UK & Aviation
The EU’s common aviation area ECAA provides a single aviation market. It allows registered airlines who were based in one state to operate on a cabotage basis within other states. A domestic carrier can operate rights within the EU or wholly within other states.
The EU single market in aviation includes the EFTA countries and Macedonia, Albania, Bosnia, Kosovo and Montenegro in the European Common Aviation Area Agreement. Airlines have full rights of market access to fly between states anywhere in the EU and provide flights between and within EU states.
They must accept the EU body of law in relation to aviation. These are the seventh and ninth freedoms of the air under the Chicago Convention. The EU Convention has stripped away the restrictions of Bilateral Air Services Agreements.
The UK was a major supporter of the creation of the internal aviation market. The liberalisation is the result of regulatory measures promoted by the EU Commission in the 1990s. The final measures removed all restrictions on airline operations and created the concept of an EU Community carrier.
Community carriers may access any intra-EU route and offer services to customers without prior authorisation or permission from the authority in those states. In order to be a Community carrier, airlines must be owned as to greater than 50 percent ownership and effectively controlled by EU state nationals and have their principal place of business in an EU state. They must comply with EU safety regulations and hold air operator certificate for this purpose.
The UK has the largest aviation sector in the EU and the third largest globally, after the USA and China. Aviation contributes €55 billion to UK GDP. This consists of both passenger and cargo transport. 49 percent of passengers and 54 percent of commercial flights are from UK to EU. 46 percent of the UK’s exports and 56 percent of UK’s imports in transportation services are associated with the EU.
There are common competition, safety, security, consumer protection and environmental protection standards in aviation. There are over 140 pieces of legislation in relation to aviation in the UK.
European legislation includes those in relation to the European Aviation Safety Agency and the Single European Sky, SESAR.
WTO rules do not apply to aviation services. Without a bilateral agreement, that could, in theory, be no rights to fly to and from EU member states under existing single market rules or to fly to third countries such as the US under the Open Sky Agreement. The UK’s only legal recourse would be to bilateral air service agreements predating the creation of the single market. Their application and validity may be questionable.
EU majority owned and controlled airlines may establish themselves in any EU member state and operate within the EU. Some airlines have sought to obtain EU operating licenses.
The airline industry in the UK has indicated that it wishes to have continuing access to the EU regime and remain a member of the ECAA post-Brexit. A bilateral agreement between the UK and the EU might be entered if the states mandate it to do so. Otherwise, the UK may be in a position to negotiate bilateral agreements with states. Membership of the ECAA requires acceptance of EU aviation legislation across all areas.
The UK has many bilateral agreements with third countries such as the US which have been largely superseded by EU third-country agreements. They will require to be renegotiated or adapted. The US-EU aviation agreement is referred to as Open Skies was agreed in 2007.
The EU’s agreements with third parties (bilateral agreements) may potentially cease to apply to the UK on Brexit. This may include in particular the EU-US Open Skies Agreement entered in 2008, which allows US and EU airlines to fly from anywhere in the EU to anywhere in the US and vice versa. The earlier US-UK agreement that predated Open Skies is more restrictive and would require to be updated.
Member states of the International Civil Aviation Organisation collaborate in relation to the regulatory framework and international standards on access to and the use of airspace. There are a framework regulation and common rules in relation to security in civil aviation. EU laws implement international civil aviation organisation resolutions.
The main EU initiative is the single European Sky launched in 1999 reforming existing air traffic management. Norway and Switzerland are part of the single European sky.
The European Aviation Safety agency publishes common safety and environmental rules. The European Aviation Safety Agency prepares rules giving effect to essential requirements. These are implemented through Commission regulations.
The EASA is responsible for type certification of aircraft and gives approval to third country organisations. It provides technical expertise for training and research. It’s likely that the UK will remain a member of EASA as it would increase the regulatory burden if it established a separate regime.
The UK is likely to be in a position to become a member of EASA. However, it must accept the EU’s body of aviation legislation, without any direct say in it. This is the position with the current non-EU members of the EASA management board. They are members but do not have voting rights.
EU regulations provide common rules for the operation of air services. They provide for the operation of the market for ground handlers. They regulate common rules on allocation of slots.
There are minimum standards for working time rights of mobile workers in civil aviation.
There are common passenger rights including in particular compensation for cancellation or long delays. There are regulations which establish the requirements in relation to loss and damage of baggage and death and injury to passengers. The passenger right travel directive requires operators to provide refunds and repatriations in the case of failures of service.
An EU regulation establishes a harmonised code of conduct regarding the use of computerised reservation systems in order to enhance competition and protect consumers.