OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 12 March 2026 (1)
Opinion procedure 1/24
Initiated following a request made by the European Commission
( Opinion pursuant to Article 218(11) TFEU – Air transport – Agreement on air transport between the Sultanate of Oman, of the one part, and the European Union and its Member States, of the other part – Article 3(2) TFEU – International agreement which may affect common rules – Competence of the European Union to conclude alone said agreement )
Table of contents
I. Introduction
II. Background
A. Events leading to the adoption of the proposal of the envisaged agreement
B. Procedure before the Court
C. Context of the envisaged agreement
1. International legal context
2. Air transport agreements by the Member States and the European Union after the Open Skies judgments
3. The content of the envisaged agreement with the Sultanate of Oman
III. Analysis
A. Admissibility
B. The existence and nature of external EU competence
1. The existence of external EU competence
2. The nature of external EU competence
3. Mixed agreements
C. The conferral of competence on the European Union to grant traffic rights to third countries
D. Exclusive EU competence to conclude the envisaged agreement on the ground of necessity
E. Exclusive EU competence to conclude the envisaged agreement on the basis of the ERTA effect
1. On the burden of proof
2. Main disagreement between the parties to these proceedings
3. The ERTA effect and affectation
4. Application to the envisaged agreement
(a) The commitments to be assessed
(b) Article 3 of the envisaged agreement (‘grant of rights’)
(1) Is there an overlap?
(2) Is there affectation of common EU rules without overlap?
(c) Article 8 (‘fair competition’)
(d) Article 11 (‘customs duties, taxes, fees and charges’)
(e) Other provisions of Title I
IV. Conclusion
I. Introduction
1. ‘The sky is the limit’.
2. The present case raises the question of whether the sky is (still) the limit to the exclusive competence of the European Union to conclude air transport agreements with third countries.
3. That question was raised by the European Commission by means of application of 13 September 2024 to request, pursuant to Article 218(11) TFEU, an Opinion from the Court on the following question:
‘Does the European Union have exclusive competence to conclude the Agreement on Air Transport between the Sultanate of Oman, of the one part, and [the] European Union and its Member States, of the other part?’
4. The core issue underlying that question is whether the European Union has acquired exclusive competence to grant traffic rights to third countries. Such a grant of rights enables air carriers of third countries to fly between, over, and into the territory of the Member States.
5. In its Open Skies judgments, (2) the Court considered that, taking into account the state of EU law at that time, the European Union did not have exclusive competence in the area of air transport services. (3) The Commission, supported by the European Parliament, argues that the state of EU law today requires a different answer.
6. Should the Court’s reply be in the affirmative, the consequence would be that Member States could no longer enter into air transport agreements with third countries – not only with the Sultanate of Oman, as is at issue in the present case, but with any third country.
7. The answer to the question posed by the Commission requires the Court to delve into the complex area of EU constitutional law which governs the external competences of the European Union. In particular, the Court is invited to clarify the methodology by which it assesses the third situation outlined in Article 3(2) TFEU, pursuant to which the European Union acquires exclusive competence to conclude an international agreement if that agreement ‘may affect common rules or alter their scope’.
8. I will structure my Opinion in the following way. I will first explain the relevant background to the present request proceedings (Section II). Next, I will outline the events leading to the envisaged agreement, its content as well as the international and EU law context in which it should be placed. I will then turn to the analysis of the question put to the Court (Section III). Therein, I will first take a position on the alleged inadmissibility of the present request for an Opinion of the Court (Section III.A). After that, I will revisit the case-law on the existence and nature of external competences (Section III.B). That will then lead me to the assessment of the question of the existence of an EU competence to grant traffic rights to third countries, disputed by some of the parties to these proceedings (Section III.C), before turning to the possibly exclusive nature of that competence under Article 3(2) TFEU on the basis of necessity (Section III.D) or the ERTA effect (Section III.E).
II. Background
A. Events leading to the adoption of the proposal of the envisaged agreement
9. In 2018, the Commission was authorised by way of negotiating directives to conclude a comprehensive air transport agreement between the European Union and its Member States, on the one hand, and the Sultanate of Oman, on the other hand. (4)
10. Those directives were given by way of two separate decisions.
11. First, the Council authorised the Commission to open negotiations with the Sultanate of Oman in relation to matters that fall within the exclusive competence of the European Union. (5)
12. Second, another decision was adopted by the Member States meeting in the Council, and not by the Council as an EU institution. That decision authorised the Commission to negotiate the aspects of the envisaged agreement with the Sultanate of Oman that do not fall within the exclusive competence of the European Union. (6)
13. Neither of those two decisions specify which matters they consider to fall within, and which fall outside, exclusive EU competence.
14. At the meeting of the Committee of Permanent Representatives that followed the adoption of these two decisions, the Commission expressed its disagreement with the way in which the abovementioned negotiating directives were entrusted to it. Among other things, it contended:
‘2. The Commission considers that the Union is competent to negotiate and conclude comprehensive agreements in the field of air transport, in all their parts. It also recalls that, in accordance with the jurisprudence of the Court, as reflected in Case C‑459/03 (points 92 to 95), the existence of the Union’s external competence is not in principle contingent on the adoption of measures of secondary law covering the area in question.
…
4. The Commission considers moreover that the negotiation of a comprehensive air transport agreement by the Union alone is the most effective way to achieve the objectives of the Common Transport Policy, in particular as regards a common treatment to be granted within the Union to air carriers established in third countries and a common treatment to be granted by third countries to Union air carriers.
5. In order for the benefits to be reaped from the international aviation agreements without undue delay, they should apply as soon as possible after their signature. The current practice shows that the participation of Member States in such agreements causes considerably delays in their entry into force, while provisional application is not always ensured in those cases’. (7)
15. The negotiations on the envisaged agreement were concluded on 7 June 2020 and its text initialled on 1 December 2021.
16. The draft text of that agreement, as it was submitted to the Court, anticipates the signatures of both the European Union and all of its Member States. It follows that, in its current form, that agreement is drawn up to be concluded as a mixed agreement.
17. The Commission has not yet submitted a proposal for a Council decision on the signing of said agreement on behalf of the European Union. (8)
B. Procedure before the Court
18. Written observations on the Commission’s request for an Opinion from the Court have been submitted by the Parliament, the Council and the governments of all Member States apart from Romania. While the Parliament supports Commission’s position that the European Union has exclusive competence to conclude the envisaged agreement, the Council and all participating Member States are of the opposite opinion.
19. A hearing was held on 7 and 8 July 2025, at which the Parliament, the Council, the Commission, and the Belgian, Bulgarian, Czech, Danish, German, Greek, Spanish, French, Italian, Cypriot, Lithuanian, Luxembourg, Hungarian, Maltese, Netherlands, Austrian, Portuguese, Slovak and Swedish Governments and Ireland participated.
C. Context of the envisaged agreement
1. International legal context
20. In 1944, representatives of 54 States met at Chicago (United States) to ‘make arrangements for the immediate establishment of provisional world air routes and services’ and ‘discuss the principles and methods to be followed in the adoption of a new aviation convention’. (9)
21. The Chicago Conference resulted in the adoption of the Convention on International Civil Aviation (‘the Chicago Convention’). (10)
22. The Chicago Convention remains to this day the fundamental international legal instrument governing rights and obligations of States with respect to international civil aviation. (11) All Member States are signatories of that convention whereas the European Union itself is not. (12)
23. In Article 1, the Chicago Convention lays down the unequivocal recognition ‘that every State has complete and exclusive sovereignty over their airspace above its territory’. (13)
24. For that reason, as provided for in Article 6 of that convention, ‘no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorisation of that State, and in accordance with the terms of such permission or authorisation’.
25. By virtue of that framework, any permission to make an international flight across territorial borders must, in theory, be granted by the affected State(s) at issue, be that through either a bilateral or multilateral agreement. (14)
26. In parallel to the Chicago Conference – albeit separately from the convention (15) – negotiators formulated a set of commercial aviation rights, which are known as ‘the freedoms of the air’. (16)
27. Today, the International Civil Aviation Organisation (‘ICAO’) distinguishes nine freedoms of the air. They are depicted visually below: (17)
28. Only the third to ninth freedoms enable commercial air transport, and are often referred to as ‘traffic rights’. They open up market access for flights starting in one State and ending or stopping in the territory of another State. (18) The first and second freedoms are not seen to grant market access.
29. There were two multilateral agreements adopted at the Chicago Conference that provide for the exchange of traffic rights relating to certain freedoms of the air.
30. First, the International Air Services Transit Agreement (19) provides for the multilateral exchange of air transit rights, that is to say the right to overflight (the first freedom of the air) and the right to land for technical purposes (the second freedom of the air). All Member States are parties to that agreement. (20)
31. Second, the International Air Transport Agreement was intended to provide for the multilateral exchange of the first to fifth freedoms. (21) However, it was only signed and accepted by a small number of States, and so essentially remains a dead letter. (22)
32. The lack of an agreement exchanging traffic rights at the multilateral level has led to the proliferation of bilateral or regional air transport agreements, which reciprocally open up the national airspace and market of the respective States for the operation of international air services. (23)
33. Accordingly, before the Open Skies judgments, the established practice in the European Union was that the Member States concluded air transport agreements bilaterally with third countries. (24) In 2003, it was estimated that there existed some 1 500 such bilateral agreements. (25)
34. As highlighted by the German Government, when exchanging traffic rights through bilateral agreements, it is the first to fourth freedoms that are most often exchanged, with the fifth and sixth freedoms usually restricted, the seventh freedom rarely agreed upon, and the eighth and ninth freedoms almost always excluded. (26)
35. The envisaged agreement with the Sultanate of Oman, at issue in the present case, concerns only the grant of traffic rights relating to the first to fourth freedoms. (27)
2. Air transport agreements by the Member States and the European Union after the Open Skies judgments
36. The situation in the European Union changed after the Open Skies judgments. It therefore merits a short description.
37. Starting in the early 1990s, and thus during a period when the EU legislature adopted various regulations establishing an internal market in air transport, (28) the Commission repeatedly sought directives from the Council to authorise it to negotiate an air transport agreement with the United States of America, with a view to replacing a number of bilateral agreements between that country and Member States. (29) The Commission also asked Member States to coordinate their positions before entering into negotiations with the United States.
