The principle or policy of Open Skies constitutes a fundamental institute of Aeronautical Law and Public International Law. Its primary purpose is the liberalization of international air transport, mitigating state intervention regarding routes, frequencies, and tariffs, aiming to foster competitiveness and global economic integration through free access to aviation markets.
1. Concept and Legal Nature of the Institute
The "Open Skies" regime is defined as a model of bilateral or multilateral air transport agreement that eliminates governmental interference in airlines' commercial decisions regarding routes, capacity, and pricing. The legal nature of this institute is that of an International Trade Liberalization Treaty, acting as an exception to the classic state protectionism that characterized civil aviation in the 20th century.
From the perspective of Administrative and Regulatory Law, it is a mechanism for the economic deregulation of the airline sector. Unlike traditional agreements (Bermuda I and II), which limited the number of companies and flight frequencies, the Open Skies regime assumes that supply and demand should be dictated by the market, leaving the State only with the oversight of operational safety and security against acts of unlawful interference.
2. Historical Origin and Evolution
The genesis of modern air regulation dates back to the 1944 Chicago Convention, which established the absolute sovereignty of States over their airspace. However, the Convention failed to liberalize commercial rights (the so-called "Freedoms of the Air"), which led to the proliferation of restrictive bilateral agreements.
The evolution toward the Open Skies model began in the United States with the Airline Deregulation Act of 1978, expanding internationally in the 1990s. In Brazil, the opening process was gradual, culminating in the signing of the Open Skies Agreement with the United States in 2011, ratified by the National Congress only in 2018. This movement reflects the transition from a model of "Closed Sovereignty" to a model of "Cooperative Integration," where economic efficiency becomes a vector of public interest.
3. Legal Provision and Normative Structure
The legal foundation of the Open Skies regime in the Brazilian legal system is multifaceted:
- 1988 Federal Constitution: Art. 178, which establishes that the law shall provide for the regulation of air transport, observing agreements signed by the Union, in compliance with the principle of reciprocity.
- Brazilian Aeronautical Code (Law No. 7,565/1986): Especially articles 197 to 214, which deal with international air transport services and traffic concessions.
- Decree No. 10,206/2020: Promulgates the Air Transport Agreement between the Government of the Federative Republic of Brazil and the Government of the United States of America, the most relevant milestone of the application of this principle in the country.
- Chicago Convention (Decree No. 21,713/1946): Global normative basis for international civil aviation.
4. Practical Application and Consolidated Jurisprudence
The practical application of Open Skies is reflected in tariff freedom and the possibility of unlimited code-sharing. In the jurisprudential sphere, the debate has shifted to the prevalence of international treaties over domestic legislation (such as the Consumer Defense Code - CDC) regarding civil liability issues.
The Supreme Federal Court (STF), in the judgment of RE 636.331 (General Repercussion Theme 210), established the following thesis: "Under the terms of Art. 178 of the Constitution of the Republic, international norms and treaties limiting the liability of air passenger carriers, especially the Warsaw and Montreal Conventions, prevail over the Consumer Defense Code." Although the topic concerns indemnities, it consolidates the normative force of the international agreements that support the Open Skies policy, ensuring legal certainty for the operation of foreign companies in Brazil.
In the Superior Court of Justice (STJ), jurisprudence has aligned to prevent the application of the CDC from rendering operations structured under international agreements unfeasible, maintaining the economic-financial balance of international transport contracts.
5. Related Principles and Doctrinal Divergences
The institute dialogues directly with the following principles:
- Principle of Reciprocity: Essential for the validity of agreements, requiring that concessions granted to foreign companies be extended to national companies abroad.
- Freedoms of the Air: The Open Skies regime focuses especially on the 3rd, 4th, 5th, and sometimes the 6th freedom (rights of boarding and disembarking between countries and intermediate points).
Doctrinal Divergence: There is a clash between the autonomist school, which defends the unrestricted application of international agreements to ensure sector competitiveness, and the protectionist/consumerist school, which argues that excessive opening may harm national companies (less capitalized) and weaken the rights of vulnerable passengers against global aviation giants.
6. Contemporary Relevance and Practical Impacts
Currently, the Open Skies regime is seen as a catalyst for tourism and foreign trade. The most visible practical impact is the reduction of airfare costs in the long term due to increased supply and competition. Furthermore, it allows Brazil to position itself as a logistics hub in Latin America.
However, the contemporary challenge lies in airport infrastructure and the regulation of low-cost carriers. The full effectiveness of "Open Skies" depends not only on the absence of legal restrictions but on technical regulation (ANAC) that ensures a level playing field and the environmental sustainability of the sector.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF.
- BRAZIL. Law No. 7,565, of December 19, 1986. Provides for the Brazilian Aeronautical Code.
- BRAZIL. Decree No. 10,206, of January 8, 2020. Promulgates the Air Transport Agreement with the USA.
- SUPREME FEDERAL COURT. Extraordinary Appeal 636.331/RJ. Rapporteur Justice Gilmar Mendes, judged on 05/25/2017 (Theme 210).
- INTERNATIONAL CIVIL AVIATION ORGANIZATION (ICAO). Convention on International Civil Aviation (Chicago Convention), 1944.
