Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common rules ensuring basic air connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union
Date: 2018-12-19
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: United Kingdom, air transport, international transport, transport regulations, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 19.12.2018  COM(2018) 893 final 2018/0433 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common rules ensuring basic air connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union (Text with EEA relevance)  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  United  Kingdom  submitted  on  29  March  2017  the  notification  of  its  intention  to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. This means 
that, if the Withdrawal Agreement1 is not ratified, the Unions’ primary and secondary law will 
cease  to  apply  to  the  United  Kingdom  from  30  March  2019  (‘the  withdrawal  date’).  The 
United Kingdom will then become a third country. 

International  air  transport  cannot  take  place  without  the  explicit  consent  of  the  States 
involved; this is a consequence of their complete and exclusive sovereignty over the air space 
above  their  territory.  It  is  customary  for  States  to  organise  air  transport  between  them  by 
means  of  bilateral  Air  Services  Agreements  (ASA)  which  lay  down  the  specific  rights 
mutually  granted  and  the  conditions  of  their  exercise.  Traffic  rights  and  services  directly 
related to their exercise are expressly excluded from the scope of the General Agreement on 
Trade in Services2. 

Within  the  Union,  the  freedom  for  the  Member  States'  air  carriers  (Union  air  carriers)  to 
provide  intra-EU  air  services  exclusively  stems  from  Regulation  (EC)  No  1008/2008  of  the 
European  Parliament  and  of  the  Council  of  24  September  2008  on  common  rules  for  the 
operation of air services in the Community, which also lays down the rules for the licensing of 
those carriers.  

In  the  absence  of  any  provisions  to  the  contrary  in  a  withdrawal  agreement,  air  services 
between the United Kingdom and the Member States would cease to be governed by the said 
Regulation  upon  withdrawal.  Moreover,  certain  air  carriers,  by  reason  of  their  holding  an 
operating  licence  issued  by  the  United  Kingdom,  or  their  principal  place  of  business  being 
located in the United Kingdom, or their being majority owned or effectively controlled by the 
United  Kingdom  or  its  nationals,  would  cease  to  meet  the  conditions  laid  down  in  the  said 
Regulation to qualify as Union carriers.  

It follows that, in the absence of provisions to the contrary in a withdrawal agreement, as from 
30  March  2019  there  would  be  no  legal  basis  for  the  provision  of  air  services  between  the 
United Kingdom and the Member States by the respective carriers. The carriers in any of the 
situations described above would lose their Union operating licence and, as a consequence, no 
longer enjoy the right to provide intra-Union air services. 

Direct air transport services between the United Kingdom and the Member States are almost 
entirely in the hands of United Kingdom and Union air carriers. The loss by those air carriers 
of  their  right  to  provide  air  services  between  the  United  Kingdom  and  the  Member  States 
would therefore result in serious disruption. Most, if not all, air routes between the Union and 
the  United  Kingdom  would  cease  to  be  served.  In  contrast,  intra-Union  routes  no  longer 
served  by  United  Kingdom  carriers  following  withdrawal  would  remain  fully  accessible  to 
Union carriers.   

1 
2 

https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf. 
Annex 1B of the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh 
on 15 April 1994 

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In a no-deal scenario, it is expected that the consequences for the respective economies would 
be severe, as described further down: air travel time and costs would significantly increase as 
alternative routes are sought, and so would pressure on the air transport infrastructure within 
those  alternative  routes,  while  air  transport  demand  would  fall.  As  a  result,  not  only  the  air 
transport  sector,  but  also  other  sectors  of  the  economy  which  are  largely  dependent  on  air 
transport would be hit. The resulting barriers to trade would hinder business in distant markets 
as well as business (re)location. The disruption of air transport connectivity would represent 
the loss of a strategic asset for the Union and the Member States.   

In  its  Communication  ‘Preparing  for  the  withdrawal  of  the  United  Kingdom  from  the 
European Union on 30 March 2019: a Contingency Action Plan’ of 13 November 20183 the 
Commission announced its intention to propose measures to ensure that air carriers from the 
United Kingdom are allowed to fly over the territory of the European Union, make technical 
stops  (e.g.  refuelling  without  embarkation/disembarkation  of  passengers),  as  well  as  land  in 
the European Union and fly back to the United Kingdom. Those measures would be subject to 
the  condition  that  the  United  Kingdom  applies  equivalent  measures  to  air  carriers  from  the 
European Union. 

The  present  proposal  thus  has  the  objective  to  lay  down  provisional  measures  to  govern  air 
transport between the Union and the United Kingdom following the latter's withdrawal from 
the Union (Article 1). These measures are intended to maintain basic connectivity for a short 
transitional period (Article 12).  

