Can ‘Traffic Rights’ for Non-commercial Air Operators Be Derived from EU Law?

Abstract

The European Union’s liberalization of the aviation market provided commercial EU air carriers with free access to intra-Community routes. For non-commercial air operators, the Chicago Convention already provided for certain international ‘traffic rights’. Moreover, the introduction of common rules for civil aviation has brought EU-wide harmonization to the non-commercial sector. Despite this, EU operators of non-commercial flights experience restrictions in certain territories. Some EU Member States accept free circulation of harmonized aircraft; others require registration in the state where the operator is based. This article aims to assess whether ‘traffic rights’ for non-commercial air operators can be derived from EU’s harmonized civil aviation rules or other EU law. I conclude that aircraft subject to EU harmonization of technical requirements and administrative procedures related to air operations can circulate freely intra EU, regardless of where the EU operator is based, provided that the aircraft is registered in an EU Member State. The extent of such ‘traffic rights’ for aircraft registered in third countries, i.e., in states other than Member States of the EU or the European Free Trade Association, is less clear. EU harmonization of technical requirements and administrative procedures related to air operations also sought to address third country aircraft based in Member States. However, EU regulation on airworthiness of such aircraft is supplemented by airworthiness rules laid down by the State of registry, and it may be that the level of harmonization within this area must be considered partial. If so, EU Member States might be able to impose national requirements within the limits of Articles 5(1) and 31 of the Chicago Convention, provided that these requirements are compatible with fundamental freedoms of EU law. traffic rights, non-commercial aviation, non-traffic purposes, Chicago Convention, EU law