The impending departure of the UK from the EU presents an uncertain future for safety regulation in the British aviation sector. With the final outcome of the Brexit process still unknown, organisations operating in the sector are faced with the two alternative scenarios under a deal or with no deal. A negotiated exit could see the UK seamlessly retain its current integration into the European safety regime, through continued membership of the European Aviation Safety Agency (EASA). On the other hand, an exit without a deal is likely to result in the UK automatically falling out of the EASA system – with significant consequences for the recognition of safety-related certificates and approvals in other states. This article will consider the impacts on organisations under both scenarios and highlight some of the steps that could be taken to mitigate these impacts. In particular, the status of UK maintenance and repair providers post-Brexit will be explored as a case study.
The current safety regime
The UK is deeply integrated with all other EU member states and some non-EU states under a common regulatory system for aviation safety. The agency which oversees this system, EASA, has assumed a large number of competencies in relation to aviation safety across the participating states since 2002. These competencies range from type certification of aircraft and parts to approving various industry operators registered in third countries. The sector in the UK is also overseen by the national regulator, the Civil Aviation Authority (CAA). The CAA retains a number of competencies ranging from approving UK based industry operators to certifying the airworthiness of individual products entering the registry. Nonetheless, the CAA is required to comply with and implement EASA standards in its operations.
The system is underpinned by EU legislation, the Basic Regulation, which provides for common standards and mutual recognition. All certification and approvals which are duly issued by the CAA and other national agencies of members are automatically recognised as valid in all other EASA states. For instance, a UK-registered repair and maintenance organisation which has been Part-145 approved by the CAA would be certified to conduct repair and maintenance on aircraft registered in other EASA states. If the UK were simply to leave the EU without any other arrangements or contingencies in place, the UK would cease to be subject to or benefit from the Basic Regulation. This would bring an immediate end to mutual recognition, both going forward and for existing certificates and approvals. For example, a Part-145 approval issued to a UK maintenance and repair organisation by the CAA would cease to be sufficient to grant that organisation the right to work on planes registered in an EU state.
The safety regime following a Brexit deal
The Withdrawal Agreement that has been negotiated between the UK and the EU, but not ratified by the UK Parliament, would avoid the scenario in which the UK immediately falls out of the EASA system upon exit. Under this agreement, the existing regulatory arrangements would continue unchanged for a two year transition period, which the UK and EU will use to negotiate their future relationship in aviation regulation. Although these negotiations have yet to commence, the current Political Declaration agreed by both sides expresses an intention for “close cooperation” between the CAA and EASA. This vague sentiment reflects a lack of precision in both side’s official policy for the future arrangements. Nonetheless, there have been various indications from the UK government and CAA that continued membership within EASA would be considered a desirable outcome. This sentiment is reflected much more vocally amongst the industry.
The Basic Regulation specifically allows for non-EU states to participate as members within the EASA system. These “EASA Associated Countries” are effectively subject to the Basic Regulation and enjoy the same mutual recognition of certification as that of the EU members. Although there is no explicit requirement under the Basic Regulation for such associated countries to have close alignment with the EU on non-aviation matters, it should be noted that the current EASA Associated Countries are full members of the single market. This raises some question marks over the viability of the UK negotiating post-Brexit membership of EASA if fully outside of the broader single market. Other difficult issues in these negotiations are likely to be the level of financial contributions required and mechanisms for the UK to continue influencing EASA policy. Short of full membership, there are a spectrum of potential negotiated relationships that would be preferable to the UK aviation industry than a no-deal scenario.
The safety regime following a no-deal Brexit
Although there is clearly some long term uncertainty as to what arrangements would be agreed between the EU and UK during the transition period, the primary source of uncertainty is whether there will be a transition period at all. This is dependent upon the UK Parliament ratifying the withdrawal deal, which (as of the date of writing this) it has rejected three times, before the official leave date. In a no deal scenario, certificates and approvals issued by the CAA will continue to be regarded as valid in the UK on the same terms as previously. The Withdrawal Act 2018 ensures that certificates and approvals issued by EASA and the national agencies of EASA members will continue to be valid within the UK for a period of up to two years following exit. However, the EU has not made reciprocal arrangements to continue to recognise all certificates and approvals issued by the CAA. Although the EU has committed to recognise the validity of certain certificates for a period of nine months following the date when the Basic Regulation ceases to apply to the UK, a number of approvals will be regarded as invalid upon exit. For instance, Part-145 approvals of maintenance providers do not benefit from any continued recognition. The EU’s no deal preparation in this regard has been limited to allowing UK organisations to apply directly to EASA for third country approvals in advance of exit, or to have approvals transferred to the agencies of other EASA states.
How organisations can prepare
There is clearly a risk under either scenario that UK-based aviation organisations will not enjoy the same integration into the EASA system as they do at present. The end of mutual recognition poses a number of problems to operators in the sector. For instance, aircraft leases may provide that the aircraft can only be maintained by maintenance and repair organisations that have EASA Part-145 approval. Lessees should consider whether their current maintenance providers will continue comply with their lease provisions following Brexit. For maintenance providers, it may be prudent to apply for third country operator approval directly from EASA in order to avoid any cliff edge. Going forward, airlines based in the United Kingdom negotiating new aircraft leases may wish to allow for maintenance to be performed by an agreed maintenance performer authorised by the CAA. If, as we would expect, the CAA would have equivalent requirements for its authorised maintenance performers as an equivalent EASA Part-145 approved maintenance performer, this change would arguably not compromise standards of maintenance but would give airlines increased flexibility when complying with lease requirements.