38. Having been repeatedly denied such a mandate by the Council (up until 1996), (30) and finding that its requests for coordination among the Member States had not been complied with, the Commission commenced infringement proceedings against the United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria and Germany. (31)
39. In its judgments in those cases, the Court upheld only part of the Commission’s infringement claims. First, it agreed that the Member States had negotiated certain clauses covering issues that, due to the existence of internal EU rules, had become an exclusive EU competence. (32) Second, it considered that a particular clause included in each of the ‘open skies’ agreements concluded between the United States and the respective Member State, which limited the ownership and control of airlines, was in conflict with the right of establishment, as guaranteed by Article 52 TFEU. (33)
40. However, and this element is of particular importance for the present case, the Court considered that the state of EU law at the time did not regulate the grant of traffic rights or the grant of operating licences to third-country air carriers. Therefore, an international commitment entered into by those Member States exchanging traffic rights with a third country could not be regarded as affecting EU legislation. (34)
41. In practice, the Court’s conclusion that certain parts of bilateral air transport agreements with third countries fell within exclusive EU competence meant that the Member States could no longer enter into such agreements without the European Union also being a party. In other words, the European Union became a necessary party to such agreements. This gave the impetus to the Commission to start pursuing a common policy of EU external relations in the field of air transport. (35)
42. In order to resolve the infringements found in the Open Skies judgments, the Commission was granted a horizontal mandate to renegotiate the agreements with the United States. It was also granted directives to renegotiate agreements which had been bilaterally concluded by Member States and contained clauses that were considered to be of exclusive EU competence or contrary to EU law. (36)
43. The resulting horizontal agreements, however, did not replace the bilateral agreements of the Member States, but only amended or supplemented the relevant provisions in those agreements which were considered to be of exclusive EU competence or contrary to EU law.
44. The new external air transport policy pursued by the Commission after the Open Skies judgments includes the endeavour to conclude comprehensive air transport agreements with strategic EU partners and neighbouring States. Once those agreements enter into force, any bilateral agreements between Member States and third countries become obsolete and are replaced by them.
45. The majority of such agreements are concluded as ‘mixed’ agreements, including the comprehensive air transport agreement with the United States, (37) the multilateral agreement establishing a European Common Aviation Area with certain neighbouring countries, (38) and a number of bilateral agreements with certain third countries. (39)
46. However, certain comprehensive air agreements were concluded as ‘EU-only’ agreements. The first such agreement was concluded with the Kingdom of Norway in 1992. (40) An agreement with the Swiss Confederation followed in 2002. (41) The Trade and Corporation Agreement with the United Kingdom, (42) concluded after the latter’s withdrawal from the European Union, was also concluded as EU-only but contains chapters on air transport and the grant of traffic rights. While those agreements are evidence of the possibility to conclude air transport agreements by the European Union alone, as I shall explain later, the non-participation of the Member States as parties to those agreements does not amount to proof of exclusive EU competence for all parts of such air transport agreements.
47. In its application and at the hearing, the Commission referred to those examples of EU-only air transport agreements to underline the argument that EU external aviation policy would be simplified and accelerated if the European Union alone could conclude such agreements with third countries. Among other examples, the Commission explained that the entry into force of mixed agreements often takes more than 10 years, which would postpone the benefits which EU air carriers, the EU aviation industry as a whole, and users of such services could obtain from said agreements.
48. Whether or not that is the case, such policy arguments cannot change the existence or the nature of external competences, as agreed under the Treaties. It is for the Court alone to decide whether the current state of EU air transport law, read in the light of the relevant EU constitutional framework, allows for the conclusion that an air transport agreement – such as the envisaged agreement with the Sultanate of Oman – in its entirety falls within the scope of exclusive EU competence.
49. In order to make that assessment, it is necessary to shortly lay out the content of the envisaged agreement. (43)
3. The content of the envisaged agreement with the Sultanate of Oman
50. The preamble of the envisaged agreement outlines its intended purpose, which is, inter alia, to enhance air services, ensure a high level of air safety and security, foster competition, market access, environmental protection and limitation of greenhouse gas emissions, achieve a high level of passenger protection, and facilitate access to capital by the air transport industry.
51. The agreement is composed of three titles. Preceded by an untitled section containing two provisions (Article 1 on definitions and Article 2 on the exclusion of direct effect), Title I regulates the ‘economic provisions’ of the envisaged agreement; (44) Title II concerns ‘regulatory cooperation’, (45) and Title III contains ‘institutional provisions’. (46) The envisaged agreement also contains an annex containing transitional provisions.
52. The list of signatures at the end of the envisaged agreement shows that it was intended to be concluded as a mixed agreement, encompassing the European Union and all its Member States as parties.
53. The parties to these proceedings agree, either expressly or impliedly, that the majority of the provisions of the envisaged agreement fall within exclusive EU competence, or are merely accessory to the exercise of that competence. There is however disagreement on the nature of that competence with regard to certain provisions falling within Title I of the envisaged agreement.
54. The most important disagreement relates to Article 3(2) of the envisaged agreement – the grant of traffic rights. Pursuant to that provision, traffic rights relating to the first to fourth freedoms of the air are mutually granted between the contracting parties. (47)
55. On the one hand, the Council and the Member States consider that the grant of those rights falls outside the scope of exclusive EU competence. Those parties assert that EU law, as it currently stands, does not lay down common rules governing that grant. Those parties refer, in particular, to the Open Skies judgments. As explained above, the Court held therein that European Community law, as it stood at the time of the judgments, did not govern the grant of traffic rights, and so could not be affected by the conclusion of an international agreement between the Member States and a third country. On the other hand, the Commission, supported by the Parliament, considers, that the state of EU law relating to air transport has significantly evolved since the Open Skies judgments were delivered. As it stands today, that area of EU law could therefore be affected if the envisaged agreement were concluded by the Member States.
III. Analysis
56. The area of external competences of the European Union is one of the most complex areas of EU constitutional law. It often reveals a confusion between pertinent concepts, most notably the conferral of competences and their shared or exclusive nature, and the reasons for the mixity of agreements. (48)
57. In that respect, even if the question, as posed by the Commission, presupposes the existence of an EU competence, and therefore only questions its nature, a number of intervening Member States contend that the grant of traffic rights constitutes a Member States competence that was not conferred on the European Union.
58. For that reason, my analysis is structured as follows. After briefly dismissing the arguments on the admissibility of the present request for an Opinion from the Court (Section III.A), I shall delimit the concepts relevant for a finding of exclusive EU external competence (Section III.B). Thereafter, I will propose to the Court to reject the arguments denying the existence of an EU competence to grant traffic rights (Section III.C). That will allow me to turn to arguments in support of a finding of exclusive EU competence for the envisaged agreement. In the reverse order of how the Commission structured its application, I will first ask whether the European Union acquired the exclusive competence to conclude the envisaged agreement on the basis of the second situation of Article 3(2) TFEU; ‘the necessity argument’ (Section III.D). I will then explore whether an exclusive competence ensues on the basis of the third situation of Article 3(2) TFEU; ‘the ERTA effect’ (Section III.E).
A. Admissibility
59. A number of intervening Member States question the admissibility of the present request for an Opinion, arguing that it does not meet the conditions to initiate the procedure envisaged in Article 218(11) TFEU.
60. In that respect, it must be recalled that the Court has clearly explained that, under Article 218(11) TFEU, a Member State, the Parliament, the Council or the Commission may obtain the Opinion of the Court at ‘any time before the [European Union]’s consent to be bound by the agreement is finally expressed’. (49)
61. To date, the envisaged agreement with Oman remains ‘envisaged’ given that the Commission has yet to propose that the Council adopt a decision authorising its signature, pursuant to Article 218(5) TFEU. (50)
62. In that light, first, the fact, raised by some Member States, that the Commission has waited three years to file the present request for an Opinion under Article 218(11) TFEU does not alter the ‘envisaged’ nature of that agreement. It therefore cannot affect the admissibility of the Commission’s request. That is so even if, in the spirit of sincere cooperation, the Commission should have introduced that request as soon as possible.
63. Second, a number of Member States assert that the question of the distribution of competences as regards the envisaged agreement has already been settled by means of the decisions to authorise negotiations, adopted by the Council and the Member States in 2018. (51) Accordingly, the Commission could now no longer change that distribution. A request for an Opinion from the Court on the distribution of competences would thus be hypothetical.
