EU Ponders Termination of Brexit Agreement – What Would This Mean for Aviation?

October 22, 2021 by Leave a comment

Bloomberg has reported that the EU is considering terminating the EU-UK Trade Agreement instituted to manage trade following Brexit. This could have a tremendous affect on aviation, because that agreement currently permits the EU aviation community to use aircraft parts produced in the UK.

The Trade Agreement between the UK and EU details the scope of cooperation between the UK and EU in aviation safety. One important element is found in the AVSAF-1 (aviation safety) Annex which provides that the EU will recognize UK production approvals and accept UK CAA Form 1 on new production parts. Without this provision from the trade agreement, EU installers might be unable to receive and install an aircraft part that was produced in the UK.

This creates unnecessary confusion in the aviation world, because certain previously-acceptable tags could become unacceptable. For example, a party installing a part on an aircraft registered in the EU might be unable to install – and might be unable to even receive – a new-and-otherwise-airworthy aircraft part that had been produced and documented in the United Kingdom.

There is no timetable for rejection, and it seems unclear whether this even a reasonable path, but the aviation industry needs to remain aware of this possibility and needs to plan how it will support airworthiness in the face of such technical differences.

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The New UK: What Does Brexit mean for EASA 145s Releasing UK-Registered Aircraft?

December 23, 2020 by Leave a comment

January 1, 2021 is looming. On that date we face the new post-Brexit protocols for UK civil aviation.

In just a few days, the Brexit Transition Period will end. When that happens, aircraft registered in the UK will be considered “third country” aircraft under EU law. The UK CAA has taken a number of steps to protect the airworthiness of those aircraft on the international stage, including the signing bilateral agreements with several ‘third countries:’

Maintenance done in the US or Canada on UK-registered aircraft will follow the protocols laid-out in these agreements. But what about EASA-145 repair stations outside of these jurisdictions?

UK CAA has done what it can to ensure that airworthy work that was acceptable before the end of the Transition Period will continue to be acceptable after the end of that period. In support of that, UK CAA continues to issue specialized guidance in support of smooth transitions. The most recent guidance in this regard is a UK CAA statement that explains how an EASA-145 repair station can release a UK-registered aircraft.

The foundation for this is EU interpretation 2013(D)51397 that states that when the law of the state of registry (the UK, in this case) permits reliance on EASA 145 repair stations, then it is acceptable for that repair station to release the aircraft under its EASA 145 certificate (see practice three).

Under the UK CAA guidance, the following text should be used for the release:

An EASA Part-145 organisation that issues a certificate of release to service after Exit day may continue to use its EASA/National approval number. The CAA considers that an organisation operating in this way is acting in accordance with “Practice 3” of the EASA document dated 20 March 2013.

The certificate of release to service should include the following statement:

‘Certifies that the work specified, except as otherwise specified, was carried out in accordance with Part-145 under the national aviation law of the UK and in recognition of the organisation’s EASA Part 145 approval, and in respect to that work the aircraft is considered ready for release to service’.

Signed: XX.145.XXXX

Alternatively, it is also acceptable to the CAA to use the following statement:

‘Certifies that the work specified, except as otherwise specified, was carried out in accordance with Part-145 and in respect to that work the aircraft is considered ready for release to service’.

Signed: XX.145.XXXX

UK – EU Transition – CAA Decisions No. 3 (22 December 2020).

This position helps to validate that on January 1, 2021, EASA-145 repair stations do not need to change their aircraft parts purchasing practices solely on account of the end of the Brexit Transition Period, because they are able to continue to operate under their EASA 145 certificates and sign off for UK-registered aircraft under those same certificates.

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The New UK: What Does Brexit mean for Aviation?

December 2, 2020 by 1 Comment

Part One: Brexit’s Legal Landscape Affecting Aviation

Everyone knows that the UK left the EU earlier this year, and that the UK and EU have been in the Withdrawal transition period since January 31. The Withdrawal period is governed by the Withdrawal Agreement signed by the UK and the EU last year. The last day of the current transition period is scheduled to be December 31, 2020. Part of the rationale behind the nearly-one-year-long transition period was to permit the UK and EU to negotiate a trade agreement that would reflect their long-term relationship.

