Comment: ‘Brexit means Brexit’

Comment: ‘Brexit means Brexit’

Theresa May offered a compelling sound bite when she became prime minister following the EU referendum vote. But what will Brexit mean for travel businesses and their customers. Abta senior solicitor Susan Deer explains

Until Brexit arrangements are finalised, the UK remains a full member of the EU and bound by treaty obligations and EU law.

The position post-exit will depend on the negotiated position and will be unclear until full discussions take place between UK and EU negotiators.

If Britain does not remain in the single market or part of the EEA, as seems likely following the Prime Minister’s conference announcement, the government will have the opportunity to explore how the best regulatory systems for the UK travel industry can be delivered outside the EU.

EU law comes in the form of regulations and directives. Regulations are binding and directly applicable and do not require transposition into domestic law to be enforceable in the UK courts. Directives are not directly enforceable in domestic law without member states transposing them by, for example, UK regulation.

Out with the old?


The Prime Minster has said that, on leaving, all EU law will be replaced with domestic legislation. Unless this happens, the EU regulations will cease to have effect in the UK.

UK courts are currently required to follow decisions of the Court of Justice of the European Union (CJEU) on the interpretation of EU law. Under post-exit arrangements, the Prime Minster has said the UK courts will not be required to continue to apply CJEU decisions. This remains to be seen.

Passenger rights provisions for transport services are currently contained in a series of EU regulations for air (EC261/2004), rail (EC1371/2007), sea or inland waterways (EC1177/2010) and bus or coach (EC181/2011).

If the UK government doesn’t replace those regulations, for example, British travellers will lose the right to claim against British airlines for delays on outbound flights from the UK. They will retain rights in respect of flights departing from EU member states.

EU member states must implement the Package Travel Directive (PTD) 2015 by January 1 2018. Most commentators don’t expect Brexit to take place before 2019, so the PTD will need to be implemented to comply with treaty obligations. However, this does not prevent a review or repeal of legislation post-exit.

The current Flight-Plus regime is an example of measures taken by the UK government which fall outside the current PTD but implement important financial protection and other measures for the benefit of UK consumers.

Although Flight-Plus arrangers must protect against financial failure, making alternative arrangements for consumers where the supplier of a service fails, they do not have the liabilities derived from the Package Travel Regulations, where the organiser of a package is liable for the proper performance of all services which form part of the package contract.

The government could conclude that ensuring financial protection for all travel services sold in combination is sufficient to offer adequate consumer protection without the additional imposition of liability for proper performance.

This could have significant impact on areas like personal injury claims, where consumers are currently able to sue the organiser in the UK rather than taking legal action against the overseas supplier.

Business as usual


The General Data Protection Regulation (GDPR), an EU Regulation, will take effect in 2018 and will be directly applicable.

This is an area where the UK government is unlikely to move away from EU standards. The ICO, the office responsible for enforcement of the existing Data Protection Act 1998, said in June: “With so many businesses and services operating across borders, international consistency around data protection laws and rights is crucial to businesses and organisations, and to consumers and citizens.”

The UK may need to introduce comparable UK regulations to prove the ‘adequacy’ of UK data protection standards in order to trade with the single market on equal terms.

The two biggest changes to wider consumer law over the last few years have been a mix of EU law, the EU Consumer Rights Directive (implemented into UK law by the Consumer Contracts Regulations 2013), and UK law – the Consumer Rights Act, which consolidated and updated previous UK consumer law.

There may be opportunities for regulatory change but, whatever the effects of Brexit, selling to EU consumers will mean complying with varied EU law. As such, it may in the end be in the interests of the UK travel business to follow EU consumer law as far as possible.

Abta is in regular discussion with the UK government on regulations which are important to travel businesses and will keep members informed of developments in these areas.

This article appears in the second edition of Abta’s Travel Law Today, published today – a twice-yearly journal which complements Abta’s annual Travel Law Seminar and is available to all seminar attendees.

Abta will host its 19th Travel Law Seminar on May 23-24 2017 in London. To register, visit abta.com/events or email events@abta.co.uk
Register before December 22 to receive a complimentary copy of the latest Travel Law Today.

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