The regulation of air transport is a topic of current interest because of the great media impact that has characterized it in recent years and which today drives both international and EU lawmakers to regulate two of its aspects more stringently: safety and efficiency. Up to a few years ago the two aspects seemed to run along two parallel tracks without the risk of dangerously overlapping. Today, however, there has never been greater need for legal instruments to ensure their coexistence with a view to improving the protection of individuals, whether as passengers or consumers, but in any event as users of air transport services.

As those lawmakers follow their guidelines they must keep very much in mind the impact which their choices have on the rights of individuals, which are many and, inevitably, of varying significance; moreover some intersect and some overlap, coming into conflict, making it necessary to sacrifice one right in favour of another. Against this background, the rights of individuals may be classified as ‘primary’ or ‘secondary’ and may also be subdivided into various degrees within the two.

The difference between ‘primary’ and ‘secondary’ rights of individuals and the extent to which they may rely on them are the common thread informing the analysis of a plethora of legislative and case-law data, in search of an acceptable point of balance. In order to do this, I have decided to analyse a few ‘primary’ rights in the air transport sector such as the right to life and to safety, but also to personal dignity and the protection of privacy, and a few ‘secondary’ rights, such as the right to enjoy efficient and competitive service, between which there are points of contact and of conflict, leading the legislature to articulate and complex choices.

At EU level the aim is to find a balance between the will to liberalise as much as possible a market which has long been far from competitive and the need to ensure the highest possible level of passenger protection and safeguard.

In Europe liberalisation was not entered into lightly. It took many years to reach adequate liberalisation measures, which brought together a number of distinct national markets, previously interlinked by bilateral air services agreements, into a single market.

The process of the liberalisation of air transport in Europe was achieved gradually in three successive stages, concluding with the adoption in July 1992 of a ‘legislative package’ that resulted in a total opening-up of the market.¹

Previously, the preference had been for a policy of conservation and protection of markets through a massive use of bilateral talks which (inevitably) favoured the ‘flag carriers’, thus precluding other undertakings from access to this market sector.

An essential factor in the liberalisation process was certainly the judgment of the Court of Justice in the Nouvelles Frontieres Case² of 1986 in which it endorsed the application of the competition rules to air transport. This judgment removed the role of the Member States with respect to approving fares, based on agreements between airlines, and handed it over exclusively to the European Commission in accordance with the EC Treaty. This was one of the first judgments of the Court of Justice which took Article 4(3) TEU in conjunction with Article 101 TFEU in order to establish the obligation for Member States not to impose or even maintain in force legislative or regulatory measures which were counter to the competition rules applicable to undertakings.

The first phase started in 1987 with an initial partial liberalisation of regional flights consisting of a series of provisions to prevent Member States from being able to object to the introduction of new fares and to simplify the approval process by introducing the principle of tacit approval.

The second phase of liberalisation ended in 1990 and allowed European airlines to carry passengers to and from their home countries to the EU Member States (Third and Fourth ICAO Freedoms of the Air). Moreover, Fifth-Freedom flights, i.e. intra-European flights with stop-over in a third country and the right to pick-up and drop-off passengers during the stop-over, were allowed to a greater extent. Fare and capacity restrictions were also abolished.

In 1992 the third package of measures, including the common licensing of carriers and freedom of access to the market, was introduced. By then, all Community carriers were allowed to serve any international route within the European Union and were given full freedom to set fares. In 1997, as part of the third liberalisation package, all Community carriers were given the right of cabotage, i.e. the right to operate domestic routes within the whole of the EU.

All commercial restrictions for airlines flying within the EU such as restrictions on the routes, the number of flights or the setting of fares, have been removed. Prices have fallen drastically but progress has been impressive especially in terms of choice of routes. In fact, liberalisation has given rise to two parallel phenomena: a significant reduction of the role of former national monopolies and the emergence of new air passenger carriers with business and economic outcomes.

A significant consequence of the creation of the EU internal market and associated common rules has been also the gradual development of a more coordinated EU external aviation policy over the past decade, starting with the ‘open skies’ judgments of 5 November 2002.³ These judgments heralded the role of the EU by dismantling the traditional arrangement of bilateral agreements between States which had governed international air services until then.