@misc{9226611,
  abstract     = {{This thesis explores the aviation treaty-making of the EU through the lens of EU External Relations Law. The relationship between the doctrine of implied competence and the treaty-making system in aviation has scarcely been studied. Both phenomena have been described in EU External Relations Law and international public aviation law, respectively; this thesis bridges and explores the gap between these two sets of descriptions. This provides a comprehensive and valuable way to understand EU aviation treaty-making from an “in-Union” perspective, something lacking from the descriptions of the international public aviation lawyers.

Simultaneously, classic issues of implied competence are commented on throughout the essay to allow an analysis of the Advocate General’s (AG) Opinion in Opinion 1/24. Implying that the thesis also fits into the traditional discourse in EU External Relations Law.

Initially, EU External Relations Law is presented, with a particular focus on how to determine the nature of competence in cases of implied external competence. The process of treaty-making in the Union, the concept of mixity, and the principle of sincere cooperation are also discussed. Case-law is continuously analyzed critically. Thereafter, public international aviation law as it pertains to aviation treaty-making, in particular negotiations on traffic rights, is explained. Equally, a brief history of such treaty-making is laid down. 

The analysis of the ‘Open Skies’ judgments leads to both an explanation of the Union’s External Aviation Policy, as well as serving as the main comparison point in the analysis of the AG Opinion in Opinion 1/24. The analysis of the latter allows testing the legal arguments laid out up to that point and allows a discussion of the potential implications of the Opinion for Union aviation treaty-making.

In relation to pure questions of implied external competence, I conclude that the Court ought to explain the application of the ‘necessity’ criterion in Article 3(2) Treaty on the Functioning of the European Union (TFEU), and that the current case-law reference seems inconsistent with its actual application. Regarding ERTA, I use the concepts of legal sources and their hierarchy to explain the principle’s application when there appears to be no conflict between the substantive rules of an international agreement and Union law. Furthermore, if the Court accepts the AG's proposal, or anything similar, in the pending Opinion 1/24, the central problem of delimiting the relevant areas to which the principle applies remains.

It is evident already that the Union has exclusive external competence in certain areas regulated by comprehensive air transport agreements, but only shared competence in others. This situation would persist if the Court accepts the AG’s reasoning in Opinion 1/24 or a similar one. This may lead one to believe it doesn’t matter much exactly which distribution the Court finds. However, I argue that because Regulation 847/2004 is founded on a fixed distribution of competence, any shift in that distribution, regardless of its exact nature, will render the Regulation in conflict with the Treaties. Such a shift would raise many new legal questions and require the legislator to act anew to allow Member States’ aviation treaty-making and to secure legal certainty.

Lastly, given the focus on inter-institutional litigation in EU External Relations Law, I seek to show the importance of the treaty-making system's political dimension and to explain how this political logic operates. In this respect, I conclude internally that the risk of Commission “power grabs” through the doctrine of implied competence is overstated. Externally, I also indicate that the current system combines the strength of cross-European unity with the flexibility of Member State negotiations.}},
  author       = {{Gustafsson, Hans}},
  language     = {{eng}},
  note         = {{Student Paper}},
  title        = {{Ever-Expanding European sky? - The EU’s external competence in the field of aviation, law, and practice}},
  year         = {{2026}},
}