In the first place (Article 3), the proposed Regulation provides for the unilateral grant of first, 
second, third and fourth freedom traffic rights to United Kingdom air carriers so that these can 
continue to overfly and make technical stops in Union's territory, as well as serve direct routes 
between  the  respective  territories.  No  distinction  is  made  between  passenger  and  cargo 
operations,  or  scheduled  and  non-scheduled  services.  Consistent  with  the  proposed 
Regulation's  objective  to  ensure  basic  connectivity,  the  capacity  which  United  Kingdom  air 
carriers will be allowed to offer is frozen at pre-Brexit levels expressed in number of flights 
("frequencies").  None  of  the  usual  operational  flexibility  devices  (such  as  cooperative 
marketing arrangements, leasing of aircraft, change of gauge or co-terminalisation) have been 
foreseen for United Kingdom carriers to provide air services under the Regulation.  

The rights  granted to  United Kingdom  carriers  being subject  to  a principle of “reciprocity”, 
the proposed Regulation (Article 4) lays down a mechanism to ensure that the rights enjoyed 
by  Union  carriers  in  the  United  Kingdom  stay  equivalent  to  those  granted  to  UK  carriers 
under the proposed Regulation. If that is not the case, the Commission is empowered to adopt 
the necessary measures to correct the situation by means of implementing acts, including the 
limitation  or  withdrawal  of  operating  authorisations  of  United  Kingdom  air  carriers.  The 
assessment  of  the  level  of  equivalence  and  the  adoption  of  corrective  measures  by  the 
Commission  are  not  solely  linked  to  strict,  formal  correspondence  between  the  two  legal 
orders; this is because of the marked differences between the respective markets and in order 
to  avoid  a  blind  mirroring  approach  -  which  might  in  the  end  prove  counter  to  the  Union 
interest.  

Just as the Union strives to achieve in all its air services agreements, the proposed Regulation, 
even though it aims to temporarily ensure basic connectivity, lays down a flexible mechanism 
to  ensure  that  Union  air  carriers  enjoy  fair  and  equal  opportunities  to  compete  with  United 

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COM(2018) 880 final 

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Kingdom carriers once the United Kingdom will no longer be bound by Union law. A level 
playing field requires that, even after the withdrawal, the United Kingdom continues to apply 
sufficiently  high standards in  the area of  air transport  as regards:  fair competition  including 
the  regulation  of  cartels,  abuse  of  dominant  position  and  mergers;  the  prohibition  of 
unjustified  government  subsidies;  the  protection  of  workers;  the  protection  of  the 
environment;  safety  and  security.  Moreover,  it  must  be  ensured  that  Union  carriers  are  not 
discriminated  against  in  the  United  Kingdom,  be  it  de  iure  or  de  facto.  The  proposed 
regulation thus charges the Commission (Article 5) with the task to monitor the conditions of 
competition  between  Union  and  United  Kingdom  air  carriers  and  empowers  it  to  adopt  the 
necessary measures, by  means of implementing  acts,  to  ensure that those conditions  remain 
fulfilled at all times.  

The necessary procedures are established so as to enable the Member States to verify that air 
carriers,  aircraft  and  crews  flying  into  their  territories  under  this  Regulation  are  licensed  or 
certified  by  the  United  Kingdom  in  accordance  with  internationally  recognised  safety 
standards,  that  all  relevant  national  and  Union  legislation  is  complied  with  and  that  the 
allowed rights are not exceeded (Articles 6 to 9).  

Explicit provision is made to recall that Member States must not negotiate nor enter into any 
bilateral air services agreements with the United Kingdom on matters falling under the scope 
of this Regulation and that they must not otherwise grant UK carriers, in connection with air 
transport, any rights other than those granted in this Regulation. (Article 3). Nevertheless, the 
respective competent authorities will of course be able to cooperate as necessary for the good 
implementation of the Regulation (Article 10), so that the least possible disturbance is brought 
to the management of the air services that will continue to be provided under its aegis after the 
United Kingdom's withdrawal.  

The  European  Council  (Article  50)  reiterated  its  call,  on  13  December  2018,  for  work  on 
preparedness  at  all  levels  for  the  consequences  of  the  United  Kingdom's  withdrawal  to  be 
intensified,  taking  into  account  all  possible  outcomes.  This  act  is  part  of  a  package  of 
measures which the Commission is adopting in response to this call. 

