Contributor - Europe

Cathy Buyck

The U.S. Federal Aviation Administration has warned UK authorities for some time that they need to clarify as soon as possible their civil aviation safety regulatory regime post-Brexit, but now the European Commission has increased pressure and spelled out that once the country leaves the EU in March 2019 its airlines will no longer operate under the auspices of the European Aviation Safety Agency (EASA) and the related certifications will lapse. &nbsp;

 


In a so-called notice to stakeholders, the Commission’s directorate-general for mobility and transport (DG Move) noted that all parties need to understand the “legal repercussions” they must consider when the UK becomes a non-EU member state and thus a “third country.”

 


If Brussels and London fail to come to an agreement on aviation, EASA’s safety certification will no longer cover British airlines, pilots, cabin crew, aircraft and aircraft part manufacturers, flight simulators, MRO facilities, airports, ANSPs, and medical attests for air traffic controllers. “Type certificates issued by EASA to persons and organizations located in the United Kingdom will no longer be valid in the EU as of the withdrawal date,” stated DG Move, which added that aircraft, engines, propellers, parts, and appliances “will no longer be considered as certified” by EASA. &nbsp;

 


UK airlines will have to obtain a third-country operator license and a safety authorization from EASA if they want to fly to the bloc, it said, and so-called EU-27 air carriers intending to wet-lease aircraft registered in the UK will be bound by corresponding EU provisions relating to those aircraft.

 


Not remaining part of EASA will also affect British airlines’ aircraft acquisitions since almost all aircraft leases and financings refer to either EASA or FAA standards of certification and recognition. “UK operators would need to find an acceptable solution to these requirements during any transition between certification systems,” global law firm Clyde &amp; Company pointed out in a recent study on the effects of Brexit on aviation.

 


The UK government and its civil aviation authority (CAA) have indicated they would prefer to remain a member of EASA, though at the moment the parties have agreed to nothing. British Prime Minister Theresa May reiterated last month that associate membership would ensure that the country continues to provide technical expertise and avoid a double certification of aerospace products. Britain “would, of course, accept that this would mean abiding by the rules” of the agency and making an appropriate financial contribution, she reckoned.

 


The interests are vast. The UK aerospace industry generates £32 billion in revenues a year, including £28 billion in exports, and directly employs some 120,000 people. Meanwhile, it continues to grow, boasting a 23 percent increase in turnover between 2010 and 2017, according to data from UK business lobby group CBI.

 


In an analysis published earlier this month, CBI cautioned that divergence from EU aerospace rules would lead to “a regulatory no-man’s land,” with no involvement in rules in either of the two key markets for aerospace—the EU and the U.S.—and would significantly increase compliance costs, particularly if the UK pursued a regime differing from both the EU and the U.S.

 


The head of the UK CAA, Andrew Haines, unequivocally stated that the country should not plan for a new independent aviation safety system, a view the industry shares. ADS Group, the trade body for British aerospace, believes that it would take 10 years for the country’s civil aviation authority to create the necessary certification infrastructure. “It would be catastrophic for [UK] industry if there was a backlog of parts not being certified,” ADS chief economist Jeegar Kakkad told the UK parliament’s transport committee late last year.

 


If continued membership of EASA proves unachievable, Haines has vowed, the UK should adopt the existing EASA regulatory system, rather than developing a new framework from scratch. “This option is available to any third-party country, and is one that, I believe, would provide clarity and certainty for the aviation industry,” he said.

 


The EASA regulation allows various models of participation by non-EU countries. Norway, Iceland, Lichtenstein, and Switzerland are EASA associated countries and they maintain seats on the management board, but without voting rights. A lack of voting rights should not present a stumbling block for the UK, an EASA executive told AIN on the condition of anonymity because the agency is not allowed to take public views on Brexit. He explained that as a technical agency EASA operates on the basis of consensus, so voting rights mean less than the ability to attend meetings and to provide input.

 


Still, the UK most likely will want to secure full membership in EASA, including voting rights. The EU, however, might find that politically unacceptable. Another hurdle involves the jurisdiction of the European Court of Justice, a prerequisite for EASA membership but a red line for May. The CJEU has never issued a ruling in relation to a decision by EASA.

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