Abstract
This article examines the internal decision-making process in the European Union with regard to the 2007 EU-US Open Skies Agreement. By exploring the principal-agent relation between the European Commission and the member states, it analyses the constraints and opportunities the Commission faced in avoiding an involuntary defection. Based on interviews and document research, the process-tracing in the article reveals that the main constraints for the Commission were the high degree of political sensitivity in certain member states, the struggle over external aviation competences, and an ambitious mandate. However, during the process, the Commission was able to overcome these constraints by making use of the following opportunities: closely involving the member states in its negotiation task and increasing the cost of no agreement for the member states, not at least by making an appeal to European allies, such as the Court of Justice, the Presidency, and member states with Commission-like preferences.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
In the Lisbon Treaty, the dynamics of article 300 TEC are covered by article 218 of the Treaty on the Functioning of the European Union. Since the 2007 EU-US Open Skies negotiations were conducted by the EU under the Treaty of Nice, the current analysis refers to article 300 TEC.
Initialling an international agreement is the act by which the negotiators confirm that a particular text is the result of the negotiations. However, it does not yet legally bind the negotiators vis-à-vis each other, as the signature and the ratification of the agreement still have to follow. Nevertheless, initialling an agreement indicates a political commitment of the negotiators vis-à-vis each other.
Moreover, as the Open Skies Agreement is a mixed agreement, to which both the European Community and the member states are a party, it has to be signed and ratified by each member state separately.
Robert Putnam, ‘Diplomacy and Domestic Policies: The Logic Of Two-Level Games’, International Organization 42, no. 3 (2002): 427–60
Jeffrey Lantis, ‘The Life and Death of International Treaties: Double-Edged Diplomacy and the Politics of Ratification in Comparative Perspective’, International Politics 43, no. 1 (2006): 24–52.
Sophie Meunier, Trading Voices: The European Union in International Commercial Negotiations (Princeton: Princeton University Press, 2005)
Cornelia Woll, ‘The Road to External Representation: The European Commission’s Activism In International Air Transport’, Journal of European Public Policy 13 (2006): 52–69.
Woll, ‘The road to external representation’.
In 2006, 38% of the EU-US air traffic passed through Heathrow. See Yu-Chun Chang, George Williams and Chia-Jui Hsu, ‘An Ongoing Process: A Review of the Open Skies Agreements between the European Union and the United States’, Transport Reviews 29, no. 1 (2009): 115–27.
Those four airlines were American Airlines, United Airlines, British Airways, and Virgin Atlantic.
Dorothy Robyn, James Reitzes, and Boaz Moselle, ‘Beyond Open Skies: The Economic Impact of a US-EU Open Aviation Area’, in Deep Integration. How Transatlantic Markets are Leading Globalization, eds. Daniel Hamilton and Joseph Quinlan (Washington DC/Brussels: Center for Transatlantic Relations/Centre for European Policy Studies, 2005): 50–73.
Ten interviews were conducted in March and April 2009: two Commission officials, one representative of the Council Secretariat, one industry representative who participated as an observer, and six representatives of different member states were interviewed. The selection of the member states assures that officials were interviewed from big and small member states, from member states having a bilateral Open Skies agreement with the US and member states that did not have such an agreement, and from member states that were reluctant, neutral and keen towards an EU-US Open Skies Agreement.
Mark Pollack, The Engines of European Integration. Delegation, Agency, and Agenda Setting in the EU (New York: Oxford University Press, 2003)
Fabio Franchino, ‘A Formal Model of Delegation in the European Union’, Journal of Theoretical Politics 17, no. 2 (2005): 217–47
Tom Delreux, ‘The EU Negotiates Multilateral Environmental Agreements: Explaining The Agent’s Discretion’, Journal of European Public Policy 16 (2009): 719–37.
Andreas Dür and Hubert Zimmermann, ‘Introduction: The EU in International Trade Negotiations’, Journal of Common Market Studies 45 (2007): 771–787.
David Epstein and Sharyn O’Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers (New York: Cambridge University Press, 1999); Pollack, ‘The Engines of European Integration’.
Susan Shapiro, ‘Agency Theory’, Annual Review of Sociology 31 (2005): 263–84.