• 

Consistency with existing policy provisions in the policy area 

This  proposed  Regulation  is  intended  as  a  lex  specialis  that  would  address  some  of  the 
consequences ensuing from the fact that Regulation (EC) No 1008/2008 will no longer apply 
to  air transport between  the United Kingdom  and the remaining Member  States as from  the 
withdrawal  of  the  United  Kingdom  and  in  the  absence  of  a  withdrawal  agreement.  The 
proposed terms are limited to what is necessary in this respect, so as to avoid disproportionate 
disruptions.  They  are  intended  to  apply  only  for  a  limited  period  of  time.  This  proposal  is 
therefore fully consistent with  the existing legislation and notably with  Regulation (EC) No 
1008/2008.  

• 

Consistency with other Union policies 

This  proposal  complements  Union  Regulation  (EC)  No  1008/2008.  Although  the  approach 
followed  in  the  Union's  air  transport  agreements  with  third  countries  has  been  respected  in 
some areas (e.g. operating authorisations), the specific purpose and context of this Regulation, 
as well as its unilateral nature, necessarily require a more restrictive approach in the grant of 
rights, as well as specific provisions intended to preserve equality of rights and a level playing 
field. 

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2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  is  Article  100(2)  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU). 

• 

Subsidiarity (for non-exclusive competence)  

The  proposed  act  would  complement  Union  Regulation  (EC)  No  1008/2008,  so  that  basic 
connectivity  is  ensured  despite  the  fact  that  that  Regulation  will  have  ceased  to  apply  in 
respect  of  the  transport  operations  in  question.  Such  connectivity  would  be  ensured  in  an 
equal manner for traffic to and from all points in the Union, which avoids distortions  in the 
internal market. Action is therefore indispensable at Union level  and the result could not be 
achieved through action at Member-State level. . 

• 

Proportionality 

The  proposed  Regulation  is  considered  proportionate  as  it  is  capable  of  avoiding 
disproportionate disruptions in a manner that also ensures equal conditions of competition for 
Union carriers It does not go beyond what it necessary to achieve this objective. This is the 
case,  in  particular,  for  the  conditions  under  which  the  relevant  rights  are  conferred,  which 
inter alia pertain to the need that equivalent rights be conferred by the United Kingdom and to 
fair competition, and for the limitation of the regime in time.  

• 

Choice of the instrument 

Since  the  act  governs  matters  closely  related  to  Regulation  (EC)  No  1008/2008  and  is 
intended, like this Regulation, to ensure fully harmonised conditions of competition, it should 
come  in  form  of  a  Regulation.  This  form  also  best  responds  to  the  urgency  of  the 
situation/context,  since  the  time  available  before  the  withdrawal  (without  a  withdrawal 
agreement being concluded) is too short to allow for a transposition of provisions contained in 
a Directive.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

This  is  not  applicable  due  to  the  exceptional,  temporary  and  one-off  nature  of  the  event 
necessitating this proposal which does not relate to the objectives of existing legislation.  

• 

Stakeholder consultations 

The  challenges  arising  from  the  United  Kingdom's  withdrawal  from  the  EU  and  possible 
solutions  have  been  raised  by  various  aviation  stakeholders  and  Member  States 
representatives. 

A common theme in the presented views was the need for a regulatory intervention in order to 
maintain a certain degree of air connectivity. When it comes to traffic rights, stakeholders are 
not able to take their own contingency measures in order to mitigate the harmful impact of the 
possible  absence  of  a  withdrawal  agreement.  At  least  six  air  carriers'  and  groups  of  air 
carriers'  and  airports'  representatives  (via  mostly  Airports  Council  International  Europe) 
expressed the view that the status quo should be maintained with UK air carriers by keeping 
the  same  level  of  market  access  as  before  the  withdrawal.  However,  other  stakeholders 

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(mostly  EU-27  air  carriers'  representatives)  to  the  contrary  highlighted  that  the  status  quo 
should not be maintained in the absence of full regulatory alignment, in order to ensure a level 
playing field in the market. On 12 June 2018, the Commission organised an EU-27 workshop 
on  preparedness,  during  which  Member  States'  civil  aviation  experts  have  in  particular 
stressed  the  need  to  adopt  EU  level  contingency  measures  in  order  to  ensure  basic 
connectivity between the EU-27 and the UK in case of an absence of a withdrawal agreement.   

These comments have been given due consideration on the preparation of the proposal. 

