What will happen after the end of the transition period on 31 December 2020 and after agreement has been reached on a comprehensive trade and cooperation agreement between the EU and the United Kingdom?
On 24 December 2020, the European Commission, as the EU’s chief negotiator, and the United Kingdom reached agreement on:
- a Comprehensive Trade and Cooperation Agreement;
- an Agreement concerning Security Procedures for exchanging and protecting Classified Information; and
- an Agreement on Cooperation on the Safe and Peaceful Uses of Nuclear Energy.
The Comprehensive Trade and Cooperation Agreement is of key importance for the Federal Ministry of Transport and Digital Infrastructure. It includes, among other things, the rules governing the future relationship between the EU and the United Kingdom in air, road and maritime transport.
To ensure a smooth transition to an orderly relationship between the EU and the United Kingdom, the Council has decided that the agreements will initially be signed and concluded only by the Council and applied provisionally for two months starting on 1 January 2021. Ratification by the European Parliament, which is necessary for the final entry into force of the agreements, is to take place by the end of these two months, i.e. by 28 February 2021.
For general information on the Agreements between the EU and the United Kingdom, please follow the link to the website of the Federal Foreign Office.
Readiness – preparations for the end of the transition period
On 31 December 2020, the transition period, during which Union law continues to apply to and in the United Kingdom, will expire. For a long time, the European Commission and the Member States have been making comprehensive preparations for the time after the end of the transition period. These concern the comprehensive, inevitable changes that will definitely result – irrespective of whether agreement is reached on the new agreements between the EU and the United Kingdom – because the United Kingdom will be leaving the EU’s Single Market and the Customs Union (aka readiness measures).
Air transport– Readiness Communication from the European Commission of 16 March 2020
The Comprehensive Trade and Cooperation Agreement between the EU and the United Kingdom grants all stakeholders the basic traffic rights. It covers the “first and second freedoms of the air”, i.e. the right to fly across territory and to make stops in this territory for non-traffic purposes, as well as the “third and fourth freedoms”, i.e. the right to operate direct outbound and return flights for the carriage of cargo or passengers.
More extensive freedoms are not covered by the Agreement. However, the Agreement permits bilateral agreements on granting fifth freedom rights for air cargo services outside the EU. It does not provide for passenger air services under the fifth freedom. Code-share and blocked space arrangements may not replace this. It also excludes cabotage, i.e. the provision of transport services within a state by a transport operator from another state.
Bilateral agreement may be reached on more extensive rights governing charter flights. This may concern the seventh freedom, under which passengers or cargo may be carried between two foreign states without the air link connecting to the home state.
The flight schedule is liberal and permits all landing points. Also permitted is the connection of various means of transport, aka as intermodal transport. The Member States are explicitly not allowed to bilaterally agree rights going beyond those mentioned above with the United Kingdom. In addition, the Agreement between the EU and the United Kingdom provides for earlier agreements and arrangements to be superseded.
Technical information for air carriers on permits for scheduled air services, entry permissions and flight schedule approvals in the event of a no-deal Brexit are provided on the Federal Aviation Office's website.
Independently of the withdrawal of the United Kingdom from the EU and the end of the transition period on 31 December 2020, the Federal Ministry of Transport and Digital had issued, on 20 December 2020, a General Decree on protection against entry-related infection risks regarding novel mutations of the SARS-CoV-2 coronavirus, under which flights from the United Kingdom to the Federal Republic were initially prohibited with no exceptions. On 21 December 2020, this General Decree was replaced by the Coronavirus Protection Regulations, which will expire no later than midnight on 6 January 2021.
Operating licences for air carriers
After the end of the transition period, Regulation (EC) No 1008/2008 governing the single European aviation market will in principle no longer be applicable in the relationship with the United Kingdom.
The Trade and Cooperation Agreement concluded between the EU and the United Kingdom provides for the operating licences for air carriers issued by both parties to remain valid. As of 1 January 2021, new operating licences issued by the United Kingdom will be subject to the condition that at least 50 percent of the air carrier is owned and controlled by the United Kingdom and/or its nationals and that the air carrier has its principal place of business in the United Kingdom.
Agreement has been reached on a comprehensive cooperative relationship that takes into account the fact that there are comparable aviation security standards in force in the United Kingdom and within the EU.
Thus, Article AIRTRN.19: “Aviation security” of the agreement text states, in particular, that the Parties shall provide all necessary assistance to each other to address any threat to the security of civil aviation (paragraph 1), act in conformity with the standards established by ICAO (paragraph 2), cooperate on aviation security matters to the highest extent (paragraph 4), make available to the other Party the results of audits carried out by ICAO (paragraph 5), cooperate on security inspections undertaken by them (paragraph 6), notify emergency measures taken by them immediately to the other Party (paragraph 8), assist each other in the case of incidents that pose a threat to the safety of civil aviation (paragraph 10) and have the possibility of requesting immediate consultations if there are reasonable grounds to believe that the other Party is not complying with the Article (paragraph 12).