There is little time for the UK and EU to complete negotiations. The negotiation were already very difficult due to the differing opinion on political issues like the Irish border; those negotiations have been hampered as each deals with the issues surrounding Covid-19. Trade deal negotiations restarted this past weekend, but it may be too little, too late. It is looking like there may not be an agreement by December 31 – most particularly not an agreement that permits the UK CAA to remain as a part of EASA.

So what does this mean for the aircraft parts market? First let’s examine some of the general agreements and basic principals that are likely to affect aircraft parts transactions (in the next article, we will examine some more specific scenarios and rules).

Generally speaking, a nation remains responsible for the airworthiness of the aircraft on its national registry. This means that an aircraft on the German registry can be maintained under the EU (EASA) regulations, and the rules about what parts can be installed on that aircraft are gong to be the EU rules. The EU has entered into agreements with other authorities to share certain oversight duties; for example, new parts produced under US FAA certificates/approvals are typically legal to install on EU aircraft when they meet the terms of the agreements between the EU and the US. But the EU does not have a comparable agreement with Mexico, so an aircraft parts produced under production approval issued by the Mexican DGAC would not be directly accepted into the EU system (note that EASA has a working arrangement that permits Mexico to validate and/or accept certain EASA certificates and approvals).

Through the EU (Withdrawal) Act 2018, all European Union aviation laws were adopted into UK law upon Brexit (deferred to the end of the transition period).  This means that the same EASA regulations under which the UK has been operating will continue to apply to UK transactions, but new EU regulations will no longer apply directly to the UK after the end of the transition period.

Because the UK is withdrawing completely from the EASA system as of January 1, 2021, the UK CAA will undertake all of the aviation safety regulatory functions. UK CAA has been preparing for this for years, and they appear to be ready.

The UK will no longer be included in EU-level Bilateral Aviation Safety Agreements. New UK agreements have already been negotiated and will come into effect on January 1, 2021. These agreements will be substantially the same as the correlative agreements between the ‘third-country’ and the EU. These include agreements with the following ‘third countries:’

Until and unless something changes in the EU law or in the negotiations between UK and EU, there appears to be no agreement between the EU and the UK for aviation approvals and certificates.

The EU promulgated a regulation (Regulation (EU) 2019/494 (25 March 2019)) that permitted recognition of certain documents, like copies of Form 1, during a continuing transition period; however that recognition did not come into effect because Article 10(3) explains that the regulation will not come into effect if a withdrawal agreement is signed before Brexit. Such a Withdrawal Agreement entered into force in 2019. This means that the primary EU legal authority permitting acceptance of approvals issued in the UK before January 1, 2021 did not come into effect. This does not mean that the EU cannot accept any new or maintained aircraft parts from the UK – there is an important exception that may apply from Article 41 of the Withdrawal Agreement – and we will address this important exception in our next blog article.

In the next blog post, we will look more specifically about how all of this affects aircraft parts transactions.

#aviation #brexit

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100 Days Until the End of the Brexit Transition

September 22, 2020 by Leave a comment

Brexit has occurred. The UK is no longer part of the EU. But the effect of Brexit was softened with a year-long transition period during which the UK and EU were supposed to negotiate their future relationship.

The last day of the current transition period is scheduled to be December 31, 2020. That leave little time for the UK and EU to complete their negotiations; negotiations that have been hampered as each deals with the issues surrounding Covid-19.

Unfortunately, the precise future for aircraft parts manufactured under UK CAA production approval or maintained under UK CAA maintenance approval remains a little unclear.

State of Negotiations

Last year, the UK and EU signed a Withdrawal Agreement that included a one year transition period. During this transition period, the EU treated the United Kingdom as if it were a Member State, with the exception of participation in the EU institutions and governance structures. This notably meant that the UK continued to enjoy the privileges of the EASA bilateral agreements and the world treated certificates in the UK as if they were still issued under EASA processes. Thus, an EASA Form One issued by a UK CAA repair station on January 2, 2020 had the same legal effect as one issued on December 30, 2019.

The Withdrawal Agreement also included an Irish Protocol that guaranteed no hard border between Ireland and Northern Ireland, but in return required a customs border to be established between Northern Ireland and the rest of the UK. Recently, Prime Minister Boris Johnson has pledged to renege on the Irish Protocol; which would mean that there would be no customs border between Northern Ireland and the rest of the UK; but that implies that there would be a customs border between Northern Ireland and Ireland. This pledge has been criticized as a potential violation of international law. Subsequent British efforts to provide a legislative support for the pledge have been called “lamentable” by prominent figures like UK Government Special Envoy (and human rights activist) Amal Clooney.