• 

Collection and use of expertise 

Several forms of assessment of the consequences of the United Kingdom's withdrawal for the 
air  transport  sector  were  shared  with  the  Commission  by  relevant  stakeholders.  These 
assessments conclude that absence of air traffic between the EU-27 and the UK would cause 
significant  disruptions  in  the  EU-27.  Air  connectivity  plays  a  crucial  role  within  the  wider 
economy. More than facilitating mobility, aviation is a strong driver of trade, growth and jobs. 
The direct contribution of aviation to the EU GDP is €110 billion, while the overall impact, 
including  tourism,  is  as  large  as  €510  billion  through  the  multiplier  effect4.  In  total, 
passengers travelling between the EU-27 and the UK represented 16% of all intra-EU traffic 
in 2016, although this figure varied significantly between EU Member States and can account 
for over 25%. Furthermore, in 2017, 19,3% of the intra-EU air transport was carried out by 
UK  licenced  air  carriers,  while  44,7  %  of  the  traffic  between  the  EU-27  and  the  UK  was 
carried out by EU-27 licensed air carriers. Alternative transport options are available notably 
with rail and sea links but only for a small number of countries such as Belgium, France and 
Ireland. For other countries that are further away in the East and South of the Union, road and 
rail  travel  times  make  such  not  substitutable  to  air  travel.  Consequently,  the  significant 
damaging  impact  of  the  total  loss  of  air  connectivity  on  the  EU-27  economy  and  citizens 
needs to be mitigated. 

• 

Impact assessment 

An impact assessment is not needed, due to the exceptional nature of the situation and limited 
needs of the period during which the change of status of the United Kingdom is implemented. 
No materially and legally different policy options are available other than the one proposed. 

• 

Fundamental rights 

This proposal has no consequence for the protection of fundamental rights.  

4. 

BUDGETARY IMPLICATIONS 

Not applicable.  

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable.  

4 

Steer Davies Gleave – Study on employment and working conditions in air transport and airports: final 
report, 2015 

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2018/0433 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on common rules ensuring basic air connectivity with regard to the withdrawal of the 
United Kingdom of Great Britain and Northern Ireland from the Union 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee5,  
Having regard to the opinion of the Committee of the Regions6,  

Acting in accordance with the ordinary legislative procedure,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

5 
6 
7 

On 29 March 2017, the United Kingdom submitted the notification of its intention to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. The 
Treaties will cease to apply to the United Kingdom from the date of entry into force of 
a withdrawal agreement or failing that, two years after that notification, that is to say 
from  30  March  2019,  unless  the  European  Council,  in  agreement  with  the  United 
Kingdom, unanimously decides to extend that period. 
Regulation  (EC)  No  1008/2008  of  the  European  Parliament  and  of  the  Council7  sets 
out  the  conditions  for  the  granting  of  the  Union  operating  licence  to  air  carriers  and 
establishes the freedom to provide intra-EU air services.  

In the absence of any special provisions, the withdrawal of the United Kingdom from 
the Union would end all rights and obligations ensuing from Union law in respect of 
market  access  as  established  by  Regulation  (EC)  No  1008/2008,  insofar  as  the 
relationship  between  the  United  Kingdom  and  the  remaining  27  Member  States  is 
concerned.  

It  is  therefore  necessary  to  establish  a  temporary  set  of  measures  enabling  carriers 
licensed in the United Kingdom to provide air transport services between the territory 
of  the  latter  and  the  remaining  27  Member  States.  In  order  to  ensure  a  proper 
equilibrium between the United Kingdom and the remaining Member States, the rights 

OJ C , , p. . 
OJ C , […], p. . 
Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 
on common rules for the operation of air services in the Community (Recast) (OJ L 293, 31.10.2008, p. 
3). 

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(5) 

(6) 

(7) 

(8) 

thus  conferred  should  be  conditional  upon  the  conferral  of  equivalent  rights  by  the 
United Kingdom to carriers licensed in the European Union and be subject to certain 
conditions ensuring fair competition. 

In order to reflect its temporary character, the application of this Regulation should be 
limited  to  a  short  period  of  time,  without  prejudice  to  the  possible  negotiation  and 
entry into force of a future agreement covering the provision of air services agreement 
between the Union and the United Kingdom. 

In  order  to  ensure  uniform  conditions  for  the  implementation  of  this  Regulation, 
implementing powers should be conferred on the Commission as regards the adoption 
of  measures  to  guarantee  a  fair  degree  of  reciprocity  between  the  rights  unilaterally 
granted  by  the  Union  and  the  United  Kingdom  to  each  other's  air  carriers,  and  to 
ensure  that  Union  carriers  can  compete  with  United  Kingdom  carriers  under  fair 
conditions  in  the  provision  of  air  services.  Those  powers  should  be  exercised  in 
accordance with Regulation (EU) No 182/2011 of the European Parliament and of the 
Council8. 

