Experts see difficult work remaining
Should a Gate Hold be declared?
The Prime Minister’s Cabinet appears to have caved to bullies in Brussels as Brexit negotiations intensify. In order to prevent disruption to planes after Brexit the UK is expected to ask to be part of the European Aviation Safety Agency (EASA). The body sets standards across Europe and is in charge of vital safety and maintenance checks. Going ahead with it will cross Mrs May’s red line over there being “no ECJ jurisdiction after Brexit”. But insiders say the plan is being drawn up. A source told Sky News it is not a cap in hand situation as the UK provides a huge amount of the technical expertise in the EASA. The request will be modelled as an offer since the valuable UK Civil Aviation Authority (CAA) is calculated to produce 40 per cent of the officials with expert knowledge which keeps the EASA running. One source said: "It is part of the second phase negotiating process, but it would be bizarre if we couldn't be part of it. … Under Article 66 of EASA regulations a “clear” legal route for Britain to become a third-party country participant. If the deal is accepted, any domestic fallouts over the application of safety regulation would be under the jurisdiction of UK courts, Sky reports. Yet under EASA rules the ECJ is the ultimate arbiter of EASA rulings. Pressure has been piled on the Government by the US Federal Aviation Authority amid warnings flights will break the law if they are not under a legal structure for aviation safety.
It is important to note, according to a November 22, 2017 Bloomberg Politics article, the deadline to negotiate this agreement is December 14, 2017. That’s when “8 leaders [will be] locked in a room. While the discussion can go in any direction when they all meet face to face, leaders rarely rip up the preparatory work done in Brussels in the weeks before. The EU doesn’t want May to go to the summit to negotiate. Instead, they just want to deliver a verdict.”
[this may be the negotiating schedule set by the 28 countries; implementation day appears to be March 2019.]
While Zoe O’Brien and the Sunday Express’ headline seems to suggest such the UK participation may be possible and may be negotiable in 11 days, two aviation experts see more complications. Their knowledge of the legal, regulatory and operational mazes places doubt on whether terms of agreement, in the level of detailed precision and acceptable to all, can be completed in less than a fortnight.
“The European Commission has taken over, and now exceeds the role of ECAC because they have both a legal basis and money. EUROCONTROL remains the technical development agency. JAA has been replaced by the European Aviation Safety Agency (EASA) and the European Global Navigation Satellite Systems Agency (GSA) has assumed the responsibility for Galileo. CEAC has been replaced by the NATO Aviation Committee with a broader mandate.
Bottom line…. A break with the EU will leave the UK with a significantly reduced influence in the technical side of aviation. That is not a good thing. If there could be a vote in the operational world as to what the result of the deliberations should be there is little doubt that the status quo would be the overwhelming favorite.”[end of quote]
Thus, departure from EASA would likely leave the UK aircraft movements over the Continent dangling in the proverbial wind.
A panel debate moderated by John Byerley, a former, highly respected Deputy Assistant Secretary for Transportation Affairs (the highest career position on aviation matters at DoS) at the US Department of State and winner of the prestigious Pogue Award, provided some telling opinion. The title of this session was “Brexit will be a disaster for UK airlines”. A few of the themes developed:
· Not everyone wants the status quo on market access…
“In May-2017 a group of mainly heavyweight European airlines comprising those in the Lufthansa Group, Air France–KLM, SAS, Croatia Airlines and TAP Portugal issued a position paper on Brexit. It called for regulatory convergence between the EU and the UK as a precondition for UK airlines’ access to the internal aviation market.
The paper opposed cabotage rights (i.e. domestic flights) in EU countries for UK airlines, even in a transitional phase, and called for limits to their fifth freedom rights. It also argued that ownership and control rules should be strictly enforced, with UK nationals treated in the same was as any other third country nationals post Brexit (i.e. forbidden from controlling an EU airline).”
[NOTE: there are UK companies that have expressed concerns with the heavy-handed Brussels Bureaucrats as to safety regulations.]
· … and the status quo may not be achievable, due to UK rejection of ECJ and freedom of movement
“One of the key preconditions for full access to the EU single market, whether in aviation or any other sector, is the acceptance of the jurisdiction of the European Court of Justice. UK Prime Minister Theresa May has recently suggested that UK Courts might be able to take account of ECJ decisions, but rejection of the ECJ’s supremacy is considered fundamental to the UK’s referendum decision to leave the EU.
Another key precondition for single market access is the principle of free movement of people, something that UK politicians also regard as unacceptable.”
· The EU’s single aviation market has brought significant consumer benefits
“The UK’s exit will rip a hole that might not be plugged easily and quickly. That provides a compelling reason to ensure that the EU and the UK find a way to avoid the schism, but it still does not provide the mechanism for doing so.”
· Other non-EU countries have single aviation market access, but these models may not be suitable for the UK
“There are European countries with important aviation activities that are not EU members, but have access to the single aviation market, notably Norway and Iceland (both members of the European Common Aviation Area) and Switzerland. Switzerland has access to the single aviation market, but without cabotage, through its own bilateral air services agreement with the EU, linked to a series of bilaterals covering other sectors.
One of these could arguably provide some sort of template for UK airlines’ access to the single market post Brexit.
