purpose of negotiating a comprehensive air 

transport agreement with the United States was to secure American acceptance of the 

fundamental “right of establishment” guaranteed by the treaties establishing the EU.36 

Indeed, the Commission received a mandate from the Member States to negotiate with 

the United States only after a 2002 decision of the European Court of Justice (“ECJ”).37 

The ECJ held that nationality clauses in individual Member States’ agreements with the 

U.S. — i.e., the clauses granting rights only to airlines substantially owned and 

effectively controlled by nationals of the individual Member State that was party to an air 

services agreement with the U.S. — violated this fundamental right.38 The Commission 

achieved this legally-compelled negotiating objective through the acceptance by the 

United States of the “Community Airline” concept: the right of any airline owned and 

controlled by Europeans (including Norwegians) and licensed by any EU Member State 

(such as Ireland) to fly from any point in the EU to any point in the United States.

 

34 Open Skies Agreement art. 18, ¶ 6. 35 Notice at 3. 36 See Reply at 9, fn. 20.

37 See Charles Hunnicutt, U.S.-EU Second Stage Air Transport Agreement: Toward an Open Aviation 

Area, 39 GA.J.INT’L & COMP.L. 663, at 674-5. 38 See, e.g., Comm’n v. United Kingdom, C-466/982002 E.C.R. I-09427; Comm’n v. Denmark, C467/98 2002 E.C.R. I-09519. 
13

The “social dimension” language that became Article 17 bis cannot contradict this 

fundamental right, as the Opposing Parties would suggest. To do so would place the 

United States in fundamental disagreement with the Agreement itself, the stated legal 

position of the Commission, and the views of the lead negotiators for both sides as 

confirmed in the Joint Declaration. It would ultimately result in a material breach of the 

Open Skies Agreement.

After concluding Open Skies agreements with 113 countries around the world – 

the most recent with Equatorial Guinea this month – and trumpeting the benefits of Open 

Skies to other governments for over two decades, no basis exists for the Department to 

renege on its side of the Open Skies bargain with the European Union. Granting 

Norwegian International’s application will reassure our Open Skies partners that the 

Department’s commitment to Open Skies is clear and unwavering.

III. NORWEGIAN INTERNATIONAL’S SERVICE WILL PROMOTE THE 

BENEFITS SOUGHT BY THE FRAMERS OF U.S. OPEN SKIES POLICY

The Department has recognized that where the operating authority sought by a 

carrier is authorized by a bilateral agreement, then the public interest in preserving 

international comity virtually demands approval of the requested authority.39 With the 

Commission having stated its view that Article 17 bis does not provide a basis for the 

U.S. to unilaterally deny an application, there is no doubt that Norwegian International 

meets the two conditions for approval of foreign air carrier permits set forth in 49 U.S.C. 

 

39 See Attachment to Joint Applications of Delta/Air France (#98-303) and Continental/Air France (#98-

330) for Statements of Authorization under 14 CFR 212 (Aug. 6, 1998) (“It is our policy in determining the 

public interest to consider a number of factors, most importantly, the extent to which the authority sought is 

covered by and consistent with bilateral agreements.”); see also S. REP. NO. 96-329, at 4 (1979), reprinted 

in 1980 U.S.C.C.A.N. 54, 57 (“[T]he negotiation of a bilateral agreement itself represents a determination 

by the Government of the United States that the grant of route authority provided for under the bilateral is 

in the ‘public interest.’”).
14

§ 41302: it is (1) “fit, willing and able” to provide the foreign air transportation that it 

seeks to offer and (2) “qualified . . . to provide the foreign air transportation under an 

agreement with the United States Government.” The Department should act in 

accordance with its well-established precedents and advance the public interest by 

approving Norwegian International’s application. 