A clause that permitted extension of the Withdrawal Agreement had a deadline of July 1, 2020 and that deadline seems to have passed without the extension being invoked. This doesn’t really prevent the parties from agreeing to an extension – but it makes it a little less likely.

It is also worth noting that under the EU’s Brexit Regulation, certain certificates, like UK type certificates become invalid for EU purposes nine months after the Withdrawal Date (January 31, 2020), which means that they could become invalid. Contrast this with a provision in Article 10 of the same regulation that invalidates that Regulation if a Withdrawal Agreement is reached pursuant to Article 50(2) (the EU provision that permits a withdrawal agreement with a withdrawing member of the EU). The current EU-UK Withdrawal Agreement cites Article 50(2) as part of its basis, but it does not actually address how aviation will be covered. Instead, the EU and UK agreed to “explore the possibility of cooperation” with respect to EASA-UK CAA relations, but nothing has been passed in Europe to address certificates from the UK. The current EU-UK Withdrawal Agreement appears to render the EU Brexit Regulation moot, but if that is true then it means that there is no clear guidance on what happens after the transition period, particularly if the EU withdraws its offer to exetend US aviation regulations to the UK.

While the UK CAA is quite competent to support its own airworthiness needs, if the EU will not recognize UK CAA certificates after December 31, 2020 then this becomes a problem in terms of being able to support the EU-registered fleet. It potentially devalues aircraft components or complicates the compliance path in uncertain ways.

During the 2020 transition period, EASA continues to process applications from existing UK CAA approval holder within the context of the early application process; EASA expects to issue EASA certificates to many businesses who currently hold UK CAA certificates. 

What Comes Next?

A “Hard Brexit” scenario is still a very real possibility. This is because the UK is setting early deadlines for concluding a long-term agreement (October 15) and the UK Prime Minister has indicated that he’s prepared to walk away from trade talks rather than compromise on what he regards as core principles of Brexit. The “Irish Backstop” concerns reflect a very delicate point because of the competing concerns between fully withdrawing from the EU Common Market and retaining a “soft border” between Ireland and Northern Ireland.

Because of the lack of clarity on “what happens next,” anything is possible but it is highly likely that the EU will simply reissue the EU Brexit Regulation, or possibly rule that it became once again “live” upon the expiration of the transitional Withdrawal Agreement. If this happens then it would create a new transition during which UK parties could decide whether they needed EU recognition or whether UK recognition was sufficient (the UK already has a number of bilateral agreements ready-to-go in order to facilitate international recognition of UK certifications).  This means that it is likely that (1) the EU would recognize the validity of components already on EU aircraft [components would not have to be removed from aircraft], and (2) components with a EASA Form 1 certificates of release issued by UK-registered businesses prior to the end of the transition period would very likely be recognized as airworthy after the transition period.

For the UK CAA, it has already announced that anything certified under EASA’s authority that was considered preemptively airworthy before the end of the transition period would continue to be recognized in the UK for at least two years after the transition period ends..

An ‘even harder Brexit‘ is also a possibility, in which the EU simply stops recognizing all UK-CAA certificates (including EASA Form 1) after December 31, 2020. While possible, this is unlikely because of the adverse effect it would have on maintaining the technical airworthiness of EU-registered aircraft. If this happened, then In such a case, distributors holding parts with UK CAA Certificates might not be able to sell them for installation on EU-registered aircraft, but they could still be installed on UK-registered aircraft and on the aircraft registered in the nations with which the UK CAA has appropriate bilateral agreements (like Canada, Japan and the United States).

But there are about four weeks remaining before the current UK negotiation deadline, so a “soft Brexit” – in which UK CAA either participates as a third-country member of EASA or otherwise enters into a deal with EASA for mutual recognition – still remains a real possibility. In such a case, distributors holding parts with UK CAA Certificates would enjoy a “status-quo” situation.

EASA still is restrained from publicly commenting on Brexit; they are waiting for the high-level political negotiations to conclude before they can start to expending resources and take an official position.  Nonetheless, EASA contacts have privately assured us that EASA is ready for any direction in which Brexit may go, and EASA hopes to be able to to implement some form of mutual reliance with the UK CAA.

