It is generally accepted that once the EU has entered into an international agreement based on exclusive jurisdiction, the UK will no longer benefit from the agreement if it is no longer a member of the EU. The status of mixed agreements is less clear. Although the UK can technically remain a party to the relevant agreement after Brexit (at least for parts of the agreement in which the EU did not have exclusive jurisdiction), the interpretation of the agreement may prevent the UK from continuing to benefit from it, for example where the text of the “EU Member States” agreement grants benefits or contains territorial restrictions set by reference to the EU. We expect other countries to continue to respect these relationships during the transition period (as of this morning, Brazil, Canada or Japan have not made any announcements on this – the other three countries that negotiated airworthiness agreements with the UK after Brexit – but this lack of guidelines is probably due to the short date). Of course, it will be necessary for the UK to negotiate agreements with international counterparties in order to replace those it currently enjoys as an EU member state. Under the withdrawal agreement, the UK would be able to negotiate, sign and ratify its own international agreements during the transition period, in areas where the EU would have exclusive jurisdiction but where the international agreement could not enter into force during the transition period without EU approval. The negotiation of international transport agreements is generally seen as an area of mixed jurisdiction, as it is expressly excluded from the common trade policy under Article 207, paragraph 5, of the Treaty on the European Union. However, in the recent decision of the European Court of Justice (ECJ) on the EU-Singapore Free Trade Agreement, the Court of Justice distinguished between agreements “intrinsically linked to the physical act of transporting people or goods from one place to another” and those relating to other services such as maintenance and repair. The ECJ has found that international agreements on these are part of the common trade policy and therefore fall within the exclusive competence of the Union.
It therefore appears that a replacement of BASA would require THE EU agreement if it came into force during the transition period. Given the desire for a smooth and orderly exit, it is to be hoped that such an agreement would not pose any problems. He urged the government to start negotiations for an aviation security agreement with the EU so that it could be ready by the end of the year.