Tom Delreux, ‘Cooperation and Control in the European Union: The Case of the European Union as International Environmental Negotiator’, Cooperation and Conflict 44, no. 2 (2009): 189–208.
Pollack, ‘The Engines of European Integration’; Shapiro, Agency Theory’.
Daniel Nielson and Michael Tierney, ‘Delegation to International Organisations: Agency Theory and World Bank Environmental Reform’, International Organization 57, no. 2 (2003): 241–76.
Chad Damro, ‘EU Delegation and Agency in International Trade Negotiations: A Cautionary Comparison’, Journal of Common Market Studies 45 (2007): 883–903.
Susanne Schmidt, ‘Only an Agenda Setter? The European Commission’s Power over the Council of Ministers’, European Union Politics 1, no. 1 (2000): 37–61.
Tom Delreux, ‘The EU as a Negotiator In Multilateral Chemicals Negotiations: Multiple Principals, Different Agents’, Journal of European Public Policy 15 (2008): 1069–86.
Meunier, ‘Trading Voices’, 151.
For the different stages in this process, see Hussein Kassim and Handley Stevens, Air Transport and the European Union: Europeanisation and its Limits (New York: Palgrave, 2010): 165–71.
Michael Charokopos, ‘The Accomplishment of an EU-US “Open Skies” Agreement: Learning to Co-operate?’ (paper presented at the 4th ECPR Pan-European Conference on EU politics, Riga, 25–27 September 2008).
Woll, ‘The road to external representation’.
Charokopos conceives the various steps put by the Commission in the direction of a EU-US agreement as a process in which the member states learn that bilateral air services agreements are in the long term incompatible with the European single aviation area. See Charokopos, ‘The Accomplishment of an EU-US “Open Skies” Agreement’.
At that moment, the Commission took legal action against Austria, Belgium, Denmark, Finland, Germany, Luxembourg, Sweden and the UK. The Commission also sent letters of warning to the Netherlands and France.
Mirjam Kars and Helen Stout ‘The Transatlantic Aviation Area: Competing Legal Orders and State Self-Interest’, in Multilevel Regulation and the EU: The Interplay between Global, European and National Normative Processes, eds. Andreas Follesdal, Ramses Wessel, and Jan Wouters (Leiden: Martinus Nijhoff Publishers, 2008), 185–209.
Alan Dobson, ‘Negotiating the EU-US Open Aviation Area Agreement 2007 in the Context of Transatlantic Airline Regimes Since 1944’, Diplomacy & Statecraft 20, no. 1 (2009): 136–60.
Robyn, Reitzes and Moselle, ‘Beyond Open Skies’.
European Community, ‘Regulation (EC) of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries’ in Official Journal, 847/2004/EC, L195, 02/06/2004: 3–6.
Kassim and Stevens, Air Transport and the European Union’, 171–72.
Woll, ‘The road to external representation’.
Dobson, ‘Negotiating the EU-US Open Aviation Area Agreement’.
The Brattle Group, The Economic Impact of an EU-US Open Aviation Area (London/ Washington DC: The Brattle Group, 2002).
In this respect, Woll notices that carriers from the EU could only merge if the US does not refuse to give the same traffic rights to the new merged carrier as the traffic rights that existed in the bilateral agreements with the member states of these national carriers. See Woll, ‘The road to external representation’.
Meunier, ‘Trading Voices’.
The deal that was proposed by the Commission to the Council was not an initialled agreement or a text that was formally agreed with the American negotiators. However, the rejection by the Council can still be seen as an involuntary defection, since Commission officials at that time really wanted to get the principles approved and since they considered the rejection by the Council as a defeat. The interpretation of the June 2004 Council as an involuntary defection for the Commission is also supported by the Council Conclusions of June 2005, where the member states described their decision of one year before as ‘the Council refused to the give the Commission the green light to finalise a “first step” agreement with the United States’ (Council of Ministers, Press release 2671st Council Meeting. Transport, Telecommunications and Energy, 27–28/06/2005, 10285/05 (Presse 156), 25). Moreover, the Council Conclusions of April 2005 make clear that the Council considered the situation of June 2004 as one of an involuntary defection, since the Conclusions refer to the ‘draft agreement of June 2004’ (Council of Ministers, Press release 2654th Council Meeting. Transport, Telecommunications and Energy, 21/04/2005, 7933/05 (Presse 84), 12). This claim is also supported by Robyn, Reitzes and Moselle, who argue that ‘[d]espite the European Commission’s strong support for the agreement, it was rejected in June 2004 by the EU Transport Ministers’, see Robyn, Reitzes and Moselle, ‘Beyond Open Skies’, 71).