64. That argument does not stand either. It is irrelevant for the question of the admissibility of a request under Article 218(11) TFEU whether or not the Council and the Member States and the Commission agree or disagree with the distribution of competences for the conclusion of a specific agreement. (52)
65. The opposite would entail that, in adopting a decision to authorise the opening of negotiations of an international agreement, the Council and the Member States could settle the distribution of competences of the European Union without regard to the powers and procedures laid down in the Treaties. (53) That would devoid the procedure envisaged by Article 218(11) TFEU of its purpose. (54)
66. It follows that the Commission’s request for an Opinion from the Court is not hypothetical, given that the outcome of the present proceedings may affect the way in which the envisaged agreement is concluded.
B. The existence and nature of external EU competence
1. The existence of external EU competence
67. For the European Union to enter into an international agreement, it must be vested with the necessary competence to do so. In EU law, that principle is referred to as ‘the principle of conferral’. (55)
68. As expressed in Article 5(2) TEU, that principle empowers the European Union to act ‘only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’. Therefore, as Article 4(1) and Article 5(2) TEU explain, unless conferred on the European Union, the competence to act remains solely with the Member States. That gives rise to a simple state of affairs: the European Union cannot act unless conferred the competence to do so.
69. Therefore, any assessment into whether an external EU competence is exclusive or shared presupposes that the Treaties have conferred on the European Union the necessary competence to act in the first place.
70. An external competence may be conferred on the European Union expressly or impliedly. (56)
71. Today, the question of whether the European Union has the competence to conclude an international agreement is governed by Article 216(1) TFEU. That provision covers both express and implied competences. (57) It was inserted into the FEU Treaty by the Treaty of Lisbon and reflects the preceding developments in judicial practice.
72. Article 216(1) TFEU provides for four situations in which the European Union may conclude an agreement with one or more third countries or international organisations. (58) That is so:
(i) where the Treaties so provide (express competence); or
(ii) where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties (implied competence, ‘parallel external powers’); (59) or
(iii) where the conclusion of an agreement is provided for in a legally binding Union act (implied competence, as clarified in Opinion 1/94 (Agreements annexed to the WTO Agreement); (60) or
(iv) where the conclusion of an agreement is likely to affect common rules or alter their scope (implied competence, as introduced for the first time in ERTA). (61)
73. As I will explain later in more detail, a number of Member States intervening in these proceedings consider that the competence to grant traffic rights remains only with the Member States. It will, thus, first be necessary to assess whether that power was conferred on the European Union either expressly or impliedly (see Section C).
2. The nature of external EU competence
74. Once it is established that competence has been conferred on the European Union, the next question is whether that competence is shared or exclusive.
75. What does it mean that competence is shared or exclusive?
76. If the European Union has exclusive competence, the Member States cannot act in relation to a matter falling within that competence. That is so even where the European Union has not acted. (62) In other words, in the area of exclusive EU competences, only the European Union can act.
77. Applying this to the question put to the Court in the present proceedings, a finding that the European Union has exclusive competence to grant traffic rights to third countries would entail that the Member States could no longer enter into international agreements on air transport. That is so even in a situation in which the European Union decided not to conclude an air transport agreement with a particular third country, that is, unless the European Union were to delegate the exercise of its exclusive competence to the Member States to conclude such agreements without it.
78. Conversely, if the competence at issue is conferred as a shared one, both the Member States and the European Union may decide to exercise it. A decision as to whether the European Union should exercise that competence in relation to a particular third country or group of countries is a political decision, which is limited by the constitutional principles of subsidiarity and proportionality. (63)
79. When it comes to acts regulating EU policies internally, if a shared competence is exercised by the European Union, the second and third sentences of Article 2(2) TFEU preclude the Member States from acting for as long as the question remains regulated at EU level. That is known as the principle of pre-emption. The rationale behind that principle lies in the avoidance of conflict and the preservation of common EU rules. (64) Protocol (No 25) on the exercise of shared competences, annexed to the Treaty of Lisbon (‘Protocol No 25’), explains that pre-emption concerns only those specific elements governed by an EU act, and not the whole area to which that act belongs. (65)
80. Pre-emption of Member State action has a similar consequence as where the European Union is conferred exclusive competence: the Member States can no longer regulate a particular issue. There is one notable difference, however: through pre-emption, the Member States do not ‘lose’ their right to exercise a shared competence; they may exercise that competence again if the European Union decides to revoke the EU measure concerning a particular subject matter. Conversely, in an area of exclusive EU competence, even where a particular subject matter is not occupied by an EU measure, the Member States are nevertheless prevented from acting. (66)
81. The European Union’s exclusive competences are exhaustively enumerated in Article 3(1) TFEU. (67) The Member States cannot adopt internal acts or conclude international agreements in those areas.
82. In addition to the areas enumerated ex ante as exclusive, the Treaty of Lisbon added a paragraph 2 to Article 3 TFEU.
83. That paragraph entails that, under the particular circumstances provided therein, certain competences that are conferred as shared may become exclusive in their external dimension. In other words, those competences are not conferred ex ante by the TFEU as exclusive, but may acquire that nature through the adoption of EU legislation. Those types of competences have been referred to as ‘subsequent exclusivity’, ‘exclusivity by exercise’, (68) or ‘supervening exclusivity’. (69)
84. In principle, external competences of the European Union are shared, unless the international agreement at issue covers an issue that falls within the scope of an express exclusive EU competence covered by Article 3(1) TFEU, or which has subsequently become exclusive on the basis of Article 3(2) TFEU.
85. The European Union’s air transport policy, or transport policy more generally, is not among the policies enumerated as exclusive in Article 3(1) TFEU.
86. Instead, transport is one of policies enumerated (not exhaustively) in Article 4(2)(g) TFEU as a shared competence.
87. Therefore, the only way in which the Member States might be considered prevented from entering into an air transport agreement is if the exercise of that shared competence became exclusive for the subject matter at issue by virtue of the fulfilment of one of the conditions of Article 3(2) TFEU.
88. Article 3(2) TFEU therefore has the power to pre-empt the Member States from concluding an international agreement in an area in which they did not at the outset confer an (express) exclusive competence on the European Union – provided the conditions which that provision lay down are satisfied.
89. Given that the Treaties govern the type of pre-emption that leads to exclusivity in external relations in a different provision than the type of pre-emption that exists in the internal sphere, there is good reason to treat those two types of pre-emption differently. Thus, the Court has already considered that Protocol No 25 to the Treaty of Lisbon does not govern the type of pre-emption that establishes exclusive competence of the European Union to conclude an international agreement on the basis of Article 3(2) TFEU. (70) Rather, the effects of internal regulation by the European Union on the nature of its external competence are governed only by Article 3(2) TFEU, and not by Article 2(2) TFEU to which Protocol No 25 relates.
90. Article 3(2) TFEU lays down that the European Union shall have exclusive competence for the conclusion of an international agreement:
(i) when its conclusion is provided for in a legislative act of the Union; or
(ii) when it is necessary to enable the Union to exercise its internal competence (‘the second situation’ or ‘exclusivity by necessity’); or
(iii) in so far as its conclusion may affect common rules or alter their scope (‘the third situation’ or ‘the ERTA effect’).
91. At the outset, it is important to signal the high level of similarity in the language used in Article 216(1) TFEU and Article 3(2) thereof. While that similarity has (rightly, I submit) prompted scholarly criticism, (71) the Court cannot criticise, but must interpret the text of the Treaties.
92. In that respect, I observe that the two provisions relate to different issues and should accordingly be interpreted in their pertinent contexts. Whereas Article 216(1) TFEU concerns the existence of an external competence, and is thus linked to the principle of conferral, Article 3(2) TFEU concerns the nature of said external competence and determines the situations in which international agreements must be concluded as EU-only agreements. (72)
93. To the best of my knowledge, there does not exist an EU legislative act that requires the European Union to conclude an air transport agreement with the Sultanate of Oman specifically, or with third countries more generally. Therefore, I propose to read the arguments of the parties of these proceedings as relating solely to the second and the third situations under which exclusivity may arise under Article 3(2) TFEU.
3. Mixed agreements
94. Before I turn to examine whether the European Union has the exclusive competence to conclude the envisaged agreement, it is necessary to resolve another related question: whether any, and if so, which conclusions could be drawn from the proposal that the envisaged agreement be concluded as a mixed agreement?
95. The resolution of that question is relevant given that a number of parties to these proceedings, including the Commission, have raised arguments relating to the ‘mixity’ of international agreements.
96. ‘Mixed agreements’, as a specific category of international agreements, are not mentioned in the Treaties, but are a result of practice. The Court has defined mixed agreements as those ‘signed and concluded both by the European Union and by each of its Member States’. (73)
97. Scholarship distinguishes between obligatory and facultative mixed agreements. (74)
98. If an agreement contains parts which are Member States’ exclusive competence and parts which are either exclusive or shared EU competence, the European Union cannot conclude such an agreement alone, but only together with its Member States. In that scenario, mixity is obligatory.
99. Another scenario in which mixity might be obligatory, what one could call ‘reverse obligatory mixity’, is the situation addressed in the Open Skies judgments: where an international agreement negotiated by a Member State contains parts which fall within the European Union’s exclusive competence, that Member State cannot conclude that agreement alone. (75) In such a case, if the Member States want to be party to such an agreement, the European Union must join them. (76)
100. Of relevance to the present discussion on mixity is the fact that, in reaction to the Open Skies judgments, the European Union adopted Regulation (EC) No 847/2004. (77) Among other aspects, that act enables the Member States to conclude ‘State-only’ agreements, provided that those agreements contain standard clauses, and that the Member States inform the Commission about the agreements through a pre-determined type of procedure. (78) Regulation No 847/2004 – which is of importance to these proceedings also as regards the competence of the European Union to conclude alone the envisaged agreement – could be read as an example of an EU act enabling the Member States to enter into an international agreement without the European Union as a party, even where parts of that agreement concern matters of exclusive EU competence. (79)
101. Finally, where an agreement solely concerns matters that are a matter of shared competence, that agreement may be concluded either as a mixed agreement or as an EU-only agreement. The decision on how to conclude that agreement, be that mixed or EU only, belies a political choice; (80) not constitutional necessity. (81)
102. It follows that there are two reasons why an international agreement could be concluded as an EU-only agreement: either because the European Union indeed had exclusive competence over the entire agreement, or, because competence over the entire or parts of the agreement was shared, and it was decided, at the political level, that that competence be exercised by the European Union alone.
