Thursday, 27 December 2018

Open Skies agreements in place between UK and US? Is this even legal?

Mendacity continues.

If Sky is any credible yardstick, then in July 2017, some American airlines muttered something about the stark reality of the UK’s crashing out of the European Common Aviation Airspace (“ECAA”), and in November 2018, the UK & the US governments “agreed” an open skies deal between them.  Reuters has also reported the story, adding that the UK is engaged in serial bi-lateralism with other countries for air access.

It seems that Sky might be onto something.  Perhaps Sky fed from Reuters, or perhaps Sky read something from UK Gov itself, but on 28Nov2018, the UK government itself bragged about the US-UK Open Sky agreement.  Trade press (one example) jumped on the story on the same day (so no choreography there, then).

Has anybody told the UK government that, if it has indeed concluded trade deals with third countries before 29Mar2019, then UKGov has broken EU law?

TOFU Article 218 makes it very clear that only the EU may conclude commercial deals; the UK would have needed permission in an agreed Withdrawal Agreement to have opened negotiations for air access with third countries while the UK were still a member of the EU (until 29Mar2019).  The UK’s transgression in this respect will certainly have registered with European Commission and Remainiacs (such as Blair, Clegg, the litigious Miller et al): when (if?) Brexit comes closer to happening, we can be confident that Project Sabotage will be wheeled out once again to derail the UK’s new deals with third countries.

Could UKGov be so stupid?  Well, having invoked Article 50 without a viable plan to transition from EU member to EU non-member, the short answer is probably “yes”.  Or, as we can see with the currently proposed Withdrawal Agreement - and the cynical political engineering by the likes of May and Robbins to get to the proposed Withdrawal Agreement, including the scurrying back to Brussels to keep on negotiating even after the European Council approved the deal (in 30 minutes!) and closed the Commission’s mandate to negotiate - the longer answer is probably “no”, on the basis that an outcome must be seen to be impossible to justify an anti-democratic U-turn.  Hence why Project Sabotage is so important to Remainiacs.  It’s why Remainaics needed to exterminate EFTA/EEA as a means to implementing a sensible Brexit.  And, measured by their actions, May & Robbins are functionally Remainaics.

Meanwhile, on 19Dec2018, the European Commission published COM(2018) 890, “Preparing for the withdrawal of the United Kingdom from the European Union on 30
March 2019: Implementing the Commission’s Contingency Action Plan.”  This correctly reminds its readers - and anybody else, for that matter - that a “no-deal” Brexit would have the UK leave the EU along with all subsidiary agreements, including the ECAA.  As a result, airlines based in the UK would be instantly denied access to ECAA airspace and landing rights 11pm UK time 29Mar2019.  COM(2018) 890 announced temporary, transitional rules, to give EU operators enough time to close their operations with the UK tidily (pages 6-7).  The two transitional rules are:
     To the extent also granted by the UK to EU operators, to grant UK operators over-fly access and to grant UK operators emergency (non-scheduled) landings in EU airports for a maximum period of 12 months.
     To propose a regulation that assigns validity to UK holders of ECAA certifications for up to nine months to allow for some time to avoid a catch-22 situation regarding air safety regulation.

This announcement, along with much else in COM(2018) 890, is a list of the key things for the EU and the EU27 to do to withdraw tidily their affairs from the UK.  The sole reason for any of the transitional periods set out in COM(2018) 890 appears to be towards implementing the EU external border around the UK in manageable chunks.  From the perspective of the European Commission, this is the job that needs to be done.  From the perspective of the EU27, there are likely to be some unpleasant surprises following the implementation of COM(2018) 890.  Nothing insurmountable, for sure, but subtleties which will lay the groundwork for the EU to extend further into the sovereignty of the EU27, beyond that which any of the EU27 would have agreed with the UK as one of the EU28.

More short-term, without impact on sovereignty, trade flow will be the nastiest surprise, especially for those EU27 who need to import from the UK in the short-term.  The four areas to watch are air transport, road haulage, financial services and import/export of goods.  COM(2018) 890 is particularly oblique on page 7, where it says, “If the Withdrawal Agreement is not ratified, all relevant EU legislation on imported goods and exported goods will apply as of the withdrawal date.”  This is an under-statement.  The EU27, not the EU, are responsible for Border Inspection Posts, so if the EU27 want to import - or need to import - from the UK, then they are already too late to build any useful mitigating measures to keep trade flowing.  This includes the EU’s external border in Eire with Northern Ireland.

COM(2018) 890 is unlikely to be the European Commission’s final word on the subject.  But it is nevertheless an interesting window into the mind of the EU.

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