The Article
The Draft Withdrawal Agreement: a travel perspective
The government published its draft withdrawal agreement (WA) last week and whilst Theresa May battles to keep her job and to get the draft through Parliament, we thought we would take look at what the draft WA means for the travel industry.
The UK will officially leave the EU at 11pm on the 29th March 2019, at which point (providing we agree the WA) we enter the “transition” or “implementation” period, as the government is now calling it, which will last until 31st December 2020. The purpose of the WA is to establish the terms on how the UK will leave the EU during the transition period. In that respect, the WA doesn’t actually tell us anything new, certainly not in relation to the travel industry. During the transition period, it will, on the whole, be “business as usual” for the travel industry. The UK remains bound by the EU’s directives and regulations, this includes laws such as the ‘Posted Workers Directive’, (which obliges member states to ensure that workers who are posted from one member state to another are entitled to certain minimum rights), and Regulation EU261/2004, better known as the “Denied Boarding Regulation”, which obliges airlines to provide passengers with meals and refreshments, hotels, replacement flights and compensation for delayed and cancelled flights.
One of the key Brexit issues is that of free movement of people. The WA states that during the transition period, EU citizens and UK nationals, as well as their respective family members can continue to live, work or study as they currently do under the same substantive conditions as under EU law, benefiting in full from the application of the prohibition of any discrimination on grounds of nationality and of the right to equal treatment compared to host state nationals, and having their professional qualifications recognised. After the transition period, the WA provides that EU workers residing in the UK, or UK workers residing in the EU, will be able to stay in that member state under essentially the same substantive conditions required by EU free movement law. Those staying in the UK will however need to apply to the UK authorities for a new UK residence status, and this may be reciprocated for UK citizens residing in other member states. There’s also no guarantee that professional qualifications will continue to be recognised after the transition period, so anyone relying on their professional qualifications will have to rely on the decision of the applicable member state as to whether those professional qualifications are recognised or not. The UK has indicated previously it will prioritise ‘highly skilled’ workers. The potential for this to restrict EU citizens working in the UK travel industry is therefore a real one and, if the EU respond in kind, equally it could restrict the ability for UK citizens to work in the EU.
The WA doesn’t address the issue of visas, and more importantly, the possibility of visa free travel after the transition period. The message so far seems to be that the parties are interesting in exploring visa-free options for travel post transition to enable UK and EU citizens to continue to travel freely for tourism, however no real indication has been given on how this will happen in practice. However, it’s unlikely that travel on ID cards will be permitted anymore, with the UK indicating that all travel must be done on the basis of a passport.
The WA includes a declaration on the future relationship between the UK and the EU, which does address issues in relation to transport, albeit the provisions are incredibly vague. As part of the future economic partnership between the UK and EU post-Brexit, the parties agree to a comprehensive Air Transport Agreement, covering market access and investment, aviation safety and security, air traffic management and provisions to ensure open and fair competition; comparable market access for freight and passenger road transport operators; acknowledgement of the intention to make bilateral arrangements for cross-border rail services; and connectivity in the maritime transport sector. What this actually means in practice though is yet to be seen and hopefully we will have a better idea after the EU’s Brexit Summit on the 25th November.
The WA also confirms that the parties will cooperate with each other in relation to the transfer of personal data into the UK once the UK becomes a “third country” post-transition. The UK will require an adequacy finding from the European Commission, and the EC will commence its assessments of the UK’s data protection standards, with a view to endeavouring to adopt any decisions by the end of the transition period. The UK has also confirmed that it will continue to recognise EU registered intellectual property (such as trademarks) and these EU rights will automatically become UK-national rights.
However, this is all subject on the UK agreeing to the terms of the WA, and as we’re all well aware, there are many hurdles to overcome before this looks to be a reality. Let’s see what happens!
Post Script
If you have any questions on Brexit, Travel Law or indeed any other industry related issues please do not hesitate to contact either Farina, or any of the team at 01132 580033 or at Advice@Travlaw.co.uk
This article was originally published on: 19 November 2018