103. For the above reasons, it is not determinative for the purposes of the present exercise that, in the past, a grant of traffic rights with the Kingdom of Norway, the Swiss Confederation, and the United Kingdom occurred by means of EU-only agreements. (82) In fact, the EU-only nature of those agreements may as much be explained by the argument that it was deemed politically appropriate for the European Union alone to conclude those agreements as by the argument that the European Union holds exclusive competence over the entirety of the content of those agreements, including the grant of traffic rights.
104. In conclusion, even if the envisaged agreement (in part) falls within a shared competence, that does not prevent said agreement from being concluded as an EU-only agreement. Only where all the elements of the envisaged agreement fall within the scope of exclusive EU competence will constitutional rather than political reasons dictate the need for an EU-only agreement.
105. Whether such constitutional reasons exist is a matter of the analysis which I will conduct under Sections D and E.
C. The conferral of competence on the European Union to grant traffic rights to third countries
106. A number of Member States intervening in these proceedings contend that the power to grant traffic rights was not conferred on the European Union, but remains Member State competence. (83) They argue that authorising flights of third-country air carriers into their territory is an exercise of the principle of sovereignty over a State’s airspace, as confirmed by Article 1 of the Chicago Convention. By virtue of that fact, the European Union could never grant traffic rights, as it was not conferred that competence.
107. Given that position, it is necessary to assess whether the European Union has been conferred the power to grant traffic rights to third countries.
108. As explained, it is possible that such a conferral was done expressly or impliedly. In order to establish express competence, one needs to look whether the Treaties contain a legal basis that specifically lays down that the European Union may conclude an agreement concerning that particular issue. (84)
109. In that respect, I observe that even if the number of provisions expressly empowering the European Union to act in relation to third countries or international organisations has increased since the Treaty of Rome, (85) the chapter governing transport policy still does not contain an express clause empowering the European Union to conclude international agreements in the field of transport.
110. The external dimension of the European Union’s transport policy is expressly mentioned only in Article 207(5) TFEU.
111. However, that reference was done in order to exclude transport from the common commercial policy, and thus from the latter’s expressly exclusive nature. (86)
112. Instead, Article 207(5) TFEU refers back to the Treaty chapter dealing with the common transport policy (Title VI of Part Three), which, in itself, does not expressly make reference to an EU competence to conclude international agreements. In my view, that is the reason why the reference in Article 207(5) TFEU to the common transport policy chapter (which today also includes air transport) for the purpose of the negotiation and conclusion of an international agreement in that area cannot be read as an express EU competence to conclude agreements on air transport. Rather, that cross-referral suggests that the external EU competence for the conclusion of air transport agreements is an implied external competence.
113. On the basis of Article 216(1) TFEU, an implied external competence inter alia exists whenever an internal competence is conferred on the European Union, whether or not that internal competence is exercised, and where the conclusion of that agreement is necessary to achieve one of the European Union’s objectives. Such parallel competences, which recognise that EU policies might have internal and external dimensions, (87) were developed and confirmed in the case-law of the Court before being codified in Article 216(1) TFEU. (88)
114. However, an implied external competence is still subject to the principle of conferral. That means that Article 216(1) TFEU cannot, in itself, be used as the legal basis for the conclusion of an international agreement. The proper legal basis for such an agreement has to be found in the provisions of the Treaties conferring on the Union power to regulate a particular area or issue.
115. When the area covered by the international agreement is air transport, the legal basis for the implied competence to sign such an agreement is found in Article 100(1) TFEU.
116. Air transport (together with maritime transport) is a specific part of EU transport policy, as its development (both internally and therefore also externally) depends, by virtue of Article 100 TFEU, on the adoption of legislative measures by the Parliament and the Council.
117. By today, however, the internal dimension of the common air transport policy is regulated to a large extent by common EU rules. That fact expresses the European Parliament’s and Council’s political choice to implement that EU policy.
118. By virtue of the existence of an internal air transport policy it follows that there must also be an implied external dimension.
119. However, that still leaves open the question of whether all elements relevant for the exhaustive regulation of air transport were conferred on the European Union, or whether there are certain aspects, such as the grant of the traffic rights, which the Member States chose not to confer; that is, which they chose to retain.
120. In that respect, I must first observe that, by virtue of the principle of territorial sovereignty, expressed in Article 1 of the Chicago Convention, the realisation of any air transport policy within the European Union depends on the grant of traffic rights.
121. At least in its commercial dimension, without the grant of such rights, it is not possible to develop an air transport policy, be that in an EU-internal or EU-external dimension. In that sense, the inclusion in the Treaties of the possibility to develop a common EU air transport policy under Article 100(1) TFEU must necessarily imply also the power of the European Union to decide whether, and to which countries, to grant traffic rights.
122. Internally, the exchange of traffic rights between the Member States, and the related rights of EU carriers to operate commercial services within the European Union, arises from Regulation (EC) No 1008/2008 (‘the Air Services Regulation’). (89) Thereby, the EU legislature sought to establish an internal market in air transport. (90)
123. The Air Services Regulation does not deprive the Member States of their sovereignty over sky over their territories. That regulation is merely a product of the European Union’s exercise of the Member States’ sovereign rights, on the basis of conferral, to pursue an EU air transport policy. (91)
124. In order to develop the external dimension of the European Union’s air transport policy, which can be brought to life only through the grant of traffic rights to third countries, the European Union thus possesses an implied external competence. (92)
125. That being resolved, I can now turn to the question posed by the Commission of whether that policy has, in its entirety, become an exclusive external competence, such that the envisaged agreement should be concluded by the European Union alone.
D. Exclusive EU competence to conclude the envisaged agreement on the ground of necessity
126. The Commission relies on the second situation of Article 3(2) TFEU to argue that the EU-only conclusion of the envisaged agreement is necessary to exercise the internal (shared) competence in the area of transport policy.
127. I can be brief as that issue was already resolved in Open Skies judgments. Therein, the Court first explained that, in the light of Opinion 1/76 (Agreement on the establishment of a European Laying-up Fund for Inland Waterway Vessels), (93) exclusive competence based on necessity arises where an internal competence may be effectively exercised only at the same time as an external competence; or, in other words, that said internal competence cannot be attained by establishing internal rules. (94)
128. This is where the difference lies between the necessity principle in Article 216(1) TFEU and Article 3(2) TFEU. Article 216(1) TFEU recognises parallel external powers within the policy areas conferred to the European Union, the exercise of which may be necessary to attain the objective which that policy serves within the Treaties. That competence exists, but that provision is silent on the question on whether the European Union should exercise it. Conversely, ‘necessity’ within the meaning of Article 3(2) TFEU signifies that it is the European Union that has the sole power to act because exercising its internal competence would be impossible without concluding an international agreement.
129. That is clear from the way in which the Court established the European Union’s exclusive competence in Opinion 1/76 (Agreement on the establishment of a European Laying-up Fund for Inland Waterway Vessels). (95) That means that the Court opted for a narrow interpretation of the concept of ‘necessity’ as a reason for exclusivity. Thereby, it also avoided conflating the meaning behind the concepts of ‘parallel external competences’ and their ‘exclusivity’. The contrary would result in the disappearance of the European Union’s shared external competences, granting it exclusive power to act externally whenever it is empowered to implement a certain policy. Thus far, however, the Court has not considered that that was the intention of the drafters of the Treaty of Lisbon when they included the concept of ‘exclusivity by necessity’ in Article 3(2) TFEU.
130. In the Open Skies judgments, the Court held that it had not been presented with sufficient evidence that, in order to realise the objective of establishing an internal market in services in the field of air transport, the European Union should also have exclusive competence to conclude air transport agreements with third countries. (96) Additionally, the Court observed that, at the time of those judgments, the internal market in air services was successfully established, refuting thus the necessity argument. (97)
131. In the present case, as its only new argument compared to the situation in the Open Skies judgments, the Commission submits that the field of air transport, which the Court, in those judgments, deemed to be regulated only in a ‘relatively limited’ way is now much more densely occupied by EU rules. That may be so, but it does not assist the Commission in claiming that the conclusion of the envisaged agreement with the Sultanate of Oman is ‘necessary’ for the European Union to exercise its internal competence within the meaning of Article 3(2) TFEU. Quite to the contrary, it adds to the argument that that internal policy was successfully established without the ‘necessity’ to conclude an international air transport agreement.
132. The Commission, however, claims that a larger number of new provisions of internal EU legislation apply not only to EU carriers, but also to third-country carriers (for example, Article 15(5) and Articles 22 to 24 of the Air Services Regulation). This, according to the Commission, creates necessity for the European Union to conclude international air transport agreements. To my mind, the Commission is formulating a topsy-turvy argument. Those provisions do not necessitate that third-country carriers are granted access to the EU air transport services market. Rather, those provisions exist for those types of situations in which such access was granted. It cannot, therefore, be argued that the European Union must have the sole competence to grant traffic rights to third-country carriers because it has the rules that govern their rights or obligations once such rights are granted.
