Lufthansa Cargo ‘Flower Flights’ Colombia/Ecuador–Amsterdam: Netherlands Court Judgment on the Applicability of the EU–US Agreement and on ‘Establishment’

Abstract

German Lufthansa (LH) Cargo operated flights carrying flowers between Colombia & Ecuador and Amsterdam. The Netherlands government forbade such ‘illegal 5th freedom’ transport and in August 2013 a Netherlands court supported this decision. The German company’s defence that these cargo flights, because of an intermediate landing in Puerto Rico, were permitted under the EU–US air transport agreement, was rejected by the court. The court also supported the government’s refusal to allow LH Cargo to engage in this transport under the Colombia/Ecuador–Netherlands bilateral regimes, as the airline could not be regarded as ‘established’ in the Netherlands under national and EU law. The article analyses and criticizes the arguments used by the Court and further elaborated in the 2014/2015 appeal stage of the proceedings, when pre-judicial questions to the European Court, both on the interpretation and application of the EU–US agreement and on the ‘establishment’ criterion, were formulated.