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UK Aviation Remains Subject to the EASA Standards and Bilaterals Through the End of the Year

January 31, 2020 by Leave a comment

Good news!  The UK and EU have taken the position that EASA regulations will continue to apply to the UK (and in the UK) during the transition period (post-Brexit).  The transition period will last from Februrary 1, 2020 through December 31, 2020.

The EU and UK have both signed the Withdrawal Agreement.  The EU issued a formal notice announcing the Withdrawal Agreement, earlier today.  Article 127(1) of the Withdrawal Agreement states:

“Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.”

This means that the Regulation (EU) 2019/494 (which had originally been expected to control aviation safety between EU and UK) will not come into effect.

The UK CAA updated their Brexit microsite, this morning, to reflect the application of EU law during the transition period.

This is a significant relief to many; as late as January 15, the EU had published plans that stated that the UK would have no recourse to EASA rules after Brexit, explaining that for the UK aviation community:

“All current EU law-based rights, obligations and benefits cease”

The industry is breathing a collective sigh of relief that this is not coming to pass (at least not yet).

International Response

In order for this to be truly effective, the rest of the world will need to allow the UK to be covered under the EU agreements, like bilateral aviation safety agreements and working arrangements.  If they refuse to allow the EU agreements to be extended to the UK (which will no longer be a part of the EU, tomorrow) then this could cause significant issues in accepting UK-sourced aviation goods and services.  The US has taken a leadership role in this regard by announcing its acceptance of the transition-period relationship.

Earlier today, the FAA circulated a letter from FAA Associate Administrator Ali Bahrami announcing that the United States will treat the UK as remaining subject to the US-EU aviation safety agreements during the transition period.

We expect other countries to continue to honor this relationship during the transition period (as of this morning, no analogous announcements had been made by Brazil, Canada or Japan – the other three nations to have negotiated post-Brexit airworthiness agreements with the UK – but this dearth of guidance is likely due to the short timing).

The fact that other countries are likely to honor this arrangement would make aircraft parts transactions smoother for the coming year, but it is not 100% good news.   The UK-Canada bilateral aviation safety agreement (BASA) was expected to permit reciprocal acceptance of component maintenance – a dramatic leap forward in international aviation safety comity.  Transport Canada has not issued any formal statement concerning the effect of the Withdrawal Agreement, but if they do treat the UK as part of the EU for bilateral aviation safety agreement purposes (during the transition period), it may delay to an important advance.

Resources:

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Brexit Update

October 22, 2019 by Leave a comment

Here is a quick run-down of the latest Brexit news:

  • Remember, barring an agreed delay, Brexit is schedule to happen on October 31
  • Parliament was unable to secure a Brexit deal by the recent deadline of October 19
  • As directed by Parliament, Prime Minister Boris Johnson sent a letter to the EU asking for an extension to the October 31 date (the current withdrawal date)
  • Prime Minister Boris Johnson sent a second letter to the EU, saying that he believes a delay would be a mistake
  • EU Council President Donald Tusk is consulting with EU leaders on how to react
  • Boris Johnson has negotiated a deal with the EU, and tried to create a fast track mechanism to get it approved through Parliament before October 31
  • The deal is far from perfect, and includes a few elements that have significant opposition in the UK, including
    • a customs and regulatory border between Northern Ireland and Great Britain
    • The European Court of Justice will continue to have jurisdiction over UK
    • Language on workers rights is vague (many MPs wanted more concrete language)
  • The fast track mechanism for Parliamentary approval of the Withdrawal Agreement Bill was rejected today
  • Under normal timetables, it seems difficult to get the Withdrawal Agreement Bill passed before October 31

ASA will hold a Brexit webinar on October 28 at 11:00 am.  We will discuss the current state of the political solutions, the most likely upcoming scenarios, and how these scenarios will affect aircraft parts transactions.  The webinar will include a look at common parts documentation, and explain how to parse the documentation to identify critical elements that are related to Brexit.  We will focus on US-UK and EU-UK acceptance of aircraft parts (especially those manufactured in, or maintained in, the UK) in an effort to help you comply with the post-Brexit parts acceptance rules.

The registration cut-off date is this October 24, 2019 at 5:00 pm Eastern.  There is no charge for the webinar but attendance is limited to ASA members.  You must be an ASA member to participate in the webinar – if you are not yet an ASA member then you should be!  Please contact Gabriel Maupin at 202-347-6897 if you have any registration questions.

