WRITTEN QUESTION E-3511/02

by Erik Meijer (GUE/NGL) to the Commission

(10 December 2002)

Subject: Court of Justice judgment concerning bilateral aviation agreements concluded by EU Member States with other states and the implications for Member States which fail to comply with that judgment

1. Has the judgment handed down by the Court of Justice on 5 November 2002 concerning the involvement of EU Member States in bilateral aviation with the United States given rise to a contradictory state of affairs, in that, although the Court confirmed that competence to conclude agreements of this kind no longer rests with individual Member States, but rather with the European Union as a whole, it also stipulated that existing bilateral agreements should continue to apply, because not only the Member State concerned, but also a third state, enjoys rights under such agreements?

2. Was the contradictory state of affairs referred to above the reason which prompted the Commission, on 20 November 2002, to urge the Member States to take the opportunity voluntarily to terminate all bilateral aviation agreements with the United States within one year, otherwise it would declare all existing agreements null and void, either with immediate effect or retrospectively? Alternatively, was the Commission merely endeavouring to arrange a transitional period during which a fresh agreement between the EU and the United States can be drawn up?

3. Why did the Commission wait before issuing a call to the Member States until the Court of Justice handed down a judgment, even though it was already convinced that competence to conclude bilateral aviation agreements with third countries should be transferred to it and even though it could be predicted in advance that the Court judgment would not be completely binding?

4. What will happen if one or more Member States refuse to terminate their existing aviation agreements with the United States?

5. In connection with the aviation agreements, could a situation arise similar to that referred to in Written Question E-1609/02(1) on national tax cuts on oil products used by professional road hauliers, whereby the Member States agree jointly to ignore the Commission's calls, not to criticise other Member States' actions, not to impose penalties for breaches of rules they no longer regard as desirable and not to open EU negotiations with the United States?

(1) OJ C 309 E, 12.12.2002, p. 145.

Answer given by Mrs de Palacio on behalf of the Commission

(13 February 2003)

1. The -judgement of the Court of Justice of 5 November 2002 has confirmed that the so-called nationality clauses in bilateral air services agreements are contrary to Community law. As a consequence these agreements will have to be made compatible with Community law as soon as possible, in order to create legal certainty. The Court also established that certain elements of these agreements fall within the exclusive external competence of the Community. Although the existing agreements between Member States and the United States have been found to infringe Community law, this does not mean that the agreements could have been declared void under international law.

2. Member States are under a legal obligation to give immediate effect to judgements of the Court of Justice. In that respect a denunciation of the contested agreements would be the appropriate response to the Court's judgement. Until the denunciation takes effect, normally within one year after the notice of denunciation is given, the agreements remain in force under international law and the Community should be in a position to negotiate in order to substitute the existing agreements with a Community/United States agreement.

3. At various times since the completion of the internal market for civil aviation in 1993, the Commission has formally requested the Member States to bring their bilateral aviation agreements into conformity with Community law, eventually by activating the denunciation procedures forseen in the agreements with the United States, stated by the Commission in its Communication dated 19 November 2002(1).

4. If the Member States do not take the necessary measures to comply with the Judgement of the Court of Justice, the Commission will have no alternative other than to enter into the procedures under Article 228 procedure of the EC Treaty. Operators affected-by the infringements identified by the Court are of course entitled to use the appropriate legal procedures to protect the rights deriving directly from the EC Treaty.

5. The Commission is encouraged by the fact that Member States have confirmed their intention to give appropriate effect to the judgement of the Court.

(1) COM(2002) 649 final.