In addition, the rules contained in Implementing Regulation (EU) 2019/413 will be applicable as of 1 January 2021. Under these rules, the EU will recognize the United Kingdom as a third country with comparable security standards. For this reason, carriers will continue not to need designation as an “Air Cargo or Mail Carrier operating into the Union from a Third Country Airport” (ACC3) for the carriage of cargo or mail from the United Kingdom to the European Union. Carriers that are part of the supply chain of air cargo and mail from the United Kingdom to the EU will continue not to need designation as a “third country regulated agent” (RA3) and/or as a “third country known consignor” (KC3).
Changes will affect carriers that wish to carry cargo or mail to the EU from third countries other than the United Kingdom and that have so far used a corresponding designation by authorities of the United Kingdom. As of 1 January 2021, all designations or approvals of regulated agents and known consignors, regulated suppliers, EU validators as well as third country ACC3, KC3 or RA3 granted by the United Kingdom as a (then former) EU Member State will no longer be recognized.
Further information can be found at:
Aviation security and maritime security – Readiness Communication by the European Commission of 28 April 2020 – Readiness Communication of the European Commission of 28 April 2020
The new Agreement also contains important facilitations for the aviation industry with regard to the approval of aeronautical products (aircraft, engines, propellers, major components) and the approval of design and production organizations. A separate annex provides for a Certification Oversight Board (yet to be established) to develop and evolve technical requirements binding on both Parties. “Type certificates” can then be validated on this basis. The EU has already established these procedures with other major aviation nations within the context of a bilateral aviation safety agreement. However, “supplemental” type certificates and non-fundamental changes may also be directly accepted without validation. This is likely to apply to products already in operation. With regard to products already in operation that were designed and/or produced by technical organizations in the United Kingdom before 1 January 2021 and thus within the jurisdiction of the European Union Aviation Safety Agency (EASA), the Agreement states that they are to be treated as if the United Kingdom had had the State of Design responsibilities. Paragraph 1 of the Readiness Communication from the European Commission of 16 March 2020 thus no longer applies.
In other spheres, such as pilots’ licences, training, airports and air navigation services, the Agreement states only that there is initially an intention to cooperate. Specific rights and obligations cannot initially be derived from this. In principle, however, a Specialized Committee may adopt further annexes with appropriate contents and the legal obligation to accept the assessments of the other Party provided that they meet the requirements set out in the annexes, including with regard to these other aspects to be subsumed under aviation safety.
As stated above, the new Agreement addresses the validity of pilots’ licences after 31 December 2020 only to the extent that cooperation in the sphere is desirable. This means that pilots’ licences issued by authorities of the United Kingdom will no longer be EU-compliant as of 1 January 2021. Holders of such licences will then no longer be able to operate aircraft registered in the EU, as they have been in the past. In accordance with international procedures, they may enter the EU only with aircraft that are registered in the United Kingdom. There is already a legal basis for the recognition of such licences that have been issued by third countries (“validation”). There is no longer a need for a special bilateral agreement. However, unlike a licence, validation is time-limited. However, pilots holding a United Kingdom licence who are interested in flying for an EU carrier or in flying aircraft registered in the EU in the near future have had sufficient time to transfer their licence and medical certificate to an authority of another EU Member State in a timely manner.
Right to fly flags
The right to fly the German federal flag will lapse for British nationals and British companies. British nationals or companies that are the owner of a ship flying the German flag will have to immediately report the loss of their right to fly the German flag to the shipping register so that the entry of the ship on the register can be deleted.
Regulation (EEC) 3577/92 will no longer be applicable as of 1 January 2021. This means that cabotage operations by UK-registered vessels flying the UK flag will require authorization by the Federal Waterways and Shipping Agency under section 2(2) of the Short Sea Shipping Regulations.
Recognized ship inspection and survey organizations
Regulation (EC) 391/2009 will no longer be applicable as of 1 January 2021. In its place, Regulation (EU) 2019/492 will apply, which will ensure that recognized organizations that were initially recognized by the United Kingdom and currently enjoy Union recognition continue to be assessed in accordance with the requirements set out in Regulation (EEC) 3577/92.
Port State Control
Regulation (EC) 2009/16 will no longer be applicable. In its place, the Paris MoU will directly regulate port state controls of UK ships.
Safety of fishing vessels
UK fishing vessels may no longer be operated in EU waters without certification under Directive (EC) 97/70.
It will still be mandatory for holders of UK certificates of competency, maritime radio operator’s certificates and certificates of proficiency for service on tankers who want to work on board vessels flying the German flag to have a valid endorsement attesting recognition, which will be issued upon request by the German shipping administration.
There will no longer be the possibility of exemption – which exists for scheduled services between Member States of the EU under Article 7 of Regulation (EC) 725/2004 – from the provision of security information prior to entry into a port of a Member State of the EU. Consequently, masters of vessels operating scheduled services between an EU port and a port of the United Kingdom will, as of 1 January 2021, have to submit a security report prior to entry into any given port.
Monitoring and reporting obligations under Regulation (EU) 2015/757
As of 1 January 2021, emissions from ships in UK ports and on voyages from UK ports to third country ports or vice versa will no longer be covered by the monitoring and reporting obligations set out in Regulation (EU) 2015/757.