133. I therefore propose to the Court to find that the European Union does not possess exclusive competence to conclude the air transport agreement with Oman on the basis of the second situation envisaged in Article 3(2) TFEU.
E. Exclusive EU competence to conclude the envisaged agreement on the basis of the ERTA effect
134. The most important and complex argument raised by this case concerns the third situation under Article 3(2) TFEU. Pursuant thereto, the European Union acquires exclusive competence to conclude an international agreement ‘in so far as its conclusion may affect common rules or alter their scope’.
1. On the burden of proof
135. Before I turn to the arguments on the application of Article 3(2) TFEU, I find it necessary to react to one submission of the Council. Implying that the Commission’s arguments are insufficient to establish the existence of the ERTA effect, that institution contends that it is for the party invoking the exclusive nature of the external competence of the European Union to put forward evidence or arguments to establish that competence.
136. While it is true that the Court has used similar wording, it made those observations in the context of direct actions brought pursuant to Article 263 TFEU. (98)
137. However, the procedure under Article 218(11) TFEU is not an adversarial procedure, with two confronted parties. The procedure for an Opinion from the Court does not have as its purpose to accept or reject a claim of the party that initiated proceedings. Rather, that procedure serves the public interest of preventing the conclusion of an international agreement that is contrary to the Treaties, and which might create difficulties (and embarrassment) for the European Union in relation to its international partners. (99)
138. In that sense, even if the arguments adduced by the institution that requested an Opinion under Article 218(11) TFEU, just like those of other parties to the proceedings, are valuable for the Court, the Court’s answer is not dependent on those arguments.
2. Main disagreement between the parties to these proceedings
139. The Commission, supported by the Parliament, proposes a methodology for establishing the ERTA effect that is different from the one defended by the Council and the Member States.
140. The Commission and the Parliament submit that Article 3(2) TFEU codified the case-law on exclusive external EU competence as a positive attribution of competence. According to those parties, the ERTA effect should be understood to mean that once an ‘area’ is completely or at least ‘largely covered’ by common EU rules, such as is the case in the area of air transport, it must be concluded that an agreement on air transport, including on traffic rights, may affect common rules or alter their scope. EU competence must then be exclusive. It does not matter whether the grant of air traffic rights to third countries is regulated by EU rules, given that those rules fall within the larger area of air transport, for which common EU rules exist internally. As a consequence, those institutions reject a ‘nucleatic’ approach which would mandate assessing every commitment of an international agreement against the existence of specific common EU rules to that effect.
141. The Council and the Member States accept that there is a risk that common EU rules may be adversely affected or altered if international commitments fall within the scope of those common rules. They also agree that those common EU rules may be affected or altered even when the scope of the international agreement at issue and the relevant EU rules do not coincide entirely, so long as the commitments at issue nevertheless fall within an area which is already ‘largely covered’ by EU rules. However, according to those parties, the mere finding that a policy area is ‘largely covered’ by EU rules cannot in itself result in a finding of exclusive competence. They argue that what is necessary is a ‘real’ risk of affectation, which cannot be established by reference to a mere enumeration of multiple EU rules regulating a particular area. Instead, what is necessary is a specific explanation of how those rules might be affected by the envisaged international commitments. Therefore, the Court’s assessment would entail two steps: first, assessing the scope and overlap between the two sets of rules at issue – that is to say the relevant EU rules at issue and the international commitments to be entered into – and, second, establishing a real risk of affectation of the relevant EU rules. That assessment must take place on a provision by provision basis to specifically identify the relevant risk of affectation. In Council’s view, the Commission’s application neglects this second step.
3. The ERTA effect and affectation
142. To recall, under Article 3(2) TFEU, the European Union acquires exclusive competence to conclude an international agreement if that agreement ‘may affect common rules or alter their scope’. What does ‘affectation’ entail?
143. Neither the text (100) of Article 3(2) TFEU nor its preparatory work provides much guidance. (101)
144. The origin of the idea underlying that provision – that is, that a shared EU competence may turn into an exclusive EU competence when an international agreement might affect or alter existing EU rules – goes back to the judgment in ERTA. The Court has confirmed that that case-law is still relevant, by holding that the third situation of Article 3(2) TFEU must be read ‘in the light of’ that judgment and the case-law that followed. (102)
145. Therefore, while ERTA was decided at a time far before the introduction of Article 3(2) TFEU into the text of the Treaty, its ‘idea’ remains relevant for the interpretation of the conditions under which exclusive competences arise. (103)
146. There are, in my view, two important aspects to the ERTA effect.
147. The first important aspect arises from paragraph 17 of the ERTA judgment, where the Court stated that ‘each time the [European Union], with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules’. (104)
148. That statement suggests that the ERTA effect is based on the concept of pre-emption: when the European Union enacts common rules, it occupies that particular field of EU law, with the consequence that the Member States no longer have a right to occupy the same field. (105)
149. However, since the inception of the Treaty of Lisbon and the introduction of Article 3(2) TFEU, it became questionable whether the ERTA effect should be understood as one of pre-emption or, as the Commission submits in the present proceedings, as a positive grant of exclusive competence. (106)
150. As I have explained earlier (see point 89 of this Opinion), the Court has excluded the application of Protocol No 25 to Article 3(2) TFEU. By this, the Court therefore rejected the possibility that ‘ERTA pre-emption’ should be understood in the same way as ‘internal pre-emption’, which is confined to specific rule pre-emption.
151. However, in my view, that conclusion does not preclude the ERTA effect from being viewed through the prism of pre-emption in general. It merely implies that the ERTA effect is not confined only to the type of pre-emption recognised in the internal competence context, that is, limited merely to concrete rules, but that it could be broader.
152. In that respect, according to the Commission, Article 3(2) TFEU must be understood to even allow for ‘field pre-emption’.
153. The Council and the Member States, however, do not agree with that reading. The Swedish Government, for example, explained in the present proceedings that it does not consider that the non-applicability of Protocol No 25 has as the consequence that it is sufficient, under Article 3(2) TFEU, merely to find that a relevant ‘area’ is covered by EU rules ‘to a large extent’. That party thus argued that, even if the ERTA effect could not be understood through the prism of pre-emption, that does not mean that a specific analysis is not necessary to establish exclusivity.
154. That leads me to the second important aspect of the ERTA effect: that it may be explained, in part, through the principle of sincere cooperation, (107) today expressed in Article 4(3) TEU.
155. In the ERTA judgment, immediately after recalling the principle of sincere cooperation, the Court found that ‘to the extent to which [EU] rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the [EU] institutions, assume obligations which might affect those rules or alter their scope’. (108)
156. Accordingly, whereas the exclusion of Member States’ powers was based on the logic of pre-emption, it is the reliance on the principle of sincere cooperation and the obligations that flow from it that introduced, in ERTA, the ‘affectation’ logic. (109) By virtue of the ERTA effect, therefore, the Member States are pre-empted from entering into international commitments which may affect common rules.
157. In my view, the case-law that followed the judgment in ERTA, both before and after the entry into force of the Treaty of Lisbon struggled to explain clearly the ERTA effect, especially how to conclude that the affectation that pre-empts Member States’ action exists. In some instances, the case-law might be seen as even accepting the logic of ‘field pre-emption’, (110) and in others it seemed that it insisted on a thorough, rule-by-rule, analysis of affectation. (111) Understandably, therefore, scholarship has described the case-law as confusing and unclear. (112)
158. To my mind, however, the perception that the Court has taken different stances in different cases is often the result of a failure to take into account the specific context in which the respective cases were brought to the Court. That context might influence the steps that the Court considered necessary to undertake when finding or excluding exclusivity. (113)
159. Indeed, even if the Court has never placed the ERTA effect in one of the niches debated in legal theory, its case-law does not seem to support the field pre-emption interpretation proposed by the Commission.
160. On the other hand, even if, in my understanding, the steps required by the case-law appear to be more faithfully explained by the Council, the case-law nevertheless does not require that an article-by-article assessment is always undertaken.
161. In my view, the case-law may be understood if one starts from the objective of the ERTA effect. In Opinion 1/03 (New Lugano Convention) of 7 February 2006 (EU:C:2006:81), the Court explained said objective as being ‘to ensure a uniform and consistent application of the [Union] rules and the proper functioning of the system which they establish in order to preserve the full effectiveness of [Union] law’ .(114)
162. The uniform and consistent application of EU law and the proper functioning of the system established by it might be jeopardised if there is a risk that common rules be affected by a commitment at international level entered into by the Member States. Affectation, in that sense, means, as the Court explained, ‘an effect on the meaning, scope and effectiveness’ of the common EU rules. (115)
163. The question to be asked to establish the ERTA effect is, thus, whether a particular Member State’s commitments at the international level may have an effect on the meaning, scope or the effectiveness of the common EU rules.
164. Viewed in that light, the ERTA effect may be read as serving the objective of removing ‘obstacles’ that may be raised by Member States’ external action so as to preserve a uniform EU legal order characterised by common rules; that is, as a type of ‘obstacle pre-emption’. (116)
165. Whether an international commitment presents an obstacle to the preservation of the system as established by the common EU rules may be assessed differently in relation to a multilateral convention aiming to regulate at the international level a specific area which is already governed by common EU rules, (117) a comprehensive bilateral agreement that covers many policy areas, (118) or an area-specific international agreement concluded by the Member States which may contain rules that overlap with common EU rules. (119)
166. It is, however, undeniable that for the risk of affectation of EU rules to arise, there must be some interaction between the two sets of rules: those at international level and those at EU level. (120)
167. There are two situations in which that interaction occurs: in a situation of overlap and outside a situation of overlap.
