European Air Traffic Management from a New Perspective: Competition Concerns in the Single European Sky

Abstract

This article attempts to assess the Single European Sky (SES) from a competition policy and competition law perspective. While air traffic management (ATM) has been viewed as a traditional and firm example of the exercise of public powers, as a result of technological developments, sectoral EU legislation and the relevant activities of the European Commission, this assessment may no longer be valid and certainly needs to be reconsidered. The European ATM scene is in dynamic change, inspired by EU policies and driven by legislative acts. While a recent report of the European Court of Auditors highlights several problematic aspects of the SES, new European and global markets of ATM services emerge, traditional state functions are earmarked for privatization, powerful industrial partnerships try to shape future markets, public functions are subjected to industry governance and the whole sector is increasingly at risk of technological disruption by tech firms such as Google and Facebook, interested in developing automatized solutions for the separation of drones and possibly traditional ATM. At least some of these new developments may be relevant from the competition perspective. It will be argued that competition policy and competition law are not only relevant to the ATM sector, but they need to be considered when making political and business decisions and adopting new legislation. Focussing on the most relevant sectoral developments, including provisions of the reinvented SES 2 sectoral legislative proposal of the European Commission, the article will argue that overlooking competition policy and competition law in the digital SES may lead to anti-competitive consequences in the reorganized ATM sector.