Friday, May 1, 2009
Michael Goldman, a named partner at the Washington, D.C. law firm Silverberg Goldman & Bikoff, has issued a white paper at Air Transport World entitled, "Elections Do Have Consequences: The Case for a New US-EU Stage Two Agreement." The title is a curious one since the 2007 U.S./EC Air Transport Agreement explicitly contemplates negotiations for a second stage agreement; no "case" needs to be made for one. Cf. Air Transport Agreement, art. 21, 2007 O.J. (L 134) 4. Arguably, however, there remains plenty of room to agitate for the specific content of a second stage agreement. Goldman believes--no doubt quite rightly--that the chances for progress to be made on liberalizing the U.S.'s rules on foreign ownership and control of airlines are slim. That doesn't mean, according to Goldman, that all hope for the second stage is lost. According to Goldman, the second stage could still yield "breathtaking" results in the form of "a substantial expansion of [seventh] freedom traffic rights; arrangements for mutual recognition of each side's greenhouse gas emissions/cap and trade regimes; resolution of the contentious environmental dispute on regulation of aircraft noise near airports; and the harmonization of transatlantic security rules."
While all of these potential elements of a second stage agreement are worthy of reflection, Goldman's optimism that an expansion of seventh freedom traffic rights is "achievable" may be unwarranted. Goldman asserts that "a broad exchange" of seventh freedom rights will "provide for balance" between both sides. As it currently stands under the 2007 Agreement, the U.S. recognizes the internal EC construct of the "Community air carrier," meaning all EU carriers are eligible for designation by all Member States for seventh freedom passenger/cargo combination services from both EU and European Common Aviation Area States. See Air Transport Agreement, supra, art. 3(1)-(3). The 2007 Agreement also provides for unrestricted reciprocal seventh freedom all-cargo rights, except that the U.S.'s rights are limited to the Czech Republic, France, Germany, Luxembourg, Malta, Poland, Portugal, and the Slovak Republic. See id. Annex 1, sec. 3. These rights are in addition to the exchange of unrestricted reciprocal third, fourth, and fifth freedoms which have long been part of the U.S.'s "Open Skies" template. It appears that Goldman perceives the absence of reciprocal seventh freedom passenger/cargo combination services and truly unrestricted all-cargo sevenths for U.S. airlines as creating an imbalance. But is this view tenable or, rather, does this view have equal purchase on both sides of the Atlantic?