Thursday, 19 July 2018

Brexit and Civil Aviation ~ Irish Taoiseach issues warning

The civil aviation sector is a vital part of the UK economy, contributing £52bn to UK GDP in 2016 and supporting close to a million jobs. Flights to or from Europe accounted for 63% of all passengers who passed through UK airports in 2016.

Mr Leo Varadkar is the Taoiseach of Ireland.  Speaking after a cabinet meeting in Derrynane House, Co Kerry, Leo Varadkar claimed Ireland’s airspace may be out of bounds for UK jets if they go down the route of a hard Brexit and ban the EU from fishing in their waters - News Letter 18 July.  This statement was condemned as "shameful blackmail" by Mr David Bannerman MEP  (Conservative) but perhaps we should not be too quick to condemn.

We have been here before - Law and Lawyers January 2018 - What if no deal? EU Commission Notice - Air Transport and see the Air Transport Notice 11th December 2017.  The only sensible conclusion is that "no deal Brexit" poses a massive threat to civil aviation as made clear by the British Airline Pilots Association in October 2017.

See also  Brexit Preparedness Notices addressing numerous sectors including Air Transport and Aviation Safety.

See also Aviation Law Review September 2017 and Getting the Deal Through - Air Transport EU - October 2017

UK Government proposals:

The recent White Paper - The future relationship between the UK and the EU - considers Aviation in Chapter 1 -

In short, the present arrangements with the EU come to an end if the proposed Air Transport Agreement cannot be finalised and/or if "participation in the European Aviation Safety Agency (EASA) is not established.

On 7 June, the UK government issued Framework for the UK-EU Partnership: Transport.   Part II of this document states -

All of this remains for negotiation and there is not much time left given that Brexit occurs on 29 March 2019.  Clearly, it is in the interests of all parties to negotiate arrangements so that aviation continues under existing arrangements during an implementation / transition period which, up to now, is set to last until the end of 2020 with the arrangements thereafter to be settled.

The following Notes may be of interest regarding the European Common Aviation Area and the civil aviation regulatory structure in which, from the outset of aviation, the UK has always played a leading role.  The Notes also look at the difference between national airspace over which the State has sovereignty and the airspace in which a State provides aviation services - principally air traffic control services.

Some notes:

European Common Aviation Area:

UK airlines currently have access to the world’s most liberalised aviation market - The European Common Aviation Area (ECAA) - through its membership of the EU.  The ECAA was created in 2006 as an extension of the Single Aviation Market and is overseen by the European Aviation Safety Agency (EASA), with its legislation enforced by the European Court of Justice (ECJ).

The EU has also negotiated horizontal agreements with 17 other non-ECAA countries. Through these and the ECAA, the EU governs the UK’s flight access to 44 countries, accounting for about 85% of all of Britain’s international air traffic.

UK airlines operate within the ECAA under all nine freedoms of the air

See Institute for Government 2017

Aviation regulatory structure:

At a global level, the International Civil Aviation Organisation - based in Montreal - sets Standards for civil aviation.  Established by the Chicago Convention 1944 and with the UK as a founder member,  ICAO works with the Convention’s 192 Member States and industry groups to reach consensus on international civil aviation Standards and Recommended Practices (SARPs) and policies in support of a safe, efficient, secure, economically sustainable and environmentally responsible civil aviation sector. These SARPs and policies are used by ICAO Member States to ensure that their local civil aviation operations and regulations conform to global norms, which in turn permits more than 100,000 daily flights in aviation’s global network to operate safely and reliably in every region of the world.

The European Aviation Safety Agency (EASA) was created in 2002.  Today, 32 States participate in EASA.   In a statement about Brexit, EASA notes - "As the withdrawal and transitional agreement negotiations are currently underway EASA cannot yet determine the ultimate impact of the withdrawal on EASA or its stakeholders within the EU-27 and 4 associated countries or within the UK. The withdrawal will significantly alter EASA’s cooperation with UK authorities and will not leave EASA’s stakeholders untouched."

Eurocontrol dates from the 1960s.  It is an intergovernmental organisation with 41 Member and 2 Comprehensive Agreement States.  Eurocontrol, joined by the UK in 1963, is committed to building, together with its partners, a Single European Sky to deliver the air traffic management (ATM) performance required for the twenty-first century and beyond.  Eurocontrol operates the Maastricht Upper Area Control Centre and an Experimental Centre at Brétigny-sur-Orge.

