Consequences of Brexit for the United Kingdom- An EU air law perspective

Vikrant Pachnanda analyses the consequences of Brexit for the UK from an air law perspective.

A majority of United Kingdom’s population voted to leave the European Union in a referendum held on 23rd June 2015. This move by the UK to a brexit raises a number of complex legal questions from an EU air law perspective, which this abstract addresses. At the outset, there will no change in the legal position until the departure process under Article 50 of the Lisbon Treaty is complete and the European Communities Act 1972 which gives legal effect to the EU law in the UK, has been amended or repealed.

A significant achievement of the EU has been the single air transport market. A consequence of brexit will be that air carriers which have been granted their operating license by the UK Civil Aviation Authority will no longer be “Community Carriers” as per Regulation 1008/2008 and hence will no longer be able to enjoy their right to fly between any two points in the EU/European Economic Area that is conferred by such status under the regulation. The services most affected will be the 7th and 9th freedom services i.e. between two non-UK points in the EU and between two points in the same EU Member State which would no longer be automatically permitted.

Under Regulation 1008, a Community Carrier must be more than 50% owned and effectively controlled by Member States and/or nationals of Member States. If this requirement were no longer to apply to UK licensed carriers, the UK would be free to change to a more restrictive or more liberal ownership and control rule. The European Aviation Safety Agency plays a pivotal role in regulating air safety in Europe and its regulations will no longer apply to the UK as a matter of EU law upon its departure. Norway and Switzerland are EASA’s current non-EU members although they do not have a vote and there are Working Arrangements in place with Turkey. Therefore UK would have to also come to a workable alternative arrangement in order to ensure its continued participation in European air safety regulation.

Careful consideration of other EU legislations concerning VAT, competition law, state aid, passenger rights, employment rights amongst others is also required. For instance, the UK government may want to relook the Cape Town Convention Regulation passed in November 2015 particularly articles VII (choice of law) and XI, alternative A (insolvency) on which it did not make declarations, given full or shared EU competence. Once the 1972 Act is repealed, none of the EU Regulations currently in force in the UK will continue to have any legality even though the UK may have been implementing these regulations by way of statutory instruments.

Presently, an Agreement concluded between the United States and EU and its Member States in 2007 govern aviation relations between the US and UK. This agreement does not contemplate the possibility of a Member State leaving the EU and its termination provision only envisages termination by either party i.e. the US or EU as a whole. Upon UK ceasing to be a Member State, the agreement would no longer apply to its territory and aviation services between the US and UK will have to continue by way of an alternative arrangement such as a separate bilateral arrangement or continued inclusion of the UK in the present agreement such as Norway and Iceland because of their European Economic Area membership.

To conclude if the UK leaves the EU without any adequate arrangements, there could be adverse practical consequences for the aviation industry and passengers in the UK.