Monitoring processes described in the Regulation must be assessed and declared to be in conformity by accredited verifiers. After 31 December 2020, UK accreditation bodies will no longer be subject to the European provisions and will no longer be able to submit assessments or issue documents of compliance.
As of 1 January 2021, the Regulation on the Recycling of Ships ((EU) No 1257/2013) will no longer apply to the United Kingdom. The inclusion of UK facilities, with the exception of facilities in Northern Ireland, on the European list of ship recycling facilities1) will be invalid after the end of the transition period. As of 1 January 2021, it will no longer be possible for ships flying the flag of a Member State of the EU to be recycled at these facilities.
1) Implementing Decision (EU) 2016/2323 as amended
INLAND WATERWAY TRANSPORT
On 21 September 2020, the European Commission published a Readiness Communication on Inland Waterway Transport.
Readiness Communication from the European Commission of 13 July 2020 on Road Transport
Road freight and road passenger transport between the EU and the United Kingdom
The Trade and Cooperation Agreement between the United Kingdom and the EU provides that EU road haulage operators holding a valid EU Community licence may still undertake transport operations to and from the United Kingdom. EU road haulage operators will also be permitted to undertake up to two cabotage operations within seven days of the unloading in the United Kingdom. The new social legislation in force in the EU since 20 August 2020 will apply.
The new Agreement will ensure that road passenger transport between the EU and the United Kingdom continues to be guaranteed. This will apply to international occasional services plus international regular services and international special regular services by coach and bus.
Occasional services in the commercial carriage of passengers by road between the EU and the United Kingdom are guaranteed by the Interbus Agreement. Regular services between the EU and the United Kingdom will be ensured after the entry into force of the supplementary Protocol to the Interbus Agreement. From that date, the provisions on this issue contained in the Trade and Cooperation Agreement will no longer be applicable.
Certificates of professional competence for drivers
Directive 2003/59/EC states that drivers of motor vehicles for the carriage of goods or passengers in the EU must hold certificates of attendance (the Directives calls them “certificates of professional competence”) issued by the competent authorities of an EU Member State or by an approved training centre in an EU Member State. The Agreement provides for a comparable certificate of professional competence for international transport between the United Kingdom and the EU.
After the end of the transition period on 31 December 2020, a driving licence issued by the United Kingdom will no longer be recognized by Member States on the basis of Article 2 of Directive 2006/126/EC.
The recognition of driving licenses issued by third countries is not addressed by Union law but regulated at Member States level.
After taking up normal residence in Germany, holders of a foreign driving licence are normally allowed to drive motor vehicles for another six months, within the scope of their entitlement.
Germany intends to conclude an agreement on the mutual recognition of driving licences with the United Kingdom and subsequently include the United Kingdom in Annex 11 to the Driver Licensing Regulations, so that drivers wishing to convert a United Kingdom driving licence will continue to not be required to take either a theory or practical driving test.
If you have questions concerning the calculation of the six-month period in the case of holders of a United Kingdom driving licence who already live in Germany, please contact the Transport Ministry of your federal state that is responsible for the enforcement of driver licensing legislation or the driver licensing authority responsible for your place of residence.
Driver attestation for third-country drivers
After the end of the transition period, drivers who are United Kingdom nationals and do not constitute long-term residents in the Union, within the meaning of Directive 2003/109/EC, and who work for a Union haulier holding a Community licence will require a driver attestation. This driver attestation will be issued by the competent authorities of the Member State of establishment of the haulier holding a Community licence.
Motor vehicle type approval
On 14 July 2020, the European Commission published the Readiness Communication entitled “Withdrawal of the United Kingdom and EU Rules in the Field of Type-Approval of Vehicles, Systems, Components and Separate Technical Units”.
The administrative and technical requirements to be met by the type-approval and placing on the market of motor vehicles and their trailers and of systems, components and separate technical units intended for such vehicles are harmonized to a very large extent in the European Union by Regulations (EU) 2018/858, (EU) 167/2013, (EU) 168/2013 and (EU) 2016/1628.
After the end of the transition period, the United Kingdom approval authority will cease to be a type-approval authority within the meaning of the aforementioned type-approval legislation. As a result, it will no longer be possible to place on the market motor vehicles and components within the scope of this legislation on the basis of the approvals granted by this authority.
For the transition period, European lawmakers adopted Regulation (EU) 2019/26 complementing Union type-approval legislation and enabling manufacturers holding UK type-approvals to submit an application to another Union type-approval authority for a Union type-approval of the same type.
The placing on the market of individual vehicles will be governed by special arrangements provided for in the Withdrawal Agreement. The Withdrawal Agreement entered into force on 1 February 2020 and regulates the modalities of the United Kingdom’s withdrawal from the EU (not the future relationship). Special arrangements will also apply to Northern Ireland – the Union type-approval legislation will continue to be applicable there.
On 19 August 2020, the European Commission published a Readiness Communication on Rail Transport.
TRANSPORTABLE PRESSURE EQUIPMENT
On 5 June 2020, the European Commission published a Readiness Communication on transportable pressure equipment in transport between the EU and the United Kingdom setting out the regulatory framework that will apply after the transition period.