Article 847/04
The big obstacle to progress is, at present, Regulation 847/04, which acts to prevent EU member states negotiating or concluding individual bilateral agreements without the EU Commission's green light. As I understand it, negotiations between Ireland and the US have been under way, but these cannot be concluded because the EU will not allow Ireland to conclude a bilateral, even to correct the anti-competitive effects of the current position.
My question is this: to the extent that it is repugnant to EU Competition Law, can a regulation of the EU be regarded as not having effect; in the current case, the effect of Regulation 847/04 acts to protect a position where Ireland and Irish carriers are put at a competitive disadvantage vis-a-vis other countries, which have sane bilaterals in place. I wonder does EU Law provide for a position where the effect of enforcing a regulation actually puts the commission at risk of flouting EU (Competition, for example) law and if this is the case, could the Irish government take the view that to the extent that the regulation was repugnant to EU law, it didn't have any effect and consequently, the government could proceed to conclude its negotiations with the US.
This is particularly the case when, due to its insistence on cabotage, something which would not be of interest to most EU carriers (and certainly not the Irish ones), the EU is not acting in good faith and continuing to maintain the competitive disadvantage faced by Ireland longer than is necessary.
I think I'll put that one to the EU ...