I will be teaching the ASA London Workshop on Wednesday this week – this year’s topics include approved parts standards, documentation, export compliance, import classification, Brexit, and a discussion of some of the new and impending changes in the laws and regulations taht will affect aircraft parts distribution.  After the London Workshop, we’ll have three more ASA workshops in 2019. For complete details please visit our Workshops webpage:

  • Ft Lauderdale, FL – November 19, 2019
  • Chicago, IL – December 3, 2019
  • Dallas, TX – December 5, 2019

 

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ASA Workshop in London, with Special Guest Neil Williams of the UK CAA

October 1, 2019 by Leave a comment

Need to know the latest changes in the rules that apply to aircraft parts transactions?  Your trade association is here for you!

I will be teaching a regulatory workshop in London later this month (on October 23).  The workshops will deal with the following topics:

  • Aircraft Parts Regulations (European and US)
  • Recent and Prospective Changes in European Law (and how these changes affect the global community
  • Brexit (Neil Williams of the UK CAA plans to join us to discuss the latest developments)
  • International Documentation (and where the norms come from)
  • Compliance with US Import and Export Laws (and how these laws affect international commerce)

As you can see, the broad focus is on compliance standards to help ensure your domestic and international transactions are conducted properly.  As usual, we will focus on some recent and upcoming changes so that the members can plan for those changes and help ensure their business models keep up with the ever-changing world of aircraft parts.

Need to register for the workshop?  You can find workshop details and registration information on ASA’s website.

Can’t make it to London?  No problem!  I am teaching a total of six workshops this Fall:

  • September 20, 2019 – Los Angeles Airport area
  • September 24, 2019 – Singapore Airport area
  • October 23, 2019 – London Heathrow Airport area
  • November 19, 2019 – Ft Lauderdale Airport area
  • December 3, 2019 – Chicago, IL area
  • December 5, 2019 – Dallas, TX area

While I am in London, I will be visiting Aviationweek’s MRO Europe Conference.   If you will be in London and want to meet, then send me (or Katt Brigham) an email and let’s set up a time.  I look forward to seeing you there!

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Upcoming ASA Regulatory Workshops Help Aviation Parts Businesses Plan for Industry Changes

September 16, 2019 by Leave a comment

Need to know the latest changes in the rules that apply to aircraft parts transactions?  Your trade association is here for you!

I will be teaching regulatory workshops in Los Angeles this week and in Singapore next week.  The workshops are each a little different to reflect the localities, but each workshop will deal with the following topics:

  • Aircraft Parts Regulations (European and US)
  • Recent and Prospective Changes in European Law (and how these changes affect the global community
  • Brexit (how will it affect the rest of the world?)
  • International Documentation (and where the norms come from)
  • Compliance with US Import and Export Laws (and how these laws affect international commerce)

As you can see, the broad focus is on compliance standards to help ensure your domestic and international transactions are conducted properly.  As usual, we will focus on some recent and upcoming changes so that the members can plan for those changes and help ensure their business models keep up with the ever-changing world of aircraft parts.

Need to register for the workshop?  You can find workshop details and registration information on ASA’s website.

Can’t make it to LAX or SIN?  No problem!  I will be teaching a total of six workshops this Fall:

  • September 20, 2019 – Los Angeles Airport area
  • September 24, 2019 – Singapore Airport area
  • October 23, 2019 – London Heathrow Airport area
  • November 19, 2019 – Ft Lauderdale Airport area
  • December 3, 2019 – Chicago, IL area
  • December 5, 2019 – Dallas, TX area

While I am in Singapore, I will be speaking at Aviationweek’s MRO Asia-Pacific Conference.   I will be part of a panel on traceability challenges – and I will be sharing this stage with Jason Reed (President of the Component Solutions Group at GA Telesis) and Brent Webb (President of Aircraft Inventory Management & Services).  If you will be in Singapore, then be sure to catch both events.  I look forward to seeing you there!

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Brexit Update – September 3, 2019

September 3, 2019 by Leave a comment

UK politics are getting more interesting.  As we predicted a month ago, the UK Parliament will be prorogued next week.  This means that the current Parliamentary session (which is already the longest in history) will end and a new session will be started five weeks later.  The five week period includes a three week scheduled recess, so it really only eliminates two work weeks; but it also terminates all legislative proposals that remain incomplete at the end of the session (Americans will be familiar with the corollary in Congress, and they will likewise be familiar with the notion that unfinished bills simply get reintroduced in the next session).

