Documents considered by the Committee on 21 February 2018 Contents

14EU Aviation Safety Agency (EASA)

Committee’s assessment	Politically important
Committee’s decision	Previously cleared from scrutiny; further information requested; drawn to the attention of the Exiting the EU and the Transport Committee
Document details	Proposed Regulation on aviation safety and establishing a EU Aviation Safety Agency
Legal base	Article 100(2) TFEU; ordinary legislative procedure; QMV
Department	Transport
Document Number	(37381), 14991/15 + ADDs 1–5, COM(15) 613

Summary and Committee’s conclusions

14.1This chapter considers the implications of EU exit for the UK’s future participation in or co-operation with the European Aviation Safety Agency (EASA)—an EU agency with regulatory and executive responsibilities in the field of civilian aviation safety.

14.2The document nominally concerned is the European Commission’s proposed revision195 of the EASA Regulation 216/2008196 which sets the aviation safety framework at EU level (hereafter “the Regulation”), on which the Government deposited an Explanatory Memorandum in January 2016.197 The Parliamentary Under Secretary of State of State at the Department for Transport (Baroness Sugg) has provided the Committee with an update198 on the outcome of trilogue negotiations regarding this proposal. The outcome is in line with UK objectives and she therefore intends to endorse the provisional agreement in the Council of Ministers. A summary of the provisional agreement is provided at the end of this chapter.

14.3Although the Committee cleared this document from scrutiny in our report on 23 November 2016,199 subsequent Brexit-related developments regarding EASA warrant closer scrutiny. Specific developments include the Government’s widely reported intention to continue to participate in EASA,200 which the Minister’s letter only partly confirms that; the publication of the European Commission’s Article 50 Taskforce’s slides201 on future UK participation in the Single Aviation Market, which infer from the Government’s negotiating red lines that the UK will leave EASA; and evidence on the implications of Brexit for the aviation sector given to Select Committees in the Commons and the Lords (see: Stakeholder views), as well as statements by other stakeholders including the chief executive of the UK Civil Aviation Authority.

14.4Article 66 of the Regulation202 allows third countries to become members of EASA. The participation of third countries as EASA members differs little from that of EU Member States (i.e. EASA rules are accepted and implemented by third country regulators; the CJEU has jurisdiction; contributions to EASA finances and staff are required), with the exception that non-EU members do not have voting rights. UK participation is thus a possibility, although not a right, and would be subject to negotiation of an agreement with the EU.

14.5We thank the Minister for a helpful and clear update.

EASA and Brexit

14.6In addition to ensuring high air safety standards throughout the EU, EASA’s single safety standard also facilitates the free movement of goods within the EU market, enabling UK aerospace manufacturers to frictionlessly move components through their cross-border supply chains and end-products to customers.203 EASA also currently acts as UK aerospace manufacturers’ route to global aviation markets for UK firms, as many third countries have agreements with the EU which recognise EASA standards, thereby allowing, for example, UK-manufactured parts to be used by US airlines.

14.7UK non-participation in EASA would raise significant challenges for stakeholders. The UK Civil Aviation Authority (CAA) would be required to replicate the current EASA regulatory regime at short notice and considerable expense. Doing so would increase compliance costs for businesses and impede supply chains, and potentially result in disruption while the CAA developed its capacity to discharge its new responsibilities. Strikingly, the Civil Aviation Authority has decided not to plan for a new independent aviation safety system in the UK on this basis that “it would be misleading to suggest that [this is] a viable option”.204

14.8While leaving EASA would be highly detrimental for UK stakeholders, UK non-participation would also have a significant negative impact on EASA, to which the UK is, along with France, the largest contributor in terms of both staff and expertise. A UK exit would potentially have the effect of reducing air safety in the UK and the EU—an outcome both parties should seek to avoid.

The Government’s position

14.9Regarding the implications of EU exit, we note the Government’s assessment that:

the UK industry values having a single regulatory system for aviation safety in the EU and believes that it would be beneficial to remain part of the EASA system after the UK has left the EU;
the Regulation permits the EU to enter into agreements with third countries for their participation in the EASA system; and
remaining part of the EASA system will be considered as an option for the exit negotiations with the EU.

