Understanding Airline Brexit, Open Skies: when, why & how it affects you

This is a simplified explanation of why Aviation Law, Brexit, Open Skies and ICAO affects you. If you plan to travel in Europe to, or from Britain, via Europe post-Brexit on March 30th 2019. You have to understand where all this came from and how tightly regualted setting up an air travel route is outside of the Open Skies Treaty.

The beginning

Chicago 1944 – The Convention on International Civil Aviation. This came about because World War 2 was coming to a close and the economically destroyed Europeans, Chinese, and Russians were afraid that the untouched US Civil Airlines would have a rapid and near immediate domination of world air travel unless their were restrictions. Germany, and Japan were in complete ruins, most of European Russia and 85% of Europe not far behind.

Chicago Created Five Freedoms, which are compulsory and enshrined in the treaty. Four others have not been added to the treaty, creating The ‘So-Called’ Nine Freedoms.

First Freedom of the Air

The right or privilege, in respect of scheduled international air services, granted by one State to another State or States to fly across its territory without landing (also known as a First Freedom Right).

Following Brexit this will not change. Flights will still be allowed to fly over the UK, and UK will still be allowed to fly over other states. Many of the agreements to do so are bilateral and decades old. 

For many years the Soviet Union (now Russia) didn’t permit First Freedom rights and flights from Europe had to go round via the Middle East and India to reach SE Asia, and via Alaska to reach Japan and Korea.

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Second Freedom of the Air

The right or privilege, in respect of scheduled international air services, granted by one State to another State or States to land in its territory for non-traffic purposes (also known as a Second Freedom Right).
This is mostly in reference to airline operations and has become mostly redundant. This was in the days when multiple stops were required to refuel but you were NOT allowed to pick up or drop off during that stop. The Third Freedom may also apply… 
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Third Freedom of The Air

The right or privilege, in respect of scheduled international air services, granted by one State to another State to put down, in the territory of the first State, traffic coming from the home State of the carrier (also known as a Third Freedom Right).

This allows for any countries airline to be given the right to fly to another country. ONE WAY.

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Fourth Freedom of The Air

The right or privilege, in respect of scheduled international air services, granted by one State to another State to take on, in the territory of the first State, traffic destined for the home State of the carrier (also known as a Fourth Freedom Right).

This is the reverse of the Third Freedom and allows for return flights.

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The above Four Freedoms were the principal foundation of air travel for the best part of 65 years, for most of the world they still are. They included a much more controversial (in recent times) Fifth Freedom, which was relatively rarely implemented, but is demonstrated by ANZ and its AUK-LAX-LHR flights.

Fifth Freedom of The Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State to put down and to take on, in the territory of the first State, traffic coming from or destined to a third State (also known as a Fifth Freedom Right).

This allows ANZ to sell tickets and carry passengers to LAX and from LAX as part of its AUK-LAX-LHR operation. Passengers may buy a ticket from LAX to LHR or AUK, not just the start and end of the flight. Ultimately the return flight starts and ends in Aukland.

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This Fifth Freedom became controversial recently when Emirates began flying to Milan from Dubai and on to New York, and later from Dubai to Athens and New York. US airlines complained that the US had never given the airline Fifth Freedom permission to operate such routes, which quickly became successful as neither Athens or Milan had JFK connections. However Emirates claimed under its Open Skies agreements with the EU and the US and the EU’s with the US, they were legal. As no case was ever brought, clearly lawyers agreed.

 

The 6th & 7th “so-called” Freedoms

Sixth Freedom of The Air – the right or privilege, in respect of scheduled international air services, of transporting, via the home State of the carrier, traffic moving between two other States (also known as a Sixth Freedom Right). The so-called Sixth Freedom of the Air, unlike the first five freedoms, is not incorporated as such into any widely recognized air service agreements such as the “Five Freedoms Agreement”.

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Seventh Freedom of The Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State, of transporting traffic between the territory of the granting State and any third State with no requirement to include on such operation any point in the territory of the recipient State, i.e the service need not connect to or be an extension of any service to/from the home State of the carrier.