With just days left in the current Parliament, Labor leaders have announced plans to take steps to prevent a “no-deal” Brexit, and several prominent conservatives appear ready to support that effort.  This could spell the end for Prime Minister Boris Johnson’s government – potentially leading to snap elections in the middle of the Brexit uncertainty (although the Labour Party has said that it would not vote for a snap election if that would help Johnson deliver a no-deal Brexit.).  If elections happen, Johnson could win a majority, strengthening his negotiating position and supporting his “do or die” pledge to leave the EU; or the “stay” contingent could win a majority which might result in a further delay of Brexit pending further negotiations, or even a revocation of the Article 50 declaration (which would keep the UK in the EU).  It is equally possible that snap elections (if they happen at all) could lead to a new parliament with the same problem: a slim majority that favors leaving the EU, but another majority that rejects a “no-deal” exit.  This is all part of a triangular political battle pitching Boris Johnson and “leave” proponents on one side, British Liberals and other “stay” proponents on another, and the EU on a third side.  And right in the middle of the triangle are the people of the UK – waiting to see how it will all lay out.  But outside the triangle is another constituency waiting to see the results: the rest of the word (including the global aviation community).

Things are heating up and the next week could see some dramatic action in UK politics.

While the pace of the news about Brexit seems to be getting more frenetic, the scenarios for aviation remain largely unchanged.  Our latest guidance and recommendations concerning aircraft parts inventories and transactions continue to be valid, and readers should refers back to the August 8 article for tips and guidance.

The most important thing to know is that the UK CAA, and the other global aviation authorities, have seen this coming for a long time.  Preparations have been made for a both “deal” and “no-deal” scenarios.  We fully expect issues, because change always creates unforeseen issues, but we also expect that aviation business – on a grand scale – will go on.

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How Will Brexit Affect Aircraft Parts?

August 8, 2019 by 1 Comment

Brexit is coming.  It is currently scheduled to happen at midnight on October 31 (European time).  November 1 is a Friday and it could represent a whole new slate of frustrations and issues for every industry – including the aircraft parts industry.

The UK is an important participant in the global aviation community so Brexit will affect the whole world.  Understanding what plans and standards have been put into place can help reduce the frustrations and facilitate both safety and compliance after Brexit.

Short History of Brexit

The United Kingdom joined the European Union on January 1, 1973.  44 years later, on March 29, 2017, Tim Barrow (the Permanent Representative of the United Kingdom to the European Union) delivered a letter invoking Article 50 to Donald Tusk, the President of the European Council.  The Article 50 deadline has been extended, and currently the United Kingdom is expected to leave the European Union at midnight on October 31, 2019.

Article 50 is the provision of the Treaty on the European Union that provides for exit from the European Union.

All of this is pretty well known to anyone who has followed any major news source over the past two years.  Yet, how this will all affect the aviation community remains less clear than we would like.

Options

The world has been anticipating two basic options for Brexit.

The first option, known as a “soft-Brexit,” is that the UK and the EU come to an agreement that allows them to have continued trade relations.  It has been widely anticipated that in the event of a soft-Brexit, UK CAA would join EASA as a third-party participant, much like Iceland, Liechtenstein, Norway and Switzerland (which are not EU member states but are EASA members).

The second option is known as a “hard-Brexit,” or a “no-deal Brexit.”  Under a hard Brexit, there would be no deal between the UK and the EU.  Politically, it is likely that EASA would be unable to extend to the UK an offer to join EASA as a non-EU member.  This would mean that the UK CAA would have to shoulder all of the airworthiness responsibilities for itself – they already handle many airworthiness duties but the additional duties undertaken by EASA would transfer back to the UK CAA.

The UK is in a fairly good position to support airworthiness.  UK CAA has continued to function for the UK by providing direct oversight in areas like production and maintenance.  UK CAA has already begun to increase its staff in anticipation of a hard Brexit.  UK CAA has also been hard-at-work establishing and updating bilateral aviation safety agreements with the UK’s major trading partners – these agreements will come into force immediately after Brexit.

One organization with which they have not formally negotiated is EASA.  The EU has taken the position that they cannot legally treat an EU member as a foreign entity, and thus they cannot negotiate international agreements like bilateral aviation safety agreements with a member state like the UK.  Despite this, the EU and EASA have issued regulations, and discussion papers explaining the position EASA intends to take in the event of a hard Brexit.  As discussed below, EASA and UK CAA have an excellent working relationship which should permit them to work well together when (and if) they are allowed to do so.

