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Holidays in 2019? Be careful (and mindful of Brexit) when booking flights!

Ryanair boss Michael O’Leary warned that Brexit may result in no flights between the UK and Europe (including Norway) for a period of weeks or even months after “Brexit day” in March 2019. Upon closer examination, it would seem that O’Leary has a point.
Offentlig sektor Konkurranse-, EØS- og statsstøtterett

If the UK does not manage to strike a number of bilateral deals and/or join the European Common Aviation Area, flights to, from or via the UK from or to any European or other destination might be at risk. Anybody who considers making an early booking for the period after March 2019 should take precautions.

Debate in European Parliament indicates that a Brexit deal on aviation is needed rapidly to avoid chaos

On July 11th, a debate on the impact of Brexit for the aviation sector took places in the European Parliament's transport committee. Representatives from some major European airports, airlines and industry associations attended. 

Essentially all participants agreed that aviation would be one of the sectors that could be hardest hit by Brexit and that legal certainty was needed quickly to allow airlines and their customers to make the necessary arrangements.

Famously outspoken O'Leary was perhaps most dramatic in this predictions, including that "Heathrow will be deserted, summer holidays cancelled and Ryanair aircraft moved to Europe" and that "by September 2018 when your average British voter is sitting down to work out where he is going on his holidays in 2019, the two options he will have are to drive to Scotland or get a ferry to Ireland." However, also other participants highlighted substantial risk for air traffic in Europe as result, primarily because in contrast to other sector of the economy, there is essentially no fall-back to the existing legal regime: The WTO does not entail any provisions on aviation, and international aviation law generally requires an explicit agreement of the State in which an airport is located in order for the landing of airplanes from other countries to be allowed.

The discussion in the European Parliament also shows that without an agreement on aviation prior to Brexit day, airlines might not want to offer flights that are at risk of being cancelled due uncertainty about a legal framework allowing these flights after Brexit. If O'Leary is right, flight schedules might be impacted even before Brexit takes place.

Legal framework: Absent one or several deals, a legal vacuum arises

At this point, there are two particularly important elements legal bases that govern air traffic to and from the UK: The Single European Sky Legislation (SES) including the agreements establishing a European Common Aviation Area (ECAA), which together create a single aviation market in Europe, and the "Open Skies" agreement with the US.

The single aviation market allows airlines from states that participate therein to operate flights it. It is not just the EU and EEA EFTA states such as Norway that form part of the single aviation market, but also other European nations that have acceded to the ECAA agreement. By leaving the EU, UK airlines will no longer enjoy automatic access to the single aviation market meaning that their rights to operate to, from and within the EU would need to be based on new agreements. While there would seemingly be no obstacle per se to the UK joining ECAA, this would entail that the UK accepts the jurisdiction of the European Court of Justice over this agreement, something the British government so far seems unwilling to accept as a matter of principle. Further, some EU-based airlines have spoken out against allowing the UK to join this agreement, arguing that this would be tantamount to single market cherry picking. All of this makes a quick and comprehensive agreement appear to difficult to attain.

As regards the horizontal agreements that the EU has negotiated with third countries such as in particular the EU-US Open Skies agreement, which also Norway has acceded, Brexit will most likely terminate the UK's participation therein. Absent a bilateral agreement or an accession to the existing Open Skies agreement, traffic across the Atlantic, including in particular connecting flights via London, could be severely hampered.

This is also because in contrast to for example trade in goods, the WTO does not provide a legal framework for aviation. ACI Europe, an airport association, explained that "while falling back on WTO rules would still be far from ideal and would come with significant costs, it still means businesses can rely on an alternative legal framework allowing them to keep operating and plan for contingencies accordingly. That is not the case for aviation. As it now stands, in the absence of a deal on a transition or the future regime, aviation would simply fall into a legal vacuum – which if not addressed could simply mean no flights."

What should holiday makers and businesses do?

Given the situation as outlined above, and the importance of smoothly functioning air traffic for the European and global economy, a rock-hard Brexit on this aspect seems somewhat unlikely. Nonetheless, for businesses and citizens that contemplate booking holidays or flights to, from or via the UK it may be advisable to wait for a while, or at the very least take out travel insurance that would cover a flight cancellation as a result of Brexit. For the insurance sector, a new market seems to be emerging.

Detailed updates and insights on Brexit and in particular its consequences for Norway will be published regularly on this site in the next months.