So, can FedEx and UPS pilots fly in Europe or not?

The answer might surprise you and take you into the complexities of European institutional operations. But to get there, I need to go back over 10 years to when UPS attempted to acquire TNT Express in 2012. Non-European funds cannot own more than 49% of a European airline, so UPS’s plans left little doubt about the future of TNT Airways. It would simply be dismantled, and its routes taken over by US cargo planes. Hence, we began investigating the regulations that allow American pilots to thus threaten our jobs in Europe. These regulations are part of the Open Skies agreements between the European Union and the United States. These agreements were fairly recent, dating from 2007 for stage 1, and 2010 for stage 2, but the latter only came into effect around 2018. A thorough study of stage 1 revealed an annex supposedly limiting the activity of US cargo companies in Europe:

Annex 1 – Section 3: Notwithstanding Article 3 of this Agreement, US airlines shall not have the right to provide all-cargo services, that are not part of a service that serves the United States, to or from points in the Member States, except to or from points in the Czech Republic, the French Republic, the Federal Republic of Germany, the Grand Duchy of Luxembourg, Malta, the Republic of Poland, the Portuguese Republic, and the Slovak Republic.

In other words, US cargo companies are not allowed to transport cargo in Europe between Member States not included in this list of 8 countries. This list of 8 countries is tied to the history of World War II. TNT pilots then started sending small packages from their hotels between Member States not included in the list. We tracked these packages on the FedEx and UPS websites, and used the site FlightRadar24 to correlate the times with loading onto N-registered aircraft. It was thus demonstrated that a package sent from Helsinki to Madrid had been loaded onto a UPS N-registered aircraft to Cologne, and was reloaded three hours later onto another UPS aircraft for Madrid. This was, for us, a violation of Annex 1 – Section 3, as the package had been transported between two Member States not on the list with a service not linked to the United States. 

ICAO air freedoms

Armed with several other examples, BeCA organized a press conference which opened the doors to the political sphere in Belgium, up to the office of the Prime Minister, where we could argue our case on the violation of the Open Skies agreements by FedEx and UPS.

Having garnered sufficient media and political noise, we managed to secure a preliminary meeting with the European Commission through ECA. It is important to note that the European Commission was mandated by the Member States to negotiate the Open Skies agreements. This meeting turned out to be quite surprising. As a BeCA-ECA delegation, we only managed to meet an assistant who received us in the Commission’s canteen (?). After presenting our examples of violations, the assistant’s response was that all this was legal since the packages transit through Cologne or Paris, thus passing through one of the 8 countries on the list. We immediately requested that this interpretation by the Commission be confirmed so that we could return to the office of the Belgian Prime Minister and explain that the Commission had created a system of unfair competition among Member States, as only the 8 listed countries could attract FedEx and UPS to their airports, condemning Liège airport. Sensing that her explanation was flimsy, our assistant immediately changed her stance, suggesting another explanation for the flights of US cargo companies in Europe. According to her, these were merely combinations of “virtual” 5th freedoms. 

The package sent from Helsinki transits through Cologne, and since there is a connection between Cologne and the United States, our package continues “virtually” its journey towards the United States, the first 5th freedom. Then, it comes “virtually” back to Cologne before continuing to Madrid, the second 5th freedom. Given our bewildered expression, the assistant clarified that it was perfectly feasible for European companies to transport cargo between New York and San Francisco, passing “virtually” through Toronto, Canada. A phone call the next day to our colleagues at US-ALPA confirmed the absurdity of such an interpretation. Well… almost. The matter was raised a few weeks later at an EU-US Joint Committee meeting where the conclusion was that such an interpretation was unthinkable in the United States, but valid in Europe. From that moment on, despite inquiries from the French authorities mainly, there was an awkward silence from the Commission until the end of the legislature, when we received a letter confirming its interpretation based on “virtual” 7th freedoms. We never understood what these “virtual” 7th freedoms were…

Fortunately, in the meantime, the DG Competition of the Commission had blocked UPS’s acquisition of TNT Express, saving TNT Airways. Through ECA, we annually brought the issue back to the EU-US Joint Committee’s table, without finding a solution, of course.

The issue remained frozen until 2015, when FedEx attempted to buy TNT Express, a move previously attempted by its competitor. FedEx’s intentions for TNT Airways were less grim, focusing on taking over the long-haul activity and selling the company. We immediately reignited our package tracking on the FedEx network, reconvened the press at BeCA, revisited our political contacts, including a new visit to 16 rue de la Loi, engaged a professional lobbyist to access the Commission, and finally secured a meeting with two directors of DG Move. 

The discomfort over the interpretation of these “virtual” freedoms was palpable. We made it clear that if the Commission continued with this interpretation, it would be brought to the European Court of Justice’s attention. We then approached the problem from a “fair competition” perspective. FedEx and UPS planes were freely transporting cargo across Europe while shielding themselves from competition in their U.S. home market. The two directors, strong proponents of free competition, were surprised by this and promised a prompt response. A year later, after numerous reminders, we sent a slightly irritated letter to the top of the Commission, receiving a reply that a meeting had occurred a year ago and surprise that we still had questions… Thanks to continuous lobbying by ECA staff members, we finally secured a new meeting in February 2019 with the same Directors. This turned into a real working meeting. 

The Commission, as the guardian of the treaties, asked us to analyse all FedEx and UPS flights in Europe and between the United States and Europe over a 15-day period to identify any that might be in violation of the Open Skies agreements. We accepted the challenge, and with a custom-written program, we gathered all this information from the internet, demonstrating a significant number of flights flagrantly violating these agreements. This led to another five months of silence from the Commission until a new, and last meeting, in June 2019. 

The evident discomfort of our two Directors did not bode well. They explained that they had shown our data to the Transport Ministries of the concerned states – Germany, France, Belgium, and Spain. All responded to the Commission that they would not hesitate to grant all necessary traffic rights to U.S. carriers to keep them at their airports. This was when the Commission finally realized the huge mistake in drafting the Open Skies agreements. The way these agreements are written allows Member States to maintain sovereignty in granting more traffic rights than negotiated. Therefore, the Open Skies agreements are not a limitation on traffic rights but a basis upon which Member States compete to attract FedEx and UPS to their airports. 

After more than 10 years of our lobbying, the Commission finally admitted to having poorly negotiated these agreements with no chance of amending them in the future. Thus, it is the Member States that voluntarily turn a blind eye to the aerial activities of FedEx and UPS in Europe. This blindness doesn’t stop at traffic rights. In France, known for its reactivity to non-payment of social contributions by airlines, FedEx pilots have been exempted for over 10 years due to an old bilateral agreement between Germany and the United States. With BeCA’s help, French pilots repeatedly brought this issue to their authorities, to no avail. It concerns FedEx and thousands of jobs at CDG… The entire case is now frozen in a legal no man’s land where each party knows that any imbalance will instantly bring everything back to the surface.