The UK Government's ‘no deal’ Brexit papers: the impact on aviation

Posted in Transport

The UK Government has recently issued a series of technical notices concerning the potential consequences of a “no deal” Brexit for aviation. The first of these is entitled “Flights to and from the UK if there’s no Brexit deal”.

Currently, as the UK is an EU member state, UK licensed airlines are able to operate to, from and within the EU as “community carriers” pursuant to Regulation EC 1008/2008 on common rules for the operation of air services in the Community. In addition UK licensed airlines also benefit from market access afforded by air services agreements entered into by the EU on behalf of member states or which contain an “EU designation clause”.

The notice confirms that in the absence of a Brexit deal, UK licensed airlines would have no automatic right to operate air services to and from the EU as from 29 March 2019 without seeking advance permission to operate from the relevant EU member state.

The UK confirms that it would be likely to grant permission to EU licensed airlines to continue to operate to the UK in the event of a “no deal”. It indicates that EU airlines would require a foreign carrier permit and would also require a UK safety authorisation issued by the CAA. With respect to the latter, the UK Government indicates that in principle an EU licensed airline which holds a valid EASA air operating certificate should meet the qualifying requirements for such an approval.

UK airlines would need to approach the aviation authority in the relevant EU member state destination to obtain a foreign carrier permit as the UK would be a “third country” following Brexit. Procedures for the grant of this permit may vary from country to country. It would usually be necessary for the EU or that member state to have concluded an air services agreement with the UK before a permission to operate would be granted.

In addition UK airlines would need to obtain a safety authorisation from EASA known as a “Part-TCO”. The EU has not published details of how UK airlines can apply for a Part-TCO prior to Brexit however the general requirements for the issuance of a Part TCO can be found in Regulation EU 452/2014 on third country operators. The UK hopes that the EU will be able to recognise UK standards as being equivalent to those of the EU to facilitate the issuance of a “Part TCO” for UK airlines. Thus far the idea of “mutual recognition” or “equivalence” is not an approach the EU has indicated it is willing to take in respect of the future trading relationship between the UK and the EU. As such, in the absence of an agreement, the EU’s stance is likely to be consistent with the regime applied to other “third countries”.

The notice also confirms that EU carriers would lose the right to operate wholly within the UK and that UK carriers would lose the right to operate wholly within the EU in the event of a “no deal”. This is an issue which is likely to be contentious even in the event of a deal on Brexit. A basic air services agreement would usually confer rights for airlines to operate to and from the relevant jurisdictions (1st – 4th freedoms of the air) but not go beyond that (5th to 9th freedoms of the air). In the recent UK Government white paper entitled “The future relationship between the United Kingdom and the European Union, the UK Government indicated that it is seeking 5th to 9th freedom rights for UK airlines to fly within the EU following Brexit. The UK Government cited the Open Skies Agreement between the EU and Canada as a potential model for this as the agreement potentially allows up to 9th freedom rights for EU and Canadian carriers without regulatory alignment on condition of the liberalisation of ownership and control regimes in the EU and Canada. However given the proximity and size of the UK aviation market it is uncertain whether this is something that the EU would be prepared to offer to the UK in the absence of regulatory alignment on aviation matters.   

The issue of how rights for UK licensed airlines and relevant foreign airlines derived under air services agreements entered into by the EU on behalf of member states will be preserved upon Brexit applies regardless of whether or not there is a “no deal” Brexit. This is because the UK will cease to be an EU member state on 29 March 2019 even if there is an agreed transition period. The UK Government has helpfully indicated that talks are progressing to replace the relevant air services agreements including the EU US Open Skies Agreement and that it is confident that those replacement arrangements will be agreed well in advance of the UK exit from the EU. It will be necessary for relevant carriers to check that market access continues to be afforded on the same terms under those replacement agreements.

The UK Government notices do indicate that it is possible that there would be some disruption to flights on a “no deal” Brexit if relevant permissions are not granted. As such, carriers would need to bear in mind their obligations under Regulation EC 261/2004 on denied boarding and passenger compensation as this would be transposed into UK law even on a “no deal” Brexit by virtue of the EU (Withdrawal) Act 2018.

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