Originally Posted by
Often1
This is the central point of the entire issue. Without getting into the in/out debate, does accepting EU law mean that EC 261/2004 applies but is interpreted by UK courts without regard to the doings of the ECJ or that the Swiss interpretation (voluntarily applied by Switzerland) applies, e.g., that the Regulation is the law of Switzerland, but the machinations of the ECJ and its interpretation of EC 261/2004 are not of precedential effect.
The easy answer is, of course, to accept EU jurisdiction over this slice of commerce. But, that could have deep impact on trade deals between the UK and non-EU nations. What if the US, Canada, Japan, and Australia all offer better terms to the UK than to the EU, but predicated on air carrier access of some kind?
EU261 is already UK law as it was implemented via a Statutory Instrument. The current EU withdrawal Bill will incorporate all existing court rulings into UK law so on Day 1 we will be the same as the EU but once something changes that's when divergence starts (and some extra complications)
What will happen after leave date is that any further EU changes to the regulation (say increasing the time before delay compensation kicks in) or court rulings (say interpreting an aspect of the the meaning of 'exceptional circs' that a strike by airline staff isn't one) won't automatically apply to the UK unless the UK government or courts say they will. So yes in future we would be more like Switzerland where the basic words of the regulation applies but not automatically any ECJ judicial interpretation of the regulation.
So if for example the ECJ ruling that compensation applies to delays (which remember is not specifically written in the regulation other than the duty of care) had happened after we had left it would mean until UK courts ruled the same after a UK court case or Parliament changed the regulation to incorporate it (and they wouldn't have to) there would be different compensation rules for flights leaving the UK going into the EU than from those arriving into the UK from the EU.