However, none of these were EU members before negotiating market access, and all have had to accept freedom of movement and adopt EU aviation law (without having a vote on the development of EU regulations). In addition, Norway and Iceland have had to recognise the competence of the ECJ.
There is no precedent for a former EU member state’s ongoing access to the single market.”
· An open skies style agreement with the EU may be the best that the UK can hope for
“The EU and the UK will likely need to negotiate a liberal bilateral that gives mutual access to each side’s airlines, perhaps along the lines of the EU-US bilateral.
However, the EU-US agreement does not allow cabotage, and keeps strict limits on the foreign ownership of airlines. Full cabotage and the removal of foreign ownership limits are effectively what distinguish the EU internal aviation market from just another open skies agreement.
Professor Rigas Doganis, aviation consultant and Chairman of the European Aviation Club, rightly identified cabotage and intra-EU flying as “the big issue” in the UK-EU negotiations.”
· The UK will lose access to EU level bilaterals with other countries (e.g. EU-US)
“At this point it is also important to remember that the UK will no longer be able to guarantee access to EU air services agreements negotiated on behalf of all member states with other countries outside the EU.
The EU-US agreement is the most important of these to the UK, which will have to negotiate a new bilateral with the US. This will need to be an open skies type of agreement in order to preserve the antitrust immunity granted by US authorities to trans-Atlantic joint ventures involving UK airlines.
However, the US may not be willing to replicate the existing EU-US agreement in full for UK airlines flying across the Atlantic. For example, will UK airlines be allowed to fly to the US from other EU countries, as they are now? Will UK subsidiaries of EU/Norway/Iceland airlines be allowed to fly to the US from the UK?”
· ⇒A deal on safety will be needed before market access
“There has been very little public debate about the impact of Brexit on aviation, but where there has been any discussion, it has focused mainly on market access issues.
However, another area of vital importance is that of aviation safety. According to Barry Humphreys, Chairman of BKH Aviation and a veteran of the UK airline sector, the safety consequences of Brexit are the biggest threat facing European aviation.
A deal on safety must be reached before market access issues are resolved, since safety must always be the priority.
The UK is a very significant contributor to the European Aviation Safety Agency (EASA), both financially (through the EU budget and through industry participants) and in terms of its leadership on ideas and policies. EASA is an EU agency, but its membership also includes Norway, Iceland, Liechtenstein and Switzerland.
There is virtual unanimity in the industry on the need for the UK to remain in EASA, whose function would be almost impossible for the UK’s Civil Aviation Authority to replicate (particularly in a manner that ensures future compatibility with European regulations as they evolve).
Again, however, the UK will need to overcome the hurdle presented by its unwillingness to accept the jurisdiction of the ECJ.
Politicians will not want to accept any risk of a reduction in safety standards, and so, there is a very powerful incentive to find a way to reconcile the need to remain in EASA with the UK’s desire to leave the EU and reject the ECJ’s supremacy. Again, however, it is far from clear how this can be achieved.”
· Time is slipping away
It may well be that everything will work out. However, matters of such complexity do not work themselves out; they need a lot of work and attention to detail.
Meanwhile, time is ebbing away.
For planning purposes, airlines need to publish their schedules a year in advance. The first IATA scheduling season post Brexit will be summer 2019, and airlines will want to have a good idea of their schedules for that season by the start of summer 2018.
· A transition deal is the only practical – but temporary – solution
The only practical way to ensure that flights between the UK and the EU do not come to an abrupt halt when Brexit takes effect will be for the UK to leave through a transition period that preserves existing arrangements, giving more time to negotiate the future relationship.
A transition period for the whole UK economy has emerged as a preference for the British government, but even that needs to be negotiated.
The aviation industry is only one of a myriad of sectors in which the UK and EU need to negotiate their future relationship. As Emma Giddings, Partner at law firm Norton Rose Fullbright, said at the ACTE-CAPA Global Aviation Summit, these are not easily resolvable administrative matters.
The task ahead is enormous.
BREXIT’s impact on aviation is still nebulous and the time to fix it is shrinking. Assuring aviation’s future is not amenable to haste. Perhaps, a gate hold would be appropriate, especially since SAFETY and a large economic sector are at risk.
 James Loos, Member of the ICAO Air Navigation Commission nominated by the United States (1994-1997). Jim Loos began his FAA career as a controller in Kennedy Tower and subsequently moved to the New York Common IFR Room when that facility opened in 1968. After three years as an instructor at the FAA Academy in Oklahoma City he moved to Washington, D.C. to work in the Office of International Aviation. He attended his first ICAO meeting, the tenth meeting of the North Atlantic Systems Planning Group, in 1974. His positions since then have included Special Assistant to the Associate Administrator for Air Traffic, Manager of the Accident and Incident Division in the Air Traffic Service, and Chief of the Air Traffic Staff in the FAA’s Brussels Office. In 1994 he was nominated by the U.S. Government to be a Member of the ICAO Air Navigation Commission, assuming that position in October 1994. From October 1994 to November 1997 he was also the Deputy U.S. Representative to ICAO. Jim left Montreal in November 1997 and retired from the FAA in January 1998.Share this article: