Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common rules ensuring basic air connectivity following the end of the transition period mentioned in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community
Date: 2020-12-10
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, 10.12.2020  COM(2020) 827 final 2020/0363 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common rules ensuring basic air connectivity following the end of the transition period mentioned in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Since  1  February  2020,  the  United  Kingdom  has  withdrawn  from  the  Union  pursuant  to 
Article 50 of the Treaty on European Union. The Agreement on the withdrawal of the United 
Kingdom of Great Britain and Northern Ireland from the European Union and the European 
Atomic Energy Community1 (‘the Withdrawal Agreement’) was concluded by the Union by 
Council Decision (EU) 2020/1352 and entered into force on 1 February 2020. The transition 
period  referred  to  in  Article  126  of  the  Withdrawal  Agreement,  during  which  Union  law 
continues  to  apply  to  and  in  the  United  Kingdom  in  accordance  with  Article  127  of  that 
agreement, ends on 31 December 2020.  

On 25 February 2020, the Council adopted Decision (EU, Euratom) 2020/266 authorising the 
opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a 
new partnership agreement.3 As implied by the negotiation directives, the authorisation covers 
inter alia the elements  needed to  address  comprehensively the aviation  relationship  with the 
United Kingdom after the end of the transition period. 

However, it is uncertain whether an agreement between the Union and the United Kingdom 
governing their future relationship in this area will have entered into force by the end of that 
period.  

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 Services4. 

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.  

At the end of the transition period, air services between the United Kingdom and the Member 
States will cease to be governed by the said Regulation.  

It  follows that, in the absence of an agreement between the Union and the United Kingdom 
governing the matter, there would be no legal basis for the provision of air services between 

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4 

OJ L 29, 31.1.2020, p. 7. 
Council  Decision  (EU)  2020/135  of  30  January  2020  on  the  conclusion  of  the  Agreement  on  the 
withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and 
the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 1). 
OJ L 58, 27.2.2020, p. 53. 
Annex 1B of the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh 
on 15 April 1994. 

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the  United  Kingdom  and  the  Member  States  by  the  respective  carriers  after  the  end  of  the 
transition period under the Withdrawal Agreement.  

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 the end of the transition period would remain 
fully accessible to Union carriers.  

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.  

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  end  of  the  transition 
period in case no agreement governing the matter can be reached.  

This act is part of a package of measures which the Commission is adopting.  

• 

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 Member States as from the end of the 
transitional period and the absence of an agreement governing the future relationship between 
the Union and the United Kingdom. The proposed terms are limited to what is necessary in 
this  respect,  so  as  to  avoid  disproportionate  disruptions.  This  proposal  is  therefore  fully 
consistent with the existing legislation and notably with Regulation (EC) No 1008/2008.  

In  this  respect,  the  proposed  Regulation  is  intended  as  a  temporary  measure,  in  order  to 
maintain connectivity and preserve the Union’s interest during a limited  period and until an 
agreement  between  the  Union  and  the  United  Kingdom  governing  the  matter  can  be 
concluded and enter into force.  

The  proposed  Regulation  would  be  without  prejudice  to  the  design  of  a  future  aviation 
agrement with the United Kingdom. 

• 

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 until an EU aviation agreement 
with the United Kingdom is in place.  

• 

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 end of the transition period (without an 
agreement  governing  the  future  relationship  between  the  Union  and  the  United  Kingdom 
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  negotiations  for  an  agreement  between  the  Union  and  the 
United Kingdom and possible solutions have been raised by various aviation stakeholders and 
Member States representatives before and after the conclusion of the Withdrawal Agreement. 

The  fact  that  the  transition  period  set  in  the  Withdrawal  Agreement  ends  on  31  December 
2020, the need to prepare for inevitable changes on 1 January 2021 and the possible additional 
measures  to  be  envisaged  in  the  event  of  no  deal  have  been  discussed  with  Member  States 
representatives and various aviation stakeholders in the context of cross-cutting and specific 
meetings, held in Brussels and in the Member States. 