Third country participation in EASA

14.10Article 66 of the EASA Regulation (Article 118 of the proposed Regulation) permits the EU to enter into agreements with third countries which allow their participation in the EASA system, but we observe that these agreements require such countries to:

adopt and apply EU law in the field covered by the EASA Regulation and its implementing rules, without voting rights;205
accept the role of the CJEU in the EASA system; and
make financial and staffing contributions to the agency’s operation.206

14.11However, we also note the views of industry stakeholders that EASA is a technical agency and operates on the basis of consensus, so voting rights are less important than being able to be present at meetings and to provide detailed input. We also note that the CJEU has never issued a ruling in relation to a decision by EASA.

The Commission position

14.12We note the analysis of the European Commission Article 50 Taskforce that the Government’s negotiating objectives (including regulatory autonomy, no CJEU jurisdiction, no free movement of persons) are incompatible with continued UK participation in EASA.207 We conclude that the possibility of a UK exit from EASA should not be dismissed.

Questions

14.13We ask the Government to respond to the following questions:

Does the Government desire to become a member of EASA on terms similar to those of Norway and Switzerland, and if not what terms of participation does it seek? Is the Government willing to adopt and apply EU law and EASA rules in this policy area, and to accept the indirect jurisdiction of the CJEU, lack of voting rights, and ongoing financial contributions to the agency as the price of continued UK participation in EASA?
The Article 50 Taskforce (TF50) slides on aviation (see above) conclude that the Government’s negotiating red lines preclude future UK participation in EASA. To what extent does the Government believe that the EU is willing to separate the issue of continued UK participation in EASA from the wider UK-EU negotiations regarding aviation (i.e. traffic rights) and trade?
The Chief Executive of the CAA has said that UK non-participation in EASA is not a viable option,208 and that the CAA has therefore decided not to plan for a new independent aviation safety system in the UK. Does the Government consider non-participation in EASA to be a viable option? Given that the EU infers from the Government’s negotiating red lines that the UK will be leaving EASA, is it prudent to make no contingency preparations for this scenario? Is any part of Government making contingency plans for this possibility (if so, please describe these)?
The TF50 slides on aviation envision a future Bilateral Aviation Safety Agreement (BASA), alongside a bilateral UK-EU Air Transport Agreement, as the basis of future UK-EU cooperation in aviation safety. It states that this would entail separate safety certification systems, simplified certification processes of products from other side “if there is reciprocal trust”, as well as administrative arrangements between EASA and the CAA to facilitate acceptance of EU and UK products, but no mutual recognition. Based on the Government’s engagement with the sector, and its acceptance of the benefits of participation in EASA, what is its assessment of the impact of an arrangement of this kind on industry stakeholders, including aerospace manufacturers and carriers? How significant an issue would the loss of mutual recognition be for these stakeholders?
Which of the three “options for the future” identified in the European Commission’s slides on future UK-EU aviation arrangements (or other options that the Government envisages) does the UK consider to represent the most likely outcome: “Type 1: Common Aviation Area”; “Type 2: Neighbourhood”; or “Type 3: Overseas” (a classical Air Transport Agreement)? Please explain the reasoning behind the Government’s assessment.

14.14We ask for the Minister to respond to these questions by 21 March 2018. We draw this chapter to the attention of the Exiting the EU Committee and the Transport Committee.

Full details of the documents

Proposed for a Regulation on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and repealing Regulation (EC) No 216/2008 of the European Parliament and of the Council: (37381), 14991/15 + ADDs 1–5, COM(15) 613.

Background

EASA and the EU Single Market

14.15The European Aviation Safety Agency (EASA)209 is a decentralised EU agency with regulatory and executive responsibilities in the field of civilian aviation safety. EASA’s role is central to most aspects of safety regulation including design and production of aircraft, their operation, flight crew licensing, and oversight in relation to air traffic services. National civil aviation authorities—e.g. the UK’s Civil Aviation Authority (CAA)—implement EASA rules within the Member States.

