“Open Skies” at a crossroads: How the United States and European Union Should Use the ECJ Transport Cases to Reconstruct the Transatlantic Aviation Regime

Warden, Jacob A. | January 1, 2003

Since the creation of the modern international aviation regime, at the 1944 Chicago Conference, the United States has used this power and prestige to create a system much to its liking. However, the recent decision of the Court of Justice of the European Communities (“ECJ”) in the Transport Cases threatens to change this. The Transport Cases, brought by the European Commission (“Commission”) in an attempt to achieve exclusive authority to negotiate commercial aviation agreements for the collective European Union, partially struck down several bilateral aviation treaties signed between several of the Member States and the United States. The Commission, recognizing the logistical nightmare that renegotiation would present, promptly requested that the Member States grant it a mandate to conclude a new bilateral agreement between the European Union and the United States. This mandate has now been approved, and the Commission intends to use its newly-attained power to push for the creation of a Transatlantic Common Aviation Area (“TCAA”), a massive multilateral deregulation that would give all U.S. and E.U. carriers full rights of access to every route, both international and domestic, within the TCAA. Such a radical change to the existing transatlantic aviation regime could give E.U. carriers a new competitive advantage over their U.S. rivals, and could spell economic disaster for the United States and its carriers. Because of these potentially extraordinary consequences, U.S. policymakers must work quickly for compromise. This Comment offers an analysis of the coming diplomatic struggle, and the factors which will ultimately shape the resulting post-Transport Cases regime.