Despite having finally signed off on the framework for the Single European Sky (SES) this year, European politicians still have much to haggle over because of the vagueness of the treaty text.
Although final political clearance for the SES was achieved only at the end of 2003, preparations for it have been under way for several years. However, as implementation starts officially in January next year, there are several issues still to be resolved where conflicts between national and European law could arise, says Paul von Hehn, partner in the Brussels office of aviation law firm Wilmer Cutler Pickering Hale and Dorr, which drew up the SES blueprint for the European Commission. The final text of the SES was sufficiently woolly to win over governments, but leaves several questions open to interpretation, he adds.
The most burning issue is potential merger and acquisition activity among any newly privatised air navigation service providers (ANSP). Although the treaty does not explicitly call for the privatisation of ANSPs, it could have that effect by calling for a "more efficient provision of air traffic management through the establishment of separation between the regulator and the service provider". Some countries, notably Germany, have converted their formerly state-run ANSPs into corporate entities, albeit government-owned, while the UK has transferred ownership of its National Air Traffic Services (NATS) to a public-private partnership that includes a consortium of seven UK airlines, which holds a significant minority share. Once the UK government sells its 49% equity and golden share, and if other nations follow suit, there will be a natural desire to merge operations to increase efficiencies, says van Hehn. This will bring the spirit of the treaty into conflict with national laws in many EU countries that enshrine ATM as a matter of strategic national importance, and so not controllable by foreigners. Notably, however, EC vice-president Loyola de Palacio has said categorically that privatisation is not essential to achieve any of the SES objectives.
Also, although many of the UK carriers with a stake in NATS are eager to dispose of this government-engineered structure, carriers in other countries might be tempted to increase their vertical integration and acquire the old national ANSP. If an airline controlled a majority share in its most important ANSP, this would also contravene competition policy.
Lastly, when ANSPs are freed from direct government control, the role of the state will be more important in monitoring their results in all fields, because ANSPs will have to be certificated by the national aviation authority (NAA), not only for air traffic control, but for other services, such as training and the provision of meteorological and aeronautical data. Under the International Civil Aviation Organisation treaty, states do not have to be the providers of air traffic services, but are responsible for ensuring their provision and quality.
At the EC, sources say the military/civilian co-operation is potentially the most explosive issue. In economic, social and environmental policies, the Commission has the power to make the law, whereas in areas of common foreign and security policy - "second pillar" in EU jargon - national governments hold sway.
Therefore, power cannot be given to the Commission for ATM while military aircraft use the same airspace as civilian jets. For this reason, the final SES text contains a clause in which countries pledge to co-operate on military use of airspace, and military representatives sit on the Single Sky Committee (SSC). Parliament had urged the EC to draft a binding text, clarifying the means of communication between civilian ANSPs and military airspace controllers. Because it would have taken several years to reach an agreement over the precise military/civil rules of interaction, the EC effectively took the issue off-line. "The declaration inside the SES about military issues doesn't go very far, because de Palacio was aware we couldn't go any further than a declaration of intent to co-operate," says the EC.
The sharing of airspace between military and civilian areas is not the only vague area of the SES treaty left to lawyers to decipher, says von Hehn. Many EU countries define their territorial areas in their constitution, often extending sovereignty vertically into space. Greece and Portugal were particularly reluctant to sign the SES text for fear of conflict against constitutional clauses, says the EC. However, von Hehn points out that unlike other bodies of international law, it is generally recognised that EU law overrides the national laws of its member states. In practice this means that if an aggrieved party, an air traffic controllers' union or a Eurosceptic political party, say, were to launch a legal challenge to the SES on the grounds that it is anti-constitutional, judges would have to take EU supremacy into account. "It would be disproportionate for a national constitution clause to overrule an EU regulation," says von Hehn.
Finally, battles are looming in the definition of the SES's central concept of the reorganisation of the sky into functional airspace blocks based on operational efficiency rather than national boundaries. Although the implementation of the SES initiative is set to begin on 1 January next year, the negotiation and design of these blocks is expected to take several years to complete. According to senior sources in the EC's air traffic management unit, the current French view is that one such efficient block of airspace traces the hexagonal borders of France. This is partly driven by demands by French air traffic controllers to avoid job losses, and as such is an invalid argument.
Arguments over the exact shape of each block will be mediated by the SSC, and if a government were to consistently refuse to consider the committee's opinions and cede parts of its airspace for reasons other than operational efficiency, the EC could launch legal action for treaty breach, says the EC. This complaints procedure can take up to a year and von Hehn says legal action is likely to be the last resort.
Many commentators point to the success in getting the previously contentious issues of functional blocks and military co-operation included in the framework as proof of the EC's will to make SES reality. Even if there are multiple details to fine-tune, now that the framework has the power of a legally binding EU regulation, political bickering will take place behind the scenes - where most ATM providers want it.
JUSTIN WASTNAGE / LONDON & BRUSSELS
Source: Flight International