Recognizing the public benefits and real-world opportunities presented by 

Norwegian International’s proposed service, former Secretaries Card, Mineta, and Peters 

— who collectively oversaw 45 of the Open Skies agreements now in effect — have 

urged the Department to let Norwegian International fly. Mineta and Peters recently 

wrote that “[b]y promptly approving Norwegian Air International's application to serve 

the United States, the Department of Transportation has the opportunity to uphold the 

cornerstone of one of America's most successful policy reforms – and grow the economy 

and benefit consumers in the process.” 40 Similarly, Card has noted that approval of 

Norwegian International’s application could advance the Obama administration’s goals

of “promoting international tourism and a major reduction in barriers to trade between the 

U.S. and EU,” as well as demonstrating its commitment to broader trade liberalization.41

Norwegian’s motto – “everyone should afford to fly” – captures the benefits of 

Open Skies noted by the three former Secretaries. 42 By challenging the dominant 

position of the legacy alliances on transatlantic routes, Norwegian International will

promote competition and lower fares in the marketplace. Norwegian’s experience in 

 

40 Norman Mineta and Mary Peters, Open the Skies to Norwegian Air, THE HILL (April 9, 2014). 41 Andrew Card, Don’t Let the Big Guys Block Norwegian, AVIATION WEEK (June 9, 2014). 42 These advantages have also been recognized in endorsements by USA Today and The Wall Street 

Journal. See Editorial, Let Discount Norwegian Fly: Our View, USA TODAY (May 18, 2014) available at

http://www.usatoday.com/story/opinion/2014/05/18/norwegian-air-cheap-flights-pilots-union-editorialsdebates/9255831/; Editorial, Free the Viking Skies, WALL STREET JOURNAL (May 14, 2014) available at

http://online.wsj.com/news/articles/SB10001424052702304914904579435022628612110?mg=reno64-wsj. 
15

Europe is that lower fares increase total demand for tickets – allowing many people to fly 

who previously could not afford to. Norwegian International’s affiliates, Norwegian Air 

Shuttle and Norwegian Long Haul, have experienced passenger load factors above 90% 

in their first year of serving the U.S., even while the legacy carriers report similarly high 

load factors – suggesting huge suppressed demand for international travel on both sides 

of the Atlantic. By 2021, Norwegian International estimates that it will have flown just 

short of 14 million passengers between the U.S. and Europe, providing more customers 

for the U.S. travel and tourism industries, and helping Norwegian International be an 

even better partner of the U.S. aviation industry, which it already supports as one of the 

largest operators of Boeing aircraft in Europe.43

Norwegian International’s support for the U.S. economy extends from the airports 

in previously-underserved markets where it has announced new or expanded transatlantic 

service, to the local communities where its U.S.-based cabin crew members reside. 

Norwegian International thus presents the exact case that the three former Secretaries had 

in mind when they described the ways in which Open Skies policy serves the public 

interest in an open letter to the U.S. Congress, noting that Open Skies agreements have 

“have been an economic generator of jobs and opportunity here at home, increased 

America’s global competitiveness, and strengthened our domestic aviation industry.” 44

Norwegian International’s application is compelling both because of its legal 

merits – including the interpretation of Article 17 bis advanced above – and because of 

 

43 Norwegian’s role as one of Boeing’s leading customers will not just pay off for Boeing employees in 

states like Washington and South Carolina. The efficiency of its Boeing 787 Dreamliner and Boeing 737-

MAX fleet has led Norwegian to announce an ambitious goal of lowering emissions per flown passenger 

by 30 percent by 2015. Helping to reduce the environmental consequences of air travel is just one more of 

the many ways in which Norwegian International’s application presents a winning case for approval. 44 Letter from Andrew Card, Norman Mineta, and Mary Peters to the U.S. Congress (July 15, 2014) 

available at http://www.openourskies.com/an-open-letter-to-the-u-s-congress/. 
16

the public benefits that its service would provide. Few other carriers that promise to 

offer so much to the U.S. public have been asked to wait so long for approval from the 

Department. Norwegian International respectfully requests that the Department heed the 

deadline established in 49 U.S.C. § 41710, and approve its application for an exemption 

and foreign air carrier permit without further delay. 

