April 1, 2010
Unmanned Aerial Exposure
Blog readers may be interested in reading Geoffrey Christopher Rapp's Unmanned Aerial Exposure: Civil Liability Concerns Arising from Domestic Law Enforcement Employment of Unmanned Aerial Systems, 85 N. Dakota L. Rev. 623 (2010) (available from SSRN here). From the abstract:
Unmanned Aerial Vehicles (UAVs) have proven their worth on the battlefields of Iraq, Afghanistan and Lebanon. UAVs offer a relatively low-cost, low-risk alternative to manned aircraft in the military setting.
The same advantages have led many to see natural applications for UAVs in a domestic setting. Technological advances in communications, control, and optics in recent decades will no doubt increase pressure to introduce UAV systems for a host of domestic applications. In the coming years, law enforcement agencies will seek to use UAVs to police borders, control crowds, track criminals, detect illegal narcotics activities, and spot crime. Other potential civilian uses include mineral and energy exploration, agricultural surveys, communications relay, and wildfire monitoring. The revolution is coming.
Significant administrative and regulatory hurdles will confront policymakers as they seek to integrate UAVs into the domestic airspace system.This Article, a contribution to a symposium on UAVs sponsored by the North Dakota Law Review, explores the narrower issue of civil liability arising from the operation of UAVs by law enforcement authorities. Tort law has a well established body of rules and doctrines dealing with civil liability surrounding traditional aviation. This Article assumes that the legal hurdles to operating UAVs in the national airspace system are surmounted, and then speculates about potential civil liability concerns should things, as they always do, go wrong.
March 31, 2010
Illegal Aid for Air France?
Irish low-cost carrier Ryanair filed suit against the French Government earlier this month on the grounds it provided illegal State aid to Air France-KLM. See Heather Smith, Ryanair Sues French Government Over Air France Aid, Irish Independent, Mar. 31, 2010 (available here). Air France filed a seperate complaint before the European Commission, alleging that Ryanair receives illegal aid from French regional airports. See Peppi Kivinemi, Air France Files Complaint at EU Against Ryanair, Dow Jones Newswires, Mar. 11, 2010 (available here).
Neither carrier is a stranger to State aid charges. Since 2004, Ryanair has been in frequent contention with the Commission concerning special tax breaks, landing fee reductions, and other compensation the airline receives in exchange for providing scheduled service to regional airports across the EU. See earlier blog posts on Ryanair here, here, and here. In 1991 and 1994, the French Government injected billions of dollars in aid into its compagnie nationale. While the transactions received scrutiny from the Commission, both were ultimately cleared. See Andrew Marshall et al., EC Caves In Over Air France State Aid, Independent (London), July 28, 1994 (available here).
March 30, 2010
Antitrust: A Game of Two Sides
Prof. Brian Havel is featured in this month's Airline Business article, "Antitrust: A Game of Two Sides" by David Knibb (available here). From the summary:
With alliances seeking anti-trust immunity on their Atlantic and Pacific networks, regulators and airline lawyers have their hands full. But what is the framework for these complex investigations and how do you please every jurisdiction?
March 29, 2010
First Thoughts on U.S./EU Protocol
Whatever merits possessed by the brand new "second stage" Protocol to the 2007 U.S./EU Air Transport Agreement, they are overshadowed by the inability of the parties to reach a concrete deal on lifting U.S. foreign ownership restrictions for airlines. At the same time, to be fair, it is worth mentioning that few (if any) really believed the U.S. was prepared to endow EU Member States or their nationals with substantial investment rights. The Democrats are beholden to labor and labor has made it loud and clear that liberalizing crossborder airline investment is not in their interests. What were U.S. negotiators supposed to do? They couldn't very well promise the Europeans rights they had no authority to give. As for the EU, it could have tried to play hardball. Perhaps issuing a notice of suspension this November would have woken Congress up. Or maybe it would have sparked an aviation trade war that would have been needlessly destructive to both sides' airlines.
Now the threat of suspension is gone. If the Protocol is adopted by the EU Council of Ministers in June, Article 21 of the 2007 Agreement, which contains the suspension clause, see earlier discussion of the clause here, will be deleted and replaced with new provisions which condition additional traffic rights for both parties on each side taking further action to meet the other's demands. For the EU, once it takes the necessary legislative steps to give the European Commission authority to oversee (and potentially revoke) night flight restrictions at EU Member State airports, EU airlines will be given seventh freedom rights for passenger and combination passenger/cargo service from five points in the U.S. So, for example, Lufthansa could operate a stand alone Chicago/Sao Paulo service if the new rights are triggered. For the U.S., once it provides EU Member States and their nationals the right to own and control its air carriers, U.S. airlines will receive seventh freedom passenger and combination service rights from five points in EU territory.
Will this contingent exchange of new traffic rights for additional concessions work? Given the priority the U.S. assigned to the night flight restrictions issue during the negotiating rounds, it would have made more sense for the EU to hinge reforming its night flight rules on being granted further U.S. investment opportunities. As it stands, the U.S. has very little incentive to take bold action on foreign ownership when all that awaits are limited seventh freedom rights--rights which U.S. air carriers are unlikely to use so long as they have alliance partners to help them provide worldwide service.
Unlike the 2007 Agreement, the Protocol provides no timetable for future negotiations. The U.S. could take no action on foreign ownership rights for a decade and risk nothing. In the meantime, the EU continues to pursue comprehensive air services agreements which envision full crossborder investment opportunities and the right of both parties to establish new airlines in the other's territory. As "progressive" as the first U.S./EU Agreement was when it was signed just three years ago, it could quickly look like a dinosaur if the EU continues to find success in providing authentic liberalization with global partners such as Canada, Australia, and its regional neighbors.