Here's an article from this week's Flight, which summarises very well the position between the EU and the US on Open Skies:
http://www.flightglobal.com/Articles...prospects.html
Rough translation: stalemate. There seems to be absolutely no room for movement, so it's absolutely vital that the govt pushes as hard as possible on this. Ultimately, there is absolutely nothing to be gained by the Commission holding us back, because the issue blocking agreement really has nothing to do with us. If they do dig their heels in, then the Constitution (which Ireland has to approve by referendum) will need to be brought into the mix. It's completely up to the Commission as to whether it wants this to happen ...
Just by way of addition, I received a response from an MEP to whom I wrote and she had got feedback from the Commission; clearly, they are going to play hardball on this and are completely unsympathetic to the Irish position:
* We have been informed by Commissioner Barrot that "the transitional
period foreseen for Shannon airport will commence as and from the date
that full agreement has been reached and Open Skies is in operation".
* By taking Germany and seven other member states to the ECJ the
Commission acted functionally as upholder of EC Law. It could be argued
that the Commission has yet to take action in accordance with the
Court's ruling because it still believes it will get an EU/US agreement
soon. The Commission is of the view that a positive outcome will result
from the negotiations. Therefore, initiating proceedings against Germany
and others might not be necessary because all bilaterals will be
replaced when Open Skies begins.
* As you mention the Commission has recently taken a case against the
Netherlands. The Commission claims that modifications to the original
1957 agreement in 1992 resulted in the Netherlands entering into a "new
agreement" which fell within the Community's exclusive competence
following the adoption of Community Regulations in this field. Moreover,
the Commission claims that the agreement could lead to non-Dutch
Community airlines being treated differently to Dutch airlines, thereby
breaching Article 52 of the EC Treaty.The Advocate General has ruled in
favour of the Commission against the Netherlands. From this it would
appear that for Ireland to have its own bilateral deal would also be
contra to EC law.
* The possibly of using the Constitution as a bargaining chip
notwithstanding, it is most probable that the Open Skies talks may well
be concluded before the Constitution treaty talks are.
I enclose below the latest statement to Parliament of the European
Council in relation to Open Skies:
* 'The negotiations on the aviation agreement between the EU and
the United States were concluded in March 2005. The EU is now awaiting
the outcome of the internal procedures to be carried out by the US
authorities. These procedures are intended to bring up to date the
'amended rules' governing the administration of data concerning foreign
nationals by US airlines. In the meantime, all the discussion partners
have emphasised the importance of complying with the negotiated
agreement, since it offers all the EU Member States an 'open skies'
arrangement with the United States and clears the way for the removal of
restrictions on transatlantic flights in the future. Relations between
Ireland and the United States are dealt with only as one component of EU
-US agreement to be concluded in the near future.
At all events, the
discussions will not encompass the possibility of a bilateral agreement
between Ireland and the United States.'
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The basic thrust is that the Commission is entirely satisfied to see Ireland stuck with its 50/50 for the next 2-3 years and it could easily be that length of time - the duration of the new Congress at least - before this issue is sorted out. Bear in mind also that part of the reason for the delay is that the EU Commission is seeking concessions which (a) it knows are politically unacceptable in the US (see the Flight article above) and (b) are of interest only to a minority of EU member states and yet, it sees it as completely justifiable to maintain a competitive disadvantage in place against Ireland. There are very significant grounds here for legal action to be taken against the Commission at the ECJ.