168. The first situation of the ERTA effect is thus a situation in which international and EU rules overlap. It was in that sense, that the Court found affectation because the international commitments fell within the scope of the common EU rules. (121)
169. Take the examples of the Hague Convention (122) and the Convention of the Council of Europe on the protection of neighbouring rights of broadcasting organisations. (123) In Opinion 1/13 (Accession of third States to the Hague Convention) (124) and the judgment in Commission v Council, (125) the Court was able to infer from an assessment of the mere overlap (even where only partial) that the scope and nature of the two sets of rules that were undertaken internationally might affect existing rules of EU law and their foreseeable development. By virtue of the finding that the commitments at issue covered the same area and situations envisaged by EU law, an individual analysis of every single commitment was not necessary. The Court could, therefore, legitimately conclude that those international agreements taken ‘as a whole’ risk affecting common EU rules. (126)
170. To come to such a conclusion, it is not necessary that the two set of rules are in conflict with one another. (127)
171. The reason for granting exclusive competence to the European Union is precisely to prevent such conflict. Presence at the international level enables the European Union either to agree the same rules in an international agreement as those that exist as common rules, or to accept different international commitments with the knowledge that the common EU rules will have to be adjusted (something that only the European Union, and not its Member States, can agree to). In both cases, however, the dispute at the international level is avoided because the European Union and not the Member States undertake an international commitment.
172. Thus, the mere possibility that the Member States exercise externally a power already exercised by the European Union internally to regulate a particular subject matter might be sufficient to find a risk of affectation of the common system of EU rules.
173. For such a finding, it is also not necessary that the two set of rules coincide fully. (128)
174. Indeed, according to the Court, a risk of affectation (by virtue of overlapping commitments) may arise where the common rules of EU law cover an area that forms the subject matter of an international commitment ‘to a large extent’. (129)
175. However, the ‘largely covered area’ argument cannot be relied on if there is no overlap at all, for example, if the EU rules at issue regulate only an internal situation, but the international commitments at issue exclusively concern an external situation. In such a scenario, there is no overlap between the common EU rules and an international commitment. Hence, the (internally) ‘largely covered area’ concept does not apply to establish a risk of affectation.
176. Therefore, even if, as the Commission and the Parliament appear to argue, the area of air transport, coupled with adjacent issues such as safety and security, or environmental protection, is, by now, completely covered by common rules of EU law internally, that is not sufficient to establish automatic external exclusive competence for a part of that area not concerned by common internal rules. In such a case, there is no overlap.
177. As I have already highlighted in point 167 of this Opinion, the second situation in which an international commitment is capable of interacting with common rules of EU law occurs outside of a situation of overlap.
178. In such a case, even if the international commitment does not concern the same issue as the one regulated by an EU rule, it may still have an effect on that EU rule.
179. To my mind, it is that type of affectation in the absence of overlap to which the Court refers in its case-law when it explains that the ERTA effect ‘must have its basis in conclusions drawn from a comprehensive and detailed analysis of the relationship between the envisaged international agreement and the EU law in force. That analysis must take into account the areas covered by the EU rules and by the provisions of the agreement envisaged, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish’. (130)
180. Applied to the present proceedings, these two situations of possible affectation may result in the conclusion that the European Union has exclusive competence to conclude the envisaged agreement, either because the European Union has exercised internally its shared competence to grant traffic rights to third countries, or, in the absence of such internal rules, because the grant of traffic rights by the Member States to the Sultanate of Oman risks affecting the system of internal air transport established by the common EU rules.
181. Having set out the assessment to be undertaken by the Court, I shall now turn to the application of that framework to the commitments contained in the envisaged agreement.
4. Application to the envisaged agreement
(a) The commitments to be assessed
182. In point 50et seq. of this Opinion, I have explained the structure of the envisaged agreement and its different types of provisions. To recall, the envisaged agreement is split into three sets of provisions: Title I on economic provisions, Title II on regulatory cooperation and Title III on institutional provisions.
183. The core of the parties’ disagreement – and indeed of the envisaged agreement as a whole – is the grant of traffic rights under Article 3 thereof. That provision falls within Title I of the envisaged agreement. As the Council and the Member States explain, it is the grant of traffic rights that constitutes the ‘raison d’être’ of international air transport agreements given that, absent their exchange, such agreements would be deprived of all reasonable effect. Therefore, I shall discuss that provision and the arguments raised in relation to it in depth (Subsection (b) below).
184. The parties also contest the exclusive nature of two other provisions falling within Title I: Article 8 (on fair competition) and Article 11 (on customs duties, taxes, fees and charges). I shall therefore analyse separately also those two provisions (Subsection (c) below).
185. The remaining (economic) provisions of Title I mostly relate to the exercise of air transport and related services. It is not disputed that at least some of those provisions coincide with an area that is already covered (partially or completely) by EU rules, or that they might affect EU rules which directly govern rights or obligations of third-country carriers once they enter the single European sky. For completeness, I shall nonetheless briefly assess most of those provisions (Subsection (d) below).
186. Conversely, I shall not analyse the exclusive EU nature of certain provisions of Title I and the provisions of Titles II and III for the following reasons.
187. First, Title II of the envisaged agreement covers regulatory cooperation. To the extent that those provisions actually contain binding commitments capable of triggering the third situation of Article 3(2) TFEU, (131) those provisions cover areas already subject to common EU rules. (132) For those aspects, it is clear (and uncontested) that said cooperation occurs under exclusive EU competence. That is because if regulatory cooperation pursuant to those provisions results in the adoption of certain standards relating, say, to aviation safety (133) or security (134) that are different or complimentary to current standards adopted under EU law, the consequences of that regulatory cooperation may affect common EU rules. As I have explained in point 171 of this Opinion, only the European Union is capable of agreeing to such consequences, and therefore it is only the European Union that is permitted to participate in such cooperation. It follows that it is not necessary to assess separately the provisions of Title II.
188. Second, the envisaged agreement contains a number of provisions relating to the institutional framework thereof and other ancillary aspects relating to the envisaged agreement. Most of these are contained in Title III; however, Article 1 (‘Definitions’), Article 2 (‘Direct effect’), Article 6 (‘Liberalisation of ownership and control of air carriers’), (135) Article 9 (‘Doing business’), (136) and Article 14 (‘Statistics’) (137) of Title I also fall within that category. All of those provisions are intended to ensure the effectiveness of the substantive commitments which they serve. In relation to such provisions, ‘the Court has already had occasion to point out that the competence of the European Union to enter into international commitments includes competence to couple those commitments with institutional provisions. Their presence in the agreement has no effect on the nature of the competence to conclude it. Those provisions are of an ancillary nature and therefore fall within the same competence as the substantive provisions which they accompany’. (138) Accordingly, those provisions, too, do not require a separate analysis.
(b) Article 3 of the envisaged agreement (‘grant of rights’)
(1) Is there an overlap?
189. I have explained that, in the Open Skies judgments, the Court found that, as EU law stood at that point in time, the European Union had not exercised its the internal shared competence to regulate the grant of traffic rights to third countries. (139) For that reason, the Court found that the grant of traffic rights by Member States to the United States could not affect the internal exercise of the European Union’s shared competence in the area air transport.
190. However, the Commission contends that the state of affairs has evolved.
191. First, that institution considers that the common rules of EU law, in particular the Air Services Regulation, now cover the entirety of the air transport sector. Those rules have by now, in the Commission’s words, superseded the ‘historic spider web of bilateral agreements’ so that those relationships are no longer governed by international law, but only by EU law.
192. I do not find that the increase in common rules, relied on by the Commission, has changed EU law in such a substantively relevant way (in relation to the situation when the Open Skies judgments were handed down) so as to allow for the finding that the shared competence for granting traffic rights externally was exercised internally.
193. As the Czech Government rightly contends, the Air Services Regulation is concerned with the internal market in air transport services, for which the right to exploit air services is automatic for EU carriers and implies the grant of traffic rights between the Member States. (140) That arises from Article 19 of that regulation, read alongside the definition of traffic right in Article 2(14) thereof. In other words, the Air Services Regulation constitutes an internal exercise of a shared EU competence to regulate the grant of traffic rights internally, between the Member States. As I have explained, that type of exercise of a shared EU competence is not capable of creating an ERTA effect – and of therefore precluding the Member States from exercising the external part of that shared competence, consisting in the grant of traffic rights to third countries.
194. It follows that by adopting the Air Services Regulation, the European Union did not exercise its shared competence to grant traffic rights to third countries, in relation to which the Member States’ commitment relating to the grant of traffic rights to the Sultanate of Oman would overlap.
195. Second, the Commission relies on Regulation No 847/2004 to argue that there now exist common rules of EU law governing the grant of traffic rights to third countries. That regulation evidences, according to the Commission, that, as EU law stands today, even the grant of traffic rights to third countries is now regulated by common EU rules. Article 3(2) of the envisaged agreement therefore affects common rules of EU law.
