6.05.2021 Aviation law and defence

European licences without automatic recognition in Great Britain


With the coming of 2021 Great Britain left the aviation system of the European Union and the common air transport market of the EU. This has serious consequences in terms of aviation safety as well as licences and certificates for both aircrew and aircrafts themselves.

End of common standards

London’s leaving of the EU aviation system also means the loss of membership in the European Aviation Safety Agency (EASA). This involves serious consequences. First of all, it means the end of automatic mutual recognition of all kinds of certificates, licences, authorisations and permissions. This applies to documents issued starting from 1 January 2021. Documents issued earlier may still be mutually recognised. Thus, the British CAA (Civil Aviation Authority) will not automatically recognise a licence issued by EASA or any aviation authority of a member state (e.g., the Polish Civil Aviation Authority) and EASA will not consider a part manufactured in Great Britain as “automatically” complying with European requirements. This means that European aviation authorities could even ground an aircraft with such parts.

Together or apart?

The consequences of Brexit described above may have an adverse impact on the costs incurred by manufacturers of aircrafts and parts to them, as well as carriers or members of aircrew, as in many cases certificates, licences and permissions given to them will have to be validated by British or EU aviation authorities, if such entities wish to enter or remain on a given market.

The situation could be simplified and made more orderly with a Bilateral Aviation Safety Agreement (BASA) in place between CAA and EASA, but it has not been executed so far. In March of the last year both agencies presented their drafts of such an agreement and they are currently being negotiated. Certain elements of the future BASA have been included in the Trade and Cooperation Agreement (Brexit Agreement) in the “Aviation Safety” Title. The Specialised Committee on Aviation Safety formed on the basis of this agreement has been provided with competence of accepting annexes covering areas of airworthiness certification, design and production certification, maintenance organisation certification (PART 145), aircrew licensing and training (PART FCL), air traffic control and air navigation service and other.

A small step towards the better

However, at present the only annex to the Brexit Agreement with regard to aviation safety is AVSAF-1 which concerns airworthiness certification, monitoring of aeronautical products, compliance with the requirements of environmental protection as well as design and production certificates and monitoring of design and production organisations.

The annex provides for procedures of mutual validation of the relevant documents issued by the other party. Validation, in accordance with the process described in detail in Articles 9 and 10 of the Annex, applies to type certificates (with restricted type certificates), supplemental type certificates, repair design approvals and technical standard order authorisations. As regards the type certificate, the annex provides for a complete, i.e., a detailed validation process, while significant supplemental type certificates and approvals for significant major changes issued by EASA will be validated by CAA, generally, in the course of a streamlined process limited to technical issues only. In cases of EASA’s validation of design certificates issued by CAA the procedure may be applied when decided by both agencies on a case-by-case basis.

On the other hand, supplemental type certificates, approvals for other changes, technical standard order authorisations and small changes and repairs approved by the agency of one party will be accepted by the agency of the other party without the need of validation. Acceptance means declaration of compliance of the document with the requirements of a given party.

Design certificates issued before and valid on 31 December 2020 are considered as approved by the other party. The EU and Great Britain also undertook to mutually recognise production certification and production oversight systems.

What with licences?

Unfortunately, as far as aircrew licences are concerned the case is less optimistic than with airworthiness certification.

As of 1 January 2021, holders of British commercial licences (CPL, ATPL) lost the possibility of flying aircrafts registered in an EU member state. If it was not possible to “transfer” such a licence to one of the EASA member states before the end of the transition period, the licence will have to be converted in accordance with the Commission Regulation 2020/723.

Holders of “European” CPL or ATPL licences may validate them in CCA and use them in Great Britain for two more years, after which they will have to obtain a new British licence.

In practice, this means that a pilot who wishes aviation to be their way of life will have to decide in advance on the place where they will look for a job (EU or Great Britain) and obtain subsequent licences there. Obviously, when making the above decision the young airman will also have to consider the issues of their place of residence and employment opportunities, which are no longer as obvious as they were before 2020.

The above rules may prove problematic for some European carriers (mainly the so-called cheap airlines, and especially for the one registered in Ireland) employing a certain number of experienced British pilots. Entrepreneurs and aircrews themselves will face the problem of the future of their cooperation. Will airlines consider it more profitable to invest in converting CAA licences to the “European” ones, or will they reach for individuals from the ever-growing group of professional pilots from one of the EU member states?

The case is the same with validity of private (tourist) PPL licences. On the basis of the licence issued by the Polish Civil Aviation Authority a Polish pilot will be able to fly in Great Britain with a plane bearing the “Golf” registration initially by the end of 2022 only. Afterwards, they will have to undergo the whole licensing process in CAA.

Learn more: Brexit and aviation law

BASA on the horizon?

The current legal status seems to be provisional, temporary. There are many issues which need to be specified in greater detail and, considering long-term and harmonious cooperation between CAA and EASA, as well as UK’s membership in the common air transport market, simplified to certain extent. The aviation industry is waiting for next annexes to the Trade and Cooperation Agreement and, first of all, for a bilateral BASA similar to the ones concluded by EASA with the American FAA or the Chinese CAAC.

Author:

Piotr Dudek
Director of the Department of New Technologies, Defence & Aerospace
TGC Corporate Lawyers

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