Brexit and Aviation Law

Jan Walulik

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429490460
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Focusing on the consequences of Brexit for aviation law, this book presents the key legal issues for aviation business and administration, as well as all major stakeholders that could potentially be affected by Brexit. This will include airlines, airports, aerospace manufacturers, regulatory and judicial institutions, passengers and employees. The book will indicate groups of legal acts disturbed by Brexit and those few that will remain untouched, and develop on this basis a digest of regulatory and institutional problems that will arise in various areas of the discussed sector. Finally, the short title will deliberate on the directions of possible actions which may be undertaken to avoid post-Brexit legal incoherence. This review should give essential guidance to the industry and the authorities on both sides of the English Channel as to what to expect and how to prepare for the forthcoming legal earthquake.

Part I

Impact of Brexit on groups of legal acts

Aviation activity in the EU and in the UK is ruled by thousands of legal acts. These acts, that are instituted at the national, EU and international multilateral levels, set up various regulatory systems. The aim of this part of the book is to indicate groups of legal acts the application of which will be distressed by Brexit and those which will survive Brexit. The following chapters will present the consequences of a hard Brexit; that is a situation whereby no deal is reached before Exit Day between the UK and EU27 or between the UK and third parties as to the application of particular aviation laws. The role of British legislation adopted to address post-Brexit issues will only be mentioned in brief.¹ This part will also leave aside a possible transition period when the discussed instruments could continue to be applied mutatis mutandis after Brexit.²

It is important to note that aviation laws have been very widely harmonised at the EU level. Therefore, the acts that will be touched by Brexit constitute a major part of air law applicable to and in the UK. Due to the exit from the EU, new legal measures will have to be taken by British lawmakers. Given the scope of regulation covered by the affected instruments, this task will be absolutely tremendous, and it is doubtful whether the UK will be able to manage it in a short timescale. The impact on legal acts will also be huge in economic terms, since Brexit will erase the legal basis for most current UK air traffic.

1Post-Brexit measures will be presented in detail in Part IV of this book.

2For the transition period, see Chapter 17 of this book.

1 Brexit-affected legal acts

This chapter will point to groups of legal acts that will be upset by Brexit. In most cases, the impact of Brexit will mean that specific pieces of law will cease to apply to and/or in the UK, to UK-EU relations or to UK-third party relations. This may result in legal gaps, in changes in relations between legal acts, or possibly in revival of some legal acts over which EU law currently prevails. In some instances, Brexit will only have a partial impact on existing laws and will require additional actions from the UK.

1.1 EU primary law

The EU primary (treaty) law comprises several international agreements of which the main two, known as the founding treaties, are the TEU and the Treaty on the Functioning of the European Union (TFEU, the Treaty),¹ also referred to as ‘the Treaties’. These acts are a key part of the legislative framework relating to Brexit. The former includes the legal basis for the withdrawal from the EU, whereas the latter is base for the EU single air market.

Initially, European law did not cover air transport regulation. Before the liberalisation process started, air transport within the EU states was subject to domestic regulations, whereas air transport between these states was governed by bilateral agreements which were concluded within the framework of the Chicago Convention.² Part III Title VI TFEU (Articles 90–100)³ has always contained common rules for transport. However, according to Article 100(2) TFEU,⁴ the application of provisions regarding common transport policy set forth in this title was subject to the decision of the Council.

It was not until the late 1980s that the EU⁵ decided to incorporate aviation into its common transport policy, and to unify the air transport industries of its member states within a single air market. The impulse came from the application of another part of the Treaty to the air transport sector. In 1986, the Court of Justice (CJEU) ruled, in the Nouvelles Frontiéres case, that despite the lack of sectorial competition rules regarding air transport, the respective Treaty rules included in Part III Title VII Chapter 1 Section 1 (Articles 101–106)⁶ shall apply directly to competition in air transport.⁷ This encouraged the adoption of competition rules and a common transport policy in the airline sector. Under the Single European Act,⁸ the EU was finally obliged to take this initiative and to establish a single market, including a single air market, by the end of 1992.

This harmonisation has been achieved by derived law.⁹ However, the foundation stone of EU air law has always been in the Treaty principles concerning transport policy and competition. The TFEU provisions on transport policy envisage the adoption of common rules applicable to intra-EU trans-border and domestic transport and of measures to improve transport safety and other appropriate provisions. They also embrace instructions as to public aids, transport rates and conditions, prohibited discrimination and protectionism. The Treaty competition rules established in Title VII Chapter 1 outline the prohibited anticompetitive actions, abuse of dominant position and state aids distorting competition which are deemed to be incompatible with the internal market. Equally important for the functioning of EU air transport are the free movement of goods (Title II TFEU) and the free movement of persons, services and capital (Title IV TFEU).

Currently, the described constitution of the EU single air market applies in the territories of the EU member states including the UK (Article 52 TEU) and in those European territories for whose external relations an EU member state is responsible (Article 355[3] TFEU), which includes Gibraltar.¹⁰ Subject to special arrangements for association set out in Part Four of the TFEU, the Treaties shall partially apply to some overseas countries and territories.¹¹ The applicable rules of EU primary law can be relied on directly by individuals before EU member states’ courts.