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What these mean: These two are an essential element in EU Open Skies. It’s these two, coupled to the Eighth Freedom, that permit easyjet, RyanAir, Norwegian, Wizz and so on to operate all over Europe, setting up bases anywhere and operating routes from anywhere to anywhere.  These “so-called” Freedoms can be found around the world between consenting states, but few operate it more effectively and openly than the EU.

The cornerstone of EU Open Skies; the ‘so-called’ Eighth Freedom

Eighth Freedom of The Air

The right or privilege, in respect of scheduled international air services, of transporting cabotage traffic between two points in the territory of the granting State on a service which originates or terminates in the home country of the foreign carrier or (in connection with the so-called Seventh Freedom of the Air) outside the territory of the granting State (also known as an Eighth Freedom Right or “consecutive cabotage”).

It means that you have the right to fly to anywhere from anywhere inside the signatories territory. You can stop where you like and pick up more passengers if you want to. Your airline does not have to be owned or based in the countries you fly in.  This is why an Irish airline can fly British passengers to Paris, pick up French passengers and fly them to Greece, come back via Frankfurt and land in Denmark. there is no obstacle to that practice if you decided to do it. This is the 1997 cornerstone of EU Open Skies.

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The ‘so-called’ Ninth Freedom

The right or privilege of transporting cabotage traffic of the granting State on a service performed entirely within the territory of the granting State (also known as a Ninth Freedom Right or “stand alone” cabotage).

This permits an entirely domestic operation by a foreign airline. For example Irish Ryan Air flying from Stanstead to Aberdeen, or Britain’s easyJet flying from Paris to Toulouse.

EU Open Skies

The agreement is in effect all Nine Freedoms Plus,  allowing a single market of unrestricted airline operations amongst the 27 member states. In effect it’s so heavily described in law and understood by airlines and governments, that there should be no issue at all with Britain staying in it. It would be simple enough for Britain in this case to simply agree to stay with the rules and carry on as it has. Indeed nothing could be simpler.

However, this is Britain. Britain doesn’t like human rights being applied by the European Court of Justice when it doesn’t suit Britain. The news media has aggravated a position, partly true, but partly not, that the ECJ is a demon in EU clothing.  Politicians have therefore become entrenched in leaving its jurisdiction despite the fact the UK was its leading architect, seeing it as a bastion to defend the human rights of EU citizens – but not apparently its own.

The ECJ is the court which would determine any dispute arising between airlines or governments inside the Open Skies treaty area. If Britain leaves the EU but agrees to the ECJ determining disputes in this area, then it could stay in Open Skies. well that’s what you’d think.

However those British lawyers who not only drafted the ECJ rules, and the Clause 50 rules that tell us how to leave the EU, made sure that you either stay all-in the ECJ or you’re all-out. So if Britain leaves the ECJ, it must leave EU Open Skies too, as it refuses to be bound by the court deciding disputes.

The only possibility is that the EU and UK agree to change the rules. All 27 EU states would have to agree.

What does it mean for you?

If there is no agreement flights between the UK and EU states will stop completely. All prior treaties with bilateral agreements were eliminated in 1997. Britain cannot negotiate with individual countries in the EU Open Skies agreement. It must deal with the EU, that means accepting the European Court of Justice holds jurisdiction over disputes. Every airline in Europe wants that upheld.

The EU and the US & Canada have an Open Skies agreement of which Britain is a part. It will not be in the agreement from 30th March 2019. It will need to agree an Open Skies directly with the US & Canada, or its individual agreements will replace them, restricting trans-Atlantic to the UK drastically.

The EU-Dubai-Qatar Open Skies deal will also be losing Britain, but its my understanding bilateral arrangements will kick in fairly quickly. But don’t rule out disruption.

Government says all these eventualities simply won’t happen. Until they tell me there is an agreement to ensure they don’t, you can rely on nothing but the worst case scenario.

The only guaranteed rights are the first five freedoms, but they are nowhere near enough to sustain modern air travel, and they are all superseded by the EU Open Skies agreement, so would only apply to the US.

You still have to remember that even the Five Freedoms are not guaranteed – they must be granted and agreed by the airlines and the governments whose airspace they fly in. What is agreed is that the Five Freedoms describe what everyone understands to be available rights.

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