14.16The Government’s account of the role of EASA, produced as part of its assessment of the implications of EU exit for the aviation sector,210 is reproduced below:

“EASA was created in 2003 and reached full competency in 2008 through the introduction of Regulation 216/2008 which sets out common safety rules and objectives for civil aviation in Europe. EASA has competence (either full or shared) over:

initial, additional and continuing airworthiness certificates of aircraft and products;
air crew and flight limits;
air operations;
third Country Operator Authorisations that certify compliance with safety requirements for foreign aircraft;
prohibiting unsafe airlines;
safety oversight in Air Traffic Management and Air Navigation Services;
air Traffic Controller licences and certificates;
airspace and airborne collision avoidance; and
administrative procedures related to aerodromes.
“EASA prepares draft rules for consideration and adoption by the European Commission. Member States’ National Aviation Authorities (NAAs) then implement the adopted rules with monitoring from the Agency. The UK’s NAA is the CAA. EASA also has a number of executive tasks, for example the initial airworthiness certification of new and modified products (e.g. specific models of aircraft and engines) and the certification of organisations based in third countries. The Department for Transport and UK stakeholders are currently involved in more than 50 rulemaking activities within EASA and the UK is one of the NAAs that contributes the most technical expertise to these working groups.
“The system is underpinned by the set of common safety rules which are designed for uniform application across the EU. Those rules apply both to the air transport industry, individuals, organisations and products and to the NAAs themselves.
“All regulations that derive from the EASA Basic Regulation (EU 216/2008) are currently subject to a vote by the EASA Committee as part of the comitology process. As a member of the EU, the UK is represented at the EASA Committee, which is the EU comitology committee on aviation safety, and has a seat on the EASA Management Board, which is the Agency’s management body. While third countries are able to propose regulations and shape their development at EASA, they do not have a vote at this stage. However, they do have observer status in the EASA Committee. In practice, regulations proposed by EASA as the technical advisory body are rarely voted against by Member States on safety policy grounds, as they prepared on a consensus-based approach.
“Norway and Switzerland participate in the EU’s safety systems through their agreements with the EU. Norway and Switzerland are both associate members of EASA and both make a financial contribution to the running of the organisation.”211

14.17It is important to emphasise that, although EASA’s principal objective is to ensure a high level of aviation safety within the Union, a subsidiary objective is the free movement of goods. Where EASA introduces harmonised safety standards in Europe, goods placed on the market within the EU which comply with these standards are recognised throughout the Union, facilitating their free movement. A component that is manufactured in the UK can be used in a German plane, or vice-versa. Any aircraft certified in the UK can go on any national aircraft register in the EU. Similarly, maintenance organisations and training organisations, if accredited, can provide maintenance and issue approvals/issue licenses in any Member State.

14.18In these ways, EASA effectively acts as the route to the European market for the aerospace sector and, to a lesser extent,212 air carriers. Furthermore, because a number of other regions’ air safety regulators, including the US Federal Aviation Authority (FAA), have bilateral agreements with EASA, EASA also currently acts as the UK aviation and aerospace sectors’ route to the global market.

The proposal

14.19In December 2015 the Commission proposed a revising Regulation213 which would modernise the role of EASA, currently laid out in the EASA Basic Regulation.214 Substantive changes included:

new principles to be applied to aviation safety regulation;
a requirement for the production of Aviation Safety Programmes and Plans for Aviation Safety at both EU and Member State level;
a limited extension of scope of the EASA’s remit to include ground handling service providers, all unmanned aircraft (remotely piloted aircraft systems or RPAs) and some aspects of aviation security;
changes to the comitology procedure,215 including giving the Commission the power to adopt implementing rules under Delegated Acts;
introduction of provisions to support cooperative oversight between Member States and permit the transfer of responsibilities;
introduction of provisions on information sharing and, in particular, setting up of a central repository of licensing information; and
introduction of enhanced governance mechanisms for the EASA.

14.20When the Committee first considered216 the proposed Regulation in January 2016 the Government told us that it welcomed the Commission’s proposal to update the aviation safety regulatory system, but also identified areas where it sought further clarification or amendment of the proposal. In a subsequent letter to the Committee,217 the Government reported in detail on clarifications which had been received or amendments which had been made on all these issues, and said that the Presidency hoped to reach agreement on a General Approach on the proposal, which the Government intended to support, at Transport Council on 1 December 2016. The Committee cleared the proposal from scrutiny in its report of 23 November 2016.218

Implications of EU exit

14.21The Royal Aeronautical Society (RAS) has produced a briefing219 which considers the possible implications of leaving EASA, in the context of Brexit. Explaining the rationale for EASA’s existence, the RAS states that ensuring high levels of safety requires that rules are developed which cover each of the sub-systems within aviation, including airports, Air Traffic Management [ATM], General Aviation and unmanned aircraft systems, construction and maintenance of aircraft, engines, aircraft systems and components, and that rules are also developed to govern the interactions between the sub-systems. Having an independent central body that develops these rules, supported by industry experts, for each of these sub-systems and for the system as a whole, is a necessity.