Since  the  objective  of  this  Regulation,  namely  to  lay  down  provisional  measures 
governing air transport between the Union and the United Kingdom in the event of the 
absence  of  a  withdrawal  agreement,  cannot  be  sufficiently  achieved  by  the  Member 
States  but  can  rather,  by  reason  of  its  scale  and  effects,  be  better  achieved  at  Union 
level, the Union may adopt measures, in accordance with the principle of subsidiarity 
as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In  accordance  with  the 
principle  of  proportionality  as  set  out  in  that  Article,  this  Regulation  does  not  go 
beyond what is necessary in order to achieve that objective.  

The provisions of this  Regulation should enter into force as a matter of urgency and 
apply, in principle, as from the day following that on which the Treaties cease to apply 
to  and  in  the  United  Kingdom  unless  a  withdrawal  agreement  concluded  with  the 
United Kingdom has entered into force by that date. However, in order to allow for the 
necessary  administrative  procedures  to  be  conducted  as  early  as  possible,  certain 
provisions should apply as from the entry into force of this Regulation, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Scope 

This Regulation lays down a temporary set of measures governing air transport between the 
Union  and  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  ("United  Kingdom") 
following its withdrawal from the Union.  

Article 2 

Definitions 

For the purposes of this Regulation the following definitions apply: 

8 

Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning  mechanisms for  control by  Member States of  
the  Commission's exercise of  implementing powers (OJ L 55, 28.2.2011, p. 13). 

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1. 

2. 

3. 

"air transport" means the carriage by aircraft of passengers, baggage, cargo, and mail, 
separately  or  in  combination,  held  out  to  the  public  for  remuneration  or  hire, 
including scheduled and non-scheduled air services;  

“international air transport” means air transport that passes through the airspace over 
the territory of more than one State; 

"Union air carrier" means an air carrier with  a valid operating licence  granted by a 
competent licensing authority in accordance with Chapter II of Regulation (EC) No 
1008/2008;  

4. 

"UK air carrier" means an air carrier which : 

(a)  has its principal place of business in the United Kingdom; and 

(b) 

fulfils one of the following two conditions: 

(i) 

the United Kingdom and/or nationals of the United Kingdom own 
more  than  50%  of  the  undertaking  and  effectively  control  it, 
whether  directly  or  indirectly  through  one  or  more  intermediate 
undertakings; or  

(ii)  Union  Member  States  and/or  nationals  of  Union  Member  States 
and/or other Member States of the European Economic Area and/or 
nationals  of  such  States,  in  any  combination,  whether  alone  or 
together  with  the  United  Kingdom  and/or  nationals  of  the  United 
Kingdom  own  more  than  50%  of  the  undertaking  and  effectively 
control  it,  whether  directly  or  indirectly  through  one  or  more 
intermediate undertakings,;  

(c) 

in  the  case  referred  to  in  point  (b)(ii),  held  a  valid  operating  licence  in 
accordance with Regulation (EC) No 1008/2008 on the day before the first day 
of application of this Regulation referred to in Article 12(2); 

5. 

“effective control” means a relationship constituted by rights, contracts or any other 
means which, either separately or jointly and having regard to the considerations of 
fact  or  law  involved,  confer  the  possibility  of  directly  or  indirectly  exercising  a 
decisive influence on an undertaking, in particular by: 

(a) 

(b) 

the right to use all or part of the assets of an undertaking; 

rights or contracts which confer a decisive influence on the composition, voting 
or  decisions  of  the  bodies  of  an  undertaking  or  otherwise  confer  a  decisive 
influence on the running of the business of the undertaking; 

6. 

"competition law" means law which addresses the following  conduct, where it may 
affect air transport services: 

(a) 

conduct that consists in: 

(i) 

agreements  between  air  carriers,  decisions  by  associations  of  air 
carriers and concerted practices which have as their object or effect 
the prevention, restriction or distortion of competition; 

(ii) 

abuses by one or more air carriers of a dominant position;  

(iii)  measures  taken  or  maintained  in  force  by  the  United  Kingdom  in 
case of public undertakings  and undertakings  to  which the  United 
Kingdom grants special or exclusive rights and which are contrary 
to points (i) or (ii); and 

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(b) 

concentrations  between  air  carriers  which  significantly  impede  effective 
competition,  in  particular  as  a  result  of  the  creation  or  strengthening  of  a 
dominant position; 

7. 