Council of Ministers, Press release 2568th Council Meeting. Transport, Telecommunications and Energy, 08–09/03/2004, 6606/04 (Presse 58).
Only Latvia, Lithuania, Estonia, Cyprus and Slovenia were not subject to an infringement proceeding, as they had not entered into a bilateral aviation agreement with the US containing a nationality clause.
The Council concluded that ‘improvements in the field of ownership and control of airlines would be an essential element for a Stage One deal to be concluded’ (Council of Ministers, Press release 2695th Council Meeting. Transport, Telecommunications and Energy, 01&05/12/2005, 14636/1/05 REV 1 (Presse 303), 42).
Council of Ministers, Press release 2772nd Council Meeting. Transport, Telecommunications and Energy, 11–12/12/2006, 15900/06 (Presse 343).
Martin Staniland, A Europe of the Air? The Airline Industry and European Integration (Lanham: Rowman & Littlefield Publishers, 2008), 143.
In the second-stage negotiations, inter alia a further liberalization of traffic rights and additional foreign investment opportunities should be on the agenda. Hence, the aim is still to get further access to the US market.
The sunset clause is not only included in the EU-US agreement (article 21§3), it is also incorporated in the Council Conclusions of March 2007, where the member states politically approved the agreement.
Woll, ‘The road to external representation’.
Pressure was put on the UK to accept an EU-wide Open Skies Agreement not only at governmental level, but also at the level of the national airlines (in particular Air Lingus and Iberia here). They were confronted with a web of alliances that was growing around them and that was beginning to draw away passengers on transatlantic routes from them. Therefore, they had a big interest in an Open Skies Agreement with the US, so that they could recapture those passengers. (I thank an anonymous referee for pointing out this dynamic.)
Woll, ‘The road to external representation’.
Tom Delreux and Bart Kerremans, ‘How Agents Weaken Their Principals’ Incentives To Control: The Case Of EU Negotiators And EU Member States In Multilateral Negotiations’, Journal of European Integration 32, no. 4 (2010): 247–64.
The decision on the signature of the agreement is based on article 80§2 TEC juncto article 300 TEC. It is published as European Community, ‘Decision of the Council and the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 25 April 2007, on the signature and provisional application of the Air Transport Agreement between the European Community and its Member States, on the one hand, and the United States of America, on the other hand’ in Official Journal, 2007/339/EC, L134, 25/05/2007, 1—3.
Delreux, ‘Cooperation and Control in the European Union’.
Bart Kerremans, ‘What Went Wrong in Cancun? A Principal-Agent View on the EU’s Rationale Towards the Doha Development Round’, European Foreign Affairs Review 9, no. 3 (2004): 363–93.
Delreux, ‘The EU as a negotiator in multilateral chemicals negotiations’.
Author information
Authors and Affiliations
Corresponding author
Additional information
Tom Delreux is associate professor at the ‘Institut de sciences politiques Louvain-Europe’ and the ‘Institute of European Studies’ at the UCLouvain (Louvain-la-Neuve). His research interests include the EU’s external relations in former ‘first pillar’ policy areas (mainly on the environment), inter- and intra-institutional relations in the EU, international environmental politics, principal-agent modeling, and configurational comparative research methods (such as QCA).
Rights and permissions
About this article
Cite this article
Delreux, T. The relation between the European Commission and the EU member states in the transatlantic Open Skies negotiations: an analysis of their opportunities and constraints. J Transatl Stud 9, 113–135 (2011). https://doi.org/10.1080/14794012.2011.568164
Published:
Issue Date:
DOI: https://doi.org/10.1080/14794012.2011.568164