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A common theme in the presented views was the need for a regulatory intervention in order to 
maintain  a  certain  degree  of  air  connectivity  once  Union  law  would  cease  to  apply  to  the 
United Kingdom. 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  an 
agreement  governing  the  matter.  At  least  six  air  carriers'  and  groups  of  air  carriers'  and 
airports'  representatives  expressed  the  view  that  a  high  level  air  connectivity  should  be  be 
maintained  with  UK  air  carriers  by  keeping  a  highlevel  of  market  access.  However,  other 
stakeholders  (mostly  EU  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.  Most  of  the  comments  received  before  the 
withdawal,  including  by  Member  States  in  the  context  of  workshops  organised  by  the 
Commission  in  2018,  have  been  confirmed  and  expanded  thereafter  including  in  the 
perspective of the future relationship. 

• 

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  and  the  UK  would  cause 
significant  disruptions  in  the  EU.  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 €168 billion, while the overall impact, 
including  tourism,  is  as  large  as  €672  billion  through  the  multiplier  effect5.  In  total, 
passengers travelling between the EU and the UK represented 24% of all intra-EU traffic in 
2019,  although  this  figure  varied  significantly  between  EU  Member  States.  Furthermore,  in 
2019,  19,5%  of  the  intra-EU  scheduled  seats  available  were  offered  by  UK  licenced  air 
carriers, while 50,4 % of the supply traffic between the EU and the UK was offered by EU 
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 economy and citizens needs to be mitigated. 

It is clear that the negative impact of severe disruptions in air connectivity between the United 
Kingdom  and  the  Union  would  only  be  amplified  during  and  in  the  wake  of  the  current 
pandemics crisis, which has taken an unprededented toll on the Union’s aviation industry and 
the economy at large. 

• 

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 

Air Transport Action Group (ATAG), “Aviation: Benefits Beyond Borders report for 2020”. 

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable.  

• 

Explanatory documents (for directives) 

Not applicable. 

• 

Detailed explanation of the specific provisions of the proposal 

As mentioned above, the present proposal has the objective to lay down provisional measures 
to govern air transport between the Union and the United Kingdom following the end of the 
transition period in case no agreement governing the matter can be reached (Article 1). These 
measures  are  intended  to  maintain  basic  connectivity  for  a  transitional  period  until  such  an 
agreement can be concluded (Article 14).  

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.  It  will  also  be  possible  (Article  4)  for 
UK  carriers  to  provide  those  services  by  means  of  code-sharing  or  blocked-space 
arrangements,  and  to  enter  into  leasing  arrangements  under  strict  conditions  (Article  5)  but 
other  usual  operational  flexibility  devices  (such  as  change  of  gauge  or  co-terminalisation) 
have not been foreseen.  

The rights  granted to  United Kingdom  carriers  being subject  to  a principle of “reciprocity”, 
the proposed Regulation (Article 6) 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 
Kingdom carriers once the United Kingdom will no longer be bound by Union law. A level 
playing  field  requires  that,  even  after  the  end  of  the  transition  period,  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 7) with the task to monitor the conditions of 
competition  between  Union  and  United  Kingdom  air  carriers  and  empowers  it  to  adopt  the 

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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 8 to 11).  

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 12), 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 
end of the transition period.  

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2020/0363 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on common rules ensuring basic air connectivity following the end of the transition 
period mentioned in the Agreement on the withdrawal of the United Kingdom of Great 
Britain and Northern Ireland from the European Union and the European Atomic 
Energy Community 

(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 Committee1, 

Having regard to the opinion of the Committee of the Regions2, 

Acting in accordance with the ordinary legislative procedure3, 

Whereas: 

(1) 

The  Agreement  on  the  withdrawal  of  the  United  Kingdom  of  Great  Britain  and 
Northern  Ireland  from  the  European  Union  and  the  European  Atomic  Energy 
Community4  (‘the Withdrawal  Agreement’) was concluded by the Union  by Council 
Decision  (EU)  2020/1355  and  entered  into  force  on  1  February  2020.  The  transition 
period  referred  to  in  Article  126  of  the  Withdrawal  Agreement,  during  which  Union 
law continues to apply to and in the United Kingdom in accordance with Article 127 
of  that  agreement,  ends  on  31  December  2020.  On  25  February  2020,  the  Council 
adopted  Decision  (EU,  Euratom)  2020/266  authorising  the  opening  of  negotiations 
with the United Kingdom of Great Britain and Northern Ireland for a new partnership 
agreement.6  As  implied  by  the  negotiation  directives,  the  authorisation  covers  inter 
alia the elements needed to address comprehensively the aviation relationship with the 

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4 
5 

6 

Opinion of …. 
Opinion of …. 
Position of the European Parliament of … 
OJ L 29, 31.1.2020, p. 7. 
Council  Decision  (EU)  2020/135  of  30  January  2020  on  the  conclusion  of  the  Agreement  on  the 
withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and 
the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 1). 
OJ L 58, 27.2.2020, p. 53. 