"subsidy" means any financial contribution granted to an air carrier or an airport by 
the  government  or  any  other  public  body  at  any  level,  conferring  a  benefit,  and 
including: 

(a) 

(b) 

(c) 

(d) 

the  direct  transfer  of  funds,  such  as  grants,  loans  or  equity  infusion,  the 
potential  direct  transfer  of  funds,  the  assumption  of  liabilities,  such  as  loan 
guarantees,  capital  injections,  ownership,  protection  against  bankruptcy  or 
insurance; 

the foregoing or non-collection of revenue that is otherwise due; 

the  provision  of  goods  or  services  other  than  general  infrastructure,  or  the 
purchase of goods or services; or 

the making of payments to a funding mechanism or entrustment or direction to 
a private body to carry out one or more of the functions mentioned under (a), 
(b) and (c) which would normally be vested in the government or other public 
body and the practice in no real sense differs from practices normally followed 
by governments; 

No  benefit  is  deemed  to  be  conferred  by  a  financial  contribution  carried  out  by  a 
government  or  other  public  body  if  a  private  market  operator  solely  driven  by 
profitability  prospects,  in  the  same  situation  as  the  public  body  in  question,  would 
have carried out the same financial contribution; 

8. 

“independent  competition  authority”  means  an  authority  which  is  in  charge  of  the 
application and enforcement of competition law as well as the control of subsidies, 
and fulfils all of the following conditions: 

(a) 

(b) 

the  authority  is  operationally  independent  and  is  appropriately  equipped  with 
the resources necessary to carry out its tasks ; 

in  performing  its  duties  and  exercising  its  powers,  the  authority  has  the 
necessary guarantees of independence from political or other external influence 
and acts impartially; and  

(c) 

the decisions of the authority  are subject to judicial review; 

9. 

"discrimination" means differentiation of any kind without objective justification in 
respect  of  the  supply  of  goods  or  services,  including  public  services,  employed  for 
the  operation  of  air  transport  services,  or  in  respect  of  their  treatment  by  public 
authorities relevant to such services; 

10. 

“scheduled  air  transport  service”  means  a  series  of  flights  possessing  all  the 
following characteristics: 

(a)  on each flight seats and/or capacity to transport cargo and/or mail are available 
for  individual  purchase  by  the  public  (either  directly  from  the  air  carrier  or 
from its authorised agents); 

(b) 

it  is  operated  so  as  to  serve  traffic  between  the  same  two  or  more  airports, 
either: 

(i) 

according to a published timetable, or 

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(ii)  with  flights  so  regular  or  frequent 

that 

they  constitute  a 

recognisably systematic series; 

11. 

12. 

13. 

14. 

"non-scheduled  air  transport  service"  means  a  commercial  air  transport  service 
performed other than as a scheduled air service; 

"territory of the Union" means the land territory, internal waters and territorial sea of 
the  Member  States  to  which  the  Treaty  on  European  Union  and  the  Treaty  on  the 
Functioning  of  the  European  Union  apply  and  under  the  conditions  laid  down  in 
those Treaties, and the air space above them;  

"territory  of  the  United  Kingdom"  means  the  land  territory,  internal  waters  and 
territorial sea of the United Kingdom and the air space above them;  

 “Convention”  means  the  Convention  on  International  Civil  Aviation,  opened  for 
signature at Chicago on 7 December 1944. 

Article 3 

Traffic rights 

1. 

UK air carriers may, under the conditions laid down in this Regulation: 

(a) 

fly across the territory of the Union without landing; 

(b)  make  stops  in  the  territory  of  the  Union  for  non-traffic  purposes,  within  the 

meaning of the Convention; 

(c)  perform  scheduled  and  non-scheduled  international  air  transport  services  for 
passengers,  combination  of  passengers  and  cargo  and  all-cargo  services 
between  any  pair  of  points  of  which  one  is  situated  in  the  territory  of  the 
United Kingdom and the other one is situated in the territory of the Union; 

Subject  to  Articles  4  and  5,  in  the  provision  of  scheduled  air  transport  services 
pursuant  to  this  Regulation,  the  total  seasonal  capacity  to  be  provided  by  UK  air 
carriers  for  routes  between  the  United  Kingdom  and  each  Member  State  shall  not 
exceed  the  total  number  of  frequencies  operated  by  those  carriers  on  those  routes 
during respectively the IATA winter and summer seasons of the year of 2018. 

The Member States shall neither negotiate nor enter into any bilateral agreements or 
arrangements  with  the  United  Kingdom  on  matters  falling  within  the  scope  of  this 
Regulation.  They  shall  not  otherwise  grant  UK  air  carriers,  in  connection  with  air 
transport, any rights other than those granted by this Regulation. 

