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What Constitutional Challenges Arise When Air Traffic Control is Privatized? A New Report Looks at the Situation in Germany

As Congress debates the reauthorization of the FAA Modernization and Reform Act of 2012, which will expire in September 2015, the question of whether to privatize air traffic control (ATC) in the United States will be one of the matters discussed. The current discussion includes whether the establishment of a private non-profit ATC corporation could breach the nondelegation doctrine.

Tower München | Blick von dem Besucherhügel auf den Tower und auf das Terminal 1. (photo by DFS Deutsche Flugsicherung GmbH, https://www.dfs.de/dfs_homepage/en/Press/Media%20centre/)

Tower München | Blick von dem Besucherhügel auf den Tower und auf das Terminal 1. (Photo by DFS Deutsche Flugsicherung GmbH, https://www.dfs.de/dfs_homepage/en/Press/Media%20centre/.)

Other countries have also considered whether to privatize air traffic control or air traffic administration in general, and some have implemented such reforms. A recent report that I worked on, which has now been published on the Law Library of Congress website, looks at the situation in Germany. It focuses on the constitutional issues that arose with regard to privatization and explains the amendments that were enacted to set up a private limited liability company. Some of the issues concerning the transfer of authority and surveillance over the activities of a private party that performs a public task are similar to those that arise in the United States under the nondelegation doctrine.

The report provides an introductory overview of the different levels of privatization and the varying degrees and requirements of federal administration under German law. It explains how the original wording of the relevant provision in the German Basic Law, which mandated that air traffic administration be conducted under “direct federal administration,” precluded even corporatization. Furthermore, it discusses the constitutional amendments that were enacted to permit a functional privatization. It concludes with a description of the Single European Sky (SES) framework and the ongoing discussion on the permissibility of a capital privatization of air traffic administration in Germany.

Under the Global Law category of this blog you can find posts about other foreign law reports that are published on our website. These reports cover a wide range of topics, such as laws in different countries on police weapons, virtual currencies, wildlife trafficking and poaching, military justice systems, and immigration. To receive Global Law blog posts alerts you can subscribe to this RSS feed for the category.  There is also an email and RSS feed for our Law Library Reports (click the “subscribe” button on the Law Library’s website).

Update: This was originally published as a guest post by Jenny Gesley. The author information has been updated to reflect that Jenny is now an In Custodia Legis blogger.

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