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(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

United  Kingdom  after  the  end  of  the  transition  period.  However,  it  is  uncertain 
whether  an  agreement  between  the  Union  and  the  United  Kingdom  governing  their 
future relationship in this area will have entered into force by the end of 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. 

At  the  end  of  the  transition  period  and  in  the  absence  of  any  special  provisions,  all 
rights  and  obligations  ensuing  from  Union  law  in  respect  of  market  access  as 
established by Regulation (EC) No 1008/2008  would end, insofar as  the relationship 
between the United Kingdom and the 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 Member States. In order to ensure a proper equilibrium between 
the  United  Kingdom  and  the  Member  States,  the  rights  thus  conferred  should  be 
conditional  upon  the  conferral  of  equivalent  rights  by  the  United  Kingdom  to  air 
carriers  licensed  in  the  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 30 June 2021, or until the entry into force or, where stipulated, provisional 
application of a future agreement covering the provision of air services with the United 
Kingdom to which the Union is a party, negotiated by the Commission in accordance 
with Article 218 TFEU, whichever is earlier. 

In  order  to  maintain  mutually  beneficial  levels  of  connectivity,  certain  cooperative 
marketing arrangements should be provided for both for UK air carriers and Union air 
carriers in line with the principle of reciprocity. 

This Regulation should not prevent Member States from issuing authorisations for the 
operation  of  scheduled  air  services  by  Union  air  carriers  in  the  exercise  of  rights 
granted to them by the United Kingdom, similarly to situations occuring in the context 
of international agreements. In respect of those authorisations, Member States should 
not discriminate between Union air carriers.  

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 air carriers can compete with UK air 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. Given 
their  potential  impact  on  the  air  connectivity  of  the  Member  States,  the  examination 
procedure should be used for the adoption of those measures. The Commission should 
adopt  immediately  applicable  implementing  acts  where,  in  duly  justified  cases, 
imperative grounds of urgency so require. Such duly justified cases could be found in 
situations  where  the  United  Kingdom  fails  to  grant  equivalent  rights  to  Union  air 

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8 

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 (OJ L 293, 31.10.2008, p. 3). 
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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(9) 

carriers and thereby causes a manifest imbalance, or where less favourable conditions 
of competition than those enjoyed by UK air carriers in the provision of air transport 
services  covered  by  this  Regulation  threaten  the  economic  viability  of  Union 
air carriers. 

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 an agreement governing their future relationship in the field of aviation at 
the end of the transition period, 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. 

(10) 

In view of the urgency entailed by the end of the transition period referred to above, it 
is  appropriate  to  provide  for  an  exception  to  the  eight-week  period  referred  to  in 
Article 4 of Protocol No 1 on the role of national Parliaments in the Union, annexed to 
the  Treaty  on  European  Union,  to  the  Treaty  on  the  Functioning  of  the  European 
Union and the Treaty establishing the European Atomic Energy Community. 

(11)  The  territorial  scope  of  this  Regulation  and  any  reference  to  the  United  Kingdom 

therein does not include Gibraltar. 

(12)  This  Regulation  is  without  prejudice  to  the  legal  position  of  the  Kingdom  of  Spain 
with  regard  to  the  sovereignty  over  the  territory  in  which  the  airport  of  Gibraltar  is 
situated. 

(13)  The provisions of this  Regulation should enter into force as a matter of urgency and 
should  apply,  in  principle,  from  the  day  following  the  end  of  the  transition  period 
referred  to  in  the  Withdrawal  Agreement  unless  an  agreement  governing  the  future 
relationship  between  the  Union  and  the  United  Kingdom  in  the  field  of  aviation  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: 

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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  the  expiry  of  the  transition  period  referred  to  in  Article  126  of  the  Withdrawal 
Agreement. 

