Brexit, the European Common Aviation Area (ECAA) and the Court of Justice of the European Union (CJEU)

Posted in UK and EU legal framework Transport

One of the outcomes that the UK Government has repeatedly insisted needs to be a consequence of the Brexit negotiations is that they will bring an end to the jurisdiction of the CJEU in the UK (the CJEU Red Line). That has led most to conclude that the UK’s exit from the ECAA is inevitable. The ECAA comprises a single market in aviation services across the EU and the “ECAA Partners” (Norway, Iceland, Macedonia, Albania, Bosnia and Herzegovina and Kosovo). The ECAA is given effect to by a Multilateral Agreement signed by the EU on 9 June 2006 (the Multilateral Agreement). The Multilateral Agreement provides for certain disputes to be resolved by the CJEU and so the UK remaining a party to it as an additional ECAA Partner would superficially seem to be incompatible with the CJEU Red Line.

However, the publication by the UK Government of its future partnership paper on post-Brexit options for enforcement and dispute resolution for UK-EU agreements, with the dilution of the CJEU Red Line to refer to the CJEU’s “direct” jurisdiction, has opened the door for a possible solution to this apparent impasse. For a more detailed discussion of that partnership paper please see our post here. It sets out various dispute resolution models which the EU has used in treaties with third party states and which could be said to give the CJEU indirect jurisdiction. One of those models arises in treaties which make provision for voluntary references to be made to the CJEU. Examples cited are the EEA Agreement and the EU Moldova Association Agreement. The latter provides for the establishment of an arbitration panel which can refer certain disputes to the CJEU. The key is that this model does not involve one party being able to refer a dispute, unilaterally, to the CJEU.

If the UK were to accept that the Moldova model creates jurisdiction of the CJEU over the UK which is sufficiently indirect not to cross the CJEU Red Line, it may be that it would accept remaining in the ECAA as an “ECAA Partner”.

The Multilateral Agreement provides for the establishment of a Joint Committee made up of representatives of the Contracting States. The Joint Committee has primary responsibility for the interpretation of, and for resolving disputes under, the Multilateral Agreement. That would be common in most international treaties and would not be objectionable to the UK. However, the Joint Committee is required to act in accordance with the case law of the CJEU and, in certain circumstances, disputes may be referred to the CJEU. Those referrals could be made either:

  1. by a court or a tribunal of a contracting state (Article 16.2 - but, notably, the ECAA Partners are entitled to stipulate the extent to which its courts may do that, so the UK could effectively opt out of this); or
  2. by the parties to a dispute if they have submitted that dispute to the Joint Committee which has failed to make a decision within four months (Article 20.3 – but, importantly, one party on its own may not make a reference to the CJEU).

In neither of these cases can the UK be forced to accept the jurisdiction of the CJEU against its will.

There is therefore an outline of a solution to the question of how the UK can remain within the ECAA following Brexit. However, for that to be achieved:

  • The UK Government would need to accept that the jurisdiction of the CJEU under the Multilateral Agreement is sufficiently indirect for the CJEU Red Line not to have been crossed; and
  • The EU would need to agree to admit the UK as an ECAA Partner. That agreement would probably need to be reached in the context of the overall post-Brexit agreement between the EU and the UK to avoid concerns that the UK was being allowed to cherry pick by the back door.

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