14.22The RAS identify the following main implications of UK exit from EASA for UK stakeholders:

Design Approvals

Within the EU, products, systems and components for aircraft must be approved by EASA, which issues them with a ‘Design Organisation Approval’ or DOA. If the UK CAA were to take back responsibility for safety regulation, these EASA approvals would lapse;
If the UK CAA were to take back responsibility for all NAA activities, they would be responsible for certifying products designed in the UK. A new system would need to be put in place, with regulatory oversight by the CAA;
Companies would still be required to show their products matched up to EASA standards, and it would be possible that products would have to be approved by both EASA and the CAA, with duplication of costs for supply chains;

Maintenance and airworthiness records

The CAA would also have to take back responsibility for assessing Continued Airworthiness of products and systems on an ongoing basis;
For example, should a European seek to purchase a UK aircraft, aircraft parts and/or contract UK maintenance services for which the airworthiness had been overseen by a UK company compliant with UK safety legislation, extra checks would need to be performed to bring the aircraft, parts and/maintenance standards up to those of the destination country’s NAA;
Aerospace companies based in countries without aviation regulatory compliance with EASA or the FAA, when selling aerospace products and providing aviation services to the US and Europe, would therefore be subject to additional procedures and work;

Component maintenance

Component workshops based in the UK would cease to be EASA Part 145 approved should the UK withdraw from EASA. Companies could apply for certification from EASA, but this would not be as simple as the current process through the national authority, and any gap in approval at the time of EU exit would lead to disruption and loss of revenue; and

Pilot Certification

The EASA Airline Transport Pilot’s Licence [ATPL] is a common licence standard that has been agreed by 28 European states. There is a process for certified pilots outside the EU to convert their licences into European ones but it is not straightforward.

UK-EU flights

14.23Although traffic rights are not primarily dependent on the UK’s relationship with EASA in the first instance, when the UK leaves EASA UK operators, as third country-based entities, will have to apply to obtain licences from EASA. Until these were issued, air traffic to the EU would have no legal basis. While this is a cause for concern, the European Commission’s slides on aviation indicate that contingency arrangements should be put in place to mitigate this risk.220

Summary

14.24In summary, UK exit from EASA could have the following implications:

for aerospace manufacturers in the UK, loss of mutual recognition of their products within the EU and increased administrative costs of having to comply with multiple regulatory frameworks (this report does not consider wider impacts on goods trade with the EU, such as tariffs, rules of origin, etcetera);
for the UK Government and the Civil Aviation Authority, who would have to, at short notice and significant expense, put in place a comprehensive new UK air safety regulatory framework as well as arrangements for monitoring compliance with it; and
for carriers flying to and from the UK, who rely on the UK having an effective air safety regime in place that is recognised in the EU and worldwide, in the absence of which flights could be disrupted.

Third country provisions in the EASA Regulation

14.25Article 66 of the EASA Basic Regulation221 indicates that agencies of European third countries may participate in (not be Member States of) the work of EASA, where they:

a)are signatories to the Chicago Convention; and

b)enter into agreements with the EU to:

i)adopt and apply EU law in the field covered by the Regulation and its implementing rules;

ii)agree arrangements on financial contributions and staff.

14.26Article 50 (Actions before the Court of Justice) of the EASA Basic Regulation states that the Court of Justice of the European Union (CJEU) has jurisdiction over decisions taken by EASA. Third countries that participate in EASA must respect this jurisdiction. What this effectively means is that if the Court of Justice ruled that a particular EASA decision was inapplicable, or had to be modified, EASA would adjust its rules in line with the CJEU’s decision, and the third country would have to accept EASA’s rules.

14.27It is important to emphasise that UK participation is thus a possibility under the treaties, although not a right, and would therefore be subject to negotiation.

Third country participation in / cooperation with EASA

14.28A number of different models exist for third country participation in, or cooperation with, EASA.

The EFTA countries

14.29In line with the above provisions, the non-EU EFTA states, Iceland, Norway, Switzerland and Liechtenstein (which, in practice, is represented by Switzerland) participate in EASA. They adopt and apply EASA rules in the fields covered by the Regulation.

14.30The only major difference between the participation in EASA of, for example, France and Norway is that is that the non-EU members of EASA do not have voting rights222 on the Management Board or the technical committee which rubber-stamps technical decisions (the Brussels Committee). However, it is rare for votes to be taken in EASA, which is a technical body and tends to operate by consensus.