At a national level, the Department of Transport deals with civil aviation matters.   DfT is a ministerial department, supported by 21 agencies and public bodies., and sets national aviation policy, working with airlines, airports, the Civil Aviation Authority (CAA) and National Air Traffic Services (NATS).

The UK's Civil Aviation Authority was created in 1972 by the Civil Aviation Act 1971.  Today it is the UK's Civil Aviation Regulator.  Regarding Brexit, the CAA issued this statement  which includes planning assumptions for a "non-negotiated exit" from the EU.

Following its creation, the CAA was also a provider of air traffic control services in the UK.  However, during the 1990s, actions were taken by government to separate the regulatory and service provider functions.  This eventually led to the creation, from 2001, of the modern National Air Traffic Services (NATS).

National Air Traffic Services (NATS) - NATS Holdings Ltd - is now the main Air Navigation Service Provider in the United Kingdom. It inherited the traditions of UK air traffic control, which (founded over Croydon Airport) was the world's first air traffic control regime. It provides en-route air traffic control services to flights within the UK Flight Information Regions and the Shanwick Oceanic Control Area, and provides air traffic control services to fourteen UK airports.

The workforce of NATS is mainly made up of Air traffic controllers (ATCOs), Air Traffic Control Engineers (ATCEs), Air Traffic Services Assistants (ATSAs) and Science Technical Analytical and Research Staff (STARs). Administrative and Support staff make up the remainder of the 4,500 or so staff employed by NATS.

NATS is split into two main service provision companies: NATS En-Route PLC (NERL) and NATS Services Ltd (NSL).
  • NERL is the sole provider of civilian en-route air traffic control over the UK and is regulated by the CAA who, for example, determine the charges NERL can make. NERL is funded by Eurocontrol route charges for the provision of air traffic services.
  • NSL competes for contracts in the free market to provide air traffic control at airports in the UK and overseas, as well as providing related services including engineering, consultancy, information services and training.


By international law, the notion of a country's sovereign airspace corresponds with the maritime definition of territorial waters as being 12 nautical miles (22.2 km) out from a nation's coastline.  The UK's territorial waters are shown here.

Airspace not within any country's territorial limit is considered international, analogous to the "high seas" in maritime law. However, a country may, by international agreement, assume responsibility for controlling parts of international airspace, such as those over the oceans. For instance, the United States provides air traffic control services over a large part of the Pacific Ocean, even though the airspace is international.  Similarly, the UK provides in conjunction with Ireland, provides air traffic services with the Shanwick Oceanic Control Area. - see this Youtube presentation.

Today, 80% of all transatlantic traffic passes through airspace controlled by NATS, and demand is growing. By 2025, oceanic flights are predicted to have increased by 35% compared to 2015, so major changes to the way airspace is managed are needed to avoid a significant increase to the level of flight delay.  See May 2018, NATS and NAV CANADA vision for transatlantic flights in 2025.

There is no international agreement on the vertical extent of sovereign airspace, with suggestions ranging from about 30 km (19 mi)—the extent of the highest aircraft and balloons—to about 160 km (99 mi)—the lowest extent of short-term stable orbits.  The Fédération Aéronautique Internationale has established the Kármán line—at an altitude of 100 km (62 mi)—as the boundary between the Earth's atmosphere and outer space, while the United States considers anyone who has flown above 80 kilometres (50 mi) to be an astronaut.  Indeed, descending space shuttles have flown closer than 80 km (50 mi) over other nations, such as Canada, without requesting permission first.   Nonetheless, both the Kármán line and the U.S. definition are merely working benchmarks, without any real legal authority over matters of national sovereignty.

Under the Convention on International Civil Aviation (the Chicago Convention), each State has complete and exclusive sovereignty over the airspace above its territory. While national sovereignty cannot be delegated, the responsibility for the provision of air traffic services can be delegated. A  State which delegates to another State the responsibility for providing air traffic services within airspace over its territory does so without derogation of its sovereignty.

The Single European Sky (SES) - see Eurocontrol and European Commission - organises airspace into functional airspace blocks (FAB), according to traffic flows rather than to national borders. Such a project was not possible without common rules and procedures at European level. The Single European Sky (SES) was born to meet this need.  Importantly, the UK and Ireland form one of the airspace blocks.

The Functional Airspace Blocks are shown in this map.  The crucial geographic location of the UK-Ireland block is obvious -

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