Article 2 
Definitions 

For the purposes of this Regulation the following definitions apply: 

"air transport" means the carriage by aircraft of passengers, baggage, cargo, and mail, 
1) 
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 

2) 
the territory of more than one State; 

3) 
"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) 

(a) 

"UK air carrier" means an air carrier which: 

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

(b) fulfills 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. 

in the case referred to in point (b)(ii), held a valid operating licence in accordance with 
(c) 
Regulation  (EC)  No  1008/2008  on  the  day  before  the  first  day  of  application  of  this 
Regulation as set out in the first subparagraph of Article 14(2). 

“effective  control”  means  a  relationship  constituted  by  rights,  contracts  or  any  other 
5) 
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) 

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

(b) 
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; 

"competition  law"  means  law  which  addresses  the  following  conduct,  where  it  may 

6) 
affect air transport services: 

(a) 

conduct that consists of: 

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(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);  

concentrations between air carriers which significantly impede effective competition, 

(b) 
in particular as a result of the creation or strengthening of a dominant position; 

"subsidy"  means  any  financial  contribution  granted  to  an  air  carrier  or  an  airport  by 

7) 
the government or any other public body at any level, conferring a benefit, and including: 

(a) 
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; 

(b) 

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 

(c) 
goods or services;  

(d) 
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 points (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 
the following conditions: 

the  authority  is  operationally  independent  and  is  appropriately  equipped  with  the 

(a) 
resources necessary to carry out its tasks; 

(b) 
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; 

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

10) 
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: 

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(i) 

(ii) 

according to a published timetable, or 

with flights so regular or frequent that they constitute a recognisably systematic series; 

"non-scheduled  air  transport  service"  means  a  commercial  air  transport  service 

11) 
performed other than as a scheduled air service; 

12) 
"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 

13) 
territorial sea of the United Kingdom and the air space above them; 

“Chicago Convention” means the Convention on International Civil Aviation, signed 

14) 
in Chicago on 7 December 1944. 

Article 3 
Traffic rights 

1. 

(a) 

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

fly across the territory of the Union without landing; 

make stops in the territory of the Union for non-traffic purposes, within the meaning 

(b) 
of the Chicago Convention; 

perform  scheduled  and  non-scheduled  international  air  transport  services  for 
(c) 
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. 

3. 
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 
with respect to the period during which this Regulation applies. With respect to that period, 
they  shall  not  otherwise  grant  UK  air  carriers,  in  connection  with  air  transport,  any  rights 
other than those granted by this Regulation. 

4. 
Notwithstanding  paragraph  3,  the  Member  States  may  authorise,  in  accordance  with 
national  law,  the  provision  of  air  ambulance  services  in  their  territory  by  means  of  aircraft 
registered in the United Kingdom. 

Article 4 
Cooperative marketing arrangements 

Air  transport  services  in  accordance  with  Article  3    may  be  provided  by  means  of 

1. 
blocked-space or code-sharing arrangements, as follows: 

(a) 
the UK air carrier may act as the marketing carrier, with any operating carrier that is a 
Union air carrier or a UK air carrier, or with any operating carrier of a third country which, 
under  Union  law  or,  as  applicable,  under  the  law  of  the  Member  State  or  Member  States 
concerned,  enjoys  the  necessary  traffic  rights  as  well  as  the  right  for  its  carriers  to  exercise 
those rights by means of the arrangement in question; 

the UK air carrier may act as the operating carrier, with any marketing carrier which is 
(b) 
a Union air carrier or a UK air carrier, or with any marketing carrier of a third country which, 
under  Union  law  or,  as  applicable,  under  the  law  of  the  Member  State  or  Member  States 

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concerned,  enjoys  the  necessary  route  rights  as  well  as  the  right  for  its  carriers  to  exercise 
those rights by means of the arrangement in question. 

2. 
In no case shall the rights granted to UK air carriers under paragraph 1 be construed as 
conferring on air carriers of a third country any rights other than those that they enjoy under 
Union law or under the law of the Member State or Member States concerned. 

3. 
Recourse  to  blocked-space  or  code-sharing  arrangements,  whether  as  an  operating 
carrier or as a marketing carrier, shall not result in a UK air carrier exercising rights other than 
those provided for in Article 3(1).  

