Saturday, October 8, 2011

Advocate General Claims EU Not Bound by Chicago Convention

Given the length of the advocate general's opinion yesterday and the number of legal issues involved, analysis will be conducted in pieces over the course of multiple blog posts this week and next. One of the most surprising assertions in the advocate general's opinion was that the EU was not bound by the Chicago Convention. The advocate general bases this finding on the fact that the EU, as a body, has never signed the Convention. According to the opinion, the reality that each of the EU member states has signed the Convention does not obligate the EU in any way, as "the European Union itself does not enter into any international-law commitments towards the third countries concerned as a result of existing treaties concluded by Member States." The opinion also dismisses the functional succession theory the ECJ had previously endorsed in a case involving the EU's GATT. Under that theory, because all member states had signed GATT, and the EU had assumed the duties of the states under GATT, the EU had functionally succeeded the individual states to become a party to the treaty. The advocate general here distinguished the Chicago Convention from GATT, by asserting that the EU has "not yet" fully assumed the duties of its member states within the aviation sector. For support, the opinion notes that the EU only has observer status at ICAO meetings. This is quite a slippery distinction, made even more suspicious by the use of the phrase "not yet." It is unclear from the opinion whether, should the EU be deemed at some future point to have fully assumed these air transport sector duties from its member states, the EU will then become a functional successor and party to the Chicago Convention (which might not be something that ICAO would necessarily acknowledge, of course). But given the time frame of the current dispute, with the ETS entering into effect in January, it is likely the emissions standoff will have been resolved in some other fashion by the time the question of functional succession is revisited.

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not being an aviation lawyer myself (but getting there almost) I must say I notice quite a pre-occopied opinion on this blog, which one would not expect from an idependent research institution as a University; at least, in Europe the sholars are indepedent, even if their institutes or lecture chairs are partly paid for by industry...

or is this just a coincidence, or even biased opinion from an experienced aviation envi expert as myself??

anyway, back to topic: I do not consider the part of the ECJ opinion investigated in this blog to be surprising at all, if you consider the subsidiarity principle that is enshrined in the EU and holds a delicate balance of power between Member States en the EU Institutions; in laymans words, only those competences which need to be raised to EU level are in that area, all the rest remains at national, regional or even local level, up to the choice of each Member State. This is true for taxes, to give an example, but also for most national or local environmental issues, so also for issues as aircraft noise at/around airports and local emissions; there are harmonising guideliness at EU levels, but nothing more then that. Member States do the debate at ICAO CAEP, without much results on standards for reduction at source unfortunaly, due to resentless anti-lobby by IATA and manufacturers... we never seem to learn, so now eveyone is "surprised" on the global emissions front..

Climate change, everyone agrees, should be handled at the largest scale possible; however, since ICAO and the rest of the world (and most of the aviation Industry) have only talked and talked for almost 20 years, and made bold statements but very limited concrete actions, the EU decided to move first at regional (ie 30%) of world level, the best it can do. Of coarse, the legal bounderies are being explored by this, but the US has done exactly the same on Security and Safety issues for aviation since 10 years, using simular principle of landing/departing on US soil or even just flying in US airspace... The US has shown the way how to succeed to the EU! Why should that be accepted by other MS, unless the political and military power the US (had..) the first case is the real reason all comply and hardly complain as we see now in the EU ETS case... and why should the EU be condemned and legally and economicly blackmailed (see recent stetment by the 25 ICAO states which claim to be environmetally responsible..) when it takes action (after 15 years of consultation!) on a very important GLOBAL envi problem? For Security, the US did not consult after 9/11, just enforced it...

Interested to hera your aviation law theories on this one finally, and maybe even an IATA point of view (Andreas?)

Posted by: Etienne | Oct 8, 2011 10:52:22 AM