Richard North, 14/04/2018  

When Tom Enders wrote for the Financial Times a few days ago, saying that a hard Brexit would cause his [Airbus] business to "grind to a halt", he did get some publicity in the legacy media.

But now, when the Commission produces a Notice to Stakeholders spelling out the detail - which makes it certain that virtually every aspect of commercial aviation is going to take a massive hit – the media is silent. So far, I've not seen any media source which has reported the Notice.

The reason, I suspect, is that the media are wedded to personalities, around which they frame their "news". Thus, when information is presented to them in documentary form with no recognisable (or any) name attached, they simply have no way of coping with it. Unless, as in the case of Tom Enders, someone with relevant prestige actually says it (or writes it), the mere written word can't be used.

When the information also needs technical interpretation, there is a double handicap. There seem to be very few journalists who can competently dissect a Commission legal notice (and that's what this is), and report accurately on it. They simply lack the capabilities, most of them preferring a never-ending diet of trivia.

Thus, even though this Notice to Stakeholders - the sixty-second in the series - entitled "Withdrawal of the United Kingdom and EU Aviation Safety Rules" is a harbinger of catastrophe, it goes begging for attention. The media are not interested.

For those who can get past the media's human interest obsession, there is an important point to take on board. Although the commission is keen to point out that the notice applies in the absence of a withdrawal agreement with the UK, its scope goes far wider.

The crucial issue here is the it spells out what happens to aviation when the UK becomes a "third country" – i.e., a country that is not a member of the EU. And when we leave, even if we agree a comprehensive free trade agreement we still become a third country. Come what may, the provisions of the Notice will apply – most probably from 1 January 2021 after the transition period has ended.

Looking at the detail in a remarkably short notice running for a mere four pages, it deals first with holders of certificates for design organisations and for the production of parts and appliances used in civil aviation. Currently responsibility for issuing certificates is shared between the European Aviation Safety Agency (EASA) and the Civil Aviation Authority (CAA), implementing EU law.

We explored most of these issues in this blogpost in November 2017 (as regard production – design certification follows the same procedure). And, in short – brutally short, one might think - certificates issued to persons and organisations located in the United Kingdom will no longer be valid in the EU as of the withdrawal date. Products, parts and appliances concerned will no longer be considered as certified.

In addition, the Notice lists certificates and approvals in relation to a whole raft of activities and circumstances. These include certificates of airworthiness, restricted certificates of airworthiness, permits to fly, approvals of organisations responsible for the maintenance of products, parts and appliances, approvals for organisations responsible for the manufacture of products, parts and appliances, approvals for maintenance training organisations, and certificates for personnel responsible for the release of a product, part or appliance after maintenance.

They also include pilot licences, pilot medical certificates, certificates for pilot training organisations, certificates for aero-medical centres, certificates for flight simulation training devices, certificates for persons responsible for providing flight training, flight simulation training or assessing pilots' skill, and certificates for aero medical examiners.

They extend to certificates for air operators and attestations for cabin crew, certificates for aerodromes, certificates for air traffic management and navigation services providers, licences and medical certificates for air traffic controllers, certificates for air traffic controller training organisations, certificates for aero medical centres and aero medical examiners responsible for air traffic controllers, and certificates for persons responsible for providing practical training or assessing the skills of air traffic managers.

None of these certificates, licenses or approvals issued before, on or after the withdrawal date by the competent authorities will remain valid in the EU.

Then, because the UK becomes a third country after withdrawal, any UK registered airlines will require, de novo, Third Country Operators' Certificates, an issue I dealt with in depth here and here (again in November last year). Additionally, operators of aircraft registered in the UK (even if they are EU operators) will have to demonstrate that safety standards equivalent to those imposed by Union or national law are met.

Furthermore, as we indicated here, the loss of validity does not just apply to the EU. For instance, the UK is allowed to operate in the US under the cover of reciprocal agreements between the EU and the US. Once our approvals, etc., cease to be valid in the EU, they will no longer be valid in the US. This will apply to many other countries in the world.

Post-Brexit, therefore, the UK aviation sector – in all its multiplicity of different forms – will have to go through the often lengthy and complex procedures required to regain all the necessary approvals for operations in the EU. Outside the EU, this will have to be repeated in respect of all the other third countries in which we wish to operate, where reciprocal agreements will have to be negotiated and concluded.

Acquiring all the necessary certification and approvals, should not be overly difficult for the concerns affected, as they already satisfy the necessary requirements that gained them the approvals in the first place (apart from the Third Country Operator certificates).

This notwithstanding, UK operators cannot assume that approvals, etc., will be automatic. They will most certainly take time and there will be considerable expense and personnel resource implications. It follows that, since most applications cannot be processed until we formally become a third country, there will be some gaps in coverage when some (or even all) operations will not be able to function outside the UK.

Thus, the prospect of UK airlines and aircraft being grounded in the immediate aftermath of Brexit is by no means academic. Similarly, pilots, instructors, aviation medics, air traffic managers and many others may find that their activities are restricted for some time. Manufacturers may no longer be able to sell their products overseas. Aircraft maintained or repaired by UK certificated personnel may no longer operate outside the UK.

Obviously, one can expect the UK government to invest considerable political capital in negotiating agreements which minimise any disruption, although there is limited scope for manoeuvre. The EU will not offer any concessions which place the UK in a more favourable position than other third countries, and certainly not do anything which puts the UK in a better position than EU Member States.

Furthermore, since it is also possible (probable?) that the UK will also be having to negotiate special deals for the chemical, medicines, medical devices, and car industries, plus many more, the administrative burdens on both sides will be high. It might not be possible to guarantee that arrangements will be in place in sufficient time for them to be applied in the immediate aftermath of Brexit.

Even where things have settled down, the UK will have lost its privileged relationship with the regulator, EASA, and its own domestic regulator – the CAA – will have dramatically limited functions. Inevitably, this will lead to reduced flexibility, increases in costs and a loss of any ability to influence any EU rules and standards on aviation safety.

And, as we indicated on Thursday, there is not the slightest chance that the UK can continue its membership of EASA. Limited participation is permitted under the basic law, but that will put the UK in a subordinate position which requires full conformity with EU law, no voting rights, and the requirement to make substantial financial contributions.

Altogether, this is an unwelcome development for the UK. It would be partly mitigated, although not entirely, by continued membership of the EEA, but it was always going to be the case that Brexit would have a disruptive effect on all aspects of UK aviation.

What was not immediately apparent during the referendum campaign was the extent to which UK standards and operations are so tied up with EU approvals that we depend on them in to operate elsewhere in the world, and especially in the US.

Nevertheless, it was always our recommendation (in Flexcit) that the UK should proceed cautiously before invoking Article 50, so that it would know precisely what it was dealing with before entering into formal negotiations. Now, without adequate preparation, we are confronting issues of which – even to this date – our government seems to be unaware.

With such high stakes, there is no room for such amateurism. To remove uncertainty – as far as is possible - the government should make clear its intentions towards the aviation sector, and set out a plan and timetable for dealing with the different hurdles.

Much will depend on the good will of the EU, but if we are unable to settle plans for such an important sector, then Brexit may prove even more damaging than many pundits have predicted.

But then, when the media don't even recognise that there is a problem, it doesn't seem likely that the politicians will engage – unless industry interests start shouting very loudly indeed. That means more than just Tom Enders writing in the Financial Times.

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