This shall not prevent UK carriers from providing air transport services between any pair of 
points of which one is situated in the territory of the Union and the other is situated in a third 
country, provided that the following conditions are fulfilled: 

(a) 
the UK carrier acts as the marketing carrier under a blocked-space or a code-sharing 
arrangement with an operating carrier benefitting, under Union law or the law of the Member 
State or Member States concerned from the necessary traffic rights as well as from the right to 
exercise those rights by means of the arrangement in question;  

(b) 
the transport service in question forms part of a carriage by that UK carrier between a 
point  in  the  territory  of  the  United  Kingdom  and  the  relevant  point  in  the  third  country 
concerned. 

4. 
The Member States concerned shall require the arrangements referred to in this Article 
to  be  approved  by  their  competent  authorities  for  the  purpose  of  verifying  compliance  with 
the  conditions  set  out  in  this  Article  and  with  the  applicable  requirements  in  Union  and 
national law, in particular as regards safety and security. 

Article 5 
Aircraft leasing 

In exercising the rights provided for in Article 3(1), a UK air carrier may provide air 

1. 
transport services with its own aircraft and in all the following cases: 

(a) 

(b) 

using aircraft leased without crew from any lessor; 

using aircraft leased with crew from any other UK air carrier; 

using aircraft leased with crew from air carriers of any country other than the United 
(c) 
Kingdom,  provided  that  the  leasing  is  justified  on  the  basis  of  exceptional  needs,  seasonal 
capacity  needs  or  operational  difficulties  of  the  lessee  and  the  leasing  does  not  exceed  the 
duration which is strictly necessary to fulfil those needs or overcome those difficulties. 

2. 
The Member States concerned shall require the arrangements referred to in paragraph 
1 to be approved by their competent authorities for the purpose of verifying compliance with 
the conditions set out therein and with the applicable requirements in Union and national law, 
in particular as regards safety and security. 

Article 6 
Equivalence of rights 

The Commission shall monitor the rights granted by the United Kingdom to Union air 

1. 
carriers and the conditions for their exercise. 

Where the Commission determines that the rights granted by the United Kingdom to 
2. 
Union air carriers are not, de jure or de facto, equivalent to those granted to UK air carriers 

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under this Regulation, or that those rights are not equally available to all Union carriers,  the 
Commission shall, without delay and in order to restore equivalence, adopt implementing acts 
to: 

(a) 
establish limits to the allowable capacity for scheduled air transport services available 
to UK air carriers and require the Member States to adapt the operating authorisations of UK 
air carriers, both existing and newly granted, accordingly; 

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

(b) 
authorisations; or 

(c) 

impose financial duties or operational restrictions. 

Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination  procedure 
referred to in Article 13(2). They shall be adopted in accordance with the urgency procedure 
referred to in Article 13(3) where, in duly justified cases of serious lack of equivalence for the 
purposes of paragraph 2, imperative grounds of urgency so require. 

Article 7 
Fair competition 

1. 
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. 

2. 
Where it determines that, as a result of any of the situations referred to in paragraph 3, 
those  conditions  are  appreciably  less  favourable  than  those  enjoyed  by  UK  air  carriers,  the 
Commission  shall,  without  delay  and  in  order  to  remedy  that  situation,  adopt  implementing 
acts to: 

establish limits to the allowable capacity for scheduled air transport services available 
(a) 
to UK air carriers and require the Member States to adapt the operating authorisations of UK 
air carriers, both existing and newly granted, accordingly; 

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

(b) 
authorisations for some or all UK air carriers; or 

(c) 

impose financial duties or operational restrictions. 

Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination  procedure 
referred to in Article 13(2). They shall be adopted in accordance with the urgency procedure 
referred to in Article 13(3) where, in duly justified cases of threat to the economic viability of 
one or more operations of Union air carriers, imperative grounds of urgency so require. 

The  implementing  acts  referred  to  in  paragraph  2  shall,  subject  to  the  conditions 

3. 
specified in that paragraph, be adopted to remedy the following situations: 

(a) 

the granting of subsidies by the United Kingdom; 

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

(b) 
law; 

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

(c) 
authority; 

(d) 
the  application  by  the  United  Kingdom  of  standards  in  the  protection  of  workers, 
safety, security, the environment, or passenger rights, 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; 

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(e) 

any form of discrimination against Union air carriers. 

