Policy divergence on "no deal" Brexit airline traffic rights
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Recent political developments leave few people with any certainty of how the UK will leave the EU or even when. The possibility of a "no deal" Brexit has focused attention on the basis on which flights would continue to operate between the UK and EU27 in that event. While there has been some assurance, indeed sufficient that many politicians regard the issue as resolved, the process is not complete and would not, as matters stand, entail even a temporary continuation of all elements of the status quo.
The Withdrawal Agreement, if implemented, would have continued the current arrangements, whereby EU27 and UK airlines have free access to routes throughout the European Common Aviation Area, until December 2020. Under the Political Declaration the parties would have sought to ensure connectivity through a Comprehensive Air Transport Agreement and explored UK co-operation with EASA.
Following the Contingency Action Plan issued in November[1] the Commission issued draft regulations governing both traffic rights and safety on 19 December 2018.These have to be passed by both the European Parliament and the Council to complete the formal legislative process. So far as traffic rights are concerned, UK airlines are granted the right to operate commercial services between the UK and EU27 countries. There are, however, three significant limitations on UK carriers.
- First, no rights are granted for intra-EU27 routes.
- Second, capacity provided by UK airlines is capped at the level of the IATA 2018 winter and summer seasons.
- Third, the regulation is time limited: it ends on 30 March 2020 unless a formal agreement is reached between the UK and the EU on air transport before that date.
For the purposes of the draft regulation an airline may qualify as a UK airline so long as it is majority owned and controlled by UK and/or EU27 nationals, but if it is not majority owned and controlled by UK nationals it must have held an operating licence immediately before Brexit to exercise these traffic rights.
On 7 January 2019 the UK Secretary of State for Transport issued a public letter welcoming the fact that the Commission was taking steps to maintain connectivity and confirming that DfT officials were working with their EU counterparts to that end.In doing so he reiterated the UK position, taken in the Technical Notice issued in September 2018, to grant EU airlines permission to operate on a reciprocal basis, and emphasised:
"We do not anticipate imposing, or wish to impose, any restrictions on EU airlines compared to what they are able to do at the moment."
On any view a long term arrangement will be necessary in due course. The UK is seeking clarification of certain aspects of the Commission's draft regulation, but the current proposals certainly indicate that cross channel services can continue for the medium term. No doubt we will learn in the next few weeks whether the UK is willing to grant EU airlines cabotage rights without reciprocity.
This article is part of our Brexit series
