Calchas

The Financial Times has seen the Brussels negotiating position on aviation.

Essentially it is not too surprising; there is no room (and presumably no time) for a “bespoke” deal; either the UK signs up to the European Common Aviaition Area, and therefore accepts application of EU law and EU court rulings over air travel; or it is treated as a third country.

This means that IAG, EasyJet, and Ryanair will have to show that they are majority owned and controlled by EU citizens, potentially meaning a buy out of British shareholders. Majority ownership by EU citizens is a requirement of holding an EU operating certificate. Without such a certificate, it is illegal to operate passenger flights between points in the EU. British certificates would also cease to be recognised.

The leaked presentation also says, “All rights, obligations and benefits derived cease. No traffic rights — end of market access; ownership & control rules — third country restrictions kick in; end of mutual recognition of certificates; end of participation in European Aviation Safety Agency (EASA).”

Brussels also notes that they do not believe the old bilateral treaties are automatically revived, so the UK and EU would need to negotiate again for traffic rights to fly planes between the UK and EU, or potentially on a country-by-country basis.

Again this all assumes the UK maintains its hard position against EU law and court rulings having effect in the UK. Personally I suspect that may soften in areas such as aviation.

FT article (subscription required).

LTN Phobia

On the other hand, would BA need to be majority UK-owned to operate flights between the UK and non-EU countries?

Globaliser

I'm also wondering whether the EU has taken a position on the status of UK rights under current ASAs for UK airlines to operate flights to/from non-EU countries. Traditionally, these were bilateral (most notoriously Bermuda and Bermuda II) but I think more recently have been agreed at EU level for the entire EU because ASAs were an EU competence rather than a Member State competence.

I wonder whether there might in theory be a possibility that on Brexit day, UK airlines would lose all rights to operate between points in the (remaining) EU, and between UK points and (remaining) EU points because no ASA is in place to replace the invalidated current EU arrangements; and also between the UK and non-EU points because there are no longer any effective ASAs between the UK and non-EU countries that allow for such flights. BA might be limited to doing domestic flights only!

Calchas

To my knowledge that is no longer a provision of UK law.

It could be re-introduced, if the government wanted to go down the protectionist path.

NickB

That depends on whether the UK already has a live agreement in place or not. If it has no agreement (as, for instance, in the case of the US), it has to conclude a new agreement. It can negotiate with the US whatever it wants/whatever it can in terms of who will be entitled to fly under the agreement. It does not have to limit it to UK-owned airlines and can negotiate a different kind of clause.
With respect to countries with which the UK currently has an agreement, many will already have a clause allowing EU-controlled airlines to have traffic rights between the UK and the third country. These agreements will have to be amended to change the ownership and control clause to replace the EU ownership and control clause with a UK ownership and control clause. There too, nothing obliges the UK to restrict traffic rights to UK-only airlines if the other country is OK with a wider clause.
Perhaps the simplest for the UK would be to negotiate clauses that include UK-owned and control airlines and add specifically BA in the clause or allow the UK to designate an EU-owned and controlled airline in addition to UK-owned and controlled airlines. This would be one way to solve the problem that BA is controlled by IAG (assuming IAG is controlled by EU nationals as this will be necessary for IB to retain traffic rights within and to/from the EU).

flatlander

That's going to require some sort of multi-dimensional wormhole cake which is simultaneously mostly eaten by the UK and mostly eaten by the EU while they each also have most of their cake too.

Maybe the stranger branches of String Theory can deliver this. I'm not sure "economics" can.

Calchas

The UK maintains bilateral air service agreements with most countries.

The question remains what happens to EU-negotiated agreements such as those with the US and whether the UK needs to renegotiate these individually prior to Brexit.

This is part of the reason I think the UK would opt for ECAA membership even with the consequence of EU law applying to air travel.

ng1265

from a newbie perspective, what would be the aviation-related benefits of staying with the ECAA membership post-brexit from an airline perspective?
1. No need to renegociate agreements
2. No uncertainty on the legal framework which could be implemented by the UK post-Brexit
3. ATC advantages?

TheJayHatch

I certainly don't intend to start some sort of in/out debate on FT (please, no!) however I suspect Brexit will start to effectively collapse over the next 12 months on the little details like these. If legally we accept jurisdiction in one area of UK commerce, others will insist it applies to them. And the Government know it - its why they look so consistently shell-shocked.

NickB

Yes, but many of these need amending post-Brexit re ownership and nationality clauses, which have been "europeanised" in the last decade following the CJEU Open Skies agreement.
There is also the problem of traffic rights between the UK and the 27, since all the ancient bilaterals signed prior to accession to the EU are dead.
THe UK cannot negotiate these prior to Brexit, only lay down the groundwork. These can only be negotiated after Brexit.

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?

BA6948

Well who would have thought that? May be the experts and they weren't on the side of a bus... I think, the EU-UK will reach an agreement at least on free access to each other's airports. Not sure about the ownership thing though. The UK will have to agree an Openskies deal then but that is under ECJ...

Worcester

We are 11 posts in and I already have a headache...

markle

deleted

UKtravelbear

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.