14.31Third country states of EASA retain their right to conclude international agreements/bilateral agreements with other third countries; however, they may not conclude agreements which would contradict the interests of EASA.

Non-EFTA participants

14.32The Western Balkan partners (Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Georgia, Moldova, Montenegro and Serbia) do not yet participate in EASA but, as part of the European Common Aviation Area (ECAA) Agreement223 are cooperating with EASA to bring their regulatory systems up to its standards. Once fully implemented, the Agreement will effectively integrate the Western Balkan partners in the EU internal aviation market, but the extent of integration is currently limited. The Agreement specifies that—at the end of the second transitional period—the Joint Committee established under the Agreement shall determine the precise status and conditions for the participation in EASA.

Bilateral Air Safety Agreement

14.33The EU has Bilateral Air Safety Agreements (BASAs) with a number of countries with large aeronautical sectors (such as the US, Canada, Brazil), in order to minimise duplication of effort. Both partners retain their separate safety certification systems and, if reciprocal trust is developed, simplified certification processes of products from each side are permitted. A summary of the EU-US BASA states that:

“the main purposes of the agreement are to automatically accept certain approvals issued within the other certification system (an approval issued by one party constitutes a valid approval by the other party) and enable the reciprocal acceptance of findings of compliance during validation processes.”224

14.34The agreement of BASAs is a detailed and time-consuming undertaking, as one has to first identify the two systems, then get confidence that the other side is applying its systems properly, and then identify those areas where potentially problematic differences or discrepancies remain, to establish what additional checks would need to be conducted. Given that the UK does not currently have its own air safety regulatory framework, it is highly unlikely that a fully-functioning BASA including a high level of recognition could be agreed in the short term.

Other working arrangements

14.35A wide range of third countries have less comprehensive arrangements with EASA which aim to reduce the burden of certification procedures, without having a bilateral air safety agreement in place.

Stakeholder views

14.36The House of Commons Transport Committee, and the House of Lords EU Internal Market and External Affairs Sub-Committees, have received evidence regarding the implications for UK participation of EASA.

14.37Mr Paul Everitt, Chief Executive Officer, ADS Group, told the Lords EU External Affairs Committee that EASA was the sector’s “route to market … it is through EASA that we gain access to all of our major markets, whether that is the US, China, Japan or elsewhere”.225 Mr Everitt also said that current membership of EASA cost the UK around £1 million per annum, whereas incorporating these responsibilities into the UK Civil Aviation Authority would cost “tens if not hundreds of millions”. Mr Simon Whalley, Head of External Affairs at the Royal Aeronautical Society, told the House of Lords EU Foreign Affairs Committee that membership of EASA was the RAS’s “number one ask of the UK Government”.226

14.38The House of Commons Transport Select Committee held a one-off evidence session on Monday 30 October 2017, as part of an inquiry on Aviation and Brexit which has not yet reported. At this session, Willie Walsh, Chief Executive of the International Airlines Group, recently told the House of Commons Transport Select Committee that:

“We do not want multiple regulatory regimes in place that make it unnecessarily complex. … It is in the interests of the industry globally that we continue to participate and have a common regulatory environment for aircraft design, aircraft certification, aircraft operation and aircraft safety. There is absolutely zero justification to move away from it.”227

14.39Mr Walsh also stated that the CAA would not be able to replicate EASA’s current functions:

“I do not believe the UK will be able to replicate a UK structure like it had in the past under the UK CAA. The expertise that existed within the CAA has long since gone, and much of it is used at European level.”

14.40Sophie Dekkers, UK Director, easyJet, told the Transport Committee that:

“The whole industry supports maintaining the same structure and framework going forward. We certainly would not ask for anything different, and would look to have a replication. We do not want different regulations in different countries, because that adds complexity. We want to work to the highest levels. Why would we not want to continue with EASA for that reason?”228

14.41The House of Lords EU Internal Market Sub-Committee also recently took oral evidence from stakeholders on the subject of EU exit and aviation. In response to concerns about CJEU jurisdiction and the probable loss of voting rights on EASA, Dr Barry Humphreys CBE, BKH Aviation, said that:

“The fact remains that EASA is a technical body that reaches decisions primarily by consensus. The UK and France are the two principal contributors to EASA.”

