Brexit trade deal implications for transport and haulage

 

Last updated 15:00, 8 February 2022

Transport and haulage is an area in which the UK-EU Trade and Cooperation Agreement (TCA) was keenly awaited, given the critical nature of movement of goods and people between the UK and the EU at the end of the Brexit transition period. Since the TCA was concluded, it has helped to improve the UK’s position with regards to trading with the EU in contrast to the no-deal scenario, although it is of course a less favourable position than the UK enjoyed when it was still part of the EU.  In this article we set out the key aspects of the deal in respect of aviation, haulage, and passenger transport.

Aviation

According to the terms of the TCA, subject to its provisions on air traffic rights (described below), the EU has granted rights for UK air carriers to operate on routes from the UK via intermediate points to points in the EU and beyond. Similarly, the UK has granted EU carriers the right to operate on routes from the EU via intermediate points to points in the UK and beyond. Since 1 January 2021 UK and EU operators have been treated as third country operators in each other’s airspace. Under the TCA, the EU and UK each grant to the other’s respective air carriers the following traffic rights:

• first and second freedom rights (i.e. to fly across the other party’s territory without landing and to make stops in its territory for non-traffic purposes); and
• third and fourth freedom rights (i.e. to make stops in the other party’s territory to provide scheduled and non-scheduled air transport services (passengers and/or cargo) between any points in its territory and any points in the other party’s territory).

Whilst UK and EU carriers are not automatically entitled to operate routes which have an intermediary stop in the EU or UK respectively (fifth freedom rights), the TCA does permit the UK and individual EU Member States to negotiate their own arrangements for fifth-freedom all-cargo flights.EU and UK carriers are entitled to receive operating authorisations from each other’s respective aviation authorities if they meet a list of specified conditions, including conditions relating to:

• ownership and control;
• principal place of business
• holding an air operator certificate;
• effective regulatory control by their competent authority; and
• safety and security.

In respect of ownership and control, UK carriers must be owned and effectively controlled by UK nationals alone. However, there is a transitional provision that allows that, if the carrier held a valid EU operating licence on 31 December 2020 , it can obtain an operating authorisation if it is owned by nationals of the EEA, Switzerland and/or the UK. EU carriers must be owned and effectively controlled by EEA and/or Swiss nationals. The TCA also allows for mutual acceptance of air safety certificates and licences, as well as containing provisions around co-operation on aviation safety and environmental matters, and provides mechanisms for further mutual recognition in future, in areas such as airworthiness, pilot licensing, and air traffic management.

Passenger transport

Similar to aviation, the TCA allows for bus and coach operations to continue between the UK and the EU. This allows for both regular and occasional services, includes where services transit via a third country, and allows for a related unladen journey to also take place. It does not permit a UK operator to transport passengers between two points in the EU (except within Ireland), and vice versa for EU operators in the UK. The provisions in the TCA mirror the Protocol to the multilateral Interbus Agreement, which came into force and replaced the TCA’s provisions on 1 January 2021. The UK was already a signatory to the Interbus Agreement, which permits occasional services, whereas the Protocol added provisions for regular services. The Government updated its guidance Run international bus or coach services and tours in September 2021 and confirmed that green cards are no longer needed to drive in the EU (including Ireland), Andorra, Bosnia and Herzegovina, Iceland, Liechtenstein, Norway, Serbia or Switzerland.

Road haulage

The TCA permits both UK and EU operators to carry out road haulage between a UK location and an EU location (even when not loaded). UK hauliers are able to transit across the EU on the way to a third country (for example from Holyhead to Dublin in order to reach Belfast), and vice versa for EU hauliers (for example from Dublin to Holyhead in order to reach France). In addition, hauliers are permitted to carry out up to two additional operations in the other territory. This allows, for example, for a haulier to take two separate loads for different destinations in one journey, or to deliver a load at one destination and collect a return load from a different location. However, any journey within the other territory must be connected with a journey to or from the haulier’s “home” territory; for instance, UK hauliers are not permitted to travel into the EU for the sole purpose of carrying goods from one EU location to another. The rights granted in the TCA go hand in hand with the requirement for hauliers to comply with safety and working standards, such as driver hours limits, road traffic rules, professional qualification requirements, tachograph requirements, and vehicle specifications. As noted in relation to passenger transport above, the Government confirmed that green cards are no longer needed to drive in the EU (including Ireland), Andorra, Bosnia and Herzegovina, Iceland, Liechtenstein, Norway, Serbia or Switzerland and Government guidance, which was last updated on 29 January 2022 can be accessed here . Operators will also need to be aware that as of 2 February 2022, transport goods drivers have to declare details of their journeys when travelling between 2 points in the EU, Iceland, Liechtenstein, and Norway for commercial purposes. The changes, which affect drivers of HGV’s, vans, or trailers, will require the driver’s company to have created an account on the EU portal and have submitted a declaration of either cabotage or cross-trade jobs, as well as when moving goods for their businesses own use. The Department for Transport has published guidance which can be accessed here.

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