The previously mentioned Treaty rules which are relevant for the EU single air market will cease to apply to the UK, its overseas and European territories and to UK-EU27 relations on Exit Day. Article 50(3) TEU states explicitly that the Treaties shall cease to apply to the withdrawing state from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification of the intention of withdrawal, unless the Council, in agreement with the member state concerned, unanimously decides to prolong this period. It is, however, unclear if and to what extent the Treaties will cease to apply to Gibraltar airport after Brexit.¹²

1.2 EU-derived law

Although the fundamental principles of EU transport policy arise from the TFEU, the core of EU air law consists in derived law, also known as the acquis communautaire, including hundreds of regulations and directives constituting the European single air market. These acts govern a predominant part of civil aviation activity in the EU. The European single air market was built up in three phases. At the end of 1987, the Council issued a package of four acts (the I liberalisation package)¹³ which liberalised the criteria of tariff regulation and allowed member states’ carriers to operate services embracing the Third and Fourth Freedoms of the Air¹⁴ within interregional EU routes. These regulations were superseded in 1990 by the II package,¹⁵ which brought about further liberalisation as regards air carrier designation, tariffs, route authorities and capacity in regular air services. In 1991, tariffs were deregulated and the Third, Fourth and Fifth Freedoms of the Air were introduced for air post and air cargo services within the EU.¹⁶ Finally, full liberalisation was instituted by the III package of 1992.¹⁷ This set of laws, which came into force on 1 January 1993, established a single community air market, harmonised market access rules, entirely liberalised route rights, and unified rules for regular and irregular air services within the EU. It also liberalised cabotage services starting from 1 April 1997. The regulations on market access and tariffs have been revised and reconfirmed in current EU regulation 1008/2008.¹⁸

The derived law concerning air transport has united member states’ air markets and established a system of economic regulation based on freedom of services (free routes, tariffs and capacity determination) within the EU. It has also harmonised air carrier licensing and has replaced the airline national ownership and control requirements with an EU ownership and control standard. Each airline having a valid EU license may now operate any air service within the EU without the need to obtain permission from other EU member states where the service takes place. This law also gives EU airlines freedom of combining air services and entering into code-share arrangements. Apart from the economic regulation of air services established in the ‘liberalisation packages’,¹⁹ the derived law governs many other aviation relevant issues including economic regulation of airports, aviation safety and security, air navigation, aircraft manufacturing, civil liability, labour rights, environmental protection and taxes.²⁰

All respective EU legal acts in these spheres will be affected by Brexit. The outcome of Brexit will, however, differ depending on the legal nature of these acts and the way they have been implemented in the UK. Legal acts of the EU consist of regulations, directives, decisions, recommendations and opinions. According to Article 288 TFEU, an EU regulation directly governs an issue. It is binding in its entirety and is directly applicable upon individuals in all member states of the EU. A directive is binding, on the member state to which it is addressed, only as to the result to be achieved. It leaves to the national authorities the choice of form and methods of regulation. A decision is binding in its entirety. It may specify to whom it is addressed and is binding only on them. Recommendations and opinions have no binding force. The important difference between directives and other EU legal acts is that the former always imply adoption of national legislation for their transposition into member states’ legal orders. However, regulations, which are comprehensive by nature, may still require some implementing legislation, e.g. as regards establishment of competent executive authorities or when optional solutions are allowed at the national level.

EU law is incorporated into the British legal order²¹ by virtue of the European Communities Act 1972 (ECA).²² Section 2(1) ECA provides that EU-derived laws – which, in accordance with the Treaties, are to be given legal effect or used in the UK without further enactment (in particular EU regulations) – shall be recognised and available in British law, and be enforced, allowed and followed accordingly. EU acts which require implementation by member states are incorporated into the UK legal system by British legislation. Basically, Section 2(2) ECA empowers the government to implement them by means of secondary legislation. However, some EU laws have been implemented in the UK by separate primary legislation (Acts of Parliament) and by secondary legislation made under such primary legislation. Where UK law so provides, EU law may also be implemented by devolved legislation; however, this issue is of little significance to aviation.

Unless other arrangements are agreed between the UK and the EU27 on the Treaties losing their effect on the UK, all acts of derived EU law – including regulations and directives – will cease applying to the UK, its overseas and European territories and to UK-EU27 relations.²³ In such case, directly applicable acts of EU law, which make up the majority of EU aviation legislation, shall automatically have no effect in the UK and its respective territories.²⁴ These acts will be incorporated into the British legal system by virtue of the European Union (Withdrawal) Act.²⁵ Meanwhile, British legislation implementing EU laws, having been ‘saved’ by the European Union (Withdrawal) Act, will remain in force despite Brexit.²⁶ As regards ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Appendix
• Glossary
• Introduction
• Part I Impact of Brexit on groups of legal acts
• Part II Impact of Brexit on aviation regulatory content
• Part III Impact on institutions and proceedings
• Part IV Post-Brexit solutions
• Bibliography
• List of official documents
• List of court judgments
• Index