“The ECJ has never made a decision on EASA; it has never been involved. I believe the Commission has threatened to use it once or twice, but it has got no further, so in practical terms the answer seems obvious. The UK should continue to be as full a member of EASA as possible, and the fact that it will not have a vote on the management board, and that decisions are theoretically subject to the ECJ, should not, in the view of most people in the industry, be a factor at all. That is what most people want to see.”229

14.42Outside Parliament, other stakeholders have also commented on the possible consequences of the UK leaving EASA. The US Federal Aviation Authority (FAA) stated that:

“If there is now no EASA regulatory oversight over the United Kingdom’s manufacturers we have no way of relying on EASA’s oversight and certification so therefore we would need to make our own findings, manufacturer by manufacturer. And that is highly disruptive, highly costly for manufacturers to ensure that they can comply with FAA standards for manufacturing.”230

14.43Jeegar Kakkad, the chief economist for ADS, the trade body for British aerospace, has suggested that it would take 10 years for the country’s civil aviation authority to create the necessary certification infrastructure. Mr Kakkad said that: “It would be catastrophic for [UK] industry if there was a backlog of parts not being certified”.

CAA and Government positions

14.44On 5 September 2017, Andrew Haines, Chief Executive of the Civil Aviation Authority, gave a speech in which he stated that:

“We at the CAA are very explicit that we want to remain full members of EASA. I have to say in my 8 years in the aviation sector, I don’t think I have ever come across an issue that has such broad consensus in the sector. It’s almost universal. It makes no sense to recreate a national regulator. At best, you replicate the vast majority of European regulation, and you’d have to do it over an extended period of time. At worst, you create unnecessary barriers, and you start to breach my first successful outcome. What does this do to trade, and what does this to choice and value for consumers?”231

14.45In the same speech, he stated that the CAA was not undertaking any preparatory work for taking back responsibility from EASA, as it did not consider doing so to be a viable option:

“We are very uncompromising in our view that we should not be planning for a new independent aviation safety system in the UK. Indeed, we have consciously decided not to do that work as it would be misleading to suggest that’s a viable option.”

14.46The Government has published little official information about its position regarding future UK participation in EASA, however on 1 December 2017 it was reported232 that, following pressure not just from UK and European airlines, but also the US Federal Aviation Authority, the Government planned to tell the EU that it wished to remain in EASA, and that the Department for Transport had been privately reassuring the aviation industry and aeronautical manufacturers that Britain would stay within EASA. This position is only partly confirmed by the Government’s letter to the Committee,233 summarised at the end of this chapter, in which the Government acknowledges the benefits of UK participation in EASA and that “it would be beneficial to remain part of the EASA system after the UK has left the EU”, but concludes that “remaining part of the EASA system will be considered as an option [our italics] for the exit negotiations”.

Article 50 Taskforce slides on aviation

14.47On 17 January 2018 the European Commission Article 50 Taskforce published a set of slides on the subject of aviation,234 which were used for information purposes at a meeting of the Article 50 Council Working Party on 16 January.

14.48The Commission slides take as their starting point the Government’s statement of its ‘red lines’ (regulatory autonomy, the end of ECJ jurisdiction, and the end of free movement of persons) and the EU27’s ‘guiding principles’ in the negotiations (autonomy of the Union and its legal order, including ECJ jurisdiction, integrity of the Single Market, no “cherry picking”, level playing field and consistent approach towards third country partners).

14.49From these principles, the Commission concludes that the only consistent outcome is that the UK will leave the Single Aviation Market, and that the EU-UK future aviation relationship will be based on ‘classical’ agreements, such as those that exist with a large number of third countries.

14.50The Commission identifies the following consequences of this for the UK:

the UK will cease to be part of fully liberalised EU Aviation Market;
UK carriers will lose their EU-based traffic rights (e.g. loss of the seventh and ninth freedoms of the air, within the EU);
third country restrictions on ownership and control will apply;
end of mutual recognition of certificates and approvals; and
end of participation in the European Aviation Safety Agency (EASA).

14.51In terms of a transition period, the Commission states in the slides that the status quo would be retained if the UK applied the acquis and kept participating in the Single Market for a limited period (in line with the negotiating mandate). This is consistent with the negotiating directives on the transition period which were agreed on 29 January 2018.235

14.52The EU envisages a Future Aviation Safety relationship which would take the form of a Bilateral Aviation Safety Agreement (BASA) between the EU and the UK, which would have separate simplification systems, and simplified certification processes of products from either side (but not mutual recognition).236

14.53Importantly, the Article 50 Taskforce paper notes that, in the event of an overall ‘no deal’ scenario, it would be essential to establish EU-wide contingency measures to ensure basic connectivity, which would include a bare-bones EU-UK agreement on traffic rights and safety.