Article 4 

Equivalence of rights 

The Commission shall monitor the rights  granted by the United Kingdom to Union 
air carriers and the conditions for their exercise.  

Where the Commission determines that the rights granted by the United Kingdom to 
Union air carriers are not, de jure or de facto, equivalent to those granted to UK air 
carriers  under  this  Regulation,  or  that  those  rights  are  not  equally  available  to  all 
Union  carriers,  it  may,  in  order  to  restore  equivalence,  by  means  of  implementing 

2. 

3. 

1. 

2. 

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acts  adopted  in  accordance  with  the  procedure  referred  to  in  Article  25(2)  of 
Regulation (EC) No 1008/2008: 

(a) 

adjust  the  capacity  available  to  UK  air  carriers  within  the  limit  laid  down  in 
Article  3(2)  and  require 
the  operating 
the  Member  States 
authorisations of UK air carriers, both existing and newly granted, accordingly; 

to  adapt 

(b) 

require  the  Member  States  to  refuse,  suspend  or  revoke  the  said  operating 
authorisations; or 

(c) 

adopt other appropriate measures. 

 Article 5 

Fair competition  

1. 

2. 

The  Commission  shall  monitor  the  conditions  under  which  Union  air  carriers  and 
Union  airports  compete  with  UK  air  carriers  and  United  Kingdom  airports  for  the 
provision of air transport services covered by this Regulation. 

Where it determines that, as a result of any of the situations referred to in paragraph 3 
of this Article, the said conditions are appreciably less favourable than those enjoyed 
by UK air carriers, the Commission may, in order to remedy that situation, by means 
of implementing acts adopted in accordance with the procedure referred to in Article 
25(2) of Regulation (EC) No 1008/2008: 

(a) 

adjust  the  capacity  available  to  UK  air  carriers  within  the  limit  laid  down  in 
Article  3(2)  and  require 
the  operating 
the  Member  States 
authorisations of UK air carriers, both existing and newly granted, accordingly; 

to  adapt 

(b) 

require  the  Member  States  to  refuse,  suspend  or  revoke  the  said  operating 
authorisations for some or all UK air carriers; or 

(c) 

adopt other appropriate measures. 

3. 

Implementing  acts  under  paragraph  2  may  be  adopted  to  remedy  the  following 
situations: 

(a) 

(b) 

(c) 

(d) 

the granting of subsidies by the United Kingdom; 

failure,  by  the  United  Kingdom  to  have  in  place  or  to  effectively  apply 
competition law; 

failure  by  the  United  Kingdom  to  establish  or  maintain  an  independent 
competition authority; 

the  application  by  the  United  Kingdom  of  standards  in  the  protection  of 
workers,  safety,  security  or  the  environment  which  are  inferior  to  those  laid 
down  in  Union  law  or,  in  the  absence  of  relevant  provisions  in  Union  law, 
inferior  to  those  applied  by  all  Member  States  or,  in  any  event,  inferior  to 
relevant international standards; 

(e) 

any form of discrimination against Union air carriers. 

4. 

For the purposes of paragraph 1, the Commission may request information from the 
competent  authorities  of  the  United  Kingdom,  UK  air  carriers  or  United  Kingdom 
airports. Where the competent authorities of the United Kingdom, the UK air carrier 
or  United  Kingdom  airport  do  not  provide  the  information  requested  within  the 

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reasonable period prescribed by the Commission, or provide incomplete information, 
the Commission may proceed in accordance with paragraph 2. 

Article 6 

Operating authorisation 

Without  prejudice  to  Union  and  national  aviation  safety  legislation,  in  order  to 
exercise the rights granted to them under Article 3, UK air carriers shall be required 
to obtain an operating authorisation from each Member State in which they wish to 
operate.  

On receipt of an application for an operating authorisation from a UK air carrier, the 
Member State concerned shall grant the appropriate operating authorisation without 
undue delay, provided that:  

(a) 

(b) 

the applicant UK air carrier holds a valid operating licence in accordance with 
the legislation of the United Kingdom; and 

effective regulatory control over the applicant  UK air carrier is  exercised and 
maintained  by  the  United  Kingdom,  the  competent  authority  is  clearly 
identified and the UK air carrier holds an air operator certificate delivered by 
the said authority. 

Without  prejudice  to  the  need  to  allow  for  sufficient  time  for  the  carrying  out  of 
necessary  assessments,  UK  air  carriers  are  entitled  to  submit  their  applications  for 
operating  authorisations  as  from  the  day  this  Regulation  enters  into  force.  The 
Member States shall have the power to approve those applications as from that day, 
provided that the conditions for such approval are met. However, any authorisations 
thus  granted  shall  take  effect  no  earlier  than  on  the  first  day  of  application  of  this 
Regulation referred to in Article 12(2). 