EU Position on Acceptance of UK Parts

The original April 2018 European Commission Notice to Stakeholders had painted a bleak picture of the near future between the UK CAA and EASA; it would have cancelled all UK approvals and it would have refused to recognize any UK-sourced EASA Form One after March 29.  The EU’s January 2019 updates to Brexit policy, though, have set much more reasonable short-term policies for the EU, and the subsequent March 2019 regulation has established a greater level of confidence that aviation will not come to a halt on November 1, 2019.

In essence, the EU intends to grant a nine-month grace period after Brexit.  This will permit the EU to continue negotiations with the UK; and it may allow the UK to join EASA as a non-EU member, or to otherwise establish a working arrangement with EASA.  Nine months is a short time period for negotiations and the UK CAA will be “under the gun” to achieve results during this time frame, but results to extend the UK CAA-EASA relationship are possible.

During the nine-month grace period, EASA will consider certain EASA design approvals issued to parties in the UK to remain valid.  This includes

  • Type certificates and restricted type certificates,
  • Approval of changes to type certificates and restricted type certificates,
  • Supplemental type certificates,
  • Approval in respect of repairs,
  • European Technical Standard Order authorizations,
  • Design organization approvals.

In addition, EASA will continue to recognize the validity of Authorized Release Certificates (EASA Form 1) for products, parts and appliances.  This includes the original certificates issued by the production organization, as well as maintenance certificates for articles that have already been installed in aircraft as of the Brexit date.  Unlike the nine-month recognition of design approvals, this recognition does not have a time limit.  This means that EASA will continue to recognize articles tagged in the UK before Brexit as valid articles.

But let’s look at some of the details in this pronouncement, because there are problems.  The regulation is ‘triggered’ by Brexit and enters into force on the following day.  The new regulation specifies that EASA will continue to recognize the validity of Authorized Release Certificates (EASA Form 1) that were valid as of the day before the regulation becomes active.  This means that an EASA Form 1 that existed on October 31 (assuming that is the day of Brexit) will continue to be valid on November 1.  But an EASA Form 1 issued on Monday November 4 will not be valid because it was not valid on October 31.

Where is the problem?  EASA will consider UK type certificates, STCs and ETSOAs to remain valid for nine months, but all UK production organization approvals (POAs) are considered invalid on November 1 (remember, EASA has offered to issue third country POAs to manufacturers in the UK).  This means that UK Form 1 (or other-named-forms) issued by UK manufacturers after October 31 will likewise remain invalid.  After decades of hearing requests for “fresh tags,” we may find ourselves preferring “stale tags,” because a Form 1 issued on or before October 31 by a UK manufacturer will be acceptable in the EASA system, while a Form 1 issued on or after November 1 by a UK manufacturer may not be acceptable in the EASA system.

Practice Tip: Because EASA Form 1 issued after October 31 may be invalid for EU-registered aircraft, companies who rely on parts produced in the UK, or parts overhauled/repaired in the UK, should ensure that the UK EASA Form 1 tags are dated by or before October 31, 2019.

What other problems are on the horizon?  Plenty of detail problems will be arising after October 31.  For example, the US-UK agreement will permit UK-produced articles to continue to be installed in US-registered aircraft, but US-based repair stations will have to be careful to check the date on the EASA Form 1!  While dates likely won’t matter for US-registered aircraft and US customers, EU-registered aircraft and EU customers may be unable to accept UK-sourced tags that were issued after Brexit.

Practice Tip: US repair stations with an inventory of articles with EASA Form 1 issued before October 31 should consider saving those articles for use on EU-registered aircraft and for EU-clients.  To facilitate this, use articles with UK CAA tags dated after October 31, 2019 on US-registered aircraft.

Practice Tip: Distributors should train their receiving inspectors to look carefully at the tags for articles produced in the UK.  The source of the POA (UK vs. EASA) and the date of the tag will influence who is permitted to use the article.