The Minister’s letter of 18 December 2017237

14.54Trilogue discussions have concluded and the Minister now provides the Committee with an update on the provisional agreement reached. The Parliamentary Under Secretary of State for Transport (Baroness Sugg) states that this will be submitted to the European Parliament plenary and to a future Council of Minister for approval, following a meeting of COREPER.

14.55The Minister states that, having assessed the final text, she believes that the Regulation will achieve the objective of the original proposal, and is broadly in line with the UK’s policy objectives. It will ensure that the requirements adopted by EASA are proportionate and, wherever possible, performance based rather than prescriptive. The Minister intends to endorse the provisional agreement in the interests of the aviation industry and consumers.

14.56The Minister’s account of the main aspects of the provisional agreement is summarised below.

Extension of scope

14.57The Minister states that the extension of the scope of EASA’s remit has been limited to ground handling service providers, aspects of aviation security where there are interdependencies with safety, and drone safety. On this basis, she states that the scope of the Regulation is proportionate and is in line with UK aims.

Subordinate legislation

14.58The Minister says that compromises have been made with the European Parliament regarding the use of Delegated Acts. Delegated Acts are now used to amend Annexes II to IX and for issues where the Commission or EASA is responsible, which the Government accepts is appropriate, whereas Implementing Acts are mainly used where Member States will be responsible for implementation. Delegated Acts have been proposed for the adoption of detailed technical requirements in “a small number of areas where Member States will be responsible for implementation”, but the Minister states that Member States will retain influence on the development and finalisation of the requirements in these areas as EASA are required to undertake full consultation on any proposals for introducing (or amending) requirements in these areas, and the Commission has stated that they would also wish to consult Member States on any delegated acts in these areas before they were adopted.

Transfer of responsibilities

14.59The emergency oversight mechanism proposed by the Commission, which the Government supported, was removed in the General Approach; however, this has now been reintroduced as an oversight support mechanism to assist states that are struggling to provide an adequate level of oversight.

Drones

14.60To reach a draft agreement with the European Parliament, the Minister reports that the Presidency has provisionally agreed to the inclusion of a threshold for the registration of drones. Drones with a potential energy on impact of 80 joules (roughly equivalent to a maximum mass of 900g) or more will require to be registered. The Minister states that this is much higher than the 250g threshold for registration of drone users that is currently being considered in the UK, but that Member States remain free to impose additional requirements on non-safety grounds and it is likely that a 250g threshold for legislation could still be established in the UK. She adds that the registration threshold set in the Regulation may be amended by delegated acts.

EU exit

14.61The Minister states that:

if the provisional agreement is approved the Government’s expects the new Regulation will be in force by the date the UK exits the EU. It will therefore be retained under the EU Withdrawal Bill even in the event of a non-negotiated exit;
the UK industry values having a single regulatory system for aviation safety in the EU and believes that it would be beneficial to remain part of the EASA system after the UK has left the EU;
the Regulation permits the EU to enter into agreements with third countries for their participation in the EASA system; and
remaining part of the EASA system will be considered as an option for the exit negotiations with the EU.

Previous Committee Reports

Nineteenth Report HC 71–xvii (2016–17), chapter 12 (23 November 2016); Eighteenth Report HC 342–xvii (2015–16), chapter 9 (13 January 2016).

195 Proposal for a Regulation of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and repealing Regulation (EC) No 216/2008 of the European Parliament and of the Council COM(15) 613 final.

196 Regulation (EC) 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency.

197 Explanatory Memorandum from the Minister, DFT, to the Chair of the European Scrutiny Committee (6 January 2016).

198 Letter from the Minister, DFT, to the Chairman of the European Scrutiny Committee (18 December 2017).

199 Nineteenth Report HC 71–xvii (2016–17) chapter 12 (23 November 2016).

200 Sky News, Govt to stay in EU air safety body in blurring of Brexit red line (1 December 2017).

201 Taskforce 50, Internal EU27 preparatory discussions on the framework for the future relationship: “Aviation” (17 January 2018).

202 Article 66 of Regulation (EC) 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency—replicated by Article 118 of the proposed Regulation.

