Airline challenges to Dublin Airport passenger caps seem only to be resolvable by referring European law questions to the Court of Justice of the EU (CJEU), a High Court judge has said.
Mr Justice Barry O’Donnell agreed with Aer Lingus and Ryanair that the most efficient use of court time involves the parties and the court dealing with the form of a potential reference ahead of the general hearing of the cases next week.
He said EU law points that have never before been clarified by the CJEU are “at the heart” of the airlines’ cases against the Irish Aviation Authority (IAA).
National courts can refer questions on unclear European law to the CJEU whose interpretation is then binding throughout the EU.
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Aer Lingus, Ryanair and Airlines for America, which represents US carriers, are challenging the IAA’s imposition of a passenger cap at Dublin Airport for the winter and summer seasons.
They claim there is no basis for it incorporating a 2007 planning condition, which contains a separate annual passenger cap, in its assessment of the airport’s capacity.
[ First crack appears in Dublin Airport passenger capOpens in new window ]
Earlier this month, Mr Justice O’Donnell acceded to the airlines’ urgent request to pause the effects of the IAA’s decision to limit passenger numbers to 25.2 million for the summer period, which runs from late March to October.
His order, which is due to last until the cases are resolved, came just days before the IAA cap was due to be applied to a process of allocating the airport’s summer take-off and landing slots.
On Tuesday, the judge said the airlines’ cases involve EU law issues that “have not been addressed before” and are not “acte clair”, meaning they are not clear enough to refrain from referring them to the CJEU.
He said it seemed clarity “can only be obtained by a reference” to the European court, so such a move was “almost an inevitability”.
The substantial challenges to the IAA’s summer and winter passenger caps were due to be heard over four days from next Tuesday. The judge agreed to push the hearing back to Wednesday, with the parties to first address him on Aer Lingus and Ryanair’s request for a CJEU reference.
[ What the Dublin Airport passenger cap ruling means, and what happens nextOpens in new window ]
Earlier, Mr Justice O’Donnell heard from Suzanne Murray, senior counsel for Aer Lingus, who argued that dealing with the reference question ahead of the substantial hearing was the most efficient use of time.
Barrister Frank Crean, for Ryanair, agreed with her reasoning, submitting that a reference in the cases was “inevitable” as the CJEU had never before interpreted the EU’s slot regulation, which imposed rights and rules regarding airlines’ take-off and landing slots at European airports.
The facts of the cases were not in dispute, so this was an appropriate situation for the court to refer EU law issues ahead of a full High Court hearing, he said.
The IAA and the operator of Dublin Airport, DAA, expressed concern that the reference issue could throw the substantial hearing off course.
Aoife Carroll SC, for the DAA, said her client had “always sought to get an outcome that brings certainty” and any reference should be “as comprehensive as possible to bring finality and clarity” to the issues. She agreed with Margaret Gray, senior counsel for the IAA, that it was ultimately for the court to determine whether legal points should go to Europe.
In making its decisions on the airport’s capacity, the IAA said it considered technical, operational, environmental and local planning constraints, including An Bord Pleanála’s imposition of a separate annual 32 million passenger limit when it approved Terminal Two in 2007.
The DAA has separately challenged the IAA’s 14.4 million seat cap for the winter period, running from now until March 2025, alleging it is not restrictive enough to prevent the airport from breaching the 2007 planning condition.
The operator has said the EU slot regulation prohibits it from “unilaterally” reducing passenger numbers to comply with the planning condition.
The DAA has separately applied to the local planning authority, Fingal County Council, seeking an increase of the 32 million limit to 40 million.
“This is a very welcome decision and one which has the potential to bring much-needed clarity to the various regulatory regimes which impact aviation in Ireland. Enabling Dublin Airport to increase connectivity is a hugely important issue for the Irish economy and jobs, so the High Court’s desire to move at pace is good news for all parties,” DAA chief executive Kenny Jacobs said in a statement on Wednesday.
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