It can take a long sentence to say something simple. On second reading, that simple sentence can mean a lot more than is first understood. Take this text for example:
In the case of conflicting interpretations of the laws, regulations or requirements pertaining to certification or approvals under this Agreement, the interpretation of the competent aeronautical authorities of the Contracting State whose laws, regulations or requirements is being interpreted shall prevail.
So, said an exchange of notes between the UK and US dated 28 December 1972. For reference, the UK joined the European Communities on 1 January 1973. The aim of the note was the reciprocal acceptance of airworthiness certificates. This sort of agreement is vital given that civil aeronautical products get shipped for use all over the globe.
Thus, the UK accepted that if there was a disagreement about a US rule then US law prevailed. Because this is about reciprocity, so the US accepted that if there was a disagreement about a UK rule then UK law prevailed.
Here we are in 2020 with talk of creating a suite of new Bilateral Aviation Safety Agreements (BASAs) as a result of the UK’s withdrawal from the EU. Wouldn’t it be quick and pragmatic to use similar words to the 1972 ones again?
Here lies a big problem or at least that’s how one red line makes life difficult. If the UK’s current statements about being an independent self-governing nation totally excludes any role for the applicability of European law how can a reciprocal agreement be written?
Also, there’s the historic inconsistency, as before the UK joined the EU it accepted by the note mentioned that interpretations set against another State’s law would be accepted. There’s a peculiar element to this too, given that at the point of withdrawal from the EU, UK law and EU law are harmonised on the matters of certification and approvals.
Compromise requires a rejection of a narrow doctrine. If both the UK and the EU are satisfied that they both have competent aeronautical authorities, then the reciprocal acceptance of certifications should be possible. That’s if there’s the political will to make it happen.
The industry group ADS[1] said: “We are disappointed that both the UK Government and the EU are not seeking a more ambitious approach to aviation safety.” It’s easy to see why they are disappointed. That said, negotiations are just starting, and practical opportunities exist.
[1] https://www.adsgroup.org.uk/news/newsroom/ads-statement-on-uk-approach-to-future-economic-relationship/
John Vincent 