The division of external competence between the EU and the member states in the field of civil air transport

Abstract

Progress in the establishment of an external air transport policy of the EU has been a slow development hindered by issues of compatibility with international norms and the split of competences between the EU and the Member States. Over the years, the European Commission has sought exclusivity in competence in its external dealings, which was met with reluctance on the part of the Member States who were hesitant to cede their own say in the matter. A radical change in approach was met with the advent of the landmark case known as the Open Skies judgement which has essentially served to give claim the necessary backbone to persuade the Council to grant a mandate. The case established that the Member States were in violation of their Treaty obligations both with regards to intruding into the field of EU competence as well as incorporating a nationality clause which was in breach of the freedom of establishment enshrined in the Treaty. Therefore, this thesis aims to analyse such circumstances both prior the landmark Judgement as well as after, considering relevant issues. The international background shall be consulted for the appreciation of the principles involved together with a backward glance to the establishment of a common transport policy over the years. Furthermore, the generic EU law principles such as the express and implied powers of the Union shall be studied, considering also other landmark case law which though low in number are of high value in their findings. Thus begins the exploration into the historic claim to exclusive competence prior to the Open Skies judgements elucidating the difficulties encountered and the reluctance of the Member States and the Council to cooperate, which was interpreted as a judgement against the necessity of having an EU external competence. Finally, analysis shall be made of the situation after the judgement and its after effects, the Commission's bolstered approach to proposing the Council for the Mandate as well as arguments for and against the legality of the concept of Community Designation Clause.