Article 7 

Operational plans, programmes and schedules 

UK air carriers shall submit the operational plans, programmes and schedules for air 
services  to  the  competent  authorities  of  each  Member  State  concerned,  for  their 
approval. Any such submission shall be made at least 30 days prior to the start of the 
operations.  

Subject to Article 6, the operational plans, programmes and schedules for the IATA 
season that is in progress on the first day of application of this Regulation referred to 
in  Article  12(2)  and  those  for  the  first  season  thereafter  may  be  submitted,  and 
approved, before that date. 

Article 8 

1. 

2. 

3. 

1. 

2. 

Refusal, revocation, suspension and limitation of authorisation 

1. 

Member States shall refuse, or as the case may be, revoke or suspend the operating 
authorisation of a UK air carrier where: 

(a) 

the air carrier does not qualify as a UK air carrier under this Regulation; or 

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(b) 

the conditions laid down in Article 6(2) are not complied with.  

2. 

The Member States shall refuse, revoke, suspend, limit or impose conditions on the 
operating  authorisation  of  a  UK  air  carrier,  or  limit  or  impose  conditions  on  its 
operations in any of the following circumstances: 

(a) 

(b) 

(c) 

the applicable safety and security requirements are not complied with;  

the applicable requirements relating to the admission to, the operation within, 
or  the  departure  from  the  territory  of  the  Member  State  concerned  of  aircraft 
engaged in air transport are not complied with;  

the  applicable  requirements  relating  to  the  admission  to,  operation  within,  or 
departure  from  the  territory  of  the  Member  State  concerned  of  passengers, 
crew, baggage, cargo, and/or mail on aircraft (including regulations relating to 
entry, clearance, immigration, passports, customs and quarantine, or in the case 
of mail, postal regulations) are not complied with. 

3. 

4. 

The Member States shall refuse, revoke, suspend, limit or impose conditions on the 
operating  authorisations  of  UK  air  carriers,  or  limit  or  impose  conditions  on  their 
operations,  where  they  are  so  required  by  the  Commission  in  accordance  with 
Articles 4 or 5. 

The Member States shall inform the Commission and the other Member States of any 
decisions to refuse or revoke the operating authorisation of a UK air carrier pursuant 
to paragraphs 1 and 2.  

Article 9 

Certificates and licences 

Certificates of airworthiness, certificates of competency and licences issued or rendered valid 
by the United Kingdom and still in force shall be  recognised as valid by the Member States 
for  the  purpose  of  the  operation  of  air  transport  services  by  UK  air  carriers  under  this 
Regulation, provided that such certificates or licences were issued or rendered valid pursuant 
to,  and  in  conformity  with,  as  a  minimum,  the  relevant  international  standards  established 
under the Convention. 

Article 10 

Consultation and cooperation 

1. 

2. 

The  Member  States'  competent  authorities  shall  consult  and  cooperate  with  the 
competent  authorities  of  the  United  Kingdom  as  necessary  in  order  to  ensure  the 
implementation of this Regulation.  

Member  States  shall,  upon  request,  provide  the  Commission  without  undue  delay 
with  any  information  obtained  pursuant  to  paragraph  1  or  any  other  information 
relevant for the implementation of Article 4 and Article 5 of this Regulation. 

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Article 11 

Committee 

The Commission shall be assisted by the committee set up in Article 25 of Regulation (EC) 
No 1008/2008.  

Article 12 

Entry into force and application 

1. 

2. 

3. 

This Regulation shall enter into force on the day following that of its publication in 
the Official Journal of the European Union.  

It shall apply from the day following that on which Union law ceases to apply to the 
United Kingdom pursuant to Article 50(3) of the Treaty on European Union. 

However,  Articles  6(3)  and  7(2)  shall  apply  from  the  entry  into  force  of  this 
Regulation. 

This Regulation shall not apply if a withdrawal agreement concluded with the United 
Kingdom  in  accordance  with  Article  50(2)  of  the  Treaty  on  European  Union  has 
entered into force by the date referred to in the first subparagraph of paragraph 2. 

4. 

This Regulation shall cease to apply on the earlier of the following two dates: 

(a) 

the date on which an  agreement between the  Union  and the  United Kingdom 
governing the provision of air transport between them enters into force, or, as 
the case may be, is provisionally applied; or 

(b)  30 March 2020. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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