For  the  purposes  of  paragraph  1,  the  Commission  may  request  information  from  the 
4. 
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  reasonable  period 
prescribed  by  the  Commission,  or  provide  incomplete  information,  the  Commission  may 
proceed in accordance with paragraph 2. 

Regulation (EU) 2019/712 of the European Parliament and of the Council  9 shall not 

5. 
apply to matters falling within the scope of this Regulation. 

Article 8 
Operating authorisation 

1. 
Without prejudice to Union and national law in the area of aviation safety, 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. 

2. 
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: 

the  applicant  UK  air  carrier  holds  a  valid  operating  licence  in  accordance  with  the 

(a) 
legislation of the United Kingdom; and 

effective  regulatory  control  over  the  applicant  UK  air  carrier  is  exercised  and 
(b) 
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 the 
3. 
necessary  assessments,  UK  air  carriers  shall  be    entitled  to  submit  their  applications  for 
operating  authorisations  from  the  day  of  entry  into  force  of  this  Regulation.  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  as set out in the first 
subparagraph of Article 14(2). 

Article 9 
Operational plans, programmes and schedules 

UK air carriers shall submit the operational plans, programmes and schedules for air 
1. 
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  8,  the  operational  plans,  programmes  and  schedules  for  the  IATA 
2. 
season that is in progress on the first day of application of this Regulation as set out in the first 
subparagraph of Article 14(2) and those for the first season thereafter may be submitted and 
approved before that date. 

This  Regulation  shall  not  prevent  Member  States  from  issuing  authorisations  for  the 
3. 
operation of scheduled air services by Union carriers in the exercise of rights granted to them 

9 

Regulation  (EU)  2019/712  of  the  European  Parliament  and  of  the  Council  of  17  April  2019  on 
safeguarding  competition  in  air  transport,  and  repealing  Regulation  (EC)  No  868/2004  (OJ  L  123, 
10.5.2019, p. 4). 

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by  the  United  Kingdom.  In  respect  of  those  authorisations,  Member  States  shall  not 
discriminate between Union carriers. 

Article 10 
Refusal, revocation, suspension and limitation of authorisation 

Member  States  shall  refuse,  or  as  the  case  may  be,  revoke  or  suspend  the  operating 

1. 
authorisation of a UK air carrier where: 

(a) 

(b) 

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

the conditions laid down in Article 8(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) 

the applicable safety and security requirements are not complied with; 

the applicable requirements  relating to  the admission  to,  the operation  within, or the 
(b) 
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 
(c) 
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. 
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 required to do so by the Commission in accordance with Article 6 or 7. 

4. 
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, without undue delay. 

Article 11 
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 Chicago Convention. 

Article 12 
Consultation and cooperation 

1. 
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. 

2. 
Member States shall, upon request, provide the Commission without undue delay with 
any  information  obtained  pursuant  to  paragraph  1  of  this  Article  or  any  other  information 
relevant for the implementation of Articles 6 and 7. 

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Article 13 
Committee 

1. 
The Commission shall  be assisted by the  Committee established by Regulation  (EC) 
No 1008/2008.  That  committee  shall  be  a  committee  within  the  meaning  of  Regulation 
(EU) 182/2011. 

Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  182/2011 

2. 
shall apply. 

Where reference is made to this paragraph, Article 8 of Regulation (EU) 182/2011, in 

3. 
conjunction with Article 5 thereof, shall apply. 

Article 14 
Entry into force and application 

This Regulation shall enter into force on the day following that of its publication in the 

1. 
Official Journal of the European Union. 

It shall apply from the day following that on which Union law ceases to apply to the 

2. 
United Kingdom pursuant to Articles 126 and 127 of the Withdrawal Agreement. 

However, Articles 8(3) and 9(2) shall apply from the entry into force of this Regulation. 

3. 
This  Regulation  shall  not  apply  if  an  agreement  governing  comprehensively  the 
provision of air transport with the United Kingdom, to which the Union is a party, has entered 
into force by the date referred to in the first subparagraph of paragraph 2. 

4. 

(a) 

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

30 June 2021; 

the date on which an agreement as referred to in paragraph 3 enters into force, or, as 

(b) 
the case may be, the date from which it is provisionally applied.  

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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