No-deal Brexit aviation update: EU Commission releases proposed contingency Regulations

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On Thursday, 10 December the European Commission published contingency measures (the Regulation) to ensure basic air connectivity between the UK and the EU and recognition of UK licences and registrations in the event that no free trade agreement is reached. Absent an agreement covering air traffic rights, flights between the UK and EU would be grounded and certificates, licences, and registrations would no longer be recognised in their respective counterpart jurisdiction.

Under the proposed Regulation, on the 1 January 2021, UK air carriers will continue to enjoy flyover rights and operating rights over routes between the UK and the EU. However, critically UK carriers would not be permitted to operate intra-EU routes, either as an operating carrier or marketing carrier.

While UK commercial airlines will largely benefit as it guarantees their UK-EU routes remain operational, there are no further concessions for UK cargo, charter, or business air carriers which frequently flew intra-EU cabotage flights. In order to continue operating these services, UK operators will either need to apply for permits from the relevant Member States or restructure their operations to obtain an EU operating licence and air operator certificate.

In order to exercise these contingency rights, UK air carriers must obtain operating authorisation from each Member State in which they intend to operate. The Member State must be provided with the applicant’s valid UK operating licence and air operator certificate and be satisfied that the UK CAA has effective regulatory control over the carrier. To minimise disruption to air travel, UK air carriers and Member States can submit and approve applications for operating authorisation when the Regulation enters into force (the day following publication of the Regulation in the Official Journal of the European Union).

Furthermore, UK air carriers must submit operational plans, programmes, and schedules for air services to each Member State for approval. For the current IATA winter season, applications can be submitted and approved once the Regulation enters into force. Applications for operations during the IATA summer season (commencing on 28 March 2021) must be made at least 30 days prior to start of operations.

Finally, under the Regulation, certificates of airworthiness, competency, and licences issued by the UK will be recognised as valid.

The Regulation applies for a maximum duration of up to 6 months (30 June 2021) and permits the Commission to ratchet back rights if it deems the UK has failed to provide reciprocal rights to EU air carriers. However, UK Transport Secretary Grant Shapps had previously indicated that the UK would grant reciprocal connectivity rights in the event no new trade agreement is agreed.

While this Regulation provides UK and EU air carriers with much needed certainty as trade negotiations continue to the last minute, the Regulation’s provisions largely mirror the aviation sector’s minimum expectations on what contingency measures would be introduced. However, as both sides have indicated that negotiations will conclude no later than Sunday, DLA Piper will continue to monitor, analyse, and provide updates on any final comprehensive air transport agreements agreed.