196. I do not share the Commission’s reading of the scope of application of that regulation.
197. It is true that Regulation No 847/2004 constitutes an example of an internal exercise of the European Union’s shared competence to regulate an external aspect of air transport. However, the main aim of that regulation, which was adopted in reaction to the Court’s decision in the Open Skies judgments, is to coordinate with the Commission the negotiations of bilateral agreements by which the Member States grant traffic rights to third countries, in order to secure conformity of such agreements with EU law and thus protect common EU rules. (141) For that purpose, Regulation No 847/2004 organises the Member States’ competence for the conclusion of air transport agreements with third countries to address the findings of the Open Skies judgments, which found that certain provisions that usually form part of an air transport agreement might affect common EU rules. The regulation does so by requiring that bilaterally negotiated agreements contain standard clauses protecting common rules, and that they are notified to the Commission prior to their conclusion to enable that institution to assess whether any other rules risk affecting those common rules. (142)
198. However, Regulation No 847/2004 does not contain common rules governing the grant of traffic rights to third countries, nor does it restrict the Member States’ liberty to grant such rights to third countries. To my mind, the Commission’s interpretation, according to which that regulation delegates to the Member States the power to grant traffic rights, which has, in the meantime, become an exclusive EU competence, has no basis in that regulation or other EU legislation. In fact, given that Regulation No 847/2004 regulates how the Member States may grant traffic rights, I consider that instrument an argument in support of the conclusion that, externally, traffic rights remain to be exercised by the Member States.
199. Accordingly, Regulation No 847/2004 does not constitute an internal exercise of the shared EU competence to grant traffic rights to third countries. For that reason, the commitment provided for in Article 3(2) of the envisaged agreement does not overlap with common rules contained in that regulation.
200. Finally, just because the European Union alone concluded an air transport agreement with a third country in the past (143) does not support the conclusion that a shared EU competence to grant traffic rights to third countries has been definitely exercised externally, such that that could justify exclusiveness for such agreements with any third country. As I have explained, those precedents merely evidence the possibility that air transport agreements can be concluded by the European Union alone as all their parts fall in the EU competence, but they do not demonstrate or act as a source of an external exclusive competence of the European Union over the entire air transport agreement.
201. In that regard, the Danish and Swedish Governments highlight two regulations that were adopted to enable the European Union to establish basic air connectivity with the United Kingdom after the expiry of the transitional period laid down in the Withdrawal Agreement (144) with a view to enabling the European Union to exercise its competences, including the grant of traffic rights in relation to the United Kingdom. (145) However, those regulations limit in time that exercise of competence by the European Union to the period of application of those regulations. On that point, both regulations specifically indicate that ‘the exercise of Union competence pursuant to this Regulation shall be without prejudice to the competence of the Member States concerning traffic rights in any ongoing or future negotiations, signature, or conclusion of international agreements related to air services with any other third country, and with the United Kingdom with respect to the period after this Regulation has ceased to apply’. (146)
202. Those regulations therefore demonstrate, if anything, the lack of political will to enable the exercise of the power to grant traffic rights to third countries by the European Union. However, the Court cannot make up for the lack of political willingness of the EU legislature to enable the coming into being of exclusive EU competence.
203. I therefore consider that the internal competence of the European Union relating to the grant of traffic rights to third countries has not yet been exercised through the adoption of common rules, such that Article 3(2) of the envisaged agreement does not overlap with such rules.
(2) Is there affectation of common EU rules without overlap?
204. Lacking the common provisions with which Article 3(2) of the envisaged agreement might overlap, the Court now needs to assess whether that provision is capable of affecting other rules of EU law.
205. In that regard, the Commission submits that, by virtue of the grant of traffic rights to the Sultanate of Oman, Omani air carriers could start participating in the internal market in air transport services. Certain rules of EU law that regulate that market would hence be made applicable to those third-country carriers. That in turn, would risk affecting those rules. In any event, even absent the grant of traffic rights, the Commission submits, there exist a number of internal rules that do not apply only internally, but also apply directly to third-country carriers.
206. Again, I do not consider that the Commission has established the existence of affectation, within the meaning of Article 3(2) TFEU.
207. First, as was also clarified at the hearing, the conclusion of the envisaged agreement will not have the effect of enabling Omani air carriers to participate on the EU market in air transport services. Those carriers will not be assimilated to EU carriers for intra-EU flights since the traffic rights that are granted by virtue of the envisaged agreement solely concern the first to fourth freedoms of the air. In other words, those carriers will not be permitted to transport passengers or freight between the airports of different Member States or of the same Member State (and thus will not participate on the internal market in air transport services). (147)
208. Second, the ability to fly to and from the Sultanate of Oman from and to certain points within the European Union entails the application of a number of common EU rules that relate to safety, security, environmental protection, airport rules – including the distribution of slots – and other rules. (148) However, as stated by several participating governments, that only means that those rules will be applicable to a number of additional carriers, not that they will be ‘affected’. In itself, the mere application of those rules is not such as to create ‘an effect on their meaning, scope and effectiveness’ (see point 1622 of this Opinion). In other words, the type of ‘factual’ affectation asserted by the Commission is not sufficient to trigger the ERTA effect. (149)
209. Finally, where certain common rules of EU law already now regulate the activities of EU and third-country carriers alike, or even specifically relate only to the third-country carriers, those rules, in any event, find application only after traffic rights are granted. They cannot, therefore, be affected by a grant of traffic rights as they become applicable as a consequence of that grant should one or more Omani air carriers decide to exercise those traffic rights going forward.
210. That of course does not mean that other provisions of the envisaged agreement that may be relevant for the exercise of traffic rights cannot affect those common EU rules that apply to EU and third-country carriers alike. However, at least in so far as the commitment contained in Article 3(2) of the envisaged agreement is concerned, I am not convinced that there is a risk of affectation within the meaning of the ERTA case-law.
211. Therefore, I consider that the European Union has not acquired exclusive competence to grant traffic rights to third countries by virtue of the risk of affectation of non-overlapping common rules of EU law.
212. For all those reasons, I propose that the Court finds that the European Union does not have exclusive competence for granting traffic rights to third countries on the basis of the ERTA effect, as provided for in Article 3(2) TFEU. That, at the same time, means that the European Union does not have exclusive competence to conclude the entire air transport agreement with the Sultanate of Oman.
(c) Article 8 (‘fair competition’)
213. Article 8 of the envisaged agreement lays down the joint objective of a fair and competitive environment. To that extent, both sides commit to adopt or maintain competition law, independent competition authorities equipped with the necessary powers and resources, commit to prohibit any forms of discrimination or unfair practices, and not grant or maintain subsidies distorting fair conditions of competition. That provision also lays down that the contracting parties may support air carriers in certain situations and subject to certain conditions.
214. Relying on the faculty to provide financial support to air carriers in certain circumstances, a number of Member States argued that Article 8 is not capable of affecting the common rules on EU law on competition and State aid enforcement, given that that provision does not mandate them to provide support measures that are incompatible with EU law.
215. Nevertheless, the fact that a provision of an international agreement conforms to existing EU rules does not exclude a finding of affectation in a situation of overlap. Irrespective of the precise conditions pursuant to which financial support measures may be granted under Article 8 of the envisaged agreement, the subject matter of that provision is covered by common rules of EU law – in fact, from two perspectives. There is therefore a risk that, if left to the Member States, a provision of that kind in an international agreement could affect common rules with which it overlaps.
216. First, there exist EU legislative instruments (150) governing generally the application of Articles 101, 102, 107 and 108 TFEU to activities capable of having an effect on the internal market, including where this concerns the area of air transport. (151) Second, the subject matter of Article 8 of the envisaged agreement also overlaps with certain rules of EU law specifically governing the application of the rules on competition and State aid in the air transport sector with third countries. Thus, Regulation (EC) No 487/2009 (152) lays down rules governing the application of Article 101(3) TFEU to certain categories of agreements and concerned practices in the air transport sector, including between the European Union and third countries. (153) More recently, the EU legislature also put in place Regulation (EU) 2019/712, (154) which lays down sector-specific rules seeking to safeguard competition in the air transport sector, and, to use the words of the Council, ‘targets especially third countries and third-country entities’. That regulation empowers the Commission to adopt measures to address practices, including subsidisation, in the territory of third countries which distort competition between EU air carriers and said third-country air carriers, and so cause or threaten to cause injury to EU air carriers. (155)
217. It follows that Article 8 of the envisaged agreement overlaps with common rules of EU law, such that that provision risks affecting those common rules. Therefore, the Member States can no longer agree with third countries on measures in respect of the issues concerning those common rules.
(d) Article 11 (‘customs duties, taxes, fees and charges’)
218. Article 11 of the envisaged agreement covers the exemption from import duties and taxes on fuel, equipment, spare parts and other goods (for example, food, beverages or other goods sold to passengers) which air carriers load, unload or use in the territory of the respective contracting party in the course of providing aviation services.
219. At least as regards the exemption of energy products intended for civil aviation, the Court has already recognised that there exist common EU rules in the form of Directive 2003/96/EC, (156) adopted with a view to ensuring compliance with, inter alia, the Chicago Convention. (157) Given that those rules apply both, to EU and third-country carriers, Article 11 of the envisaged agreement, at least to that extent, overlaps with a subject matter governed by EU law. The Council accepted that conclusion at the hearing.
220. The Council and several Member States nonetheless contend, that in so far as Article 11 of the envisaged agreement provides for an exemption from other duties and taxes, including for carrying spare parts and other goods, there exist no common rules of EU law.
