Functional Airspace Block Agreements: European Instruments or International Treaties?

Through its Single European Sky (SES) initiative the European Commission is working to defragment and better manage European airspace in order to prevent future capacity shortages. The main tool to enhance efficiency is the establishment of Functional Airspace Blocks (FABs). These FABs group various countries, including non-European countries, and require them to closely cooperate in order to manage the airspace over the delimited territory in the best possible way. To implement the necessary changes, the Commission requires Member States within the same FAB to enter into agreements with one another. The structure and layout of the agreements are close to the requirements of international treaties. One of the current problems is to define the nature of the FAB agreements. These agreements, when involving non-European States, can be confused with international treaties – especially when no such instruments have ever been recorded at the European Union level and when the International Civil Aviation Organization (ICAO) was notified of each FAB agreement. If the FAB treaties are international agreements, then the repercussions would be enormous. Indeed, it would mean that the Union has the power to require its Member States to enter international treaties. With the entry into force of the agreements establishing the FABs, European law will give rise to international treaties within the Union, resulting in a new kind of EU lawmaking with everything it entails, such as a wider control of the EU over Member States’ decisions. It would push European integration to a whole new level, and would make Eu law applicable to non-EU countries that are part of the SES project. This article seeks to define the nature of these agreements and is based on the hypothesis that the agreements which include non-European countries could be international treaties.