UK CAA Prepares

The UK CAA hasn’t been sitting idle.  Richard Moriarty reached out to EASA in a letter on June 1, 2018 to propose formal technical discussions to lay the groundwork for future cooperation.  The stressed the importance of clarity for the benefit of the regulated industry.  In a July 18, 2018 response, EASA Executive Director Patrick Ky made it clear that EASA would not be able to discuss practical cooperation with the UK CAA until after the specifics of the UK withdrawal had become clear and certain.  Over a year later, today, that certainty remains elusive.  While formal technical negotiations have not yet begun, UK CAA remains a member of EASA, and so there are normal channels of discussion about business matters that will likely help smooth the way toward an agreement between UK CAA and EASA (if an agreement is warranted).

As an example of the trust between the two organizations, EASA has offered to issue third-country certificates, like repair station certificates and production organization authorizations, to UK businesses.  The certificates would be issued immediately after Brexit (as soon as the UK becomes a “third-country” relative to the EU) in order to support safety and business continuity.  To allow the certificates to be issued immediately after Brexit, EASA needs to assess the applicants before Brexit.  EASA has made it clear that it is relying on the UK CAA to perform those assessments as the EASA technical agent.

UK and the US

UK CAA has been working closely with the US FAA on planning.  They have negotiated two different agreements – one that assumes a hard Brexit and one that assumes a soft Brexit.  Whichever one is appropriate will be signed immediately upon the occurrence of Brexit, in order to support continued, smooth, support of airworthiness between the UK and the US.

The US-UK agreement will be practically identical to the existing US-EU agreement,  The reason for this is to keep transactions smooth, under a set of transactional rules that all parties recognize.  So this means “business as usual” between the UK and the US.

While there may be minor issues that arise, the basic transactional model is expected to be solid between the UK and US.  This means that UK’s EASA Form 1 will likely continue to be valid in the US, and the future UK CAA Form 1 is also expected to be valid in the US after Brexit.  There are a substantial number of FAA 145 certificates in the UK.  Based on this, the US has discussed permitting UK-based companies with both a US 145 and a UK 145 certificate to issue the FAA 8130-3 as their maintenance release document for component-level work.  This allows the repair stations to use a globally-recognized tag, rather than having to educate the industry about a new UK-specific maintenance release document.

UK CAA has also been modifying its internal structures to support all of the elements that EASA has addressed over the past 16 years.  We expect them to be ready for Brexit.  We also expect this UK CAA staff to be overwhelmed with industry issues after Brexit, despite their best efforts to prepare.  The reason for this is because there are always details that fall under the radar during negotiations.

Politics in the UK and Brexit

There are a number of Brexit options lying in front of the UK.

It is looking increasingly likely that the UK will move into a hard Brexit.  The British press has reported that Boris Johnson has no intention of renegotiating the withdrawal agreement proposed by the EU and rejected by the UK.  This is partly because he has established – as a precondition to further UK-EU negotiations – that the EU must agree to withdraw the Irish backstop (and this is something the EU is unwilling to surrender).  The British press has also reported that a hard Brexit is Johnson’s “central scenario.”  It is clear that if Brexit does not happen on October 31 (in some form), then Johnson will be seen as reneging on his promises.

Despite the evidence favoring Johnson’s “central scenario,” a hard Brexit is not the only option.  Member of Parliament have discussed a no-confidence vote for Johnson as an early order of business upon their return in September in order to thwart the hard Brexit.  The Guardian newspaper has suggested that revocation of the Article 50 declaration is the only way forward for the UK (this would keep the UK in the EU).

But the Johnson camp has plans of their own: in the event of a no-confidence vote, one option would be to schedule elections for November (after Brexit happens) so that the new government would be too late to stop a hard Brexit.  Another option being discussed is proroguing Parliament.  Prorogation is the formal end of a parliamentary session and it is normally invoked through an announcement by the Queen.  When Parliament is prorogued, that ends the life of all incomplete motions and bills (although they can be introduced again in the next session).  Boris Johnson could ask the Queen to prorogue Parliament in an effort to prevent Parliament from interfering with the hard Brexit on October 31.  Although the Queen is legally permitted to act contrary to ministerial advice, she historically has not done so.

A hard Brexit is not a certainty; but it is a likelihood that must be considered as a reasonable possibility by aviation companies establishing their business plans vis-à-vis their UK business partners.

Expect Problems, But Work With Us On Solutions

Even in relationships specifically designed to weather Brexit, like the US-UK relationship, we will be facing new agreements that must be squared with a global market.  This means that there will be problems that arise where business models do not match the expectations of regulators who negotiated the agreements.  As you encounter these issues, please be sure to reach out to ASA so we can work with regulators to address and resolve these concerns.

 

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