221. However, it arises from the memorandum of consultations attached to the envisaged agreement, that, ‘in relation to Article 11 of the envisaged Agreement, the EU delegation explained that EU exemptions in relation to custom duties and value added tax (VAT) are governed by Council Regulation (EC) 1186/2009(158)] (for customs duties) and Council Directive 2009/132/EC[(159)] (for VAT) and that Article 11 contains the exemptions related specifically to aviation as permitted by Council Regulation 1186/2009 and Council Directive 2009/132 in relation to recommended practices by the International Civil Aviation Organization’ .(160)
222. Neither the Council nor the Member States dispute that statement.
223. Regulation No 1186/2009 which lays down an EU system of duty relief for import duties, export duties and certain other measures, (161) in Article 132(b) thereof, provides that the provisions of that regulation apply ‘without prejudice to … the stores of … aircraft’. Directive 2009/132, which lays down the scope of certain exemptions from VAT, (162) in Article 93(c) thereof, states that that directive ‘shall not prevent Member States from continuing to grant … exemptions in the context of agreements entered into on the basis of reciprocity with third countries that are Contracting Parties to the [Chicago Convention] […] for the purpose of implementing Recommended Practices 4.42 and 4.44 of Annex 9 to [that] Convention’.
224. In other words, EU law occupies the subject matter of duty and VAT relief for the import and export of certain goods, but leaves to the Member States the possibility to grant certain exemptions falling within that subject matter for the purposes of air transport services to and from third countries and to ensure compliance with their obligations under the Chicago Convention.
225. That type of regulation, too, constitutes an exercise of an EU competence since it interferes with the Member States’ freedom to regulate in that area of shared competences beyond those specific elements. Given that those rules apply both to EU and third-country carriers, the commitments contained in Article 11 of the envisaged agreement overlap with those rules and so are capable of affecting them.
226. As the Commission moreover explained at the hearing, without being contradicted to that effect, the above rules are complemented, on the one hand, under Directive (EU) 2020/262, (163) by excise duty relief for aviation fuel and, under Regulation (EU) 2018/581, (164) by customs duty relief for aeronautical equipment, and, on the other hand, by an extensive system of relief in the field of VAT on the basis of Directive 2006/112/EC, (165) all of which apply equally to third-country carriers. The latter directive establishes the common system of VAT, (166) and in points (e), (f) and (g) of Article 148 thereof, lays down a mandatory exemption of ‘the supply of goods for the fuelling and provisioning of aircraft used by airlines operating for reward chiefly on international routes’, of ‘the supply, modification, repair, maintenance, chartering and hiring of [such an aircraft] and the supply, hiring, repair and maintenance of equipment incorporated or used therein’, and of ‘the supply of services, other than those [just referred], to meet the direct needs of [such an aircraft] or of their cargoes’. According to the Commission, again without being contradicted, those VAT exemptions cover all items listed in Article 11 of the envisaged agreement.
227. Finally, it is necessary to take position on the Council’s and some Member States’ further assertion that the exemption from other taxes and levies, such as those on property or capital, does not concern an exercise of an EU competence.
228. That argument goes to the existence of a competence. However, as I have explained, the European Union holds the competence to regulate in the area of air transport. As part of the exercise of that competence, the European Union is entitled to enter into any commitments that have the primary objective of helping to achieve that use of an EU power. (167)
229. That is the case for Article 11 of the envisaged agreement: that commitment seeks to exempt from duties, taxes, and other levies ‘aircraft operated in international air transport by the air carriers of the other Contracting Party’ and its regular equipment, supplies, and other items ‘intended for or used solely in connection with the operation or servicing’ of said aircraft. (168) It therefore serves the primary objective of the envisaged agreement of liberalising air transport services between the contracting parties. That means that it falls within the exercise of the European Union’s competence in the area of air transport.
230. While it may well be that, at least to the best of my knowledge, there do not exist, at present, common rules of EU law exempting third-country aircraft and any regular equipment, supplies and other items from capital levies and property taxes, that does not matter for the conclusion that Article 11 of the envisaged agreement as a whole affects a subject matter already largely covered by common EU rules, and can, therefore, notwithstanding that the overlap is only partial, be interpreted as constituting exclusive EU competence on the basis of Article 3(2) TFEU.
231. It follows that I consider that Article 11 of the envisaged agreement is capable of affecting common rules of EU law.
(e) Other provisions of Title I
232. Articles 4, 5, 7, 10, 12 and 13 of the envisaged agreement all relate to the substantive rules governing the access to, exercise of, and restriction to the exercise of air transport and ancillary services. Those commitments are composed of horizontal and specific obligations, some expressed in mandatory language, some with more loose wording, addressed either to the contracting parties themselves, or binding their respective air carriers.
233. First, Articles 4 and 5 of the envisaged agreement, in essence, regulate the conditions for the grant and refusal, revocation, suspension or limitation of operating authorisations (that is to say the condition subsequent to the grant of traffic rights). Those commitments inter alia require the treatment of Omani air carriers on the same terms and subject to the same conditions as EU carriers, (169) and require from Omani air carriers the compliance with the applicable rules of EU law for the grant, refusal, revocation, suspension, the imposition of conditions or limitations of an operation authorisation. (170) The conditions relating to the grant and the maintenance of an operating authorisation are covered by the Air Services Regulation. (171) Thus, Articles 4 and 5 of the envisaged agreement overlap with certain rules of EU law governing that subject matter. They so affect those common EU rules.
234. Second, Article 7 of the envisaged agreement is entitled ‘compliance with laws and regulations’ – at the hearing, that provision was also referred to as a ‘compliance clause’. In paragraph 1, that provision generally mandates compliance with all ‘laws and regulations relating to the admission to, operating within, or departure from’ the territory of the European Union mandatory for Omani air carriers when performing air transport services. Paragraph 2 adds to this by imposing that same obligation of compliance also ‘relating to the admission to, operating within, or departure from [the territory of the European Union] of passengers, crew, baggage, cargo and/or mail on aircraft’.
235. In other words, taken collectively, Article 7(1) and (2) of the envisaged agreement horizontally lay down that Omani air carriers exercising the air traffic rights granted by virtue of Article 3 thereof must comply with all applicable rules of EU law governing air transport and ancillary services. In so doing, those paragraphs arguably reflect Article 11 of the Chicago Convention, which mandates compliance with local laws and regulations upon the exercise of air transport services in the respective territory of the other State.
236. Article 7 of the envisaged agreement thus contains a commitment to preserve the effectiveness and uniformity of the rules governing the exercise of air transport services in the European Union, and indeed the effectiveness of the EU legal order as a whole. Were that not so, the Member States would be capable of entering into an international commitment capable of requiring adjustment of common EU rules to accommodate certain flights of Omani air carriers to and from the European Union. For those reasons, Article 7 is a provision in exclusive EU competence, as its purpose is to prevent the affectation of common rules.
237. Third, Article 10 of the envisaged agreement, in essence, deals with commercial activities and services related to the operation of air transport services. Among others, those activities concern the right to provide ground handling services, the allocation of slots at airports, certain cooperative marketing arrangements like code sharing, and certain types of aircraft leasing arrangements. (172) Those commitments are all covered by EU law and apply equally, in the presence of a commitment such as that contained in the envisaged agreement, to third-country operators: thus, the provision of ground-handling services is covered by Directive 96/67/EC, (173) the allocation of slots is regulated by Regulation (EEC) No 95/93, (174) and cooperative marketing arrangements like code-sharing and air leasing arrangements are covered by the Air Services Regulation. (175) Article 10 of the envisaged agreement therefore overlaps with and affects a subject matter covered by common rules of EU law.
238. Fourth, Article 12 of the envisaged agreement concerns the payment of user charges for the use of air navigation and air traffic control and airport, aviation security and related facilities and services. Today, (176) that provision, too, covers a subject matter regulated by common rules of EU law: thus, Implementing Regulation (EU) 2019/317 (177) governs common rules for charging schemes for air navigation services and network functions, (178) which applies to any ‘airspace user’, (179) and so applies equally to EU and non-EU carriers, such as those from Oman.
239. Likewise, Directive 2009/12/EC (180) sets out common principles for the levying of airport charges at Community airports, (181) which apply to the charges paid by all ‘airport users’ (182) in a non-discriminatory manner, (183) and therefore irrespective of the third-country origin of an air carrier. It follows that Article 12 of the envisaged agreement overlaps with and affects common rules of EU law. (184)
240. Fifth, Article 13 of the envisaged agreement, in essence, relates to fares and rate for air transport services and seeks to ensure that airlines may set their own prices without undue influence by the public authorities. In the EU context, the subject matter of pricing and the setting and transparency of air fares and air rates is covered by the Air Services Regulation. Article 22 thereof specifically extends the freedom to set air fares and air rates also to air carriers from third countries in case of reciprocity. (185) Likewise, Article 23 of that regulation lays down specific obligations relating to the clarity and transparency of air fares and air rates and the idea that access to air fares and air rates should be non-discriminatory. Those rules apply ‘for air services from an airport located in the territory of a Member State’ (186) and therefore also to Omani air carriers operating in case of the conclusion of the envisaged agreement. Article 13 of the envisaged agreement therefore covers a subject matter regulated by EU law and is liable to affect those common rules.
241. It follows that I consider that Articles 4, 5, 7, 10, 12 and 13 of the envisaged agreement affect common rules of EU law.
IV. Conclusion
242. In the light of the foregoing considerations, I propose that the Court answer the question posed as follows:
The European Union does not have exclusive competence to conclude the Agreement on Air Transport between the Sultanate of Oman, of the one part, and the European Union and its Member States, of the other part.
The competence to grant traffic rights to third countries was not exercised internally and therefore remains within the shared competence of the European Union and its Member States.