Respectfully submitted,

Josh Romanow Peter Nelson

PILLSBURY WINTHROP SHAW PITTMAN LLP

2300 N Street, N.W. 

Washington, D.C. 20037 

Tel: (202) 663-8000 

Fax: (202) 663-8007 

romanow@pillsburylaw.com 

peter.nelson@pillsburylaw.com 

August 18, 2014 Counsel for NORWEGIAN AIR 

INTERNATIONAL LIMITED
CERTIFICATE OF SERVICE

The undersigned certifies that on August 18, 2014, a true and correct copy of the 

foregoing Comments of Norwegian Air International Limited was served by electronic 

mail on the individuals identified below:

Dan Weiss

United Airlines

dan.weiss@united.com 

Sascha Van der Bellen

Delta Airlines

sascha.vanderbellen@delta.com

Malcolm L. Benge

Counsel for North 

American/World Airways

mlbenge@zsrlaw.com

Russell E. Pommer

Atlas Air Inc.

rpommer@atlasair.com

Russell Bailey

Jonathan A. Cohen

Air Line Pilots Association, Int’l

russell.bailey@alpa.org

jonathan.cohen@alpa.org

Edward Wytkind

Transportation Trades 

Department, AFL-CIO 

edw@ttd.org

J. Christopher Lytle

Port of Oakland

clytle@portoakland.com

Kent George

Broward County Aviation 

Department

kgeorge@broward.org

Mark Richardson

Southwest Airlines Pilots’ 

Association

mrichardson@swapa.org

Robert Wirick

Francis Heil

Howard Kass

American Airlines, Inc.

U.S. Airways, Inc.

robert.wirick@aa.com

francis.heil@aa.com 

howard.kass@aa.com

Airline Info

info@airlineinfo.com

Nick Tsokris

Jesse Elliot

John Chen

FAA New York IFU

jesse.elliot@faa.gov

nicholas.tsokris@faa.gov

john.chen@faa.gov

John M. Allen

Director, Flight Standards

Federal Aviation Administration

john.allen@faa.gov

Anita Mosner

Jennifer Nowak

Counsel for UPS

Holland & Knight

anita.mosner@hklaw.com

jennifer.nowak@hklaw.com

Nancy S. Sparks

Bailey Leopard

Federal Express Corporation

nssparks@fedex.com

gbleopard@fedex.com

David Berg

James L. Casey

Keith A. Glatz

Airlines for America

dberg@airlines.org

jcasey@airlines.org

kglatz@airlines.org

Celine Canu

European Cockpit Association

cc@eurocockpit.be

Edgar N. James

Allied Pilots Association

ejames@jamhoff.com

Thomas S. Engle

Department of State

EngleTS@state.gov

Steve Shur

Travel Technology Association

sshur@traveltech.org

Eugene Alford

Department of Commerce

eugene.alford@trade.gov

Matthew Baldwin

Director of Air Transport

European Commission

Matthew.Baldwin@ec.europa.eu

Emmanuelle Maire

DG-MOVE

European Commission

Emmanuelle.Maire 

@ec.europa.eu

David Batchelor

SESAR Joint Undertaking

Delegation of the European 

Union to the USA

David.Batchelor@sesarju.eu

Ottar Ostnes

Director General, Norwegian 

Ministry of Transport and 

Communications

Ottar.Ostnes@sd.dep.no 

John Hanlon

European Low Fares Airline 

Association

John.Hanlon@ELFAA.com 

Paul Gretch

Robert Finamore

U.S. Department of 

Transportation

paul.gretch@dot.gov 

Robert.Finamore@dot.gov

Charles Leocha

Travelers United

Charles.Leocha@travelersunited.org

Keith Meurlin

Washington Airports Task Force

keith@washingtonairports.com 

Paul Ruden

American Society of Travel Agents

pruden@asta.org 

Roger Dow

U.S. Travel Association

rdow@ustravel.org

/s/ Peter Nelson

Peter Nelson
EXHIBIT A

JOINT DECLARATION 

OF JOHN BYERLY AND DANIEL CALLEJA