The EU has discretion, according to correspondence I've had with the Commission, to grant the power to negotiate with a third party (in this case the US), as long as
- The agreement contains clauses required by the Commission (and since the Nov 05 deal was negotiated under EU supervision, this can be assumed to be the case), and
- The third party negotiations will not undermine EU negotiations under way. The EU has discretion to decide if this is the case and appears, so far, to have decided against us - notwithstanding that the issue obstructing agreement (foreign ownership of US carriers) has nothing to do with Ireland or Aer Lingus.
The govt certainly does need to take a tough line, BUT ... does it want to, with an election coming up? Politically, it may consider it more expedient not to get it. I think - and HOPE - that might be too cynical a view, but I'm damned if I'm going to leave it to chance. The EU needs to be made to feel the pressure on this.
There are some European Law issues which the govt can use if it were to choose to take the EU to court, for example:
- Since the Commission got its mandate to negotiate O/S from the ECJ judgment, can ANY European Court judgment be interpreted in such a way as to permit the imposition or maintenance of a competitive disadvantage?
- Despite winning the case against Germany and other countries in 2003, the EU decided not to take action to force them to regress to their old bilaterals (mainly due to practicality reasons), yet it exercised its discretion to stop Ireland moving forward. Again, practicality was an issue, BUT can practicality on its own be a justification for using discretion unfairly, particularly when the result is the skewing of competitive advantage in favour of certain countries?
- Is it ever acceptable to impose an ACTUAL competitive disadvantage on a member state, in the course/pursuit of a potential agreement with a third party?
- To what extent can a member state act to correct a competitive disadvantage imposed by a member state; in view of the time lag between initiative and receiving judgment in an ECJ case, can the member state act immediately to correct this (and in doing so, is it protected from any sanction or fines from the Commission?)
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Does anyone know what the Americans' current position is? When are we likely to hear what their proposal is in relation to foreign ownership (and indeed, if we do, will they have discussed it with Congress first, or just present it to the EU first and let Congress shoot it down later?)
Also, is there any indication from the DOT on the feelings towards the current negotiations and how long they're likely to be delayed - particularly given the EU's stance on taxing carbon emissions?