Interpretation of Article 17 Bis of the US-EU Air Transport Agreement
Background
- The U.S. and the EU (and later Iceland and Norway) entered a 2007 Air Transport Agreement (amended by a 2010 Protocol) to open transatlantic air markets and minimize government interference.
- Article 4 of the Agreement requires a Party to grant "appropriate authorizations and permissions" with minimum delay if three conditions are met: proper citizenship, qualification under the Party's laws/regulations, and maintenance of safety and security (Articles 8 and 9).
- The 2010 Protocol added Article 17 bis ("Social Dimension"), which recognizes that open markets should be accompanied by high labor standards and directs Parties and the Joint Committee to consider social effects and responses.
- The Protocol also added Article 6 bis, which directs Parties to accept fitness/citizenship determinations of other Parties for Article 4 applications absent specific concerns, explicitly referencing Article 4.
- DOT asked OLC whether Article 17 bis independently permits the United States to deny a foreign air carrier permit when the carrier otherwise satisfies Article 4 requirements; OLC assumed statutory/DOT permit prerequisites were met and limited its analysis to interpreting the Agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Article 17 bis independently authorizes denial of a permit even if Article 4 requirements are met | Article 17 bis permits denying a permit on social/labor–standards grounds (i.e., Parties retain discretion to refuse "appropriate" authorizations) | Article 17 bis is hortatory/implementational and does not override Article 4’s mandatory grant when its conditions are satisfied | Held: Article 17 bis does not provide an independent basis to deny a permit once Article 4’s conditions are met |
| Whether the phrase "appropriate authorizations and permissions" in Article 4 leaves open discretion to deny permits for unenumerated reasons | Argues "appropriate" is open-ended and could include labor/social considerations from Article 17 bis | Context and express enumeration in Article 4 limit "appropriate" to the specific authorizations needed to operate; broad discretion would conflict with Article 4’s mandatory language | Held: "Appropriate authorizations and permissions" refers to the authorizations needed to operate (e.g., DOT permit) and does not imply reservation of additional substantive denial grounds like Article 17 bis |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (treaty interpretation begins with text and purpose)
- Bank Melli Iran v. Pahlavi, 58 F.3d 1406 (executive agreements interpreted like treaties)
- Air Canada v. U.S. Dep’t of Transp., 843 F.2d 1483 (same principle for international executive agreements)
- E. Airlines, Inc. v. Floyd, 499 U.S. 530 (interpret treaty text in context)
- Whitman v. Am. Trucking Ass’n, 531 U.S. 457 (courts should not infer broad delegations from narrow text)
- United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365 (context resolves seeming statutory ambiguity)
- Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (deference to negotiating agency interpretations)
- Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (clear treaty text controls over drafting history)
- Kolovrat v. Oregon, 366 U.S. 187 (executive-branch interpretation of treaties entitled to great weight)