If the publication of the UK government's latest Brexit aviation technical notices gave airlines clarity on anything, it is that they face the prospect of a mountain of red tape and are at risk of being hostages to the two sides' goodwill in the event of a no-deal outcome.
While the Department for Transport (DfT) is at pains to emphasise that the prospect of a no-deal scenario remains "unlikely", its 24 September notices – which cover flight operations, safety and security – paint a picture of a regulatory maze post-March 2019, in which airlines from both the UK and the EU would be forced to not only revalidate many of the certificates they already hold but to navigate new layers of bureaucracy to enjoy today's freedoms.
The notice concerning flights to and from the UK highlights that in the event of a no-deal outcome, UK- and EU-licensed airlines would lose their automatic right to operate air services to one another's jurisdictions and would require individual permissions to do so.
The DfT says the UK would envisage granting the EU airlines' permission to continue operating in such a scenario and "would expect EU countries to reciprocate in turn".
Significantly, the DfT explicitly acknowledges that in the event of these permissions' not being granted, flight disruption between the EU and UK could occur. Such an admission bears out the warnings of Ryanair chief executive Michael O'Leary, who, since the Brexit referendum , has repeatedly highlighted the risk that aircraft would be grounded after March if no deal were secured.
The tone is quite different from comments by UK transport secretary Chris Grayling, who in October 2017 described it as "inconceivable" that airlines could be prevented from flying between the EU and the UK if no agreement were reached by March 2019.
Another theme that runs through the notice is the requirement for reciprocity and goodwill. The DfT says that in a no-deal scenario, EU airlines would be required to hold a foreign carrier permit as well as a safety authorisation from the UK Civil Aviation Authority called a "UK Part-TCO (Third Country Operator)".
The government says the CAA will consider each application for a UK Part-TCO on a case-by-case basis, but in principle an airline that holds a valid European Aviation Safety Agency air operator's certificate will be considered to have "met the qualifying requirements". The government says it would expect this recognition of equivalent safety standards to be reciprocated by the EU in its granting of Part-TCO authorisations to UK carriers.
UK-licensed airlines will require foreign carrier permits for the countries they wish to operate into, and will need an EU Part-TCO issued by EASA. The DfT points out that EASA has yet to detail how the process for obtaining this would work, but again the government would "expect" the EU to recognise UK safety standards on a reciprocal basis.
In order to ensure permissions are granted and flights continue, the DfT says its preference would be to agree a basic arrangement or understanding on a multilateral basis between the UK and the EU.
Alternatively, bilateral arrangements between the UK and an individual EU country could be put in place, specifying the conditions under which air services would be permitted. By definition any such agreement would be "reciprocal in nature", it states. It points out that the European Commission has indicated that a bare-bones agreement on air services would be "desirable in the event of the UK leaving with no deal".
In the event of no deal, the DfT acknowledges that UK airlines will lose the ability to operate intra-European routes, and EU carriers will similarly lose their ability to fly domestic routes within the UK.
As far as operating licences are concerned, the DfT says all licences issued before exit would remain in place and that the UK has no plans to impose new nationality restrictions on the conditions of an operating licence. It makes no mention of how the EU might approach the issuing of operating licences to UK airlines.
EU-registered airlines with "significant investment from or ownership by UK nationals" will need to consider how they square this with EU rules' requirement that they be majority owned and controlled by European nationals.
In a reaction to the notices, IATA director general Alexandrew de Juniac warns that they illustrate the "huge amount of work" that will be required to maintain vital air links.
Securing mutual recognition of existing standards is a process that "cannot happen overnight", he cautions, adding that that even when the task is completed, airlines and governments will face an "administrative burden" that will take time and significant resources.
"While we still hope for a comprehensive EU-UK deal, an assumption that 'it will be all right on the night' is far too risky to accept. Every contingency should be prepared for, and we call upon both the EU and the UK to be far more transparent with the state of the discussions," he says.
UK trade organisation ADS says the notices illustrate the risk of "delay or cancellation" of flights between the UK and EU over disruption to safety certifications. It says the best outcome to avoid this would be the UK's remaining a member of EASA – something that UK prime minister Theresa May has previously said the nation will strive towards.
The notices illustrate that the UK is seeking to put in place as frictionless an aviation regulatory regime for European airlines as possible, even in the event of a no-deal outcome with the EU, but on the condition that the EU does the same.
Such a negotiating strategy – that of assuming the opposing side will look on your proposals in a favourable light and therefore reciprocate – is inherently risky, as illustrated by the cold reception with which May's Chequers plan was met by EU leaders in Salzburg earlier this year.
Thorny issues such as the status of EU nationals in the UK after 2019, the future regulation of the Northern Irish border and access to the single market – major roadblocks in the wider EU-UK Brexit negotiations – may be absent from the talks on future aviation relations between the two sides, but airlines can take little comfort from the no-deal notices.
Source: Cirium Dashboard