Air services from the EU to the UK in the event of ‘no deal’

UK position on reciprocity of rights for airlines from EU countries, and the basis on which flights will continue in the event of ‘no deal’.

Introduction
Both the UK and EU have repeatedly said that in the event of the UK leaving without a withdrawal agreement, flights would continue. In September 2018, the government published a technical notice which set out that the UK would take a pragmatic approach and envisaged granting member state airlines with permission to operate. This was in the expectation that EU countries would reciprocate and give UK airlines permission to operate.

In December 2018, the Commission published a proposal for a regulation to ensure air connectivity which would be the basis for EU countries to give UK airlines permission to operate in the event that the UK leaves the EU without a withdrawal agreement. A final version of the draft regulation has been provisionally agreed by the EU. This is expected to be confirmed by the Council and the European Parliament shortly.

Traffic rights
Under the EU draft regulation, UK airlines would be entitled fly across the territory of the EU and to make stops in the EU for non-traffic purposes (to refuel or carry out maintenance without embarking or disembarking passengers or cargo). UK airlines would be entitled to operate services without restriction between any pair of points, one of which is in the UK and the other in an EU country (the “third and fourth freedoms of the air”), and all-cargo services from the UK to an EU country and on to a country outside the EU (beyond-EU “fifth freedom” services) within a cap for up to 5 months.

The UK intends to allow member state airlines to fly across the territory of the United Kingdom, and to make stops in the UK for non-traffic purposes. It could be argued that if the UK were to reciprocate on this aspect of the draft regulation on a purely symmetrical basis, it would mean granting third and fourth freedom rights to member state airlines allowing them to operate between any pair of points, one of which is in the UK, and the other in the EU country in which the airline was licensed.

However, the UK has long taken the view that liberalised markets in air services promote choice and connectivity and are in the interests of consumers. As such, for the duration of the EU’s draft regulation the UK intends to go further than symmetrical reciprocity and allow member state airlines to operate from any point in the EU to the UK (limited seventh freedom traffic rights). It would still be up to the EU country concerned to grant an operating authorisation to a member state airline licensed in another EU country to operate from its territory.

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