Minimum Procedural Delay: A Legal Analysis of the U.S.-E.U. Open Skies Agreement, and the Fight to Increase North Atlantic Competition

Taylor Strosnider

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The Atlantic separates two jurisdictions that drastically differ in their view on the importance of competition in the commercial aviation market. This paper focuses on the current regulatory environment of the commercial aviation industry, and two particular airlines facing separate issues on opposing sides of the Atlantic as they desperately attempt to lower airfare and increase in-flight customer service. Opening with the history of the regulation of commercial aviation, this paper outlines the freedoms of flight and the general role of the Federal Aviation Administration (F.A.A.). Stateside, low cost carrier Norwegian Air Shuttle and their Irish subsidiary, Norwegian Air International, are unfairly barred by the F.A.A. from obtaining a foreign air carrier permit because of where their aircraft are registered. This practice by the F.A.A. is a direct contradiction to the general purpose of the U.S.–E.U. Open Skies Agreement, which continually calls for increased competition in the market. However, the luxurious Emirati airline, Emirates, recently won its administrative dispute in the Italian administrative court system regarding their controversial Milan to New York-J.F.K. route. This decision opened the debate regarding why a foreign carrier can take advantage of the U.S.–E.U. Open Skies Agreement with service to the United States while a European carrier, as a signatory to the U.S.–E.U. Open Skies Agreement, is unfairly barred from obtaining its own foreign air carrier permit from the F.A.A. The Italian courts correctly applied the Open Skies Agreement by allowing Emirates to fly their new transatlantic route. Furthermore, using a Chevron two-step analysis and reviewing the language in the U.S.–E.U. Open Skies Agreement strongly indicates that the F.A.A.’s refusal to issue a foreign air carrier permit is an arbitrary and erroneous decision against Norwegian Air International.

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