203 It is important to note that these benefits are also reliant on a range of other EU measures, such as the customs union and intra-EU VAT arrangements.

204 Civil Aviation Authority, Speech by Andrew Haines (5 September 2017).

205 In addition, during the transition period proposed by the European Commission’s supplementary negotiating directives EASA rules would continue to apply to the UK but the UK would have no voting rights on the agency.

206 This position reflects the requirements of Article 66 of the current Regulation.

207 Taskforce 50, Internal EU27 preparatory discussions on the framework for the future relationship: “Aviation” (17 January 2018).

208 Civil Aviation Authority, Speech by Andrew Haines (5 September 2017).

209 EASA, The Agency https://www.easa.europa.eu/.

210 HM Government, Aviation Sector Report, published by the Exiting the European Union Select Committee (21 December 2017).

211 HM Government, Aviation Sector Report, published by the Exiting the European Union Select Committee (21 December 2017).

212 Air carriers do not gain full access to the Single Aviation Market solely by virtue of membership of EASA and compliance with its standards. The Single Aviation Market, and the traffic rights that it confers on ‘community carriers’, are governed by Regulation (EC) 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community.

213 Proposal for a Regulation of the European Parliament and Council on common rules in the field of civil aviation and establishing a European Union Aviation and establishing a EU Aviation Safety Agency, and repealing Regulation (EC) No 216/2008 of the EP and Council COM(15) 613.

214 (Consolidated) Regulation 216/2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC.

215 The comitology procedure enables EU subordinate legislation to be adopted by means of Implementing Acts to be scrutinised by a Committee of the representatives of the Member States, but has no European Parliament involvement.

216 Eighteenth Report HC 342–xvii (2015–16), chapter 9 (13 January 2016).

217 Letter from the Minister, DFT, to the Chair of the European Scrutiny Committee (15 November 2016).

218 Nineteenth Report HC 71–xvii (2016–17) chapter 12 (23 November 2016).

219 Royal Aeronautical Society, “Civil Aviation Regulation: What future after Brexit?” (September 2017).

220 Taskforce 50, Internal EU27 preparatory discussions on the framework for the future relationship: “Aviation” (17 January 2018).

221 (Consolidated) Regulation 216/2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC.

222 EASA, Decision of the Management Board adopting the rules of procedure of the Management Board of the European Aviation Safety Agency (June 2011).

223 Multilateral Agreement between the European Community and its Member States, the Republic of Albania, Bosnia and Herzegovina, the Republic of Bulgaria, the Republic of Croatia, the former Yugoslav Republic of Macedonia, the Republic of Iceland, the Republic of Montenegro, the Kingdom of Norway, Romania, the Republic of Serbia and the United Nations Interim Administration Mission in Kosovo* on the Establishment of a European Common Aviation Area (ECAA).

224 EASA, Agreement between the United States of America and the European Union on cooperation in the regulation of civil Aviation Safety (2011).

225 House of Lords EU Committee, Brexit: Trade in Goods, p. 54 (14 March 2017).

226 House of Lords EU Committee, Brexit: Trade in Goods, p. 55 (14 March 2017).

227 Transport Committee, Oral Evidence on Aviation and Brexit (30 October 2017).

228 Transport Committee, Oral Evidence on Aviation and Brexit (30 October 2017).

229 EU Internal Market Sub-Committee, Brexit: Trade in Non-financial Services—follow up (30 November 2017).

230 Reuters, Top U.S. official calls for clarity on post-Brexit aviation safety (13 December 2017).

231 Civil Aviation Authority, Speech by Andrew Haines (5 September 2017).

232 Sky News, Govt to stay in EU air safety body in blurring of Brexit red line (1 December 2017).
Financial Times, UK wants to remain in EU aviation safety agency (1 December 2017).

233 Letter from the Minister, DFT, to the Chairman of the European Scrutiny Committee (18 December 2017).

234 Taskforce 50, Internal EU27 preparatory discussions on the framework for the future relationship: “Aviation” (17 January 2018).

235 http://www.consilium.europa.eu//media/32504/xt21004-ad01re02en18.pdf.

236 Taskforce 50, Internal EU27 preparatory discussions on the framework for the future relationship: “Aviation” (17 January 2018).

237 Letter from the Minister, DFT, to the Chairman of the European Scrutiny Committee (18 December 2017).

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23 February 2018